at 43) (emphasis added). Both parties dispute the underlying premise of those studies; however, even assuming Thompson interpreted those studies correctly, his opinion has simply not gained general acceptance.
That finding is reinforced by various pieces of correspondence written by Dr. Thompson. Additionally, it may explain Thompson's decision to restrict the use of the report to the judicial forum rather than subject his opinion to peer review.
In light of those findings and plaintiffs failure to meet their burden, this court is compelled to exclude Thompson's testimony.
At this juncture, the court will turn to plaintiffs' warnings expert, Dr. Sam Glucksberg, Ph. D. Defendants' position with regard to Glucksberg is simply: "the foundation for Dr. Glucksberg's opinion is illusory. . . [because his] entire testimony rests on the opinions of . . . Drs. Kroemer and Thompson." (Def. Brief at 46). Plaintiffs do not dispute that contention but, rather, offer a substantive discussion of the duty to warn under New Jersey law. Indeed, even at oral argument, plaintiffs failed to address defendants' argument. In light of the court's previous findings and the absence of any discussion demonstrating the independent reliability of Glucksberg's report, the court is compelled to exclude Dr. Glucksberg's testimony.
The last expert offer by plaintiffs is Dr. Craig Rosenberg. As a preliminary matter, the court finds that Dr. Rosenberg qualifies as an expert under Rule 702. Dr. Rosenberg is a medical doctor and practices in the field of physical medicine. This court is confident that the doctor is qualified to identify the existence of upper-extremity disorders such as carpal tunnel syndrome.
Dr. Rosenberg is not plaintiffs' treating physician; however, after conducting an examination of all eleven individuals, Dr. Rosenberg concluded that there is a "direct and causal relationship" between each plaintiffs' injuries and her keystroking activities at the CMC-108 keyboard. To arrive at that conclusion, Dr. Rosenberg considered the physical examination, work history, individual medical history, family history and typing style.
Defendants contend that that methodology is unreliable. More specifically, defendants argue that the Daubert approach required Dr. Rosenberg to conduct additional testing to rule out other potential causes of plaintiffs' injuries and to support his opinion with epidemiological studies.
With regard to their first assertion, defendants must satisfy a three-part test. First, defendants must show that the doctor failed to employ a sufficient number of diagnostic techniques to rule out alternative causes of the condition. Second, defendants must show that there exists a likely secondary cause. Third, defendants must show that the doctor failed to offer a reasonable explanation to support the belief that the defendants' actions were a substantial factor in perpetuating plaintiffs' condition. Paoli, 35 F.3d at 760.
The court need not engage in extended discussion with regard to defendants' challenge to Rosenberg's testing techniques. The court notes that Dr. Rosenberg did not perform every test which defendants contend is essential to a proper diagnosis; however, the doctor did employ a sufficient number of testing techniques to support a finding of reliability. Additionally, defendants did not satisfy the second element. Defendants did offer a panoply of possible alternatives, but failed to demonstrate the existence of a secondary cause that was "likely" to cause plaintiff's injuries. Accordingly, the court finds that Rosenberg utilized reliable techniques to make his diagnosis.
Defendants also urge the court to exclude Dr. Rosenberg because his diagnosis "is wholly inadequate to determine causation in a legal sense . . . because differential diagnosis merely generates a hypothesis for determining treatment." (Def. Reply at 10). Defendants may be correct; however, the court is not reviewing Rosenberg's opinion to determine whether plaintiffs establish causation by a preponderance of the evidence. In this context, the court is reviewing plaintiffs' submission to ensure that they have demonstrated reliability by a preponderance of the proof.
In sum, defendants' motion to exclude plaintiffs' experts is granted in part and denied in part. The court will exclude the testimony of Dr. Kroemer, Dr. Thompson and Dr. Glucksberg. Dr. Rosenberg, on the other hand, will be permitted to present his opinion. An order accompanies this opinion.
This matter having come before the court defendants' motion to exclude the testimony of plaintiffs' expert witnesses, Dr. Craig Rosenberg, M. D., Dr. Karl Kroemer, D. Eng., Dr. David Thompson, Ph. D., and Dr. Sam Glucksberg, Ph. D.; the court having considered the written submissions of the parties and having heard oral argument, and in light of this court's finding that the opinions of Kroemer, Thompson and Glucksberg are unreliable; and for good cause shown;
IT IS on this 5th day of June 1996
ORDERED that defendants' motion to exclude the testimony of Drs. Kroemer, Thompson and Glucksberg shall be and is hereby GRANTED; and
it is FURTHER ORDERED that defendants' motion to exclude the testimony of Dr. Rosenberg shall be and is hereby DENIED.
CLARKSON S. FISHER
United States District Judge
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