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Jones v. United States

United States District Court, S.D. Indiana, Terre Haute Division

January 30, 2019

JAMES JONES, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER GRANTING MOTION FOR SUMMARY JUDGMENT, GRANTING MOTION TO STRIKE AND DIRECTING ENTRY OF FINAL JUDGMENT

          JAMES R. SWEENEY II, JUDGE

         Plaintiff James Jones was a federal inmate[1]incarcerated 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.[2]

         Presently 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. [141], is GRANTED.[3] Additionally, the motion for summary judgment, dkt. [125], is GRANTED.

         I. Motion to Strike

         Presently 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.

         As 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 childhood.
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 infection.
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 water; and,
i. The drinking water at FCI Terre Haute was contaminated with total coliform.

         Dkt. 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 adulthood.
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 infection.
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.

         A. Standard for Admissibility of Expert Witness Testimony

         Federal 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)).

         "[T]he 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 omitted).

         Under the first step of the analysis, a witness is qualified based on their "knowledge, skill, experience, training or education." Fed.R.Evid. 702.

         Under 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.

         Under 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).

         In 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.

         B. Discussion

         The 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.

         In 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.

         In 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 1.

         1. Dr. Lopez's Qualifications

         FRE 703 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.

         Moreover, 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.

         It is 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 ...

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