Feindt v. United States of America

UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
PATRICK FEINDT, JR., et al.,
Plaintiffs,
vs.
UNITED STATES OF AMERICA,
Defendant.
CIV. NO. 22-00397 LEK-KJM
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION TO EXCLUDE THE EXPERT REPORT AND
TESTIMONY OF DR. STEVEN BIRD, [FILED 1/16/24 (DKT. NO. 234)]
Defendant United States of America (“Defendant” or
“United States”) files the instant motion seeking to exclude the
expert report and opinion testimony of Steven Bird, M.D. (“Dr.
Bird”), an expert witness designated by Plaintiffs, because it
contends that Dr. Bird’s opinions regarding general and specific
causation for Plaintiffs’ injuries, and Plaintiffs’ need for
future medical monitoring are not the result of reliable and
accepted methods, and that Dr. Bird’s report fails to contain a
complete statement of his opinions as required by Federal Rule
of Civil Procedure 26(a)(2)(B). See Def.’s Motion to Exclude the
Expert Report and Testimony of Dr. Steven Bird, filed 1/16/24
(dkt. no. 234) (“Motion”). Plaintiffs filled their Opposition to
the Motion to Exclude (“Mem. in Opp.”) on February 5, 2024, and
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Defendant filed its reply on February 12, 2024. [Dkt. nos. 264,
270.] These matters came for a hearing on February 22, 2024.
On February 26, 2024, the Court issued an entering
order informing the parties of its summary ruling granting in
part and denying in part Defendant’s Motion to Exclude the
Expert Report and Testimony of Dr. Steven Bird, among other
things. [Dkt. no. 282.] This Order supersedes that entering
order. The Motion is granted in part and denied in part as set
forth more fully below. In short, the Motion is granted as to
Dr. Bird’s opinions regarding causation of long-term adverse
effects from JP-5 exposure, future care needs and medical
surveillance, Plaintiffs’ reasonable fear of significant long-
term effects from JP-5 exposure, and insofar as Dr. Bird’s
opinions regarding specific causation of short-term injuries
from JP-5 exposure are based exclusively on animal studies. The
Motion is denied in all other respects.
BACKGROUND
The parties are familiar with the facts of this case
and the Court will not repeat them here, except as relevant to
the issues at hand. Briefly, this case arises out of the May 6
and November 20, 2021 fuel leaks from the United States Navy’s
(“the Navy”) Red Hill Bulk Fuel Storage Facility on Joint Base
Pearl Harbor-Hickam (“Red Hill” and “JBPHH”). [Fifth Amended
Complaint, filed 12/1/23 (dkt. no. 210), at pgs. iii, 1; ¶¶ 4,
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9.] Plaintiffs allege that Defendant owns and operates Red Hill
and the water system that serves JBPHH, as well as the housing
that Plaintiffs lease and reside upon. [Id. at ¶¶ 6, 9, 530.]
Defendant was allegedly negligent in releasing fuel into the
water supply, among other things. [Id. at ¶¶ 4, 467, 481.]
Plaintiffs allege that they suffered health issues, economic
harm and fear as a result of the spills and their aftermath.
Plaintiffs allege they are at increased risk of future medical
conditions due to their exposure to contaminated water, and
require medical monitoring. [Id. at ¶¶ 82-86.] Plaintiffs seek
damages for past and future: pain and suffering, emotional
distress, medical expenses, loss of income and earning capacity,
physical impairment, loss of enjoyment and quality of life; as
well as increased risk of future harm and medical monitoring for
life, and loss of life expectancy, among other things. [Id. at
pgs. 190-91.]
Dr. Bird submitted an expert report, which stated his
opinions as well as his educational background and professional
experience in the field of medical toxicology. [Defendant’s
Notice of Filing Exhibits A and B, in Support of Its Local
Rule 56.1 Concise Statement of Facts [ECF Nos. 205-1, 205-2],
filed 2/12/24 (dkt. no. 272) (“Refiled Summary Judgment
Exhibits”), Exh. A (report by Dr. Bird, dated 7/24/23) (“Bird
Report”); see also Motion, Decl. of Caroline W. Stanton
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(“Stanton Decl.”) at ¶ 2 (noting the Bird Report is cited as
Exhibit A in support of the Motion). Dr. Bird summarized his
opinions:
1. 	Based on data detailed below, individuals on
the water line, including the Plaintiffs’
[sic], were exposed to water contaminated
with [jet propulsion 5 jet fuel (“JP-5”)]
via three routes: dermal, inhalation, and
ingestion.
2. 	The dose and duration of JP-5 were
sufficient to cause acute and long-term
injuries.
3. 	Studies support that acute symptoms of JP-5
exposure would include skin irritation and
rash; abdominal pain; vomiting; diarrhea;
headache; brain “fogginess”; irregular
menstrual cycles; fatigue; anxiety; and
other protean neurological symptoms. These
symptoms are consistent with what the CDC
and government provides sic are expected
symptoms from such exposure. Most of the
Plaintiff experienced many of these symptoms
soon after the water became contaminated.
4. 	Studies support that exposure to jet fuel
can result in long term health effects to
various organ systems, including the
neurologic, gastrointestinal, hematologic,
dermal, immune, renal, hepatic, endocrine,
psychiatric, and reproductive/developmental
systems.
5. 	Many of the Plaintiffs are or have
experienced long term effects from the JP-5
exposure, including abdominal pain;
headaches; tremors; fatigue; rashes;
abnormal menstrual cycles; anxiety; and
fear.
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6. 	Studies suggest that exposure to jet fuel
may result in latent effects, especially for
individuals exposed in utero or as children,
including behavioral, psychiatric, renal,
pulmonary, dermal, immunologic, as well as
cancer.
7. 	Individuals on the water line, including
Plaintiffs, have a reasonable fear of
significant long term effects from their
exposure to jet fuel-contaminated water.
8. 	There is a need for medical surveillance of
exposed individuals, including year [sic]
medical evaluations and testing. If
abnormalities in the physical exam, blood
testing, or new complaints develop, then
other more advanced testing would be
indicated.
[Bird Report at 5-6.]
STANDARD
Federal Rule of Evidence 702 provides that expert
opinion evidence is admissible if: (1) the witness is
sufficiently “qualified as an expert by knowledge, skill,
experience, training, or education”; (2) the witness’s
“scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a
fact in issue”; (3) the witness’s “testimony is based on
sufficient facts or data”; (4) the witness’s “testimony is the
product of reliable principles and methods”; and (5) the witness
has reliably applied the relevant principles and methods to the
facts of the case. Fed. R. Evid. 702. Under Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (“Daubert I”), a
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trial judge is required to apply a gatekeeping role to expert
witness testimony. White v. Ford Motor Co., 312 F.3d 998, 1007
(9th Cir. 2002), opinion amended on denial of reh’g, 335 F.3d
833 (9th Cir. 2003). The Rule 702 inquiry under Daubert I,
however, “‘is a flexible one,’ and the ‘factors identified in
Daubert may or may not be pertinent in assessing reliability,
depending on the nature of the issue, the expert’s particular
expertise, and the subject of his testimony.” 1 Id. (quoting Kumho
Tire Co. v. Carmichael, 526 U.S. 137, 150, 119 S. Ct. 1167
(1999)).
To fulfil its substantive gatekeeping obligations,
courts must determine if the proffered testimony is reliable,
and if it fulfills the “fit” requirement, meaning that the
expert’s testimony “logically advances a material aspect of the
proposing party’s case.” Daubert v. Merrell Dow Pharms., Inc.,
43 F.3d 1311, 1315 (9th Cir. 1995) (“Daubert II”).
To determine reliability,
[s]cientific evidence is reliable “if the
principles and methodology used by an expert are
grounded in the methods of science.” Clausen v.
M/V New Carissa, 339 F.3d 1049, 1056 (9th Cir.
2003). The court's focus “must be solely on
principles and methodology, not on the
conclusions that they generate.” Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579, 595
1 The factors identified in Daubert I are: methodology,
testing, peer review and publication, rates of error and control
standards, and “general acceptance” in the “relevant scientific
community.” 509 U.S. at 593-94.
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(1993). Courts must determine whether the
reasoning or methodology underlying testimony is
scientifically valid and whether that reasoning
or methodology can be applied to the facts in
issue. Id. at 592-93. Among the factors
considered in determining whether to admit expert
testimony under Rule 702 are: (1) whether the
expert's theory or method is generally accepted
in the scientific community; (2) whether the
expert's methodology can be or has been tested;
(3) the known or potential error rate of the
technique; and (4) whether the method has been
subjected to peer review and publication. Id. at
593-94.
Zucchella v. Olympusat, Inc., CV 19-7335 DSF (PLAx), 2023 WL
2628107, at *1 (C.D. Cal. Jan. 10, 2023). A trial court has
“broad latitude” in determining whether an expert’s testimony is
reliable as well as deciding how to determine the reliability of
that testimony. Hangarter v. Provident Life & Acc. Ins. Co., 373
F.3d 998, 1017 (9th Cir. 2004) (citations omitted).
For evidence to be relevant, it must meet the “fit”
requirement. However,
the “fit” requirement is not merely a reiteration
of the relevancy standards in Federal Rules of
Evidence 401–403. Because “[e]xpert evidence can
be both powerful and quite misleading [given] the
difficulty in evaluating it,” “the judge in
weighing possible prejudice against probative
force under Rule 403 of the [Federal Rules of
Evidence] exercises more control over experts
than over lay witnesses.” Id. at 595, 113 S. Ct.
2786 (citation omitted). Courts must therefore
exclude proffered expert testimony pursuant to
Rules 702 and 403 unless they are convinced that
the testimony speaks clearly and directly to a
disputed issue and that it will not mislead the
jury. Daubert II, 43 F.3d at 1321 n.17
(discussing scientific expert evidence,
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specifically). And to be admissible, “the subject
matter [of the testimony] at issue must be beyond
the common knowledge of the average layman.”
United States v. Finley, 301 F.3d 1000, 1007 (9th
Cir. 2002); United States v. Hanna, 293 F.3d
1080, 1086 (9th Cir. 2002).
United States v. Alo-Kaonohi, 635 F. Supp. 3d 1074, 1079-80 (D.
Hawai`i 2022) (some alterations in Alo-Kaonohi) (emphases added)
(some citations omitted). “Expert opinion testimony is relevant
if the knowledge underlying it has a valid connection to the
pertinent inquiry.” Primiano v. Cook, 598 F.3d 558, 565 (9th
Cir. 2010) (quoting United States v. Sandoval-Mendoza, 472 F.3d
645, 654 (9th Cir. 2006)).
District courts have wide discretion when acting as a
gatekeeper for the admissibility of expert testimony. Kumho
Tire, 526 U.S. at 151–52. Further, the Daubert gatekeeping
function of courts is intended to protect juries, making the
inquiry less relevant and the barriers less stringent in a bench
trial. See United States v. Flores, 901 F.3d 1150, 1165 (9th
Cir. 2018).
DISCUSSION
Plaintiffs offer Dr. Bird as an expert qualified to
testify in the areas of medical toxicology and clinical
emergency medicine. Defendant does not dispute that Plaintiffs
have shown that Dr. Bird is generally qualified to render expert
opinions in these fields. Dr. Bird was asked “to provide an
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opinion as to the acute and chronic effects of each of the
[Plaintiffs’] exposure to JP-5.” [Mem. in Opp. at 1-2 (citing
Exh. 2 (Deposition of Dr. Bird taken on 11/14/23) (“Bird Depo.”)
at 48-49).] Plaintiffs submit that Dr. Bird applied “reliable
and widely accepted methodology, and based on his knowledge,
skill, experience, and training in the field of medical
toxicology and emergency medicine, he concluded that each
Plaintiff received a sufficient exposure to JP-5 to cause the
short-and long-term harms identified in his reports.” [Id. at 2
(citations omitted).]
Defendant argues that Dr. Bird’s opinions must be
excluded because he did not employ reliable principles and
methods, and failed to explain his conclusions and the
underlying reasons for these conclusions. [Motion, Mem. in Supp.
at 7.] Specifically, Defendant challenges Dr. Bird’s opinions on
general and specific causation; medical monitoring; and failure
to comply with Rule 26 requirements. Defendant contends that Dr.
Bird’s general causation analysis is flawed because, in applying
the Bradford Hill criteria, he failed to explain how his
conclusions were drawn for each of the criterion, and how the
criteria was weighed relative to one another. [Id. at 10-12.]
Defendant argues, as to his specific causation opinion, that Dr.
Bird was required to examine whether the particular toxic
exposure caused a specific injury to a particular plaintiff but
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Dr. Bird admitted that he failed to analyze the dose of or
duration of exposure to JP-5 for each plaintiff. [Id. at 14-17.]
Further, Defendant contends that Dr. Bird failed to evaluate
potential causes of each plaintiff’s injuries other than
exposure to JP-5 and to eliminate these alternatives by
performing a differential diagnosis. [Id. at 18-20.] As to Dr.
Bird’s opinion that Plaintiffs will require yearly medical
monitoring examination for the detection and treatment of
disease, Defendant submits that he has failed to identify
specific illnesses that the testing might detect, the increased
risk of these illnesses, and how the testing would enable the
early treatment of these illnesses. [Id. at 21-22.] Because
other expert witnesses relied on Dr. Bird’s opinions regarding
causation and medical monitoring, Defendant asks to exclude
these experts’ opinions as well. [Id. at 25.]
Lastly, Defendant seeks to strike Dr. Bird’s reports
for failing to comply with Rule 26, Federal Rules of Civil
Procedure because he has not provided an explanation of the
basis for his conclusions regarding causation and medical
monitoring. [Id. at 23.]
Dr. Bird’s opinions are scientific opinions and thus
“the court must assess the reasoning or methodology, using as
appropriate such criteria as testability, publication in peer
reviewed literature, and general acceptance . . . .” Primiano,
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598 F.3d at 564 (footnote omitted). This “inquiry is a flexible
one . . . .” and “[s]haky but admissible evidence is to be
attacked by cross examination, contrary evidence, and attention
to the burden of proof, not exclusion.” Id. Within this
framework, Dr. Bird’s opinions regarding general causation,
specific causation and future medical monitoring are examined.
I. 	General Causation
Causation in toxic tort and pharmaceutical
personal injury cases “is typically discussed in
terms of generic and specific causation.” In re
Hanford Nuclear Reservation Lit., 292 F.3d 1124,
1133 (9th Cir. 2002). The general causation
question asks “whether the substance at issue had
the capacity to cause the harm alleged.” Id.
Thus, in Hanford the Ninth Circuit explained the
general causation inquiry is “whether exposure to
a substance for which a defendant is responsible,
such as radiation at the level of exposure
alleged by plaintiffs, is capable of causing a
particular injury or condition in the general
population.” Id.
In re Viagra (Sildenafil Citrate) & Cialis (Tadalafil) Prod.
Liab. Litig., 424 F. Supp. 3d 781, 792–93 (N.D. Cal. 2020).
Dr. Bird’s opinions that “[t]he dose and duration of
JP-5 exposure were sufficient to cause acute and long-term
injuries[]” and that “[s]tudies support that exposure to jet
fuel can result in long term health effects to various organ
systems,” are opinions regarding general causation.
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[Bird Report at 5-6.] Dr. Bird employed the Bradford Hill
criteria, a generally reliable and accepted method for
determining causation. See, e.g.,
Wendell v. GlaxoSmithKline LLC, 858 F.3d 1227, 1235 n.4 (9th
Cir. 2017).
As explained in In re Roundup Prod. Liab.
Litig., 390 F. Supp. 3d 1102, 1116 (N.D. Cal.
2018), “[w]hether the agents cause the outcomes,
however, ordinarily cannot be proven by
epidemiological studies alone; an evaluation of
causation requires epidemiologists to exercise
judgment about the import of those studies and to
consider them in context.” To that end, “[o]nce
epidemiologists have concluded from the studies
that there is an association between an agent and
an outcome, they often assess causation through a
framework called the “Bradford Hill criteria,”
named for Sir Austin Bradford Hill, who wrote a
1965 article that articulated nine “viewpoints”
now generally accepted to be relevant to
assessing causation. Id. Broadly, these factors
are: (1) the strength of the association; (2)
consistency; (3) specificity; (4) temporality;
(5) biological gradient or dose response; (6)
biological plausibility; (7) coherence with other
scientific knowledge; (8) experimental evidence;
and (9) analogy. Id.
In re Viagra (Sildenafil Citrate) & Cialis (Tadalafil) Prod.
Liab. Litig., 424 F. Supp. 3d 781, 794 (N.D. Cal. 2020)
(footnote omitted).
The first criterion is “the strength of association” -
that is, the strength of the association between exposure to a
substance and an outcome. Dr. Bird opined that the statistical
significance for the occurrence of an adverse health effect from
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exposure to jet fuel was a relative risk factor of 	greater than
1.0. [Bird Report at 72.] This relative risk factor is
significant in that
any properly-performed epidemiological study that
finds a relative risk greater than 1.0 signifies
that exposure to an agent increases the
probability of contracting the disease. Where the
study properly accounts for potential confounding
factors and concludes that exposure to the agent
is what increases the probability of contracting
the disease, the study has demonstrated general
causation — that exposure to the agent “is
capable of causing [the illness at issue] in the
general population.” In re Hanford,[] at 1134.
In re Silicone Gel Breast Implants Prod. Liab. Litig., 318 F.
Supp. 2d 879, 893 (C.D. Cal. 2004) (emphasis in original). Thus,
the risk factor of more than 1.0 is not a strong association but
does not necessarily preclude a conclusion that general
causation exists. It is, however, far short of a relative risk
factor of 2.0, which supports both general and specific
causation. [Id. at 893.] While Defendant points out that Dr.
Bird has not explained the basis for his conclusion that the
factors of temporality and coherence are met nor does he give an
explanation as to how he went about weighing and evaluating
evidence for each of the Bradford Hill criterion, the Court has
broad latitude in deciding reliability (particularly where the
trial is non-jury) and concludes Dr. Bird’s opinion on general
causation are sufficiently reliable and thus admissible.
Challenges to his opinion will be left to cross examination,
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contrary evidence, and attention to the burden of proof at
trial.
Further, Defendant’s request to exclude the expert
reports of Kristin Andruska, M.D., Ph.D. and Jason R. Keifer,
M.D. because both experts relied on Dr. Bird’s general causation
opinions is denied, for the reasons set forth above. See Motion,
Mem. in Supp. at 25; see, e.g., Defendant’s Notice of Filing the
Memorandum and Exhibits B, C, D, and E in Support of its Motion
to Exclude the Expert Report and Testimony of Dr. Steven Bird,
filed 1/22/24 (dkt. no. 251) (“Refiled Motion Exhibits”), Exh. E
(report of Dr. Andruska, dated July 24, 2023) at PageID.11761;
Def.’s Motion in Limine to Exclude the Expert Reports and
Testimony of Drs. Spira and Keifer, filed 1/16/24 (dkt. no.
232), Decl. of Alanna Horan, Exh. C (report of Dr. Keifer dated
July 24, 2023) (“Keifer Report”) at PageID.9362; Motion, Stanton
Decl. at ¶ 7 (noting the Keifer Report is cited as Exhibit F in
support of the Motion).
II. 	Specific Causation
Dr. Bird opined that the strength of association
factor was a risk factor of more than 1.0, which is far short of
the risk factor of 2.0 that is probative of specific causation.
Under Hawai`i law, “the plaintiff will ordinarily satisfy his or
her evidentiary burden with respect to legal causation by
establishing, by a preponderance of the evidence, that the
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defendant's conduct was a substantial factor in bringing about
the harm.” O’Grady v. State, 140 Hawai`i 36, 47, 398 P.3d 625,
636 (2017). This standard is virtually identical to the
California tort law standard applied in Daubert II, so the Court
finds the same specific causation standards articulated in
Daubert II applicable. For an epidemiology study to be probative
of specific causation, the study must show the relative risk is
greater than 2.0, indicating that the chemical more than doubles
the risk of getting the adverse health consequence. See Daubert
II, 43 F.3d at 1321. Defendant argues that Dr. Bird failed to
estimate the dose received by Plaintiff, the concentration of
JP-5 that was necessary to produce a sheen or odor as reported
by Plaintiffs, the volume of consumption by each of the
Plaintiffs, and to compare an estimated dose to a dose known to
be associated with adverse health effects.
Specific causation is defined simply as
“whether exposure to an agent was responsible for
a given individual's disease.” Federal Judicial
Center, Reference Manual on Scientific Evidence
396 (2d ed. 2000). In determining whether an
alleged chemical exposure caused a particular
disease or illness, an expert must establish the
following criteria: (1) the toxic substance at
issue must have been demonstrated to cause in
humans the disease or illness suffered by the
plaintiff; (2) the individual must have been
exposed to a sufficient amount of the substance
in question to elicit the health effect in
question; (3) the chronological relationship
between exposure and effect must be biologically
plausible; and (4) the likelihood that the
chemical caused the disease or illness in an
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individual should be considered in the context of
other known causes. See David L. Eaton,
Scientific Judgment and Toxic Torts – A Primer in
Toxicology for Judges and Lawyers, 12 J.L. &
Pol'y 5, 38–40 (2003) (“Eaton”).
Henricksen v. ConocoPhillips Co., 605 F. Supp. 2d 1142, 1156
(E.D. Wash. 2009).
A. 	Short-Term or Acute Injuries
Dr. Bird states, and Defendant does not dispute, that
[i]n January 2022, the Hawai`i Department of
Health published an initial TPH concentration
action level for drinking water of 211 mg/L (this
action concentration was later revised to 266
mg/L). Flushing of the drinking water system was
done by zones and continued for roughly three
months, until all zones were deemed clean in
March, 2022. At that time, residents who were
moved off-base were required to return to on-base
hearing.
[Bird Report at 5.] Further, Dr. Bird stated that he assumed
that significant amount of hydrocarbons continue
to be detected in the tap water at JBPHH, with
total petroleum hydrocarbons in the 50-60 ug/L
range . . . more than one year after the
contamination incident. Despite notifying
residents that their water was safe for all
purposes, in March of 2022, there have still been
over 10000 TPH-D detections in the water system
between January 2022 and May 2023.
[Id. (citing July 24, 2023 Expert Report of Paul Rosenfeld,
Ph.D).] Dr. Bird’s opinion that the risk factor of more than 1.0
under the Bradford Hill criteria is too low by itself to allow
Dr. Bird to opine about specific causation. Therefore, the Court
proceeds to examine the five criteria for specific causation:
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First, is there scientific evidence to support that
JP-5 causes in humans the diseases or illnesses suffered by
Plaintiffs? Dr. Bird references studies of military personnel
who had acute exposure to jet fuel and experienced decreased
vestibular functionality and neurological deficits, [Bird Report
at 20-21;] neurological toxicity of persons exposed to oil
spills, [id. at 23-24;] adverse effects to humans from exposure
to jet fuel on skin, gastrointestinal and hepatic systems, [id.
at 24-25;] limited human data on immunotoxicity from exposure to
jet fuel, [id. at 28, 32;] abnormal menstrual cycles from
exposure to jet fuel, [id. at 37-38;] renal cancer from exposure
to jet fuel, [id. at 51], among other health effects. Where
medical studies exist involving humans and exposure to jet fuel,
the Court concludes that there is scientific evidence to support
Dr. Bird being permitted to testify as to short-term causation
for the conditions or adverse effects suffered by Plaintiffs.
However, when Dr. Bird relies exclusively on animal studies to
support specific causation for certain conditions, Dr. Bird is
not permitted to testify as to specific causation for those
conditions. See In re Silicone Gel Breast Implants Prod. Liab.
Litig., 318 F. Supp. 2d at 910 (“The animal studies, however, do
not support any conclusion about specific causation. While there
may be a scientific basis to conclude that PUF-coated implants
are generally capable of causing cancer in humans, the animal
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studies say nothing about the cause of [the deceased’s]
cancer.”). Animal studies, standing alone, do not demonstrate
that a specific Plaintiff’s exposure to jet fuel caused that
specific Plaintiff’s injuries. However, where there are short-
term effects and the onset of symptoms are close in time to the
exposure of JP-5, the Court will exercise its discretion and
permit Dr. Bird to opine on specific causation for short-term or
acute injuries.
Second, was the individual exposed to a sufficient
amount of the substance in question to elicit the health effect
in question? This inquiry relates to quantity or dosage. Dr.
Bird is unable to quantify the amount of JP-5 that individual
Plaintiffs were exposed to or ingested. Dr. Bird’s opinion is
that “the concentration of JP-5 in the water was significant
enough to be a substantial factor in causing each Plaintiff’s
symptoms as described below.” [Id. at 55.] It is not necessary
for a plaintiff to use a dosage-response relationship so long as
an expert uses methods generally accepted in the scientific or
medical community to establish specific causation. See
Henrickson 605 F. Supp. 2d at 1157 (“[T]he boundaries of
allowable expert testimony are not so wide as to permit an
expert to testify as to specific causation without having any
measurements of a plaintiffs' exposure to the allegedly harmful
substance.” (citing Hardyman v. Norfolk & Western Ry. Co., 243
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F.3d 255, 264 (6th Cir. 2001)). Here, Dr. Bird’s opinion on
exposure amounts is based on the estimation by Paul Rosenfeld,
Ph.D. of the relative concentration of jet-fuel exposure in the
JBPHH water distribution system as outlined in Dr. Rosenfeld’s
Report. [Bird Report at 3-4, 55.] The Court concludes this
criterion has been met.
Third, was the chronological relationship between
exposure and effect biologically plausible? Plaintiffs reported
illnesses and adverse effects within a short time of reporting
that the water emitted from the water lines had a particular
odor and sheen. See Bird Report at 55-69. The Court concludes
from these reports that the temporal relationship between the
exposure to the water from the water line and when the illnesses
and other complaints were reported as having been experienced
meets this requirement for biological plausibility.
Fourth, was the likelihood that the chemical caused
the disease or illness in an individual considered in the
context of other known causes? For this inquiry, the Court
considers whether the expert analyzed whether there are other
known causes for the signs and symptoms reported by Plaintiffs,
i.e., conducted a differential diagnosis. The Court concludes
that Dr. Bird did not consider other known causes since he
testified that he did not medically examine the individual
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Plaintiffs, nor did he provide a differential diagnosis for each
of them and thus this factor is not met.
As Defendant has ably pointed out, Dr. Bird fails to
provide a differential diagnosis. Based on the broad latitude in
deciding reliability (particularly where the trial is non-jury),
however, the Court concludes Dr. Bird’s opinion on specific
causation for short-term or acute conditions as set forth more
fully above are sufficiently reliable and thus admissible – to
the extent his opinions do not exclusively rely on animal
studies to demonstrate specific causation. Dr. Bird is not
permitted to testify on specific causation of short-term or
acute injuries to the extent he exclusively relies on animal
studies. Challenges to his opinion, such as on the issue of a
differential diagnosis, will be left to cross examination,
contrary evidence, and attention to the burden of proof at
trial.
B. 	Long-Term Injuries or Conditions
Dr. Bird’s opinions that the dose and duration of JP-5
exposure were sufficient to cause long-term injuries; that
studies support that exposure to jet fuel can result in long-
term health effects to various organ systems; that many of
Plaintiffs are or have experienced long-term effects from the
JP-5 exposure; and that there is a need for medical surveillance
of exposed individuals must be excluded. While Dr. Bird provides
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studies that support correlation between exposure to jet fuel
and long-term health effects, he does not adequately support the
leap to specific causation of long-term illnesses. As with the
short-term or acute injuries, a risk factor of over 1.0,
standing alone, is insufficient to support specific causation.
However, unlike his opinions on short-term or acute injuries,
Dr. Bird provides little by way of principles and methodology to
support his opinions that exposure to jet fuel causes specific
long-term illnesses. He couches his opinions in terms of
“expected long-term effects of exposure to aromatic hydrocarbons
in the literature” and the “[p]otential long-term effects”
without any application of an accepted methodology. [Bird Report
at 54.] These opinions by Dr. Bird fail to pass the
admissibility test under Rule 702. Because his opinions about
the specific causation between exposure to jet fuel and long-
term illnesses are not admissible, Dr. Bird’s opinion about the
need for medical surveillance for potential long-term illnesses
is likewise not admissible.
Further, Plaintiffs’ life care planning experts Margot
Burns (“Burns”) and Cynthia Fricke (“Fricke”), prepared life
care plans based in part on Dr. Bird’s opinion that Plaintiffs
will need medical surveillance and treatment for long-term
illnesses. See Motion, Mem. in Supp. at 25; see, e.g., Refiled
Motion Exhibits, Exh. C (reports by Margot Burns, dated July 24,
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2023) (“Burns Reports”) at PageID.11730-31; id., Exh. D
(excerpts of report by Cynthia Fricke, dated July 24, 2023)
(“Fricke Report Excerpts”) at PageID.11744-46. Both Burns’s and
Fricke’s opinions are excluded to the extent that they rely on
the excluded opinions of Dr. Bird. If there is another basis for
their opinions, then admissibility will have to be examined
separately as to this other basis.
C. 	Reasonable Fear of Significant Long-Term Effects
Dr. Bird’s opinion that Plaintiffs have a reasonable
fear of significant long-term effects from their exposure to jet
fuel is not admissible. First, because Dr. Bird provides little
by way of principles and methodology to support his opinions
that exposure to jet fuel causes long-term illnesses, he cannot
be permitted to testify about specific causation for long-term
effects. Second, he never medically examined Plaintiffs and
therefore his opinion on whether their fear is reasonable is not
relevant. Last, under Hawai`i law, the issue of whether a
plaintiff has sustained emotional distress is within the
discretion of the trier of fact and medical testimony is not a
prerequisite for recovery for emotional distress. Campbell v.
Animal Quarantine Station, 63 Haw. 557, 564, 632 P.2d 1066, 1071
(1981). An expert witness may testify when “scientific,
technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or determine a fact in
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issue.” Fed. R. Evid. 702. The Court concludes that specialized
knowledge is not necessary on the issue of whether Plaintiffs’
fear of developing long-term illnesses or effects in the future
is reasonable and Dr. Bird’s opinion on this issue is not
relevant and thus not admissible.
III. Federal Rule of Civil Procedure 26
As to Defendant’s argument that Dr. Bird’s reports
should be stricken for failing to comply with Federal Rule of
Civil Procedure 26 because he has not provided an explanation of
the basis for his conclusions regarding causation and medical
monitoring, see Motion, Mem. in Supp. at 23, the argument as it
relates to medical monitoring and causation for long-term
adverse effects from JP-5 exposure is inapposite in light of the
Court’s ruling on those issues. The Court therefore considers
the argument as it relates to causation for short-term or acute
injuries.
Experts retained to offer testimony at trial must
submit a written report, which must contain “a complete
statement of all opinions the witness will express and the basis
and reasons for them,” and “the facts or data considered by the
witness in forming them,” Fed. R. Civ. P. 26(a)(2)(B)(i) and
(ii). “The purpose of this requirement is to allow the opposing
party ‘a reasonable opportunity to prepare for effective cross
examination and perhaps arrange for expert testimony from other
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witnesses.’” Celador Int’l Ltd. v. Walt Disney Co., 2008 WL
11338778, at *2 (C.D. Cal. May 9, 2008) (citing Fed. R. Civ. P.
26(a) Advisory Committee Note (1993)). The Court finds
Plaintiffs properly disclosed Dr. Bird’s opinions on causation
regarding short-term or acute injuries, as well as the facts or
data Dr. Bird considered in forming these opinions. See
generally, Bird Report at 3, 19-42, 69-72, 77; Stanton Decl. at
¶ 8 (incorporating as Exh. G in support of the Motion dkt.
no. 221-4, the 10/23/23 supplemental expert report of Dr. Bird
(“10/23 Bird Supplemental Report”)); id., at ¶ 9 (incorporating
as Exh. H in support of the Motion dkt. no. 221-5, the 11/30/23
supplemental and rebuttal expert report of Dr. Bird (“11/30 Bird
Rebuttal and Supplemental Report”)) at 1-16 (analyzing
individual Plaintiffs’ medical histories and explaining how he
applied a differential etiology methodology in evaluating
individual Plaintiff’s health effects from JP-5 exposure). 2 ]
Insofar as Defendant seeks Dr. Bird’s opinions to be struck on
the basis of Rule 26, the Motion is denied.
CONCLUSION
The Motion is GRANTED IN PART AND DENIED IN PART: the
Motion is GRANTED to the extent that the Court FINDS Dr. Bird’s
2 Unredacted versions of the 10/23 Bird Supplemental Report
and the 11/30 Bird Rebuttal and Supplemental Report are filed
under seal at docket numbers 224-3 and 224-4, respectively.
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opinions regarding causation of long-term adverse effects from
JP-5 exposure, future care needs and medical surveillance, and
Plaintiffs’ reasonable fear of significant long-term effects
from JP-5 exposure are not admissible. The Motion is GRANTED to
the extent that Dr. Bird’s opinions regarding specific causation
of short-term injuries from JP-5 exposure to the extent the
opinions are based exclusively on animal studies are not
admissible. The Motion is GRANTED to the extent that Plaintiffs’
experts Margot Burns’s and Cynthia Fricke’s opinions are
excluded to the extent that they rely on the excluded opinions
of Dr. Bird. The Motion is DENIED in all other respects.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, April 9, 2024.
PATRICK FEINDT, JR., ET AL. VS. USA; CV 22-00397 LEK-KJM; CV 22-
00397 LEK-KJM; ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION TO EXCLUDE THE EXPERT REPORT AND TESTIMONY OF
DR. STEVEN BIRD, [FILED 1/16/24 (DKT. NO. 234)]
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