jury opportunity to fairly evaluate Radford's testimony.
As to Dr. Melius and the Motion in Limine seeking to exclude
his proffered testimony set forth in the expert report, I based
my conclusion to allow him to testify on the following. In their
Motion, Defendants contend that Dr. Melius' opinion regarding
causation contained major flaws: that his opinions did not "fit"
the facts because the record failed to establish that each
Plaintiff had a "significant" exposure of radiation; that his
opinions were not based on scientific knowledge derived from a
reliable scientific methodology; and, that his opinions were
uninformed, unreliable and so result-oriented that they should
have been excluded.
Plaintiffs countered Defendants' objections by arguing that Dr.
Melius performed a differential diagnosis methodology, that his
opinions based on this methodology were scientifically acceptable
and reliable and that his opinions were of assistance to the
I agreed with Plaintiffs' pre-trial and continue to agree that
Dr. Melius' testimony, as set forth in his expert report, was
Upon examination and review of the pre-trial submissions of the
parties relating to Dr. Melius' testimony, I find that the
methods employed by Dr. Melius in conducting a differential
diagnosis were reliable. Dr. Melius evaluated the exposure of
each Plaintiff by reference to the dose estimate provided by
Plaintiffs' dose experts. He considered the distance each
Plaintiff lived from the Apollo facility, activities that may
have influenced their exposure, their diets and food sources.
In addition to these factors, Dr. Melius reviewed the
epidemiological study of cancer incidence in the Apollo area
performed by the Pennsylvania Department of Health. He reviewed
scientific literature on radiation exposure and cancer incidence,
with particular emphasis on literature regarding the association
between radiation exposure and the cancers contracted by the
Plaintiffs. He considered genetic factors and exposure to other
risk factors which may also increase susceptibility to the risks
associated with radiation exposure.
After taking into account all of these factors, Dr. Melius
eliminated other potential causes of the Plaintiffs' cancers by
reviewing each Plaintiff's medical and occupational history. He
performed a comprehensive review of each Plaintiff's medical
records, medical histories, depositions, answers to
interrogatories, depositions of family members and treating
physicians and Plaintiffs' answers to questions about activities
and dietary habits which might have exposed them to emissions
from the Apollo facility. After consideration of all potential
risk factors and through the exercise of his professional
judgment, Dr. Melius concluded that radiation exposure from the
Apollo facility was the most likely cause of Plaintiffs' cancers.
As to Dr. Melius' employment of the "differential diagnosis"
methodology in his determination that radiation from the Apollo
facility was most likely the cause of Plaintiffs' illnesses, the
Third Circuit court has held that courts must be flexible in
conducting a Daubert inquiry when assessing the scientific
reliability of this particular methodology. Paoli II at 758.
The Paoli II court explained that although "differential
diagnosis is generally a technique that has widespread acceptance
in the medical community, has been subject to peer review, and
does not frequently lead to incorrect results, it is a method
that involves assessing causation with respect to a particular
individual." Id. As a result, no particular combination of
techniques chosen by a doctor evaluating an individual patient is
likely to have been accepted, published, or subjected to peer
review analysis. Id. Therefore, the Court decided that
"performance of physical examinations, taking of medical
histories, and employment of reliable laboratory tests all
provide significant evidence of a reliable differential
diagnosis, and that their absence makes it much less likely
that a differential diagnosis is reliable." Id. (see Also
Hines v. Consolidated Rail Corp., 926 F.2d 262 (3d Cir. 1991)).
While the Paoli II court held that a doctor does not always
have to employ all of these techniques in order for his
differential diagnosis to be reliable, "to the extent a doctor
utilizes standard diagnostic techniques in gathering medical
information, the more likely the court is to find that the
doctor's methodology is reliable." Paoli II at 758.
Nor is reliability of expert testimony diminished because, as
Defendants have argued, the physician performing a differential
diagnosis did not personally perform the medical examinations.
Rather, evaluation of a patient's medical records is "a reliable
method of concluding that a patient is ill even in the absence of
a physical examination. A doctor need only one reliable source of
information showing that a patient is ill; either a physical test
or medical records will suffice for this." Kannankeril v.
Terminix Int., Inc., 128 F.3d 802, 807 (3rd Cir. 1997) citing
Paoli II at 762.
As I have reviewed Dr. Melius's methodology as set forth above
and the dictates of the law, I find that Dr. Melius' testimony,
as set forth in his report, is reliable. Furthermore, the Paoli
II court held that in attacking a differential diagnosis
performed by a plaintiff's expert, a defendant may point to a
plausible cause of the plaintiff's illness, other than the
defendants' actions. It then "becomes necessary for the
plaintiffs expert to offer a good explanation why his or her
conclusion remains reliable." Paoli II at 762. The Defendants,
however, neither challenged the Plaintiffs with alternate
diagnoses by other physicians nor raised any other theory of
causation to explain Plaintiffs' illnesses.
Notwithstanding the absence of other theories of causation, I
found and continue to find that Dr. Melius' proffered testimony
as set forth in his expert report, is informed, not
result-oriented, based on scientific knowledge derived from a
reliable scientific methodology and "fits" the facts of this
(3) Plaintiffs' Exhibits 3, 4, 7, 10, 16, 18, and 19 and Dr.
Defendants next allegation of error which they contend mandates
a new trial, concerned Dr. Egilman's testimony as to Plaintiffs'
Exhibits 3, 4, 7, 10, 16, 18 and 19, which were not previously
listed in Dr. Egilman's report. Plaintiffs admit that the
exhibits were not disclosed in Dr. Egilman's report, but contend
that the nondisclosure was harmless because the seven exhibits
were documents which contained the same information as various
other documents admitted into evidence at trial, which had been