Only Diaz's residual lung volume, the amount of air remaining in the lungs after exhaling, was abnormal.
19. Dr. Auerbach diagnosed Diaz as having occupational asthma, a type of obstructive lung disease, caused exclusively by prior exposure to platinum salts while working at JMI. He believed that Diaz did not have asthma prior to his employment at JMI. In his written report of March 8, 1994, Dr. Auerbach did not use the word permanent, but referred to the symptoms as persistent. During his direct testimony he concluded that Diaz's asthma was permanent. See Tr. May 1, 1995, at 109-10. However, during further examination Dr. Auerbach again characterized the condition as persistent.
Neither the 1994 Merget article nor the 1990 Brooks article relied upon by Dr. Auerbach found that the allergy was permanent.
20. Dr. Auerbach's report was based on (i) the February 16 exam and test results; (ii) several pulmonary function tests ("PFTs") dated from December 23, 1981 through July 23, 1990; (iii) two medical reports of Dr. Elissa Ann Favata; (iv) two medical reports of Dr. William Morowitz; (v) the medical reports from Allied Signal, Diaz's subsequent employer; and (vi) the medical literature referred to in P 8, supra.
21. The factors Dr. Auerbach considered in coming to his diagnosis include: his belief (contradicted by other doctors) that there was no history of asthma prior to Diaz starting work at JMI; continued abnormality after he left JMI; the progressive increase in symptoms such as his rhinitis (runny nose), skin eruptions, and respiratory problems; the failure of his symptoms to abate when he was away from work as they did in the earlier years of employment at JMI; the abnormal PFTs coupled with the unremarkable chest x-ray indicating that there was no other causes for the condition; and selected samples of medical literature suggesting (contrary to the traditional view contained in the majority of such literature) that platinum salt allergy may cause persistent respiratory problems after exposure has ceased. Dr. Auerbach also believed it was valid to analogize platinum salt asthma to certain other types of occupational asthma that may continue even after exposure to the irritant is removed.
22. Dr. Auerbach stated that he believed that Diaz "would have done better" if he had been removed from exposure immediately after his symptoms began in 1982-83. The 1990 Brooks article does not make any findings correlating the length of exposure after the onset of symptoms with the occurrence of symptoms after removal. The 1994 Merget article, which Dr. Auerbach utilized for his testimony, could not find such an association, although it noted that studies on other occupational asthmas have found a correlation. Dr. Auerbach said such a correlation makes common sense.
23. Dr. Auerbach did take into consideration Diaz's fifteen pack year smoking history, but he did not believe that Diaz had smoked enough to cause asthma. Furthermore, Dr. Auerbach testified that chronic obstructive pulmonary disease ("COPD"), caused overwhelmingly by smoking, is different from asthma. A PFT called a diffusion capacity test is normal or high with asthma, but low for COPD. Diaz's diffusion capacity test was normal. Additionally, Dr. Auerbach believed that Diaz was too young to have COPD.
24. Dr. Auerbach admitted that plaintiff's PFTs obtained on April 7, 1981, as part of his JMI pre-employment physical were abnormal. The FVC ratio of 72% was actually lower than the 82% reported in Dr. Auerbach's March 8, 1994 report. Dr. Auerbach did not have the pre-JMI employment test results before he wrote his report and had not even seen them until a week before trial.
25. Between September 21 and 25, 1981, the National Institute of Occupational Safety and Health ("NIOSH") performed various medical tests on former and present employees at JMI, including Diaz, for the purpose of conducting a health hazard evaluation. After evaluating Diaz's test, the NIOSH doctors wrote Diaz that he may possibly have asthma and that he was allergic to certain aeroallergens, which are allergens
that are in the air such as dust, pollen, etc. Dr. Auerbach did not agree with the NIOSH diagnosis of asthma. He did not see the NIOSH test results prior to the hearing.
26. Dr. Auerbach had not seen the reports of Dr. Perin prior to rendering his March 8, 1994 report. Dr. Perin is an allergist who examined the plaintiff and, using skin prick testing, determined that he was allergic to aeroallergens. Dr. Auerbach said that skin prick testing
for diagnosing pulmonary problems is overrated. He did not skin prick test Diaz to determine if he might be sensitive to chloroplatinate salts or to determine whether he might be sensitive to other allergens as suggested, not only by NIOSH, but by other examining physicians.
27. No one told Dr. Auerbach that Dr. Perin had diagnosed Diaz as being allergic to common household allergens, dogs and cats, etc. Dr. Auerbach's report did not consider whether Diaz was allergic to common household allergies. Dr. Auerbach was asked to assume that he had known about these allergies. Dr. Auerbach said that he would have considered this in making a diagnosis, and that if Diaz did have these allergies, it would indicate that Diaz had two problems: long term asthma and platinum salt asthma.
28. Dr. Auerbach believed Diaz's family history of emphysema (an aunt and a paternal grandmother had emphysema) would not affect his diagnosis because the history is too far removed. Dr. Auerbach was aware that Diaz "does have a son who has an allergic history, maybe asthma." Tr. May 1, 1995, at 141.
29. In a questionnaire filled out in December of 1981, about seven months after he started working at JMI, Diaz answered "yes " to each of the following inquiries: (i) "Do you usually cough first thing in the morning in the winter?"; (ii) "Do you usually cough during the day - or at night - in the winter?"; (iii) "Do you cough like this on most days for as much as three months each year?"; (iv) "Do you usually bring up any phlegm from your chest first thing in the morning in the winter?"; (v) "Do you bring up phlegm like this on most days for as much as three months each year?"; (vi) "Do you [ever experience] wheezing or whistling?"; (vii) "Have you ever had Bronchitis?"; and (viii) "Have you ever had hay fever?" When confronted with that document at the trial, Dr. Auerbach stated, "I haven't seen that before." Tr. May 1, 1995, at 219. He explained his conclusion that these findings had no bearing on his ultimate opinion by casting doubt on the accuracy of the answers given by Diaz.
30. Dr. Auerbach did not believe Diaz's chlorine exposure would affect his diagnosis since chlorine rarely leads to persistent problems.
31. Dr. Auerbach said that Diaz's Allied Signal pre-employment PFTs were almost normal, but that his FEV1/FVC was an abnormal 66%. Diaz checked "no" on his Allied Signal pre-employment questionnaire
when asked whether he had asthma, wheezing or shortness of breath, although he checked "yes" for hay fever. Allied Signal tests from January, 1993, showed a decrease in plaintiff's pulmonary function since he began working at Allied Signal. A July, 1993, PFT was also abnormal.
32. Dr. Auerbach discredited the value of chest x-rays except for the diagnosis of acute respiratory problems such as acute emphysema. Page 318 of Pulmonary Disease, edited by Claude A. Frazier, M.D., suggests that chest x-rays may show evidence of platinum salt allergy.
33. Dr. Auerbach agreed with the statement: "Individuals with pre-existing asthma who develop asthma following exercise, exposure to cold air, or low levels of irritant fumes or dust at work are not generally accepted as having occupational asthma." Lam article, see supra P 9.
34. Dr. Auerbach disagreed with the statement: "Work related respiratory symptoms are not predictive of platinum salt asthma." 1991 Merget article, see supra P 10.
35. Dr. Auerbach did not know all of the platinum salts to which Diaz was exposed nor whether all of the platinum salts to which Diaz was exposed caused asthma.
36. Dr. Auerbach stated that the grinding of solid platinum can contribute to the platinum salt allergy, although he admitted he never checked the medical literature to see if this conclusion was accurate. No medical literature identified in the record of this case suggests, or even discusses, such a causal link. See infra P 59.
37. Dr. E. Glyn Hughes, former chief medical officer for JM PLC, prepared a videotape on the platinum salt allergy that was shown to JMI employees, including Diaz. Dr. Auerbach never reviewed the tape or the transcript of the videotape. Dr. Auerbach never reviewed any communications between JM PLC and JMI - about platinum salt or otherwise.
38. Dr. Auerbach said he could testify about the state of the knowledge of the platinum salt allergy on particular dates, but during the hearing he gave no opinion as to whether there was any change in the state of scientific knowledge concerning the platinum salt allergy during the period when Diaz was employed at JMI from 1981 to 1990.
Reports of Drs. Berkowitz and Finkenstadt
39. Plaintiff offered the written reports of Drs. Leonard Berkowitz and Eric Finkenstadt. In a May 13, 1991 report, Dr. Finkenstadt concludes that Diaz has chronic asthma that "may be related to occupational exposure from platinum; however, he does have other contributing factors, that being atophy [sic]
and sinusitis as well as his prior cigarette smoking." (Ex. 3 to Pl.'s Br.) Dr. Berkowitz, in a February 11, 1992 report, stated: "I would estimate that [Diaz] has a 5 percent disability relating to his airflow obstruction. Of that 5 percent, I believe that half is related to residual effects of the platinum salt allergy and the other half is related to his cigarette smoking and his aero-allergies which are not occupationally related." (Ex. 4 to Pl.'s Br.)
Dr. Brooks' 1990 Article on Platinum Allergy
40. The 1990 Brooks article, see supra P 8, was based on the 1981 NIOSH study. That study tested 29 terminated workers. The terminated workers had stopped working on average for five years, ranging from seven months to 107 months. Some of these workers had symptoms post-termination. From the article, one cannot determine which worker had which symptoms and the date that each worker had been terminated. Therefore, one cannot correlate a worker's current symptoms with either the duration of exposure or the passage of time after exposure ceases.
41. Although the 1990 Brooks article did find that some of the 29 workers no longer exposed to platinum salts demonstrated symptoms or conditions indicative of asthma, these symptoms were neither consistently predictable nor correlated to any factor (i.e., extent of exposure while working, length of time elapsed since cessation of exposure, smoking, age, other medical history, etc.):
terminated workers ... reported asthma symptoms in 48 percent; showed evidence of airways obstruction in 18 percent; maintained a positive platinum salts prick skin test in 28 percent; had elevated IgE levels in 52 percent; and displayed a positive cold air challenge in 30 percent.
Id. at 1405.
42. The 1990 Brooks article never uses the word permanency. Rather the authors concluded:
It has generally been concluded that asthma in terminated platinum refinery workers does not persist once work exposure has ceased. Our findings are contrary to this conclusion. . . . These findings suggest that allergic sensitization with asthma symptoms and the presence of nonspecific airway hyperresponsiveness in affected workers may continue for years after leaving the industry.