United States District Court, S.D. Indiana, Terre Haute Division
ORDER GRANTING MOTION FOR
GRANTING MOTION TO STRIKE
ENTRY OF FINAL
R. SWEENEY II, JUDGE
James Jones was a federal inmateincarcerated in the Special
Housing Unit (SHU) of the Federal Correctional Institution in
Terre Haute, Indiana (FCI - TH). On August 12, 2016, Mr.
Jones filed this action against the United States alleging
that the United States was negligent in failing to properly
maintain the water quality at FCI - TH, which resulted in Mr.
Jones contracting the Helicobacter pylori
(“H. pylori”) virus. This claim was
brought pursuant to the Federal Tort Claims Act. Mr. Jones
also alleged that he lost two toenails as a result of black
mold in his cell. On October 24, 2017, counsel was recruited
to represent the plaintiff.
pending before the Court is the defendant's motion for
summary judgment. Dkt. 125. The plaintiff filed a response in
opposition as to the H. Pylori claim but agreed to
the dismissal of his loss of toenails from black mold claim.
See dkt. 136 at 3. The defendant filed a reply. Dkt.
143. Additionally, the defendant filed a motion to strike the
expert report and testimony of Dr. Ramon Lopez, Mr.
Jones' proposed expert. For the reasons explained below,
the motion to strike, dkt. , is
GRANTED. Additionally, the motion for summary
judgment, dkt. , is GRANTED.
Motion to Strike
pending before the Court is defendant's motion to strike
the expert report and testimony of Dr. Ramon Lopez, dkt.
135-4, proffered by plaintiff James Jones in support of his
opposition to defendant's motion for summary judgment.
background on Dr. Lopez, Dr. Lopez has been at the IU
Fairbanks School of Public Health, Department of
Environmental Health Science, for over five years, beginning
in 2012 as a postdoctoral fellow, followed by a visiting
research faculty position, and currently as an assistant
research professor. Id. at 56. His training and
research experience as a graduate student were on exposure
assessment in water, and to non-ionizing radiation. He
teaches an exposure assessment laboratory course, that
includes collection and measurement of bacterial indicator
organisms in drinking water and in bodies of water. He was
hired to prepare a report on the likelihood that Mr. Jones
contracted H. pylori from contaminated water at FCI
- TH. He presumed nine statements as true:
a. Although H. pylori is generally acquired in childhood,
rather than during adult life, there exists no direct or
circumstantial evidence that Mr. Jones acquired H. pylori in
b. Mr. Jones has never lived in a developing country.
c. Living in crowded conditions, like a prison/federal
penitentiary, puts a person at a greater risk of H. pylori
d. There exists no evidence that prior to July 2014, that Mr.
Jones was exposed to water supplies that had been
contaminated by human feces.
e. There exists no evidence that prior to July 2014, Mr.
Jones lived with anyone who has an H. pylori infection.
f. James Jones was not infected with H. pylori at any time
prior to his incarceration at FCI Terre Haute;
g. James Jones did not contract H. pylori by way of
human-to-human contact with another inmate while incarcerated
at FCI Terre Haute;
h. H. pylori can be transmitted to humans through drinking
i. The drinking water at FCI Terre Haute was contaminated
with total coliform.
135-4 at 52. Based on these presumptions, he provided the
following expert opinion, in relevant part:
The presence of total coliform in drinking water is
considered a measure of the adequacy of water treatment and
the integrity of the distribution system. ... The presence of
e-coli, is considered to be the best indicator of fecal
pollution and of the presence of pathogens capable of causing
disease or infection. H. pylori is a bacterium not in the
same group as total or fecal-coliform, but is found in the
feces of infected individuals and animals, and has been found
in feacally [sic] polluted waters. It is believed that H.
pylori can be transmitted via oral-oral from salivary
secretions, or fecal-oral route.
Only two studies have sampled for H. pylori, e-coli, and
total coliform from the same body of water to determine how
well these indicator organisms correlate with the presence of
H. pylori. The studies collected water from private wells and
surface ground water sources in Pennsylvania and Ohio. They
found that a high percentage of wells (85%) that tested
positive for H. pylori bacteria also tested positive for
total coliform bacteria, and similarly found many wells
positive for H. pylori also were positive for e-coli. In some
cases, H. pylori was detected without the presence of e-coli
or total coliform.
The positive total coliform result of the single water sample
collected at FCI Terre Haute on July 24, 2014 indicates a
possible problem with the water supply. It is unclear what
the source of the positive result was, but it cannot be ruled
out that a contamination of the water supply at FCI Terre
Haute may have occurred, and that Mr. Jones was exposed to
the contaminated water that could have included the H. pylori
bacteria. A lack of follow up testing required under Indiana
Rule 327 IAC 8-2-8.1 leaves the quality of the drinking water
at FCI Terre Haute between the initial positive test on July
19, 2014 and the required follow up on September 18, 2014 in
question. If Mr. Jones did become infected from the water
supply at FCI Terre Haute, then the potential of the
infection to remain active for long periods of time is
plausible, and likely, as studies have concluded that many
individuals become infected at a young age and carry the
infection through adulthood. While most studies do indicate
that infection occurs more readily during adolescence, it has
been demonstrated that infection can and does occur in
My review of Mr. Jones's medical records did not indicate
that Mr. Jones contracted an H. pylori infection during his
adolescence, or was infected with the bacteria prior to his
incarceration at FCI Terre Haute. ... Living in crowded
conditions, such as a prison/correctional facilities may be a
risk factor for contracting H. pylori, as studies have
demonstrated that the density of living conditions is
associated with an increased risk of infection. Other studies
have investigated populations that are institutionalized,
specifically populations with various mental and physical
disabilities and have reported higher rates of infections in
populations living in these environments. My review of the
documents did not suggest a separate event that could have
resulted in Mr. Jones being contaminated with H. pylori, or
Mr. Jones living with someone who carried the infection prior
to July of 2014. It is plausible that Mr. Jones could have
contracted the infection via a different route of exposure,
such as human-to-human contact with another inmate while
incarcerated at FCI Terre Haute. However, the documents and
information provided to me do not lend support for any type
of human-to-human causation of Mr. Jones' H. pylori
I conclude from my review of the records that a single water
sample tested positive for total coliform during the time Mr.
Jones was incarcerated at the facility, and that total
coliform is an indicator for possible issue with the water
distribution system, or water source that can include
contamination from pathogenic organisms such as H. pylori. In
Mr. Jones' medical records and his deposition, there are
indications that he suffered from dyspepsia beginning in
2010, and Mr. Jones claims the symptoms have worsened after
drinking water at FCI Terre Haute during the time of the
positive total coliform test. Dyspepsia is a common symptom
reported by individuals with an H. pylori infection. ...
Based upon my education and experience as a Certified
Industrial Hygienist, my previous water-based research and
work, my review of records submitted to me, and taking as
true the presumptions listed above, I can opine to a
reasonable degree of scientific certainty that it is more
likely than not that Mr. Jones contracted H. pylori from the
drinking/bathing water at FCI Terre Haute. Furthermore, and
also based upon my education, experience, research, review of
the records and information submitted to me, and taking as
true the presumptions listed above, it cannot be stated to a
reasonable degree of scientific certainty that Mr. Jones was
NOT exposed to some kind of bacteria that causes H. pylori
during his incarceration at FCI Terre Haute.
Dkt. 135-4 at 53-54.
Standard for Admissibility of
Expert Witness Testimony
Rule of Evidence 702 governs the admissibility of expert
witness testimony. Rule 702 provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if: (a) the expert's scientific,
technical, or other specialized knowledge will help the trier
of fact to understand the evidence or to determine a fact in
issue; (b) the testimony is based on sufficient facts or
data; (c) the testimony is the product of reliable principles
and methods; and (d) the expert has reliably applied the
principles and methods to the facts of the case.
Fed. R. Evid. 702. The rule requires "evidentiary
relevance and reliability" of expert testimony, with the
focus on "principles and methodology, not on the
conclusions that they generate." Daubert v. Merrell
Dow Pharms., Inc., 509 U.S. 579, 595 (1993). "The
district court acts as a 'gatekeeper' in determining
the relevance and reliability of the opinion testimony, and
enjoys 'broad latitude' in making such a
determination." United States v. Moshiri, 858
F.3d 1077, 1083 (7th Cir. 2017) (citing Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 147 (1999)).
district court must engage in a three-step analysis before
admitting expert testimony. It must determine whether the
witness is qualified; whether the expert's methodology is
scientifically reliable; and whether the testimony will
'assist the trier of fact to understand the evidence or
to determine a fact in issue.'" Gopalratnam v.
Hewlett-Packard Co., 877 F.3d 771, 779 (7th Cir. 2017).
"[T]he key to the gate is not the ultimate correctness
of the expert's conclusions. Instead, it is the soundness
and care with which the expert arrived at her
opinion[.]" C. W. v. Textron, Inc., 807 F.3d
827, 834 (7th Cir. 2015) (internal citations and quotations
the first step of the analysis, a witness is qualified based
on their "knowledge, skill, experience, training or
education." Fed.R.Evid. 702.
the second step of the analysis, "the court must
determine whether the expert's testimony reflects
scientific knowledge; that is, the court must make 'a
preliminary assessment of whether the reasoning or
methodology underlying the testimony is scientifically
valid.'" Chapman v. Maytag Corp., 297 F.3d
682, 687 (7th Cir. 2002) (citing Daubert, 509 U.S.
at 592-93). "Daubert provides several
guideposts for determining reliability. These guideposts
examine (1) whether the scientific theory has been or can be
tested; (2) whether the theory has been subjected to
peer-review and/or academic publication; (3) whether the
theory has a known rate of error; and (4) whether the theory
is generally accepted in the relevant scientific
community." C. W., 807 F.3d at 835. "In
some cases it may also be appropriate to examine ... whether
there is too great an analytical gap between the data and the
opinion proffered." Id. (internal citations and
quotations omitted). "Ultimately, there are many
different kinds of experts, and many different kinds of
expertise. The test of reliability, therefore, is flexible,
and Dauber's list of specific factors neither
necessarily nor exclusively applies to all experts or in
every case." Gopalratnam, 877 F.3d at 780.
the third part of the Daubert analysis, the court
determines whether the proposed expert testimony will assist
the "trier of fact in understanding the evidence or in
determining a fact in issue." Chapman v. Maytag
Corp., 297 F.3d 682, 687 (7th Cir. 2002).
toxic tort cases, there is a two-step process in examining
the admissibility of causation evidence. First, the court
must determine whether there is general causation, and if
there is, then the court must determine whether there is
admissible specific causation evidence. C. W. ex rel.
Wood v. Textron, Inc., 807 F.3d 827, 831 (7th Cir. 2015)
(citing 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
causation would not be entitled to recover)). General
causation examines whether the substance "had the
capacity to cause the harm alleged[.]"
7-Eleven, 857 N.E.2d at 389. Specific causation, by
contrast, examines whether the substance did, in fact, cause
the harm alleged. Id.
defendant has asked the Court to strike Dr. Lopez's
expert report and testimony pursuant to Federal Rule of
Evidence 702 and the Daubert standard. The defendant
asserts that Dr. Lopez is not qualified to render a medical
causation opinion on H. pylori and the likelihood of
contracting H. pylori from contaminated water. Dkt.
142 at 4-7. The defendant further asserts that Dr.
Lopez's opinions are not reliable. Id. at 7-13.
Finally, the defendant argues that Dr. Lopez's opinions
and conclusions are inadmissible and not helpful to the
Court. Id. at 13-14.
response, Mr. Jones argues that Dr. Lopez is qualified and
that his opinions are reliable and helpful. Dkt. 149 at 1.
Mr. Jones further asserts that the defendant's objections
go to the weight of the evidence and not its admissibility.
Mr. Jones first notes that the defendant only challenges Dr.
Lopez's medical causation opinions and asserts that Dr.
Lopez's other opinions should be considered and not
stricken. Further, Mr. Jones argues there is no dispute that
H. pylori can be transmitted through waterborne
exposure. Mr. Jones acknowledges that "there is little
direct and positive evidence available to [Dr. Lopez] linking
Mr. Jones' infection to the contaminated water at
FCI," dkt. 149 at 10, but asserts the defendant is to
blame for "spoliation of evidence and failure to
properly conduct retesting following the July 24, 2014
positive water sample." Id. at 10-11.
reply, the defendant notes that it is "unclear what
purpose Dr. Lopez's testimony would serve in this
case" given that Dr. Lopez has acknowledged that
"there is no consensus among the scientific community
about exactly how H. pylori is transmitted to
humans" and that "he is not giving an opinion that
Mr. Jones was actually exposed to harmful levels of a
specific contaminant or that such exposure caused Jones to
contract H. pylori.'''' Dkt. 150 at
Dr. Lopez's Qualifications
provides that "[a] witness who is qualified as an expert
by knowledge, skill, experience, training, or education may
testify in the form of an opinion." The Court agrees
with the defendant that Dr. Lopez is not qualified to provide
a medical causation opinion, at least because Dr. Lopez is
not a medical doctor, dkt. 142-1 at 11, and further because
he has no specialized knowledge or experience with H.
pylori or gastrointestinal systems or symptoms,
id. Dr. Lopez only began reading articles about
H. pylori in response to being hired as an expert in
this lawsuit and had never before researched or studied
H. pylori. Dkt. 142-1 at 11, 14 ("I knew
[H. pylori] existed as an agent, but I never
researched it other than for this case"). Mr. Jones
appears to concede that Dr. Lopez is not qualified to provide
a medical causation opinion in his response to the motion to
strike. See Dkt. 149 at 2.
Dr. Lopez exhibits a lack of expertise, knowledge, and/or
support underlying his medical opinions. In his expert
report, Dr. Lopez references Mr. Jones' medical
condition, such as "[d]yspepsia is a common symptom
reported by individuals with an H. pylori
infection," but does not provide support for his
opinions. When asked in his deposition how soon
gastrointestinal symptoms would present themselves in people
who ingested contaminated water, Dr. Lopez acknowledged
"that's more of a medical question, and I don't
have the experience to respond to that." Dkt. 142-1 at
26. Similarly, Dr. Lopez stated in his report that living in
crowded conditions like a prison puts a person at greater
risk for an H. pylori infection, dkt. 135-4 at 54,
but he could not recall what research supported this
proposition in his deposition, dkt. 142-1 at 16. And when
asked why living in prison-type conditions would lead to
higher rates of H. pylori, Dr. Lopez
responded, "I do not know." Id.
also not clear to the Court that Dr. Lopez is qualified even
to provide an opinion regarding the presence of H.,
pylori in water and the transmission of H.,
pylori through waterborne sources. Dr. Lopez's
background is in laser and air particulates. Mr. Jones
identifies three of Dr. Lopez's papers as dealing
"specifically with topics relevant to this lawsuit"
to argue that Dr. Lopez is qualified as an expert on the
topics in this case:
• Lotter J., Lacy S., Lopez R., Lippert, J., Franke, J.
(2012). Contributing factors to fires during medical laser
applications. Journal of Laser Applications 24. Published
online 10 pages.
• Lippert, F., Lacey, S., Lopez, R., Frank, J., Conroy,
L., Breskey, J., Esmen, N., Liu, L. (2013). A pilot study to
determine medical laser generated air contaminant emission
rates for a simulated surgical procedure. Journal of
Occupational and Environmental Hygiene 11(6)P. D69-D76.
• Lopez, R., Wong, V., Farber, M., Lacey, S. (2016).
Biomarkers of human cardiopulmonary response after short term
exposure to medical laser generated particulate matter from
simulated procedures; a pilot study. Journal of ...