Before Dickie Scruggs had to put away his hand-tailored suits and don prison garb,[1] he financed and led an effort against the welding industry with claims that manganese in welding fume caused manganism, in several thousand tradesmen. After his conviction for scheming to bribe a judge, Scrugg’s lieutenants continued the fight, but ultimately gave up, despite having a friendly federal forum.
Scruggs has served his sentence, six years, in federal prison, and he has set out to use his freedom to promote adult education. Emily Le Coz, “Dickie Scruggs: A 2nd chance; Mississippi’s famed trial lawyer-turned-felon grants his first post-prison interview,” The Clarion-Ledger (April 25, 2015). Having confessed his crime and served his time, Scruggs deserves a second chance. Judge Zouhary of the Northern District of Ohio, however, recently ruled that the manganese litigation will not get a second chance in the form of a civil nuisance claim. Abrams v. Nucor Steel Marion, Inc., Case No. 3:13 CV 137, 2015 WL 6872511 (N.D. Ohio Nov. 9, 2015) (Zouhary, J.).
In Abrams, plaintiffs sued Nucor for trespass and private nuisance because of “hazardous” and “ultra-hazardous” levels of manganese, which landed on plaintiffs’ property from defendant’s plant. Plaintiffs did not claim personal injury, but rather asserted that manganese particulate damaged their real property and diminished its value.[2]
The parties agreed that the alleged indirect trespass would require a showing of “unauthorized, intentional physical entry or intrusion of a chemical by aerial dispersion onto Plaintiffs’ land, which causes substantial physical damage to the land or substantial interference with the reasonable and foreseeable use of the land.” Abrams, 2015 WL 6872511, at *1. Plaintiffs intended to make this showing by demonstrating, with the help of their hired expert witness, Jonathan Rutchik, that the manganese deposited on their land was harmful to human health.
Dr. Rutchik, a physician who specializes in neurology and preventive/ occupational medicine, was a veteran of the Scruggs’ offensive against the welding industry. Rutchik testified for plaintiffs in a losing effort in California, and was listed in other California cases. See, e.g., Thomas v. The Lincoln Electric Co., Alameda County 13 Case No. RG-06-272122; formerly Solano County Case No. FCS-027382), notes of Jonathan Rutchik’s testimony from Jan. 20, 2009, before Hon. Robert B. Freedman and a jury.
In Abrams, as an expert expert witness, Dr. Rutchik was able to conclude, to a reasonable degree of medical certainty, “that persons who reside full time in the ‘class area’ [0.25 to 0.5 miles from Nucor’s steel plant] for a period of ten (10) years or more will suffer harm to their health caused by such chronic exposure to such elevated levels of manganese”. Abrams, 2015 WL 6872511, at *3. Having served as a trial judge in a welding fume case, Judge Zahoury is also a veteran of Scrugg’s litigation industry’s offensive against manganese. Perhaps that background expertise helped him see through the smoke and fume of Dr. Rutchik’s opinions. In fairly short order, Judge Zahoury found that Rutchik’s opinions were conclusory, overly broad, general, and vague, not “the product of reliable principles and methodology,” and not admissible. Id. Judge Zahoury was no doubt impressed by jarring comparison of Dr. Rutchik’s opinion that Plaintiffs “will suffer harm to their health,” with the good health of the nearby residents, who had not shown any symptoms of manganese-related exposures.
Rutchik had not conducted any physical examinations to support a claim that there was prevalent illness; nor did he rely upon any testing of his extravagant, litigation-driven claims. Rutchik has thus failed to “test [his] hypothesis in a timely and reliable manner or to validate [his] hypotheses by reference to generally accepted scientific principles as applied to the facts of the case renders [his] testimony . . . inadmissible.” Id. at *4 (citations omitted). Being unsupported by the record or by efforts to test his theories empirically, Rutchik’s opinion had to be excluded under Rule 702.
Rutchik has published on manganese toxicity, but he has consistently failed to disclose his remunerated service to the litigation industry in cases such as Thomas and Abrams. See Jonathan S. Rutchik, Wei Zheng, Yueming Jiang, Xuean Mo, “How does an occupational neurologist assess welders and steelworkers for a manganese-induced movement disorder? An international team’s experiences in Guanxi, China, part I,” 54 J. Occup. Envt’l Med. 1432 (2012) (No disclosure of conflict of interest); Jonathan S. Rutchik, Wei Zheng, Yueming Jiang, Xuean Mo, “How does an occupational neurologist assess welders and steelworkers for a manganese-induced movement disorder? An international team’s experiences in Guanxi, China Part II,” 54 J. Occup. Envt’l Med. 1562 (2012) (No disclosure of conflict of interest); Jonathan S. Rutchik, “Occupational Medicine Physician’s Guide to Neuropathy in the Workplace Part 3: Case Presentation,” 51 J. Occup. Envt’l Med. 861 (2009) (No disclosure of conflict of interest); Jonathan S Rutchik, et al., “Toxic Neuropathy: Practice Essentials, Background, Pathophysiology,” Medscape Reference (April 30, 2014) (“Disclosure: Nothing to disclose” [sic]).
[1] “Richard Scruggs,” in Wikipedia, at <https://en.wikipedia.org/wiki/Richard_Scruggs>, last visited Nov. 27, 2015.
[2] Plaintiffs attempted to expand their claims to particulate matter, including manganese on the eve of trial, but Judge Zouhary would have none of this procedural shenanigan.
