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Experts fail Daubert test in toxic tort case

Experts proffered by a drugstore employee suing an HVAC contractor were not allowed to testify that the employee’s injuries were caused by exposure to refrigerant gas used in store freezers, a federal appeals court has ruled.

Deborah Zellars alleged that a Freon leak in a cooler at an Arlington Rite-Aid store caused her to suffer shortness of breath, dizziness and headaches. Zellars wanted to support her personal injury claim with three expert witnesses: her treating physician, board-certified neurologist Dr. Vandana Sharma, M.D.; Dr. Robert Simon, Ph.D., a chemist and Dr. Raymond Singer, a Ph.D. neurotoxicologist.

When Alexandria U.S. District Judge Gerald Bruce Lee granted a motion in limine to exclude testimony from these three experts, that left Zellars with only an HVAC engineer to testify that the defendant breached the standard of care for store refrigerator maintenance, and Lee granted summary judgment to the contractor.

That was the right call, said the 4th U.S. Circuit Court of Appeals said.

The treating physician’s initial report asserted that Zellars’ neck and back pain, muscle tenderness, jerking of extremities and other symptoms were caused by exposure to R-404A refrigerant gas. But at her later deposition, Dr. Sharma softened her testimony, saying the refrigerant was just one possible source of neurotoxicity.

Dr. Sharma had no specialized training in toxicology and based her opinion on a survey of scientific articles downloaded from the Internet, which the appellate court indicated was no substitute for performing a differential diagnosis. She did not meet the Daubert test for expert testimony, the panel said in its July 17 unpublished opinion in Zellars v. Nextech Northeast LLC.

The two Ph.D. witnesses also did not pass muster. Dr. Simon was a toxicologist, but had no expert training in refrigerant toxicology and did not know what level of R-404A exposure would be necessary to cause Zellars’ symptoms. Dr. Singer asserted that Zellars’ symptoms were consistent with R-404A exposure, but he was not a medical doctor and therefore not qualified to diagnose the cause of the alleged symptoms.

With elimination of the plaintiff’s experts, there was a “complete failure of proof on the critical element of causation,” the appeals court said, and the district court properly granted summary judgment to the contractor.
-Deborah Elkins

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