Last year, the Ninth Circuit of the United States Court of Appeals affirmed a district judge’s decision to exclude Dr David S. Egilman from testifying in a consumer-exposure diacetyl case. Newkirk v. Conagra Foods Inc., 438 Fed.Appx. 607 (9th Cir. 2011). The plaintiff moved on, but his expert witness could not let his exclusion go.
To get the full “flavor” of this diacetyl case, read the district court’s opinion, which excluded Egilman and other witnesses, and entered summary judgment for the defense. Newkirk v. Conagra Foods, Inc., 727 F. Supp. 2d 1006 (E.D. Wash. July 2, 2010). Here is the language that had Dr. Egilman popping mad:
“In other parts of his reports and testimony, Dr. Egilman relies on existing data, mostly in the form of published studies, but draws conclusions far beyond what the study authors concluded, or Dr. Egilman manipulates the data from those studies to reach misleading conclusions of his own. See Daubert I, 509 U.S. at 592–93, 113 S.Ct. 2786.”
727 F. Supp. 2d at 1018.
This language, cut Dr. Egilman to the kernel, and provoked him to lodge a personal appeal to the Ninth Circuit, based in part upon the economic harm done to his litigation consulting and testimonial practice. (See attached Egilman Motion Appeal Diacetyl Exclusion 2011 and Egilman Declaration Newkirk Diacetyl Appeal 2011.) Not only did the exclusion hurt Dr. Egilman’s livelihood, but also his eleemosynary endeavors:
“The Daubert ruling eliminates my ability to testify in this case and in others. I will lose the opportunity to bill for services in this case and in others (although I generally donate most fees related to courtroom testimony to charitable organizations, the lack of opportunity to do so is an injury to me). Based on my experience, it is virtually certain that some lawyers will choose not to attempt to retain me as a result of this ruling. Some lawyers will be dissuaded from retaining my services because the ruling is replete with unsubstantiated pejorative attacks on my qualifications as a scientist and expert. The judge’s rejection of my opinion is primarily an ad hominem attack and not based on an actual analysis of what I said – in an effort to deflect the ad hominem nature of the attack the judge creates ‘straw man’ arguments and then knocks the straw men down, without ever addressing the substance of my positions.”
Egilman Declaration in Newkirk at Paragraph 11.
The Ninth Circuit affirmed Dr. Egilman’s exclusion, Newkirk v. Conagra Foods, Inc., 438 Fed. Appx. 607 (9th Cir. 2011). See “Ninth Circuit Affirms Rule 702 Exclusion of Dr David Egilman in Diacetyl Case.
This year, the Ninth Circuit dismissed his personal appeal for lack of standing. Egilman v. Conagra Foods, Inc., 2012 WL 3836100 (9th Cir. 2012). Previously, I suggested that the Ninth Circuit had issued a judgment from which there will be no appeal. I may have been mistaken. Last week, counsel for Dr. Egilman filed a petition for certiorari in the United States Supreme Court. Smarting from the district court’s attack on his character and professionalism, Dr. Egilman is seeking the personal right to appeal an adverse Rule 702 ruling. The Circuit split, which Dr. Egilman hopes will get him a hearing in the Supreme Court, involves the issue whether he, as a non-party witness, must intervene in the proceedings in order to preserve his right to appeal:
“Whether a nonparty to a district court proceeding has a right to appeal a decision that adversely affects his interest, as the Second, Sixth, and D.C. Circuits hold, or whether, as six other circuit courts hold, the nonparty must intervene or otherwise participate in the district court proceedings to have a right to appeal.”
Egilman Pet’n Cert Newkirk v Conagra SCOTUS at 5 (Dec. 2012). Of course there is also a split among courts about Dr. Egilman reliability.
And who represents Dr. Egilman? Counsel of record is Alexander A. Reinert, who teaches at Cardozo Law School, here in New York. Dr. Egilman and Reinert have published several articles together, within the scope of Dr. Egilman’s litigation-oriented practice.[i] In the past, I have commented upon Reinert’s work. See, e.g., Schachtman, “Confidence in Intervals and Diffidence in the Courts” (May 8, 2012 ) (Arthur H. Bryant & Alexander A. Reinert, “The Legal System’s Use of Epidemiology,” 87 Judicature 12, 19 (2003)(“The confidence interval is intended to provide a range of values within which, at a specified level of certainty, the magnitude of association lies.”) (incorrectly citing the first edition of Rothman & Greenland, Modern Epidemiology 190 (Philadelphia 1998)). It should be interesting to see what mischief Egilman & Reinert can make in the Supreme Court.
[i] David S. Egilman & Alexander A. Reinert, “Corruption of Previously Published Asbestos Research,” 55 Arch. Envt’l Health 75 (2000); David S. Egilman & Alexander A. Reinert,“Asbestos Exposure and Lung Cancer: Asbestosis Is Not Necessary,” 30 Am. J. Indus. Med. 398 (1996); David S. Egilman & Alexander A. Reinert, “The Asbestos TLV: Early Evidence of Inadequacy,” Am. J. Indus. Med. 369 (1996); David S. Egilman & Alexander A. Reinert,“The Origin and Development of the Asbestos Threshold Limit Value: Scientific Indifference and Corporate Influence,” 25 Internat’l J. Health Serv. 667 (1995).