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DIAZ v. JOHNSON MATTHEY

July 28, 1995

JERRY DIAZ and CATHY DIAZ, Plaintiffs
v.
JOHNSON MATTHEY, INC. and JOHNSON MATTHEY, PLC, Defendants


JOSEPH E. IRENAS, U.S.D.J.


The opinion of the court was delivered by: JOSEPH E. IRENAS

IRENAS, District Judge:

 From May of 1981 to October of 1990 the plaintiff, Jerry Diaz, worked as a maintenance mechanic in New Jersey for Johnson Matthey, Inc. ("JMI"), a corporation which, inter alia, refines, recovers, and markets platinum. Defendant, Johnson Matthey, PLC ("JM PLC"), is JMI's parent corporation. Plaintiff developed the platinum allergy from on-the-job exposure to platinum salts, and he seeks damages for ongoing lung problems. Diaz claims that employees of both JMI and JM PLC advised him that the effects of the platinum salt allergy were temporary and that he would have no further health problems related to the allergy when he stopped working for JMI and was no longer exposed to platinum salts.

 On November 18, 1994, the Court rendered its decision on defendants' summary judgment motion. Diaz v. Johnson Matthey, Inc., 869 F. Supp. 1155 (D.N.J. 1994). In that opinion, Jerry and Cathy Diaz's claims against JMI were dismissed. The conspiracy claim against Johnson Matthey, PLC was also dismissed, but the fraud and negligence claims survived summary judgment. In its motion for summary judgment, JM PLC challenged the adequacy and admissibility of the proposed testimony of plaintiff's expert, Dr. Donald Auerbach. Because the Court recognized that plaintiff needed expert testimony to maintain his claims for fraud and negligence, the Court granted defendant's application for a Fed. R. Evid. 104(a) hearing to decide whether plaintiff's expert testimony would be admissible.

 At a Daubert1 hearing spanning two and one-half days, plaintiff relied solely on the testimony of Dr. Auerbach, while JM PLC presented Mr. Philip Jones, Dr. Paul Epstein, and Dr. Robert Perin. In addition, the defendant submitted the depositions of Dr. John Brodsky and Dr. Alexander Higgins, and the plaintiff offered medical reports of Drs. Leonard Berkowitz and Eric Finkenstadt. At the conclusion of the hearing, the parties were allowed time to review the hearing transcripts, draft briefs and present oral argument.

 The Court finds that plaintiff's expert is unqualified and that his testimony is unreliable, and, accordingly, the motion to strike Dr. Auerbach as a witness is granted. Without Dr. Auerbach's testimony, the plaintiff has no expert testimony on the issue of whether Diaz's exposure to platinum salts caused his chronic, post-employment asthma. Thus, Diaz cannot prove causation, and summary judgment in favor of JM PLC must be granted.

 I. THE PRECLUSIVE EFFECT OF THE WORKER'S COMPENSATION DECISION

 Before we present our findings of fact and conclusions of law from the Daubert hearing, we address plaintiff's argument that because the worker's compensation court found that Jerry Diaz's respiratory injury was caused by his employment at JMI and is permanent, JM PLC is collaterally estopped from relitigating these issues. The doctrine of collateral estoppel (issue preclusion) may be invoked when

 Matter of Estate of Dawson, 136 N.J. 1, 20, 641 A.2d 1026 (1994) (internal quotations omitted).

 The New Jersey Supreme Court has held that collateral estoppel would not apply here because worker's compensation and liability for negligence are "mutually exclusive remedies":

 
the former affords what is essentially social insurance in the common and individual interest, irrespective of fault, [and] agreed exclusive relief for the consequences of an industrial accident arising out of and in the course of employment; the latter is the common-law mode of redressing personal injuries attributable to fault not within the Compensation Act.

 Imre v. Riegel Paper Corp., 24 N.J. 438, 450, 132 A.2d 505 (1957). In other words, the identity of subject matter necessary to invoke collateral estoppel is lacking. Id. Nor does the worker's compensation court, with its emphasis on a speedy and efficient resolution, offer the type of forum in which to resolve Daubert issues.

 More significantly, the defendant in the earlier worker's compensation proceeding was JMI, not its parent, JM PLC, the remaining defendant in this case. Plaintiff cannot have it both ways. To bring this action outside the worker's compensation bar, plaintiff had to convince the Court that JM PLC and JMI were independent entities, see Diaz, 869 F. Supp. at 1163-64. Plaintiff cannot now argue the reverse and attempt to show the identity of JM PLC's and JMI's interests to invoke collateral estoppel. Cf. Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 419 (3d Cir.) ("Judicial estoppel. . . . preclude[s] a party from assuming a position in a legal proceeding inconsistent with one previously asserted."), cert. denied, 488 U.S. 967, 102 L. Ed. 2d 532, 109 S. Ct. 495 (1988).

 II. DAUBERT HEARING: FINDINGS OF FACT

 General

 1. The refining of platinum creates chloroplatinate salts. Chloroplatinate salt is an allergic sensitizer. There is no dispute that a worker who becomes sensitized may suffer asthmatic symptoms while the exposure to these salts continues.

 2. Jerry Diaz has asthma, a condition marked by shortness of breath and wheezing. Dr. Auerbach agrees with the statistic that about 15,000,000 Americans have asthma. Testimony was inconclusive as to what percentage of this total is represented by occupational asthma. One text estimates that in the United States, 2% of all asthmas are of occupational origin, *fn2" while Dr. Perin said some studies show that up to 20% of adult asthma is occupational.

 3. Diaz was employed at JMI from May, 1981, through October, 1990. Diaz was exposed to chloroplatinate salts as a maintenance mechanic at JMI, but he has had no further exposure to this irritant since terminating his employment at JMI. While employed at JMI, Diaz became sensitized to chloroplatinate salts and suffered from asthmatic symptoms.

 4. Diaz worked for Bethlehem Steel Corporation from 1977 to 1978 and for C.E. Glass Company from 1978-1981. From 1990 to the present he has worked for Allied Signal. Diaz was required to wear a mask and respirator while working at Bethlehem Steel and C.E. Glass, and there is some indication in the record that this may also be true at Allied Signal. This requirement would suggest at least the possibility of airborne irritants in all three workplaces.

 Dr. Donald Auerbach

 6. Dr. Auerbach has treated patients that have asthma related to their work. He is not Board Certified in occupational medicine nor is he eligible to sit for the test for that certification. Diaz is the first patient that Dr. Auerbach has diagnosed with the platinum salt allergy.

 7. Dr. Auerbach is not an expert in the field of epidemiology, *fn3" toxicology, *fn4" biostatistics, animal biology or industrial hygiene.

 8. At the time Dr. Auerbach rendered his written expert report on March 8, 1994, he had read one article written by Dr. Stuart Brooks and other doctors: Stuart M. Brooks et al., "Cold Air Challenge and Platinum Skin Activity in Platinum Refinery Workers," Chest (June 1990) (the "1990 Brooks article"). *fn5" Dr. Auerbach may have also read an unnamed book on occupational medicine that he had in his office. Prior to evaluating Diaz, Dr. Auerbach had read Stuart M. Brooks et al., "Reactive Airways Dysfunction Syndrome (RADS): Persistent Asthma Syndrome after High Level Irritant Exposures," Chest (Sept. 1985), and he had heard Dr. Brooks lecture on RADS at a continuing medical education course in 1991.

 9. Approximately three weeks before testifying, Dr. Auerbach, with the assistance of a medical librarian, ran a computer search at Cooper Hospital using the search words "platinum", "platinum asthma" and "platinosis." His testimony at the Daubert hearing relied on two articles from this search: Rolf Merget et al., "Nonspecific and Specific Bronchial Responsiveness in Occupational Asthma Caused by Platinum Salts after Allergen Avoidance," Am. J. of Respiratory and Critical Care Medicine (Oct. 1994) (the "1994 Merget article") and Mark T. O'Hollaren, "Asthma Due to Metals and Metal Salts," in Occupational Asthma (1992) (the "O'Hollaren article"). He also relied on general literature on occupational asthma, including Stephen Lam & Moira Chan-Yeung, "Occupational Asthma: Natural History, Evaluation and Management" in Occupational Medicine (Linda Rosenstock ed. April-June 1987) (the "Lam article") and Christian Allard et al., "Occupational Asthma Due to Various Agents: Absence of Clinical and Functional Improvement at an Interval of Four or More Years after Cessation of Exposure," Chest (Nov. 1989). *fn6"

 10. Dr. Auerbach also "skimmed" the other articles that came up on the printout from his search, including Rolf Merget et al., "Quantitative Skin Prick and Bronchial Provocation Tests with Platinum Salt," British J. of Industrial Medicine (1991) (the "1991 Merget Article"). *fn7"

 12. Plaintiff's attorney sent Diaz to Dr. Auerbach who took a medical and social history and examined him on February 16, 1994. Dr. Auerbach took Diaz's medical history in forty-five minutes or less. Plaintiff told Dr. Auerbach that he began having skin rashes, sneezing, and respiratory problems in 1982 and 1983. At first these symptoms would improve on the weekends when he was away from work. Eventually, however, the symptoms continued throughout the weekends, and by 1990 he was sneezing constantly and had shortness of breath and wheezing several times a week. Diaz reported these symptoms have persisted even though he left JMI in October of 1990. Diaz had a fifteen pack year history of smoking (a pack a day for fifteen years), but he quit smoking in 1989. When he saw Dr. Auerbach, Diaz was only using a Proventil inhaler on an as-needed basis. Past medication included Aerobid, Theo-Dur, a nasal spray, and Vanceril. *fn8"

 13. Diaz also told Dr. Auerbach that in 1987 he was seen in the emergency room for asthma related to inhaling chlorine and that in 1989 his skin test for platinum became positive for the first time.

 14. In 1989 Diaz was placed in a non-exposure area of the plant. When his problems continued, Diaz was sent to Dr. Perin, an allergist, who proscribed Theo-Dur and Aerobid. Dr. Auerbach did not know who proscribed Proventil for Diaz or the last time Diaz had used the Proventil prior to his February 16 exam.

 15. Diaz said that he was not exposed to noxious inhalants at Allied Signal, but Dr. Auerbach made no effort to determine the actual employment conditions or the possible presence of allergenic workplace irritants at C.E. Glass, Bethlehem Steel or Allied Signal, Diaz's three other employers.

 16. The only finding of note from Diaz's physical exam was that the lungs demonstrated mild wheezing on exhale. Diaz's chest x-ray, which had been taken on February 7, 1994, was normal, although Dr. Auerbach noted that the chest x-ray was of technically poor quality.

 17. Dr. Auerbach's office performed a spirometry on Diaz. Spirometry is a PFT that measures the lungs' forced vital capacity ("FVC") and forced expiratory volume in one second ("FEV1"). FVC represents the volume of air which an individual can exhale from her lungs. FEV1 measures how much of this air is exhaled in the first second. FVC and FEV1 values are normally expressed in liters. *fn9" These two absolute values are used to derive three ratios which are expressed as percentages: (i) the ratio of the actual FVC value to the predicted value; (ii) the actual FEV1 value to the predicted value; and (iii) the ratio of the actual FVC to the actual FEV1. When Dr. Auerbach tested Diaz the absolute FVC value was 4.83 liters against a predicted of 5.91 liters, for a ratio of 82%; the absolute FEV1 value was 3.07 liters against a predicted of 4.74 liters, for a ratio of 65%; and the ratio of FEV1 to FVC (3.07/4.83) was 64%. According to Dr. Auerbach, a normal value for both the FVC ratio of actual to predicted and the FEV1 ratio of actual to predicted is 80% or above. *fn10" A normal value for the FEV1 to FVC ratio would be 75% or above. *fn11" See Ex. 2 to Greenbaum Aff. at 39-43.

 18. At the direction of Dr. Auerbach the Delaware Valley Lung Center performed PFTs to determine plaintiff's total lung capacity, residual volume and diffusion capacity. 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. *fn12" 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. *fn13"

 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.

 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 *fn15" 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 *fn16" 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.

 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 *fn18" 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 ...


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