http://www.tourolaw.edu/2ndCircuit/May00/s99-9121.html
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE
FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY
OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A
SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES
OF COLLATERAL ESTOPPEL OR RES JUDICATA.
At a stated Term of the United Stated Court of
Appeals for the Second Circuit, held at the United States Courthouse, Foley
Square, in the City of New York, on the 1st day of May, two thousand.
Present: ROSEMARY S. POOLER,
SONIA SOTOMAYOR, 1
Circuit Judges.
_____________________________________________________
ROBERT S. WASHBURN,
Plaintiff,
LILLIAN E. AWAD,
Plaintiff-Appellant,
-v-
No. 99-9121
MERCK & CO., INC.,
Defendant-Appellee.
Appearing for Appellant: Anthony P. Gentile,
Godosky & Gentile, P.C., New York, NY
Appearing for Appellee: Richard L.
Josephson, Baker Botts L.L.P., Houston, TX
________________________________________
Appeal from the United States District Court
for the Southern District of New York (Stanton, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY
ORDERED, ADJUDGED, AND DECREED that
the order of said District Court be and it hereby is AFFIRMED.
Lillian E. Awad appeals from an order of the
United States District Court for the Southern District of New York (Stanton, J.)
granting summary judgment in favor of defendant Merck & Co., Inc.
("Merck"). In 1989, Awad was a graduate student and worked at Albert
Einstein Medical Center as a lab technician. Pursuant to New York law, Awad's
employer routinely administered rubella (German measles) vaccinations to its
female health care workers of child-bearing age. On July 6, 1989, Awad received
Meruvax II, which is Merck's brand of Wistar Institute RA 27/3, a live virus
vaccine against rubella. Subsequent to her vaccination, Awad developed an acute
illness, which included swelling of joints, rash and flu-like symptoms. Over
the course of the next year, Awad continued to experience joint and muscle pain
and her treating physicians diagnosed her with chronic arthropathy, chronic
pain syndrome, and fibromyalgia
Awad commenced this action against Merck in
October 1995, claiming that as a result of receiving the Meruvax II rubella
vaccine, she developed arthralgia, chronic arthropathy and chronic pain
syndrome. Merck moved for summary judgment, claiming that Awad's evidence of
causation was inadmissible under the Federal Rules of Evidence and Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). In addition,
Merck claimed that plaintiff's claims were barred under the National Childhood
Vaccine Injury Compensation Act, 42 U.S.C. § 300aa-1, et seq. ("Vaccine
Act"). The district court granted summary judgment in favor of Merck
holding that, pursuant to Daubert, plaintiff's expert testimony was not
admissible under Fed. R. Evid. 702 and 703, and therefore plaintiff could not
prove causation. The district court did not address the Vaccine Act claim. On
appeal, Awad argues that the district court abused its discretion in excluding
her causation testimony and exceeded its gatekeeping role by determining an
issue which should have been decided at trial. For the reasons below, we reject
appellant's arguments and affirm the judgement of the district court.
We review de novo the district
court's grant of summary judgment. See Wilkinson v. Russell, 182
F.3d 89, 96 (2d Cir. 1999). The district court's exclusion of expert testimony
pursuant to Daubert v. Merrell Dow will be affirmed unless it
constituted an abuse of discretion. See General Elec. Co. v. Joiner,
522 U.S. 136, 142 (1997). Under Daubert, expert testimony is admissible
under Rules 702 of the Federal Rules of Evidence only if the trial court
determines that it is both relevant and reliable. See Daubert,
509 U.S. at 589-90. The trial court is charged with making a "a
preliminary assessment of whether the reasoning or methodology underlying the
testimony is scientifically valid and of whether that reasoning or methodology
properly can be applied to the facts in issue." Id. at 592-93. In
analyzing scientific validity, the trial court considers, among other things,
1) whether the expert's theory is capable of being tested; 2) whether the
theory has been scrutinized by others in the field by means of peer review or
publication; 3) the known or potential error rate associated with the
underlying technique; 4) whether standards and controls have been used in
testing; and 5) whether the technique and theory (not the conclusions) at issue
are generally accepted in the particular scientific community. Id. at
593-94.
In this case, the district court rejected
the testimony of Doctors Lans, Dorsch and Wetherbee on the issue of causation
and concluded that their opinions were based largely on the temporal proximity
of the vaccination to the onset of Awad's symptoms and were not grounded in the
methods of science. Appellant contends that while there is genuine disagreement
in the medical research community as to whether there is a link between the
rubella vaccine and the development of chronic joint pain and the symptoms
associated with her illness, she nevertheless offered admissible evidence as to
causation. For example, appellant argues that Judge Stanton improperly
dismissed a 1979 study by Aubrey Tingle in which several women showed evidence
of acute and chronic arthritis and arthralgia conditions merely because it
studied a small population and only two of the subjects actually received RA
27/3, as opposed to its predecessor vaccine. In response, Merck acknowledges
that during the 1980s, several researchers hypothesized that there could be a
link between rubella vaccines and chronic arthritis. As Merck points
out, Awad does not complain of arthritis, which is characterized by objectively
observable swelling of the joints, but rather arthropathy, arthralgia and
chronic fibromyalgia, which are characterized by more subjective symptoms.
Furthermore, the evidence linking the vaccine with arthritis is derived mainly
from anecdotal reports and small population studies with few controls. Merck
also argues that while an Institute of Medicine Report in 1991 suggested a
connection between rubella vaccine and chronic arthritis, and suggested ways in
which such a study could be conducted, it noted, significantly, that such a
"relation between rubella vaccine and chronic arthritis remains
unproved." Since that report, three large, controlled epidemiological
studies found no evidence of a causal relationship between immunization with
RA27/3 rubella vaccine and persistent joint symptoms or other chronic joint
disease conditions. In addition, one study that specifically examined the
association between Meruvax II and fibromyalgia found no causal relationship
between the two.
We conclude that the district court did not
abuse its discretion in determining that plaintiff's expert testimony was
unreliable because it was based on little more than temporal correlation
between Awad's vaccination and the onset of symptoms. See Cavallo v.
Star Enterprise, 892 F. Supp. 756 (E.D. Va. 1995), aff'd in relevant part,
100 F.3d 1150 (4th Cir. 1996); Conde v. Velsicol Chem. Corp., 804 F. Supp.
972, 1023 (S.D. Ohio 1992), aff'd 24 F.3d 809 (6th Cir. 1994). Dr. Dorsch
provided only conclusory statements that Awad had "polyarthralgias, most
likely resulting from Rubella vaccine." Taking into account an
array of factors consistent with Daubert, Judge Stanton properly
rejected Dorsch's conclusion that Awad's joint condition was related to the
rubella vaccine because it was supported by nothing more than temporal
proximity. Similarly, it was well within the discretion of the district court
to exclude the unsubstantiated opinion of Dr. Lans that Awad's condition was
the result of vaccination. Nor are we persuaded that the district court erred
in excluding the testimony of Dr. Wetherbee. Based on his review of Awad's
medical records, studies linking the rubella virus with chronic arthritis, and
the temporal relationship between vaccination and onset of symptoms, Wetherbee
opined that appellant's chronic joint pain resulted from Meruvax II. The
district court emphasized that Wetherbee's opinion did not emanate from his own
research in the field, but rather was developed for purposes of litigation.
Judge Stanton reviewed the articles on which Wetherbee based his opinion and
evaluated the validity of the methodology under Daubert. Judge Stanton
reviewed the studies and articles that Wetherbee used to conclude that there is
a causal relationship between RA 27/3 and chronic joint conditions and found
that none was a large-scale epidemiological study and most were either
anecdotal, or did not involve RA 27/3. We conclude that it was well within
Judge Stanton's discretion to exclude Wetherbee's testimony. Plaintiff's expert
testimony does not appear to be grounded in scientifically valid methodology or
reasoning and thus is inadmissible under Daubert. Finally, we reject
appellant's ill-supported contention that Merck's epidemiological studies
(which show no causal relationship between RA 27/3 and chronic joint problems)
are flawed.
We conclude that the district court properly
applied the Daubert standard and did not abuse its discretion in
excluding the testimony of plaintiff's experts. Absent admissible evidence of
causation, Merck was entitled to summary judgment. There is no need for us to
consider the parties' arguments related to the Vaccine Act. Accordingly, we
affirm the judgment of the district court.
We have
examined all of the appellant's contentions and find them to be without merit.
FOR THE COURT
ROSEANN B. MacKECHNIE
By:
_________________________________
---- Begin EndNotes ----
1 Judge Van Graafeiland, who was originally assigned
as a member of the panel designated to hear this appeal, became ill shortly
before the scheduled oral argument and was unable to participate in its
argument or disposition. The remaining two members of the panel, who agree on
the disposition, issue this order pursuant to 2d Cir. R. § 0.14(a), (b). See
Murray v. National Broadcasting Co., Inc., 35 F.3d 45, 47-48 (2d Cir.
1994).
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© 2000 Touro College Jacob D.
Fuchsberg Law Center
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