United States District Court, District of Columbia
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Natacha H. Thys, Terry P. Collingsworth, Conrad & Scherer, LLP, Washington, DC, William R. Scherer, III, Conrad & Scherer, LLP, Fort Lauderdale, FL, Eric J. Hager, Conrad & Scherer, LLP, Irlanda, Peter J. Cambs, Parker Waichman Alonso, LLP, Bonita Springs, FL, for Plaintiff.
Eric Gordon Lasker, Joe Gregory Hollingsworth, Katharine R. Latimer, Rosemary Stewart, Hollingsworth LLP, Washington, DC, for Defendant.
RICHARD W. ROBERTS, District Judge.
Plaintiffs, approximately 2,000 Ecuadorian citizens and domiciliaries, bring common law negligence and other tort claims against the DynCorp defendants, alleging acute and chronic personal injuries caused by the defendants spraying herbicides over the plaintiffs' lands in Ecuador. The defendants have filed a motion under Federal Rule of Evidence 702 to exclude the testimony of the plaintiffs' proffered expert witness, Dr. Michael A. Wolfson. Because the plaintiffs failed to establish the reliability of Dr. Wolfson's expert opinions regarding the proper mixture and application rate of the Plan Colombia herbicide and plaintiffs' future need for medical monitoring, or his qualifications to render those opinions, or the reliability of his
opinions regarding general causation of the plaintiffs' acute and chronic injuries and specific causation of the plaintiffs' chronic injuries, but the plaintiffs met their burden regarding Dr. Wolfson's opinion of the specific causation of the plaintiffs' acute injuries, the defendants' motion to exclude Dr. Wolfson's testimony will be granted in part and denied in part. The defendants also move for summary judgment arguing that without Dr. Wolfson's expert testimony, the plaintiffs cannot show that exposure to the Plan Colombia herbicide caused their injuries. Because Dr. Wolfson's general causation opinion regarding the plaintiffs' acute injuries and his general and specific causation opinions regarding the plaintiffs' chronic injuries are inadmissible, the defendants are entitled to judgment as a matter of law.
The Department of State (" DOS" ) hired the defendants to help eradicate Colombian cocaine and heroin poppy plantations. Arias v. DynCorp, 856 F.Supp.2d 46, 49 (D.D.C.2012). To carry out the mission, which was known as " Plan Colombia," the defendants' planes sprayed aerial fumigants over Colombian drug farms. The fumigant was a glyphosate-based herbicide. Am. Compl. ¶ 35. " Commercial versions of the herbicide have been sold under the trade name Roundup® ." Id. However, the planes' fumigants allegedly also drifted onto the plaintiffs' lands in Ecuador, harming " humans, animals, and plants other than cocaine and opium poppies[.]" Arias, 856 F.Supp.2d at 49 (internal citation and quotation marks omitted). These fumigations are alleged to have severely damaged the plaintiffs and their property and, as a result, forced those residing in the affected areas to flee. Id. The test plaintiffs reported several acute injuries including " itchiness to the skin, nose, and eyes; skin irritation; burning sensation to the skin and eyes; rash; vomiting; respiratory problems; headaches; dizziness; stomach aches; diarrhea; and burning throat." Pls.' Opp'n to DynCorp's Mot. to Exclude the Opinions of Pls.' Expert Dr. Michael Wolfson & Associated Mot. for Summ. J. (" Pls.' Opp'n" ), Ex. 1 (Michael A. Wolfson Expert Rpt. (" Wolfson Rpt." ) at 3). The plaintiffs now bring common law tort claims and claims under the Alien Tort Claims Act against the defendants, all arising from injuries the fumigants allegedly caused.
The plaintiffs proffer as an expert Dr. Michael A. Wolfson to offer opinion testimony in several areas. First, he would state that the DynCorp defendants applied the Plan Colombia herbicide in a manner contrary to the directions on the Roundup label. Second, Dr. Wolfson would offer testimony linking general and specific causation of the plaintiffs' acute personal injuries to their alleged exposure to the Plan Colombia herbicide. See Pls.' Opp'n at 2. Third, Dr. Wolfson would opine that as a result of the plaintiffs' exposure to the Plan Colombia herbicide, the plaintiffs have an increased risk of developing several cancers, including non-Hodgkin's lymphoma, hairy cell leukemia, and multiple myeloma. Wolfson Rpt. at 3. Given the plaintiffs' risk of future adverse health effects, Dr. Wolfson would also testify that the plaintiffs should be provided with medical monitoring for early detection of cancer. Id. at 4.
Dr. Wolfson received his Masters of Science in Pharmacology from Northeastern University and holds a medical degree from State University of New York Upstate Medical Center and a Masters of Public Health from Harvard School of Public Health. Wolfson Rpt., Ex. A. at 1. Dr. Wolfson is " Fellowship-trained and Board Certified in Occupational Medicine (1995) with clinical training in occupational and environmental medicine," and has " engaged
in the practice of Occupational and Environmental Medicine for over twenty-two years [.]" Wolfson Rpt. at 1. His clinical practice has included " environmental and occupational risk assessment and toxic exposure evaluations, diagnoses, treatment, and referrals." Id. at 2. Currently, Dr. Wolfson is the Medical Director of Syracuse Occupational and Environmental Medicine Consultants. Id. Although not a toxicologist or epidemiologist, DynCorp Defs.' Mot. to Exclude the Test. of Pls.' Sole Expert Witness, Dr. Michael Wolfson & Associated Mot. for Summ. J. (" Defs.' Mot." ), Defs.' App. (" Defs.' App." ) (Michael A. Wolfson Dep. (" Wolfson Dep." ) at 9:5-6, 9:15-16), Dr. Wolfson has " rendered thousands of diagnoses and opinions on the causation of disease involving complex issues of toxic exposures[,]" Wolfson Rpt. at 2.
The DynCorp defendants move to exclude Dr. Wolfson's expert testimony. The defendants argue that Dr. Wolfson is not qualified to offer his three opinions and that his opinions are unreliable. Defs.' Mot. at 1-3. The defendants further move for summary judgment arguing that in a toxic tort case, expert testimony is necessary to prove causation. They argue that if Dr. Wolfson's testimony is excluded, the defendants are entitled to judgment as a matter of law.
I. MOTION TO EXCLUDE DR. WOLFSON'S EXPERT TESTIMONY
Federal Rule of Evidence 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the ...