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Cuevas v. E.I. DuPont de Nemours & Co.

ELR Citation: 27 ELR 21031
Nos. 1:95-CV-189RR, 956 F. Supp. 1306/(S.D. Miss., 01/10/1997)

The court holds that several physicians' and a toxicologist's testimony that an individual's exposure to an herbicide caused his medical problems is inadmissible. None of the treating physicians have knowledge about the herbicide, its components, or the toxicological effects that it could produce. They all based their opinion on the temporal relationship between the alleged exposure and the exacerbation of the individual's medical problems. But simply because one act precedes another does not make the first act the cause of the second. Thus, pursuant to the law as set forth in Daubert v. Merrell Dow Pharmaceuticals, 23 ELR 20979 (1993), these experts' opinions as to defective condition and causation are inadmissible. Additionally, the toxicologist's opinion has not been tested, and there are no reports, studies, or publications that suggest that the herbicide is toxic to humans even though the herbicide has been on the market since 1983. Further, the toxicologist's opinion has not undergone any type of peer review, and he does not know of any other toxicologist who agrees with his opinion. Thus, the toxicologist's opinion does not meet the Daubert elements of potential error and general acceptance. Moreover, none of his opinions are an outflow of natural research done prior to being employed by the plaintiff. And the toxicologist has no idea of the mixture or dosage to which the individual was exposed, how the mixture was sprayed or how it could drift to the individual, or how long the individual was exposed, all of which are essential to a valid toxicological opinion determining whether a chemical caused certain reactions. Rather, the toxicologist acknowledges that his opinion is based on the temporal relationship between the alleged exposure and the individual's medical problems. The court holds that this methodology is not sufficient to amount to reliable scientific knowledge. Thus, the testimony is inadmissible. The court further notes, in dicta, that the Federal Insecticide, Fungicide, and Rodenticide Act preempts the individual's claims regarding the pesticide's labeling because the U.S. Environmental Protection Agency specifically approved the herbicide's label.

Counsel for Plaintiff
Alben N. Hopkins
Hopkins, Crawley, Bagwell, Upshaw & Persons
2701 24th Ave., Gulfport MS 39502
(601) 864-2200

Counsel for Defendant
Alex A. Alston
Alston, Rutherford & Van Slyke
121 N. State St., P.O. Drawer 1532, Jackson MS 39215
(601) 948-6882