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VILLARI v. TERMINIX INTL.

August 8, 1988

LEONARD VILLARI and ANNETTE VILLARI, individually and on Behalf of their minor children LEONARD, MARNIE, HEIDI, HEATHER, JOSHUA and ANNETTE VILLARI
v.
TERMINIX INTERNATIONAL, INC.



The opinion of the court was delivered by: POLLAK

 LOUIS H. POLLAK, UNITED STATES DISTRICT JUDGE.

 This is a diversity action in which plaintiffs, the Villari family, allege that defendant pest control corporation, Terminix Inc. ("Terminix"), contaminated their home with termiticides. The defendants have submitted several motions in limine relating to the admissibility of certain evidence. This Memorandum addresses each of these motions.

 I. Motion to Exclude Certain Animal Experiments from Evidence on the Issue of the Human Carcinogenicity of Aldrin, Dieldrin, Chlordane & Heptachlor

 In the first motion, the defendant seeks to exclude from evidence certain studies, including animal studies, involving defendant's termiticides. Among the studies the defendant seeks to exclude are a recent report by the United States Environmental Protection Agency, entitled "Chlordane, Heptachlor, Aldrin and Dieldrin, Technical Support Document," and a report of the National Academy of Sciences, entitled "An Assessment of the Health Risks of Seven Pesticides Used for Termite Control." The plaintiffs intend to introduce the studies to show that defendant's termiticides are probable human carcinogens. The plaintiffs plan to call two expert witnesses whose testimony at trial will be based, among other things, on these reports.

 The defendant argues that the studies constitute "novel scientific evidence" and therefore are subject to the test of admissibility set forth in United States v. Downing, 753 F.2d 1224, 1237-41 (3d Cir. 1985). In Downing, Judge Becker outlined the Third Circuit standard for the admissibility of scientific evidence pursuant to Fed.R.Evid. 702, which governs testimony by experts. Alternatively, the defendant maintains that if the studies are not viewed as novel scientific evidence, they nonetheless should be excluded because their probative value is outweighed by their potential prejudice, Fed.R.Evid. 403, and they do not provide a reliable foundation upon which the plaintiffs' experts could base their opinions, as required by Fed.R.Evid. 703.

 A. Defendant's Claim that the Studies are Novel Scientific Evidence

 In a detailed memorandum, the defendant challenges the validity of using animal studies to predict the carcinogenicity of pesticides in humans. In the defendant's view, such studies have disputed value in isolating the effects of individual substances, see Defendant's Memorandum in Support of Motion to Exclude Certain Animal Experiments from Evidence, at 26-31 & Appendix "A" (chronicling the difficulties of carcinogenic research with mice), in distinguishing between cancerous and non-cancerous changes in animal subjects, see id., at 31-33, and in relating their findings to human carcinogenicity, see id., at 34-63. Because there is wide disagreement concerning the reliability of particular findings of these studies, the defendant concludes, the evidence must be regarded as novel scientific evidence, and the techniques on which it is based should be reviewed for their soundness.

 In making this argument, the defendant confuses disagreements about particular results with disagreements about the processes that generate those results. Only the latter set of disagreements concerns the admissibility of scientific evidence; the former relates to the weight such evidence should be accorded. In Downing, the court declared that "evidence that derives from principles and techniques of uncontroverted validity is, of course, readily admissible." 753 F.2d at 1232 (subject to other restrictions not relevant to this case). While it may be true that the defendant can offer tests and experiments that do not support the findings of plaintiffs' experts, the defendant cannot deny that animal studies are routinely relied upon by the scientific community in assessing the carcinogenic effects of chemicals on humans. Even the defendant's own expert acknowledges that animal experiment studies are built on "prudent presumptions," although he concludes that they should not be admitted. See Letter of Dr. Gori, Defendant's Memorandum in Support of Motion to Exclude Certain Animal Experiments from Evidence, Exhibit "A", at 6.

 It is worthy of mention that counsel for the defendant does not make any reference in his seventy-eight page Memorandum to Judge Stern's letter opinion in Boltuch v. Terminix, Civil Action No. 84-3235 (D.N.J. April 16, 1986), which squarely addressed the issue of whether the studies in this case constitute novel scientific evidence. Judge Stern ruled that "both the NAS report and the animal studies derive from well-established scientific principles and techniques, and neither is based on 'novel form of scientific expertise' within the meaning of United States v. Downing." Id. at 11. Given that lead counsel for Terminix in the case at bar was one of Terminix's attorneys in Boltuch, it is hard to see how the non-reference to Boltuch could have been inadvertent.

 B. Defendant's Claim that the Studies Should Be Excluded Under Fed.R.Evid. 703 or Fed.R.Evid. 403

 (1) The Admissibility of the Studies Under Fed.R.Evid. 703

 The defendant argues that Fed.R.Evid. 703 bars the testimony of plaintiffs' experts on the animal studies. Fed.R.Evid. 703 provides:

 
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

 The Third Circuit has taken a liberal approach to the introduction of expert testimony by allowing experts to base their opinions on data that is reasonably relied upon by other experts in the field. There is no separate requirement that the court itself find the data to be trustworthy. See, e.g., In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238 (3d Cir. 1983), rev'd on other grounds sub nom., Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).

 Both parties have submitted documentation concerning the reliability of the plaintiffs' studies. Defendant's experts cast doubt on the findings of the studies, suggesting that the carcinogenicity of chemicals in animals provides weak inferential support for the dangerousness of those chemicals to humans. In contrast, the plaintiffs refer to numerous U.S. agencies and scientific organizations that routinely rely on animal studies in assessing risks to humans. I find, by the weight of the plaintiffs' submissions, that a substantial portion of the scientific community relies on animal studies of this type in assessing health risks to humans. That some members of the scientific community hold differing views is not enough to exclude evidence under Fed.R.Evid. 703. *fn1"

 Because I am persuaded that the studies are routinely relied upon by members of the relevant scientific community, I will not exclude the studies on the basis of Fed.R.Evid. 703.

 (2) The Admissibility of the Studies Under Fed.R.Evid. 403

 The defendant urges that the animal studies, even if found not to be novel scientific evidence, should be excluded because their probative value is outweighed by their potential to overwhelm, mislead, and confuse the jury. The support defendant offers for this position is unpersuasive.

 First, the defendant cites In re: "Agent Orange" Product Liability Litigation, 597 F. Supp. 740, 781 (E.D.N.Y. 1984), aff'd in part and rev'd in part, 818 F.2d 226 (2d Cir. 1987), for the proposition that reports by regulatory agencies are not sufficient to prove causation in private lawsuits. The issue, however, is not whether the reports are alone sufficient to prove causation, but whether they would prejudice a jury's decision of that issue.

  As to prejudice, the defendant argues that this court should adopt the reasoning set forth by two other district courts on the admissibility of animal studies. See Defendant's Memorandum, at 73-74 (citing In re "Agent Orange" Product Liability Litigation, 611 F. Supp. 1223, 1241 (E.D.N.Y. 1985); Lynch v. Merrell-National Laboratories, 646 F. Supp. 856, 865-67 (D.Mass.1986), aff'd 830 F.2d 1190 (1st Cir 1987)). Neither of these cases, however, purported to establish a general rule that animal studies are inadmissible. As with all questions of admissibility, the court must look closely at the type of evidence presented and the purpose for which its introduced.

 In the Agent Orange litigation, Judge Weinstein found the animal experiment studies to be potentially misleading in large part because the plaintiffs' own experts conceded that the studies were of dubious value in determining the effects of Agent Orange on humans. See 611 F. Supp. at 1241. In Lynch, the plaintiffs' case for the probative value of their animal studies was substantially weakened by the fact that the plaintiff had been exposed only to therapeutic doses of the substance at issue, bendectin. See 646 F. Supp. at 866. In contrast, the studies in this case are routinely relied upon by members of the scientific community to render opinions relating to the issue for which they are offered, the carcinogenicity of termiticides. See Answers of Plaintiffs to Defendant's Supplemental Set of Interrogatories Addressed for Answer by Dr. G. John DiGregorio, at 4-5 (attached as Exhibit "D" to Plaintiffs' Answer to Defendant's Motion to Exclude Certain Animal Experiments); United States Environmental Protection Agency, "Chlordane, Heptachlor, Aldrin and Dieldrin, Technical Support Document" (attached as Exhibit "C" to same); National Academy of Sciences, "An Assessment of the Health Risks of Seven Pesticides Used for Termite Control" (attached as Exhibit "I" to same).

 Because Fed.R.Evid. 403 provides for the exclusion of relevant evidence, it "should be invoked very sparingly" and only when the probative value of the evidence is substantially outweighed by the potential for undue harm. See, e.g., Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492, 1502 (11th Cir. 1985). Upon consideration of defendant's arguments, I am not persuaded that the probative value of the animal experiment studies will be substantially outweighed by their potential prejudice. Furthermore, I believe that counter-argument in court, ...


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