data and anecdotal reports from studies not related to the issue of formaldehyde sensitization is contrary to the methods accepted by the scientific community. Waddell Aff. at Da 621-27 P 19, 31. Nor would credentialed allergists or immunologists rely upon data extrapolated from articles to support conclusions not drawn by the articles' authors. Id.
The case law also warns against use of medical literature to draw conclusions not drawn in the literature itself. For instance, in Wade-Greaux v. Whitehall Laboratories, Inc., 874 F. Supp. 1441 (D.V.I. 1994), aff'd 46 F.3d 1120 (3d Cir. 1994), the proposed experts attempted to rely upon data gleaned from articles whose conclusions did not support the experts' theories. The court noted that each study had express limitations and cautions, and that the experts could not reliably utilize these articles to support their conclusions as to general causation. Id. at 1456, 1468. Not a single one of the articles studying CCP on which Dr. Panitz bases her theory concluded that CCP can cause formaldehyde sensitization. Panitz Dep. at 80.
Reliance upon medical literature for conclusions not drawn therein is not an accepted scientific methodology. See Waddell Aff. P 31. Dr. Panitz's method is not generally accepted by the scientific community.
Dr. Panitz has not supplemented this absence of support for her theory by conducting experiments and publishing peer reviewed articles of her own regarding CCP or formaldehyde sensitization. "Publication (which is but one element of peer review) is not a 'sine qua non ' of admissibility... But submission to the scrutiny of the scientific community is a component of 'good science,' in part because it increases the likelihood that substantive flaws in methodology will be detected. Daubert, 113 S. Ct. at 2729. Viable theories may evade publication because they are too new, too particular, or of too limited interest to be published. Id.
Copious literature has been generated and published on the health effects of CCP use. See Defendants' Joint Appendix at 731-1035. Therefore, the Court cannot find that the topic is too new, too particular or of too limited interest to be published. Indeed, Dr. Panitz has never attempted to obtain peer review of her theory, and has no intention of doing so. Panitz Dep. at 105-06. In light of the copious peer-reviewed literature determining that CCP does not cause the injuries that Dr. Panitz wishes to testify that it has caused, Dr. Panitz's failure to seek or obtain peer review of her theory weighs heavily against the reliability of her methods.
Indeed, it appears that Dr. Panitz has not tested her theory that CCP use can cause formaldehyde sensitization anywhere outside the judicial arena. Dr. Panitz is a professional forensic expert who has participated in hundreds of litigations between 1983 and the present. Panitz Dep. Ex. Da-42; Panitz Dep., White v. Merck & Co., Inc., 6/12/19 at 80. Most of the cases Dr. Panitz evaluates become involved in the legal system. Panitz Dep. at 269. Where a heavily-litigated " scientific" theory is not presented for testing by the medical community's peer-review mechanisms, a court may conclude that "what's going on here is not science at all, but litigation." Daubert, 43 F.3d 1311, 1318 (9th Cir. 1995) (on remand).
The remaining factors concerning the validity of Dr. Panitz's methods, (namely: Panitz's expertise, rates of error, control mechanisms, and relation to accepted methods), are discussed more fully below. Suffice it say, at this point, that these factors, like the others discussed above, demonstrate that Dr. Panitz's testimony is not reliable, and would not assist the trier of fact in reaching an accurate result. Paoli, 35 F.3d at 744.
Dr. Panitz appeals again and again to her "expertise and experience" dealing with occupational illness. See, e.g., Panitz Dep. at 106. Where a doctor's conclusion is based upon subjective experience and perceptions, it is not of the type that can be tested by other doctors in order to determine its validity. "The statements constituting a scientific explanation must be capable of empirical testing." Daubert, 113 S. Ct. at 2797 (citation omitted). Dr. Panitz's conclusions derive from her unquantifiable personal experience and instinct, not from scientific theory and reasoning. This is not the type of expert scientific reasoning that the Court may submit to a jury.
The unreliability of Dr. Panitz's opinion as to general causation is sufficient to render her testimony inadmissible. Paoli, 35 F.3d at 745. However, even if she had succeeded in demonstrating that her conclusion as to general causation is based on scientifically acceptable methodology, the Court could not permit her opinion as to specific causation to be submitted to a jury. Like her general causation theory, Dr. Panitz's theory that Rutigliano's CCP use caused her symptoms is not based on reliable scientific methods.
Courts have insisted time and time again that an expert may not give opinion testimony to a jury regarding specific causation if the expert has not engaged in the process of differential diagnosis--that is, the process of eliminating other possible diagnoses. This very issue arose in Daubert. The Ninth Circuit, applying the Supreme Court's analysis, rejected expert testimony that the product Bendectin caused birth defects in plaintiffs:
Dr. Palmer offers no tested or testable theory to explain how... he was able to eliminate all other potential causes of birth defects, nor does he explain how he alone can state as a fact that Bendectin caused plaintiff's injuries... Dr. Palmer does not testify on the basis of the collective view of his scientific discipline, nor does he take issue with his peers and explain the grounds for his differences... Personal opinion, not science, is testifying here.