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February 28, 1995

MIRIAM CASEY, et al., Plaintiffs,
OHIO MEDICAL PRODUCTS, et al., Defendants.

The opinion of the court was delivered by: CHARLES A. LEGGE

 Defendants have moved for summary judgment. The motion was opposed, argued and submitted for decision. The court has reviewed the moving and opposing papers, the extensive factual record submitted in support of and in opposition to the motion, the arguments of counsel, the record in the case, and the applicable authorities. The court concludes that there are no genuine issues of material fact on the matters discussed below, and that summary judgment must be granted in favor of defendants.



 Plaintiffs' decedent, Dr. George Casey, was an anesthesiologist. He contracted chronic active hepatitis and died of that disease in 1992. (He and his estate are alternatively called "plaintiff" in this order). In 1977, while practicing medicine as an anesthesiologist, plaintiff was exposed for a short time to an anesthesia containing halothane.

 Plaintiff sues the defendants who manufactured or sold the halothane and the containers in which it was sold and dispensed by plaintiff to patients. The complaint alleges negligence, strict tort liability, and breach of warranties.

 A central question posed by this case, and more specifically by this motion, is whether plaintiff's exposure to halothane caused his illness and death.


 The relevant discovery on the issue of causation has been conducted. Defendants now move for summary judgment on that issue, which if favorable to defendants must result in summary judgment in their favor on the entire case.

 Defendants' motion for summary judgment properly raised the issue of causation, and the burden then shifted to plaintiff to demonstrate a genuine issue of material fact on whether halothane caused plaintiff's death. Plaintiff seeks to establish the necessary causation by the declaration of Dr. Robert Harrison, an occupational health physician. In this motion, defendants contend that (1) Dr. Harrison's opinion is inadmissible under Federal Rules of Evidence 702 and 703; and (2) even if his opinion meets the threshold requirements for admissibility, that evidence is insufficient to raise a genuine issue of material fact on causation.


 This motion invokes the powers delegated to the district courts by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993). The Daubert standard has been further refined, and the procedures for its application further explained, by the U.S. Court of Appeals for this circuit on the remand of that case; Daubert v. Merrell Dow, 43 F.3d 1311, 1995 WL 1736 (9th Cir. 1995).

 The term "causation" has two meanings here, both of which must be examined under Daubert. The first is general causation; that is in this case, whether halothane can cause chronic active hepatitis. The second is specific causation; that is in this case, if halothane can cause active hepatitis, whether it did cause plaintiff's chronic active hepatitis. Daubert, F.3d at , 1995 WL 1736, at *8.

 So, to restate the question raised in this motion: has plaintiff shown through the declaration of Dr. Robert Harrison *fn1" that halothane caused, both generally and specifically, plaintiff's chronic active hepatitis? The first issue is whether Dr. Harrison's opinion, including the foundation and methodology on which it is based, is sufficient for admission into evidence under Federal Rules of Evidence 702 and 703. Second, if it is admissible is it sufficient to create a genuine issue of material fact on the cause of plaintiff's death. Those issues must be examined and resolved by this court under the steps defined by the U.S. Supreme Court and the Ninth Circuit in their Daubert decisions.


 The responsibilities of district courts under Daubert are indeed heavy ones. The training of a judge is of course in law and not in medicine. While legal causation is a concept familiar to all trained in the law, from the first semester of law school, concepts of medical and scientific causation are not. Those are generally left to other professions, whose objectives are not the resolution of legal rights and duties but the diagnosis and treatment of patients. A court's analysis of medical causation necessarily forces a court to become as familiar as it can, with little or no scientific training, to understand the medical and scientific concepts. The vocabulary alone is daunting; and the danger of merely grabbing at words, and attaching too much significance to them, is very real.

 The Daubert analysis also requires courts to focus heavily on what has occurred in the past, rather than what the future of medicine and science might be. And history has frequently taught that the conventional scientific wisdom of one generation is later looked upon as shocking ignorance by future generations.

 Nevertheless, those are the burdens which have been placed upon the district courts by Daubert. And it is inherent in the litigation process that the work of specialists is weighed by generalists, be they juries or judges. Armed with a degree of intellectual curiosity inherent in district court judges, and guided by two centuries of reviewing the wisdom of other occupations, federal courts will perform the assigned task. Whether the Daubert analysis is ultimately viewed as "wise" law, or whether it promotes "good" science, must be answered at some time in the future.


 The first step is to examine whether Dr. Harrison is an expert in a scientific field dealing with the subject of causation between halothane and plaintiff's liver disease. F.3d at , 1995 WL 1736, at *3; Reference Manual On ...

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