In re E. I. Du Pont De Nemours & Co.
337 F. Supp. 3d 728
S.D. Ohio2015Background
- This MDL arises from the 2004 Leach Settlement Agreement resolving claims by ~80,000 class members exposed to C‑8/PFOA from DuPont’s Washington Works plant; the Agreement established a three‑member Science Panel to issue "Probable Link" or "No Probable Link" findings for diseases.
- The Science Panel issued Probable Link Findings for six diseases (including kidney cancer and ulcerative colitis) and No Probable Link Findings for many others; class members with Linked Diseases could file individual suits.
- Carla Bartlett (kidney cancer) and John Wolf (ulcerative colitis) are bellwether plaintiffs selected from the Discovery Pool; their trials raised Daubert challenges to multiple experts.
- Plaintiffs moved to partially exclude defense experts’ general‑causation opinions and certain specific‑causation opinions; DuPont moved to exclude plaintiffs’ specific‑causation experts in full.
- Central contractual issue: under the Leach Settlement, DuPont waived contesting "general causation" as defined by a Probable Link Finding; the court previously clarified (DMO 1 and DMO 1‑A) that Probable Link Findings apply to each class member with a Linked Disease.
- The court ruled: grant in part and deny in part the three motions, excluding expert opinions that improperly relitigate or negate the Settlement’s Probable Link (general causation) findings, but admitting most case‑specific experts subject to limits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of defense experts' opinions denying general causation | DuPont conceded general causation via the Leach Settlement; opinions denying it are irrelevant and inadmissible | Those opinions address specific causation for low‑exposure class members and therefore are relevant | Excluded opinions that challenge or undercut the Settlement’s Probable Link Findings as irrelevant to issues before the jury |
| Defense experts’ reliance on Science Panel reports to show Plaintiffs fell below exposure thresholds | Such analysis improperly reopens or narrows the Probable Link Finding and must be excluded | DuPont says dissecting panel reports is necessary to assess individual causation and exposure | Excluded expert statements that scrutinize Science Panel protocols/reports to negate application of Probable Link Findings to individual class members |
| Admissibility of plaintiffs’ specific‑causation experts (Bahnson, Margulis, Gross) — reliability | Plaintiffs argue these experts performed acceptable differential diagnoses, considered alternatives, and relied on Science Panel and exposure reports | DuPont contends their methods are litigation driven, fail to reliably rule in PFOA, or rely on novel/speculative theories (e.g., synergism) | Admitted Bahnson and Gross in full; admitted Margulis except excluded speculative synergism opinion; overall plaintiffs met Daubert reliability standards |
| Admissibility of defense experts’ specific‑causation opinions (Cohen, Hanauer, Rickard, Weed, etc.) | Plaintiffs argue portions fail to "rule in" C‑8 as a possible cause (required by Settlement) and improperly attack general causation | DuPont asserts their analyses legitimately assess whether individual low exposures could have caused plaintiffs’ diseases | Excluded portions of Cohen, Hanauer, Rickard, Weed that refused to "rule in" C‑8 or attempted to undermine the Probable Link Findings; other specific‑causation portions limited per Daubert reasoning |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) (district court gatekeeper role for scientific expert testimony)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (Daubert gatekeeping applies to all expert testimony; reliability standard is flexible)
- In re Scrap Metal Antitrust Litig., 527 F.3d 517 (6th Cir. 2008) (credibility and weight of expert testimony are jury questions; exclusion is exceptional)
- Nelson v. Term. Gas Pipeline Co., 243 F.3d 244 (6th Cir. 2001) (proponent bears burden to prove admissibility of expert testimony)
- Pluck v. BP Oil Pipeline Co., 640 F.3d 671 (6th Cir. 2011) (differential diagnosis is an acceptable method for individual causation when reliably applied)
- Tamraz v. Lincoln Elec. Co., 620 F.3d 665 (6th Cir. 2010) (court must assess whether expert accurately diagnosed, reliably ruled in causes, and reliably ruled out alternatives)
- Best v. Lowe's Home Centers, Inc., 563 F.3d 171 (6th Cir. 2009) (experts need not eliminate every conceivable cause; core requirement is consideration of alternatives)
- Jahn v. Equine Servs., PSC, 233 F.3d 382 (6th Cir. 2000) (Daubert promotes admissibility; disputes over accuracy generally go to weight)
- Pride v. BIC Corp., 218 F.3d 566 (6th Cir. 2000) (expert testimony must ‘fit’ the facts of the case to be relevant)