United States District Court, N.D. California
ORDER DENYING IN PART AND DEFERRING RULING IN PART ON
DNC DEFENDANTS' MOTIONS TO EXCLUDE OPINION
M. CHESNEY United States District Judge
the Court are two motions filed November 24, 2017, by
Delaware North Companies Inc., Delaware North Companies Parks
& Resorts, Inc., and Delaware North DNC Parks &
Resorts at Yosemite, Inc. (collectively, "DNC
Defendants"): (1) "Motion to Exclude The Opinion
Testimony of Plaintiffs' Expert, Branko Huisa-Garate
M.D." ("Dr. Huisa Mot."); and (2) "Motion
to Exclude the Opinion Testimony of Matthew Arnold, M.D.,
Michael Geschwind, M.D., Karen Johnson, M.D., Nina Riggins,
M.D., Grant Wang, M.D., and Scott Weisenberg, M.D."
("Treating Physicians Mot."). The motions have been
fully briefed. The matters came on regularly for hearing on
January 26, 2018. Patrick S. Schoenburg of Wood Smith Henning
& Berman LLP and Kevin J. English of Phillips Lytle LLP
appeared on behalf of the DNC Defendants. James P. Collins of
The Boccardo Law Firm, Inc. appeared on behalf of plaintiffs
Christopher J. Harrison and Felicia I. Tornabene.
read and considered the papers filed in support of and in
opposition to the motions, and having considered the
parties' respective oral arguments, the Court rules as
allege that, in June 2012, they stayed in a "Signature
Tent Cabin, " located in Yosemite National Park, and
that plaintiff Christopher J. Harrison ("Harrison")
subsequently contracted hantavirus. (See Amended
Master Consolidated Complaint ¶¶ 81, 149.)
According to plaintiffs, as a result of Harrison's having
contracted hantavirus, he has, inter alia, suffered
and continues to suffer from neurological impairments,
specifically, as identified at the hearing, the following:
migraines, photophobia, and short-term memory loss. Based
thereon, plaintiffs bring several state law causes of action,
specifically, negligence, loss of consortium, and fraud.
California law, plaintiffs must prove causation "within
a reasonable medical probability based upon competent expert
testimony." See Avila v. Willits Environmental
Remediation Trust, 633 F.3d 828, 836 (9th Cir. 2011)
(internal quotation and citation omitted). Plaintiffs also
must establish that the virus at issue is "capable of
causing the injury alleged (general causation)" and that
such virus "caused, or was a substantial factor in
causing [Harrison's] injury (specific causation)."
See id. In that regard, plaintiffs have disclosed a
retained expert, Branko Huisa-Garate, M.D. ("Dr.
Huisa"), who has opined that "hantavirus is capable
of compromising the CNS [central nervous system]"
(see Collins Decl. Doc. 266 Ex. 5 at 5), and that
Harrison's neurological impairments are the result of his
having contracted Hantavirus (see id.); in addition,
plaintiffs have disclosed four physicians who treated
Harrison, specifically, Michael Geschwind, M.D. ("Dr.
Geschwind"), Karen Johnson, M.D. ("Dr.
Johnson"), Nina Riggins, M.D. ("Dr. Wiggins"),
and Scott Weisenberg, M.D. ("Dr. Weisenberg"), each
of whom has opined that Harrison's neurological
impairments are the result of his having contracted // //
hantavirus (see Collins Decl. Decl. Doc. 267 Ex. 13
at 10-16, 19-21).
instant motions, DNC Defendants contend the above-described
opinions should be excluded under Rule 702 of the Federal
Rules of Evidence and Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), on the
ground that plaintiffs have failed to establish either such
opinion is based on a scientifically reliable methodology.
See id. at 589 (holding district judge must ensure
that "any and all scientific testimony or evidence
admitted" is "reliable"). DNC Defendants ask
the Court to exclude the experts' testimony "on the
papers or hold a Daubert hearing."
(See DNC Defs.' Dr. Huisa Mot. at 18:6-7; DNC
Defs.' Treating Physicians Mot. at 22:2-3.)
noted, plaintiffs' retained expert, Dr. Huisa, has opined
that hantavirus can cause neurological impairments. Dr. Huisa
is a board-certified neurologist who presently is a clinician
and assistant professor in the neurosciences department at
the University of California, San Diego (see Collins
Decl. Doc. 266 Ex. 5 at 1, Ex. 10 at 1-2), and who previously
was a clinician and assistant professor in the neurology
department at the University of New Mexico (see id.
Ex. 5 at 1, Ex. 10 at 1).
Defendants argue that plaintiffs cannot show Dr. Huisa's
opinion is "scientifically reliable, " because,
according to DNC Defendants, "[t]here are no peer
reviewed scientific or medical studies" and no
"scientific or medical literature" finding that
hantavirus can cause neurological injuries. (See DNC
Defs.' Dr. Huisa Mot. at 2:6-13.)
means of showing [an expert opinion is reliable] is by proof
that the research and analysis supporting the proffered
conclusions have been subjected to normal scientific scrutiny
through peer review and publication." Daubert v.
Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1318
(9th Cir. 1995). An expert opinion may, however, "still
be reliable and admissible without peer review and
publication." Wendell v. GlaxoSmithKline, LLC,
858 F.3d 1227, 1235 (9th Cir. 2017). "This is especially
true when dealing with rare diseases that do not impel
published studies." See id.; Daubert,
509 U.S. at 593 (noting "some propositions . . . are too
particular, too new, or of limited interest to be
published"; declining to "set out a definitive
checklist"); see, e.g.,
Wendell, 858 F.3d at 1236-37 (finding admissible,
despite absence of published study, expert opinion that
prescription drug caused rare cancer; noting experts'
reliance on "case studies, " their "own wealth
of experience, " and "literature").
rarely infects humans. (See English Decl. Doc. 272
Ex. 3) (stating, "[c]ompared to other vector-borne
pathogens, such as Lyme disease and West Nile virus, the risk
of contracting hantavirus is almost negligible").)
Hantavirus was first recognized in the United States in 1993
(see Collins Decl. Doc. 266 Ex. 3, Ex. 23 at 1),
and, as of that date, an average of only twenty-nine to
thirty cases have been reported each year (see id.
Ex. 3; English Decl. Doc. 272 Ex. 1 at 3). Given the rarity
of hantavirus infections, the lack of peer reviewed studies
or other publications finding a causal connection between
hantavirus and neurological impairments is neither surprising
nor, provided other indicia of reliability can be shown, a
bar to admission. See Daubert, 509 U.S. at 593
(holding "publication . . . does not necessarily
correlate with reliability").
plaintiffs have offered evidence, undisputed by defendants,
that viruses can cause neurological impairments.
(See, e.g., Collins Decl. Doc 267 Ex. 6 at
79:13-20, 118:19 - 119:6, 128:9-22; id. Ex. 12;
Collins Decl. Doc. 275 Ex. 11 at 41:5-19, 45:2-21.) With
respect to hantavirus, Dr. Huisa relies on several case
studies of patients who developed neurological impairments
following infection by hantavirus (see Collins Decl.
Doc 266 Exs. 5-6; id. Exs. 4, 11, 23, 24), as well
as on a "longitudinal, prospective study" of
hantavirus survivors that reported 55% of the survivors had
"short-term memory difficulties" (see id.
Exs. 6, 20), and his experience as a board-certified
neurologist, in particular, his work at the University of New
Mexico "consult[ing] on patients having // hantavirus
infections" (see id. Ex. 5 at 3). In challenging
the sufficiency of plaintiffs' showing, DNC Defendants
have not identified any evidence showing hantavirus cannot
cause neurological impairments, and, indeed, at least one
defense expert has "agree[d] with Dr. Huisa's
determination that inflammation of the brain is possible
secondary to a hantavirus exposure, " albeit only in
"very rare cases." (See Collins Decl. Doc.
266 Ex. 22 at 135:18-23.) Under such circumstances, the Court
finds plaintiffs have sufficiently demonstrated Dr.
Huisa's general causation opinion is "not the type
of 'junk science' Rule 702 was meant to
exclude." See Wendell, 858 F.3d at 1237.
to the extent DNC Defendants seek, on the papers submitted,
an order excluding Dr. Huisa's opinion as to ...