United States District Court, N.D. Indiana, South Bend Division
C.W., et al. Plaintiffs,
TEXTRON, INC., Defendant.
OPINION AND MEMORANDUM
PHILIP P. SIMON, Chief District Judge.
Defendant Textron, Inc., asks that I grant it summary judgment on the Plaintiffs' claims of negligence regarding injuries their children allegedly suffered when a chemical from Textron's plant entered the Plaintiffs' water supply. (DE 239.) Because I previously excluded the Plaintiffs' causation experts (DE 234), Textron argues that this case cannot proceed. Having reviewed the parties' extensive briefing on this issue, I agree with Textron that the Plaintiffs cannot meet their burden on proving causation and therefore I will GRANT Textron's motion (DE 239).
The facts alleged in this case and procedural history have been more fully set forth in my prior order on the various motions in limine (DE 234) and in the parties' briefing on this motion (DE 241, 242, 245) so I will put forth only those facts necessary to decide the summary judgment motion here. Plaintiffs, C.W. and E.W., are the minor children of Adele and Jason Wood. They allege that the water they used in their Rochester, Indiana home was contaminated with a chemical called vinyl chloride, which seeped into the groundwater from a facility owned by Textron.
C.W. was adopted and brought to the Wood home on May 11, 2007, when he was 11 weeks old. E.W. was adopted and brought to the home on April 25, 2008, when she was 11 days old. The Woods allege that the children were exposed to the vinyl chloride, a known human carcinogen, by drinking the water, through contact with their skin, and through inhaling water vapors when they were bathed. The Woods brought both of the children to their Rochester home before they were aware of the contamination.
In November 2008, Textron found that the Woods' water was contaminated with vinyl chloride. The various testing Textron performed during the latter half of 2008 showed that the concentration of vinyl chloride at the Woods' home was between 5.00 and 8.40 parts per billion. On November 5, 2008, Textron notified the Woods of the contamination. The Woods removed their children from the home on that day, and they never returned. In September 2009, Textron found that the concentration of vinyl chloride at the Woods home was between 8.60 and 9.00 parts per billion.
The Woods have sued Textron for negligence, negligence per se, negligent infliction of emotional distress, and claim that the actions underlying the negligence claims above were willful and wanton. They claim that vinyl chloride has caused a number of illnesses in their children and substantially increases their risk of adverse health effects throughout their lives. The Woods allege that while the children lived in the Rochester home, they suffered from gastrointestinal issues, including spitting up, projectile vomiting, and bloody stools; that E.W. had skin problems in the form of an itchy rash; and that both children have suffered neurological problems. They also contend that the children are now at an increased risk for cancer.
In support of these allegations, they proffered the expert testimony of a number of experts as to causation - Dr. Jill Ryer-Powder, a toxicologist; Dr. Vera Byers, an immunologist; and Dr. Jeffrey Dahlgren, a physician - all of whom I excluded on March 17, 2014. (DE 234.) In essence, I found that each expert failed to provide adequate support for his or her contention that vinyl chloride in the dose and duration of exposure allegedly suffered by the Woods' children is capable of causing their various ailments. More specifically, these experts all relied upon various studies whose data could not be extrapolated to the Woods for various reasons. Most damning was the fact that the studies relied upon by the Woods' experts all involved concentrations of vinyl chloride that greatly exceeded - in some cases thousands of times more - the exposure in this case. What's more, some of the studies relied upon by the experts involved substances bearing no relation to vinyl chloride, and the experts failed to provide any real basis for extrapolating those results to this matter other than their sayso. ( See DE 234 at 34.)
Textron asks me to grant summary judgment in its favor because without expert testimony on causation, the Woods cannot possibly prevail on their claims of negligence. The Woods, however, argue that two of their remaining experts - Dr. Jerrod Feldman, a pediatrician who has treated the children since May 2007, and Dr. Claude Ruffalo, a psychologist who evaluated the children's neurological functioning - can provide testimony that establishes causation, although neither expert was originally proffered as a causation expert. ( See DE 240-2 at 2; DE 240-3 at 3, Feldman Dep. Excerpts at 27:18-28:19, 30:7-23; 31:2-4; 48:18-49:4; DE 161 at 1-2.) Dr. Feldman is expected to testify that his differential diagnosis of the children rules out all causes of the children's various gastrointestinal and dermal issues other than vinyl chloride, while Dr. Ruffalo is expected to testify that the vinyl chloride exposure caused various neurological deficits in the children. The Woods also point to the testimony of Textron's expert Dr. Thomas McHugh as establishing that vinyl chloride is known to cause cancer, and therefore their children are at an increased risk for developing cancer later on.
The primary issue before me then is whether the Woods can marshal enough causation evidence to allow this case to go to a jury. The only causation evidence cited by the Woods that has not been excluded is the testimony of Drs. Feldman, Ruffalo, and McHugh, so I will address each expert's expected testimony in turn after a brief discussion of the applicable law.
Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A genuine dispute about a material fact exists only "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In making this determination, I must construe all facts and draw all reasonable inferences from the record in the light most favorable to the nonmoving party. Id. at 255. Failure to prove an essential element of a plaintiff's case necessitates summary judgment in favor of the defendant because "[i]n such a situation, there can be no genuine issue as to any material fact, ' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
To prevail on its various claims of negligence against Textron, the Woods must prove that Textron was negligent and that its negligence caused their children's harms. Myers v. Ill. Cent. RR Co., 629 F.3d 639, 642 (7th Cir. 2010). In other words, the Woods must prove that vinyl chloride caused the children's various medical and neurological issues. And in cases like this, "when there is no obvious origin to an injury and it has multiple potential etiologies, expert testimony is necessary to establish causation." Id. at 543 (quotation marks omitted); see also Korte v. Exxonmobil Coal USA, Inc., 164 Fed.Appx. 553, 558, 2006 WL 41284, at **4 (7th Cir. 2006) (granting summary judgment to defendants where plaintiff had no expert testimony on causation in toxic tort case).
Under Indiana law, which governs in this diversity case, proving causation in a toxic tort case requires a two-step process whereby the plaintiff must first prove general causation, and then prove specific (or individual) causation. 7-Eleven, Inc. v. Bowens, 857 N.E.2d 382, 389 (Ind.Ct.App. 2006)(requiring toxic tort plaintiffs to "establish both generic and individual causation" and finding plaintiffs who did not first prove general liability would not be entitled to recover). This bifurcated method of proving causation in toxic tort cases is not unique to Indiana. See e.g. Knight v. Kirby Inland Marine, Inc., 482 F.3d 347, 351 (5th Cir. 2007)("Evidence concerning specific causation in toxic tort cases is admissible only as a follow-up to admissible general-causation evidence."); Avila v. Willits Environmental Remediation Trust, 633 F.3d 828, 836 (9th Cir. 2011) (toxic tort plaintiffs ...