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In re Yosemite National Park Hantavirus Litigation

United States District Court, N.D. California

February 23, 2018

IN RE YOSEMITE NATIONAL PARK HANTAVIRUS LITIGATION
v.
DNC PARKS & RESORTS AT YOSEMITE, INC., et al. Defendants THIS DOCUMENT RELATES TO: CHRISTOPHER J. HARRISON, et al., Plaintiffs

          ORDER DENYING IN PART AND DEFERRING RULING IN PART ON DNC DEFENDANTS' MOTIONS TO EXCLUDE OPINION TESTIMONY

          MAXINE M. CHESNEY United States District Judge

         Before 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.

         Having 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 follows.

         DISCUSSION

         Plaintiffs 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.

         Under 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).[1]

         By the 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.)

         A. General Causation

         As 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).

         DNC 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.)

         "One 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").

         Hantavirus 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").

         Here, 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).[2] 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.

         Accordingly, to the extent DNC Defendants seek, on the papers submitted, an order excluding Dr. Huisa's opinion as to ...


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