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Schudel v. General Elec. Co.

ELR Citation: 27 ELR 21506
Nos. 95-35092, -35145, 120 F.3d 991/(9th Cir., 07/23/1997)

The court holds that the neurological causation testimony of three expert witnesses in a toxic tort case is inadmissible under Daubert v. Merrell Dow Pharmaceuticals, 23 ELR 20979 (U.S. 1993). Nine employees and one employee's spouse brought the suit against their employer alleging that they developed neurological and respiratory problems from exposure to trichloroethane (TCA) and perchlorethylene (perc). The court first holds that the district court did not lack jurisdiction to consider the employees' motions for judgment notwithstanding the verdict or new trial even though the motions were not properly served. The court has applied amended federal rules of appellate procedure retroactively in similar circumstances. The court then holds that it lacks jurisdiction to review the district court's rulings concerning four employees' negligence and loss of consortium claims, because the claims for negligence and loss of consortium have not been finally determined. And the district court order granting new trial is interlocutory and not immediately appealable.

The court next holds that although the district court properly concluded that one expert witness' testimony based on the "whole person aggravation" theory of causation did not meet the standard of Daubert, the district court erred in excising that evidence when ruling on defendants' motions for judgment notwithstanding the verdict on five employee claims. When ruling on a Fed. R. Civ. P. 50(b) motion, a district court should not exclude evidence erroneously admitted at trial. The record should be taken as it existed when the trial closed. Excluding evidence after the verdict is unfair to a party who may have relied on the determination that the evidence was admissible. The court concludes that there was sufficient evidence to support the jury verdicts in favor of the employees. Nonetheless, the verdicts may not stand. The district court erred in denying defendants' motion for a new trial. A new trial should be granted when the erroneous admission of evidence affected the substantial rights of the parties. The court next holds that the testimony of three expert witnesses underlying the jury's verdict for one employee was not admissible under Fed. R. Evid. 702.11. The first expert's testimony met Daubert's relevance requirement, but it did not meet Daubert's requirement of reliability. The expert did not establish it was scientifically acceptable to draw general conclusions about the neurotoxicity of TCA and perc from studies of other chemicals. Extrapolation was necessary to make the studies relevant, and there was no showing that the necessary extrapolation was scientifically acceptable. The second expert's testimony suffered from similar deficiencies. And the third expert's testimony failed to meet Daubert's relevance requirement. She testified it was only a "possibility," not a "probability," that the employee suffered brain damage from exposure to solvents at the facility. And this expert relied on the whole person aggravation theory without establishing that the theory had a scientific basis. The court, therefore, vacates the judgment entered on the jury verdict for one employee, reverses the district court's denial of defendants' motion for new trial, and remands.

Counsel for Plaintiffs
Craig F. Schauermann
Schauermann & Thayer
1700 E. 4th Plain Blvd., Vancouver WA 98661
(360) 695-4244

Counsel for Defendants
Donald W. Fowler
Spriggs & Hollingsworth
1350 I St. NW, 9th Fl., Washington DC 20005
(202) 898-5800

Before Nelson and Fernandez, JJ.