ORINDA D. EVANS, District Judge.
This diversity action is before the court on Defendants' joint motion for summary judgment, Defendants' request for oral argument on their motion for summary judgment, Plaintiffs' request for oral argument on Defendants' motion for summary judgment, and General Electric Company's motion requesting supplemental brief. Plaintiffs have filed a response in opposition to Defendants' motion for summary judgment; Plaintiffs' time to respond to the motion requesting supplemental brief has not yet expired.
Since 1973, Joiner has worked for the City of Thomasville, Georgia ("City") in the City's Water & Light Department. For the last seven to eight years, Joiner has held the title of Chief Electrician. As an incident of his job Joiner has frequently worked with and around the City's electrical transformers and voltage regulators. Joiner testified that work on electrical transformers consumed 40 to 50% of his time, while work on voltage regulators took 1% of his time.
As a rule, a transformer is filled with a "dielectric fluid" that both cools and insulates the mechanism inside the transformer. This fluid typically has been a petroleum-based, flammable mineral oil. However, transformers filled with flammable mineral oil present a fire hazard when used in certain locations. Relatively early in this century a fire-resistant dielectric fluid was developed that did not contain mineral oil. Polychlorinated biphenyls ("PCBs"), a man-made chemical, were one component of the fire-resistant fluid. However, the PCB-based dielectric fluid was never widely used; "[t]he EPA has estimated that less than two-tenths of a percent (0.2%) of all utility transformers were PCB transformers. See 47 Fed.Reg. 17426, 17428 (1982), `Polychlorinated Biphenyls (PCBs): Use in Electrical Equipment.'" (Defendants' Joint Memorandum in Supp. of Summ.Judg. ["Defendants' Brief"] at 6.)
With limited exceptions, Congress banned the production and sale of PCBs on January 1, 1978. 15 U.S.C. § 2605(e)(2)(A). Congress took this action because in its view PCBs "present an unreasonable risk of injury to health or the environment." See 15 U.S.C. § 2605(a).
Monsanto manufactured PCBs from 1935 to 1977.
Throughout the time of Plaintiffs employment, all of the City's transformers have used mineral oil-based dielectric fluid, which should be free of PCBs. However, beginning in 1983, the City discovered, via systematic testing, that the dielectric fluid in some of its transformers was contaminated with PCBs.
(Plaintiffs' Brief in Opp. to Defendants' Motion for Summ.Judg. ["Plaintiffs' Brief"] at 20-21.)
In 1991, at the age of 37, Joiner was diagnosed with lung cancer. Defendants assert that Joiner's ailment is of a variety known as "small cell lung cancer." In response, Plaintiffs argue that "a description of the particular cancer as being `small cell' cannot be admitted as lung cancer cannot readily be catalogued this simply." (Plaintiffs' Response to Defendants' Statement of Material Facts, etc., ¶ 8.) Plaintiffs offer no evidence to support their objection. Moreover, through the affidavit of Joanne Beauvoir Brown, counsel for Monsanto Company ("Monsanto"), Defendants have submitted a pathology report that contains the following diagnosis:
(Brown Aff., Ex. A.) Given this evidence, the court finds that there is no genuine dispute over the fact that Joiner suffers from small cell lung cancer.
Dr. Arthur L. Frank (M.D.) is one of Plaintiffs' experts. His affidavit provides in part as follows:
(Frank Aff., ¶¶ 5, 6, 8.) Plaintiffs' theory, as stated by their experts, is that PCBs and their derivatives—polychlorinated dibenzofurans ("PCDFs" or "furans") and polychlorinated dibenzodioxins ("PCDDs" or "dioxins") —served as promoters of Joiner's lung cancer.
On August 5, 1992, Plaintiffs filed this action in the State Court of Fulton County, Georgia. Defendants timely removed the action to this court. The complaint contains the following counts:
On August 24, 1993, Plaintiffs, with leave of court, amended their complaint. This amendment made Count Seven a claim of battery against all Defendants, while the punitive damages claim became Count Eight.
Summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In ruling on Defendants' motion, the court must view the evidence in a light most favorable to Plaintiffs. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). To prevail on their motion for summary judgment, Defendants must show that the evidence is insufficient to establish an essential element of Plaintiffs' case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). If Defendants make a sufficient showing, then Plaintiffs "must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(e)). If the evidence supporting Plaintiffs' claims is insufficient for a jury to return a verdict for Plaintiffs, or is merely colorable or not significantly probative, then Defendants are entitled to summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). If, however, reasonable minds could differ as to the import of the evidence, and a reasonable interpretation of the evidence could lead to a verdict for Plaintiffs, then summary judgment is inappropriate. Id. at 251-52, 106 S.Ct. at 2511-12.
Defendants offer two grounds in support of their motion for summary judgment: One ground is that Joiner did not suffer significant exposure to PCBs, furans, or dioxins. The other ground is that "plaintiffs ... cannot present credible, admissible scientific evidence that ... small cell lung cancer in humans can be caused or promoted by PCBs." (Defendants' Brief at 10.) In light of these arguments, the court first must determine if there is a genuine dispute over the allegedly-carcinogenic substances to which Plaintiffs assert Joiner was exposed. Second, the court must determine if Defendants are correct in arguing that Plaintiffs cannot show a link between PCBs and small cell lung cancer.
Defendants first argue that Joiner was not exposed to significant amounts of PCBs and, even if he was, that he did not receive a harmful dose. Defendants offer the following explanation of the difference between the terms "exposure" and "dose":
(Defendants' Brief at 4 n. 4.) Defendants make several arguments in support of the exposure/dose ground of their motion for summary judgment:
The evidence Defendants rely upon to argue that Joiner was not exposed to PCBs can as easily be viewed as follows: Joiner has worked for the City for many years; at least 512 of the City's transformers (i.e., 19.2% of 2668 transformers tested) presented a PCB hazard; and disassembly of transformers was a routine part of Joiner's work. Given this view of the facts, the court finds that Defendants' first three arguments do nothing more than show the need for a jury to weigh and then choose one of the conflicting interpretations that each side advances for the same evidence.
Further, Plaintiffs accurately note two problems with Defendants' fourth argument. First, Plaintiffs point out that while the results of Joiner's adipose tissue test do not show a higher than normal ppm level, the results do, in fact, show that Joiner has been exposed to PCBs. Second, through the affidavit of Dr. Arnold Schecter (M.D.), one of their experts, Plaintiffs contend that the existence of Joiner's cancer, the treatment of the cancer, and the passage of time together make unreliable the low level that the adipose tissue test shows:
(Schecter Aff., ¶ 22.) Defendants attack Dr. Schecter's affidavit as inconsistent with his deposition and also offer the testimony of their own expert in rebuttal to Dr. Schecter's position.
In view of the foregoing discussion, the court finds that a genuine dispute exists over whether Joiner was exposed to PCBs. Thus, Defendants are not entitled to summary judgment on this issue. It remains to be seen if there is a genuine dispute on the furans/dioxins issues.
Defendants make the following arguments to show the absence of evidence that furans and/or dioxins were in the PCBs to which Joiner allegedly was exposed:
(Defendants' Brief at 24.) The court first addresses the furans issue.
Defendants' first argument is correct. Plaintiffs can point to no test data that shows the existence of furans or dioxins in any of the City's transformers.
Defendants' second argument is also correct. Plaintiffs do not dispute that the adipose tissue test showed negligible levels of furans and dioxins. Even though they arranged to have the test conducted, Plaintiffs now contend that the test results should be disregarded because the testing agency used an inappropriate methodology and there is no control group against which to compare the results. (Plaintiffs' Brief at 25-26.) Dr. Schecter supports this contention. (Schecter Aff., ¶ 22.)
Defendants' fourth argument is substantially accurate. During his deposition, Dr. Schecter testified that he did not recall any studies which showed that mineral oil inhibits or reduces the formation of furans from PCBs. (Schecter Dep. at 133.) Both Doctors Brown and Rouse testified that the production of furans from PCBs would be inhibited if the PCBs were diluted in mineral oil. (Brown Dep. at 24-25, 31; Rouse Dep. at 40-41.)
Defendants' fifth argument is not totally accurate. Dr. Schecter testified that in temperatures between 200 and 600 degrees centigrade "you get a yield of PCBs being
The court finds Defendants have made a satisfactory showing that there is insufficient evidence to establish that Joiner was exposed to furans or dioxins. Plaintiffs thus "must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. at 1356 (quoting Fed.R.Civ.P. 56(e)).
Plaintiffs first argue that PCBs are always contaminated with furans. In support of this position, Plaintiffs offer a number of citations to learned treatises. (See Plaintiffs' Brief at 14-15.)
Plaintiffs next assert that furans are created from PCBs in fire conditions. This argument ties in with Defendants' efforts to establish the minimum temperature at which furans are converted form PCBs. The argument is relevant because Joiner testified that some of the transformers he worked on required service because they had caught on fire. Moreover, as noted earlier the City used stadium lights to "bake out" transformer cores.
Plaintiffs again cite to learned treatises to show that furans can be generated when PCBs are exposed to fire. However, Plaintiffs also cite Dr. Schecter's affidavit to support their argument:
(Schecter Aff., ¶ 19.)
The court is troubled by the fact that Dr. Schecter is a medical doctor, not a chemist like Doctors Rouse and Brown. Cf. Fed. R.Evid. 702 (A person qualifies as an expert "by knowledge, skill, experience, training, or education."). Nevertheless, even accepting Dr. Schecter's testimony that furans can be produced from PCBs at 200 degrees centigrade, Plaintiffs have not carried their burden of showing a genuine dispute on the furans issue.
It is not enough for Plaintiffs to show that furans can be created when PCBs are exposed to a certain temperature. It is also Plaintiffs' task to link that evidence to the facts of this case, i.e., to show some credible evidence that the City's transformers were exposed to a temperature hot enough to generate furans. Plaintiffs' argument in this regard is as follows:
(Plaintiffs' Brief at 22-23.) Essentially, Plaintiffs argue that because the transformers got hot, there is a genuine dispute on the furans issue. The court disagrees; at a minimum, Plaintiffs must produce expert testimony to show that the transformer fires or baking out process produced temperatures of at least 200 degrees centigrade. Plaintiffs have not cited such evidence to the court. The court thus finds that the evidence Plaintiffs have produced is insufficient to allow a jury to determine that Joiner was exposed to furans. See Anderson, 477 U.S. at 249, 106 S.Ct. at 2510 (if evidence supporting nonmoving party's claims is insufficient for a jury to return a verdict for him, or is merely colorable or not significantly probative, then moving party is entitled to summary judgment).
Defendants' straightforward argument on the dioxins issue is based on the following testimony by Doctors Rouse and Brown:
(Rouse Dep. at 86.)
(Brown Dep. at 24.)
The court finds that this is sufficient evidence to warrant summary judgment in Defendants' favor on the dioxins issue. Thus, the burden shifts to Plaintiffs to show a genuine dispute on the existence of dioxins in the dielectric fluid at issue.
Plaintiffs' response to Defendants' argument is as follows:
(Plaintiffs' Brief at 16 [footnote omitted].)
Plaintiffs' argument is unavailing. The portion of the argument in quotation marks comes from a learned treatise and is thus hearsay for the reasons discussed earlier. While Dr. Brown did testify that dioxins can be generated from Pyranol, Plaintiffs have produced no evidence to show that Pyranol is the source of the PCB contamination in the City's transformers.
PCB/SMALL CELL LUNG CANCER LINK
Defendants argue that the record contains no admissible evidence that Plaintiff Joiner's small cell lung cancer was caused by his exposure to PCB's. "When medical causation is at issue, plaintiffs must prove causation to a `reasonable degree of medical certainty.'" Wells v. Ortho Pharmaceutical Corp., 615 F.Supp. 262, 295 (N.D.Ga.1985) (Shoob, J.) (quoting Parrott v. Chatham County Hosp. Auth., 145 Ga.App. 113, 115, 243 S.E.2d 269 (1978)), aff'd, modified in part, and remanded, 788 F.2d 741 (11th Cir.); cert. denied, 479 U.S. 950, 107 S.Ct. 437, 93 L.Ed.2d 386 (1986). Given this standard, resolution of Defendants' motion for summary judgment largely depends on the admissibility of certain expert testimony that Plaintiffs have presented. Since the standards governing the admission of expert scientific testimony have been the subject of a recent Supreme Court case, it is helpful for the court at this point to review briefly how those standards have evolved.
In Frye v. United States, 293 F. 1013 (D.C.Cir.1923), the D.C. Circuit rejected the results of a primitive lie detector test with the following comment: "[W]hile courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs." Id., 293 F. at 1014. Until 1993, the "general acceptance" test that Frye announced was "the dominant standard for determining the admissibility of novel scientific evidence at trial." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. ___, ___, 113 S.Ct. 2786, 2792, 125 L.Ed.2d 469, 478 (1993). In Daubert, the Supreme Court discarded the Frye standard on the ground that the Federal Rules of Evidence had supplanted it. Daubert, 509 U.S. at ___, 113 S.Ct. at 2793, 125 L.Ed.2d at 479.
Rule 702 provides in part as follows: "If scientific ... knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." The Supreme Court amplified on Rule 702's requirements as follows:
Daubert, 509 U.S. at ___, 113 S.Ct. at 2796, 125 L.Ed.2d at 482 (footnotes omitted).
In one of the footnotes omitted from the foregoing passage, the Supreme Court quotes Rule 104(a). Rule 104(a) commits to the trial court the resolution of preliminary questions regarding the admissibility of evidence. The rule states that in making this determination the court "is not bound by the rules of evidence except those with respect to privileges." The standard that guides the court as it weighs the admissibility of evidence is the "preponderance of proof." Daubert, 509 U.S. at ___ n. 10, 113 S.Ct. at 2796 n. 10, 125 L.Ed.2d at 482 n. 10 (citing Bourjaily v. United States, 483 U.S. 171, 175-76, 107 S.Ct. 2775, 2778-79, 97 L.Ed.2d 144 (1987)).
Defendants make a number of arguments to show that Plaintiffs cannot demonstrate a link between PCB exposure and small cell lung cancer. The strongest of these arguments is that the opinions of Plaintiffs' experts do not fit the facts in this case because the opinions are inextricably bound up with the experts' assumption that Joiner was exposed to furans and dioxins.
As discussed above, the admissibility analysis under Rule 702 has two prongs. The second prong requires that the proffered evidence "assist the trier of fact to understand or determine a fact in issue." Daubert, 509 U.S. at ___, 113 S.Ct. at 2795, 125 L.Ed.2d at 481. To illustrate this point, the Supreme Court commented with approval on Judge Edward R. Becker's opinion in United States v. Downing, 753 F.2d 1224 (3d Cir.1985):
Daubert, 509 U.S. at ___-___, 113 S.Ct. at 2795-97, 125 L.Ed.2d at 481-82 (citations omitted).
Among other things, Defendants cite the following testimony in support of their "nofit" argument:
(Schecter Dep. at 61).
(Schecter Aff., ¶ 21.)
(Teitelbaum Dep. at 28, 33-34.)
(Teitelbaum Aff., ¶ 12.)
The foregoing testimony makes it clear that Plaintiffs' experts assumed Joiner was exposed to furans and dioxins.
Assuming that Plaintiffs' experts had not made unfounded assumptions about furans and dioxins, Defendants still persuade the court that Plaintiffs' expert testimony would not be admissible. Defendants do this by attacking the conclusions that Plaintiffs' experts draw from the studies they cite.
Defendants initially argue that they are entitled to summary judgment because Doctors Robertson and Teitelbaum answered in the negative when asked if there was any credible evidence "as a scientific probability" that PCBs cause or promote small cell lung cancer in humans. (Robertson Dep. at 14; Teitelbaum Dep. at 110.) Stated another way, Defendants assert that they are entitled to summary judgment because there are no epidemiological studies which show that PCBs cause small cell lung cancer in humans. However,
Wells v. Ortho Pharmaceutical Corp., 788 F.2d 741, 745 (11th Cir.) (quoting Ferebee v. Chevron Chem. Corp., 736 F.2d 1529, 1535 (D.C.Cir.), cert. denied, 469 U.S. 1062, 105 S.Ct. 545, 83 L.Ed.2d 432 (1984)), cert. denied, 479 U.S. 950, 107 S.Ct. 437, 93 L.Ed.2d 386 (1986). Thus, the absence of an epidemiological study in Plaintiffs' favor does not automatically foreclose their action.
Defendants attack the experts' reliance on animal studies with more success. Dr. Robertson testified regarding two studies of infant, suckling mice upon which Doctors Schecter and Teitelbaum relied. Defendants summarize Dr. Robertson's testimony as follows:
(Defendants' Brief at 36.) Both Dr. Schecter and Dr. Teitelbaum relied on the mice studies in opining that PCBs promoted Joiner's lung cancer. (Schecter Dep. at 66-69; see Teitelbaum Dep. at 48, 78-81.)
Defendants assert that Plaintiffs' experts' reliance on the mice studies is unjustifiable because they "admittedly base their various opinions on the extrapolation of physical effects observed in laboratory test animals subjected to extremely high levels of PCBs." (Defendants' Brief at 35.) In support of this position, Defendants cite Turpin v. Merrell Dow Pharmaceuticals, Inc., 959 F.2d 1349 (6th Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 84, 121 L.Ed.2d 47 (1992), which contains the following passage:
Id., 959 F.2d at 1360-61 (citations omitted).
Defendants' argument persuades the court that Plaintiffs' experts' reliance on the mice studies is flawed for several reasons. First, there are only two studies. Second, the studies obviously used massive doses of PCBs. Finally, Dr. Teitelbaum implicitly admitted the preliminary nature of the mice studies' findings:
(Teitelbaum Dep. at 87.) The court thus finds that Defendants have sufficiently called into question the validity of Plaintiffs' experts' reliance on the mice studies. Therefore, the burden shifts to Plaintiffs to demonstrate by a preponderance of proof that their experts' opinions are admissible.
Regarding the mice studies, Plaintiffs have chosen to proceed as if the only issue is whether animal studies can ever be a proper foundation for an expert's opinion. Plaintiffs assume Defendants' argument is that experts should never rely on animal studies as the basis for an expert opinion. However, read as a whole, that is not Defendants' argument. (See Defendants' Brief at 32, 33 ["Valid scientific reasons exist for scientists to exercise extreme caution when interpreting animal studies"; "[t]his is not to say that animal studies have no legitimate role in scientific research, but it is certainly a limited one."].) Plaintiffs' argument addresses the question of reliance on animal studies in general, not the deficiencies that Defendants have highlighted in the experts' reliance on the animal studies at issue here. Plaintiffs' argument, being unresponsive to the issue at hand, does not persuade the court to change its finding that Plaintiffs' experts erred in relying on the mice studies to opine that PCBs caused Joiner's lung cancer "to a `reasonable degree of medical certainty.'" Wells, 615 F.Supp. at 295.
Regarding epidemiological studies, Plaintiffs take issue with Defendants' claim that no such studies support Plaintiffs' position, for they assert that their experts "identify several epidemiological studies in support of their opinions." (Plaintiffs' Brief at 46 [footnote omitted].)
Plaintiffs offer selected quotes from Bertazzi, et al., Cancer Mortality of Capacitor Manufacturing Workers, 11 Am.J.Indus.Med. 165 (1987), in support of their position. (See Plaintiffs' Brief at 11.)
Plaintiffs offer selected quotes from Judith A. Zack & David C. Musch, Mortality of PCB Workers at the Monsanto Plant in Sauget, Illinois (1979), an unpublished study that Monsanto funded. (Plaintiffs' Brief at 12-13.) Defendants note that in a later version of the study (which they assert was prepared with a view toward publication) the study's authors specifically stated that "[w]hile many of the cancer-specific SMRs exceed 100, none are statistically significant." (Defendants Reply, Ex. C at 7.)
(Plaintiffs' Brief, Ex. 11 at Bates No. 003188.)
Plaintiffs assert that "[a]nother study of interest is a study of PCB exposed workers in a Norwegian cable manufacturing company. A statistically significant excess of deaths from lung cancer was observed. Ten deaths from lung cancer were observed when only 3.9 were expected." (Plaintiffs' Brief at 13.) Defendants note that the study "never mentions PCBs and does not involve `PCB-exposed workers.' It reports a statistically significant excess of cases of lung cancer in a small cohort of cable workers exposed to mineral oil, whose exposure was also confounded by exposure to asbestos and cigarette smoke." (Defendants' Reply at 8.) The study concluded as follows:
(Defendants' Reply at 8 n. 8 [quoting Ronneberg, et al., Mortality and Incidence of Cancer Among Oil Exposed Workers in a Norwegian Cable Manufacturing Company Part 2 Mortality and Cancer Incidence in 1953-84, 45 British J.Indus.Med. 595, 601 (1988)].)
The last study Plaintiffs cite is Ikeda, et al., A Cohort Study on Mortality of Yusho Patients—A Preliminary Report, 78 Fukuoko Acta Med. 297 (1987), which Plaintiffs assert was summarized in a publication entitled World Health Organization's International Programme on Chemical Safety, Polychlorinated Biphenyls and Terphenyls 449 (2d Ed.1993). The "Yusho" incident involved Japanese people who were accidentally exposed to toxic substances. The report states that "`[a] statistically significant excess mortality was seen for malignant neoplasms, cancer of the liver and cancer of the lung, trachea, and bronchi in males.'" (Plaintiffs' Brief at 13.)
(Defendants' Brief at 10 [emphasis in original].) Dr. Schecter's testimony reveals why the omission regarding toxic rice oil is so significant:
(Schecter Dep. at 91 [emphasis added].) Finally, Dr. Teitelbaum did not find much significance in the Yusho report:
(Teitelbaum Dep. at 89-90.) The limitations in the Yusho study (e.g., failure to investigate exposure to other potential carcinogens), the fact that the persons studied were exposed to furans and dioxins, and the fact that one of Plaintiffs' own experts has a low opinion regarding the relevance of the Yusho study together combine to convince the court that the study has no utility for Plaintiffs' purposes.
In Daubert, the Supreme Court noted that under Rule 702 "[t]he subject of an expert's testimony must be `scientific ... knowledge.' The adjective `scientific' implies a grounding in the methods and procedures of science. Similarly, the word `knowledge' connotes more than subjective belief or unsupported speculation." Id., 509 U.S. at ___-___, 113 S.Ct. at 2794-96, 125 L.Ed.2d at 480-81 (ellipsis in original) (footnote omitted). The court need not address whether the studies that Plaintiffs' experts rely upon were conducted in a scientific manner, for the studies simply do not support the experts' position that PCBs more probably than not promoted Joiner's lung cancer. That is, the court is not persuaded by a preponderance of proof that the studies support the "knowledge" the experts purport to have (i.e., that PCBs, "to a `reasonable degree of medical certainty,'" Wells, 615 F.Supp. at 295, promote small cell lung cancer in humans). See Turpin, 959 F.2d at 1360 ("The analytical gap between the evidence presented and the inferences to be drawn on the ultimate issue of human birth defects is too wide."); cf. Wells, 788 F.2d at 745 ("[T]he basic methodology employed to reach ... a conclusion [must be] sound."). The court is persuaded that the opinions of Plaintiffs' experts do not rise above "subjective belief or unsupported speculation."
Accordingly, Defendants' joint motion for summary judgment [# 46-1] is GRANTED. Defendants' request for oral argument on their motion for summary judgment [# 47-1] and Plaintiffs' request for oral argument on Defendants' motion for summary judgment [#55-1] are DENIED. GE's motion requesting supplemental brief [# 67-1] is DENIED. The Clerk is DIRECTED to enter judgment in Defendants' favor on all of Plaintiffs' claims.
(Defendants' Brief at 6 n. 7.)
(Brown Dep. at 87.)
(Schecter Aff., ¶ 22.) In their reply, Defendants assert that "it is hardly appropriate scientific methodology to obtain adipose tissue measurements, then claim they are unreliable because they do not show what you hoped they would." (Defendants' Joint Mem. in Reply to Plaintiffs' Brief in Opp. to Defendants' Motion for Summ. Judg. ["Defendants' Reply"] at 3 n. 4.)
(Brown Dep. at 24.)
(Teitelbaum Dep. at 45-46.) As noted earlier, about one in five of the City's transformers presented a PCB risk.
(Schecter Dep. at 84.)
(Robertson Dep. at 16.) Defendants assert that the term "halogenated aromatic hydrocarbons" describes a "broad category of chemicals." (Defendants' Brief at 15 n. 14.)
Q34 Is that article small cell carcinoma ...?
A It's not identified as such, that's correct. (Robertson Dep. at 14-15.) Though copies of the mice studies were used as exhibits during Dr. Robertson's deposition, the exhibits did not accompany the copy of the Robertson deposition that was filed with the court. Thus, the court is unable to review the studies themselves in order to clarify the confusion that exists over whether the mice in fact developed malignant tumors. However, in their brief Defendants repeatedly concede that a form of lung cancer occurred in the mice. The court thus proceeds from the standpoint that the mice did develop some type of lung cancer, but that the lung cancer was not of the small cell variety.
(Schecter Dep. at 68-69.)