Court Grants Summary Judgment for
Dow Agrosciences in Dursban Suit

Holds Blondell Memoranda Inadmissible and
Excludes Testimony of Sherman and Kilburn

On February 4, 1998, the District Court for the Sixth Judicial District, St. Louis County (Duluth), Minnesota, entered summary judgment in favor of The Dow Chemical Company and Dow AgroSciences in this litigation arising from a residential application of Dursban insecticide. In ordering summary judgment, the Court excluded from evidence the January 1995 memorandum entitled "Review of Chlorpyrifos-Associated Cases of Delayed Neuropathy," authored by Jerome Blondell, Ph.D., and the January 1997 memorandum entitled "Review of Chlorpyrifos Poisoning Data," prepared by Jerome Blondell, Ph.D. and Virginia Dobozy, V.M.D., M.P.H. Both memoranda contain anecdotal reports of alleged neurological injuries purportedly caused by chlorpyrifos and other organophosphates.

The Court also excluded all causation-related testimony of plaintiffs' proposed experts, Janette Sherman, M.D. and Kaye Kilburn, M.D. (both of whom are frequently employed by plaintiffs' counsel in toxic tort litigation). Dr. Sherman had proposed to testify that the plaintiffs - two parents and their teenage son - each suffered permanent brain damage and peripheral neuropathy as the result of their alleged exposure to Dursban. Similarly, Dr. Kilburn sought to testify that the plaintiffs suffered brain damage and "chemical encephalopathy" as a result of their Dursban exposure.

The Court found the Blondell memoranda to be scientifically unreliable and therefore inadmissible in evidence. In addition, the Court held the proposed expert testimony of Drs. Sherman and Kilburn to be unsupported by generally-accepted scientific and medical methodologies, based upon speculation and conjecture and of no probative value to a jury. Specifically, the Court stated in its Judgment Orders:

As to the Blondell Memoranda:

Order Excluding Blondell Memoranda, Conclusions of Law:

#1: "The Blondell Memoranda, consisting of anecdotal information gathered pursuant to a methodology not generally accepted in either the scientific or medical communities as a mechanism to establish a cause and effect relationship between chemical exposure and neurological health problems, lack sufficient probative value to render it appropriate for submission to the [jury]."

#2: "Failing to employ a methodology accepted by even a significant minority of the relevant scientific or medical communities, the Blondell Memoranda are not sufficiently reliable and probative to make them appropriate for consideration by the [jury]."

Memorandum in Support of Order Excluding Blondell Memoranda:

"[T]he Blondell Memoranda constitute hearsay and some of the memoranda's contents might be characterized as third-hand hearsay. Unknown persons made telephonic report to unknown persons who made some sort of notations regarding the reports according to a protocol which has not been shown to have been consistent among the call takers." (p.1)

"Likewise, there has been a total failure to specifically address dose/response methodology in the Blondell work." (p.3)

"As pointed out by the defendants, there is no showing that the authors of the Blondell Memoranda are possessed of sufficient scientific knowledge and experience to justify any attempt by them to draw a causative link between chemical exposure and neurologic deficits constituting neurological abnormalities." (pgs. 3-4)

As to the Janette Sherman's Testimony:

Order Excluding Testimony of Dr. Janette Sherman, Findings of Fact:

#11: "The Court finds Dr. Sherman's case report unreliable for the purposes here in that, at a minimum, the exposures of the persons whose situations are reported therein are not specified as to quantity or duration, in significant measure involved persons embroiled in litigation without making appropriate reliability adjustments for such fact and which report can generally be characterized as anecdotal rather than scientific in terms of permitting the drawing of medical and toxicological conclusions therefrom."

#12: "Dr. Sherman's method of analysis in effect proceeds from the conclusion backward to the claimed causative event adopting favorable, often scientifically unsupportable, inferences and ignoring others."

#13: "Dr. Sherman's testimony, not being derived from or founded upon appropriate scientific and medical inquiry, will not assist the trier of fact to appropriately understand evidence or to determine the facts herein, her conclusions being based in significant measure upon speculation and conjecture and lacking in factual predicate." Memorandum in Support of Order Excluding Testimony of Dr. Janette Sherman:

"[T]he methodology which she applied here is not generally accepted nor is it reliable in the scientific and medical sense to the point where it is appropriate that her conclusions be presented to the trier of fact." (p.1)

As to Kaye Kilburn's Testimony:

Order Excluding Opinion Testimony of Dr. Kaye H. Kilburn, Finding of Fact:

#13: "Dr. Kilburn's method is contrary to generally accepted scientific practice, is not generally accepted, and, in addition, is not scientifically reliable for purposes of determining such a cause and effect relationship."

#14: "Dr. Kilburn's proffered opinion here is based on speculation and conjecture by reason of the fact that he did not apply a generally accepted scientific method to determine whether exposure of the plaintiffs to Dursban and its components was capable of causing the injuries which are here claimed."

#16: "Dr. Kilburn did not in his methodology here even attempt to assess whether plaintiffs' exposure to the Dursban components did or did not meet or exceed various alternative acceptable exposure levels suggested in the literature and the literature which he does rely upon fails to establish levels of the chemical agent in question which are known to cause the type of harm plaintiffs here claim to have suffered."

#17: "Dr. Kilburn's proffered opinions concerning a cause/effect relationship between plaintiffs' exposure to Dursban and its components and the conditions of which plaintiffs complain is without sufficient foundation, is not derived from generally accepted scientific methodology, is not derived from reasonably reliable scientific methodology and is speculative and conjectural; nor is his methodology accepted by even a significant minority of the medical or scientific communities."

Order Excluding Opinion Testimony Of Dr. Kaye H. Kilburn, Conclusions of Law:

#1: "Dr. Kilburn's opinions as to a causative relationship between plaintiffs' exposure to Dursban and its components and the medical conditions of which plaintiffs complain being without foundation, being without probative value and unreliable as the product of analytical methodology which is not widely accepted in the scientific disciplines of medicine and/or toxicology or a significant minority of either, being scientifically unreliable and being speculative and conjectural it is appropriate that his testimony be excluded."

Memorandum in Support of Order Excluding Opinion Testimony Of Dr. Kaye H. Kilburn:

"[T]he Court has concluded his testimony, as tendered, is of no probative value to the trier of fact here because it draws no plausible cause/effect relationship between the Dursban exposure and any condition let alone the conditions which he purports to diagnose in the Goebs." (p.2)

"In summary, the Court cannot condone the scientific leap of faith between a wholly unquantified Dursban exposure to the existence of a claimed neurological condition which acceptance of Dr. Kilburn's methodology requires." (p.3)

Court's General Memorandum Accompanying Summary Judgment Rulings and Evidentiary Orders of February 4, 1998:

"The Court wishes to emphasize that it has found wanting the methodology of both Drs. Sherman and Kilburn on various points. From their deposition testimony it is clear that appropriate dose response considerations were not undertaken by either. It is clear that they both rely to an inappropriate degree on a temporal relationship between an unquantified exposure and claimed but unverified symptomatology. It is clear that neither appropriately reviewed pre-exposure medical records. It is clear that neither appropriately differentially diagnoses the Goebs claimed conditions to exclude other potential operative medical, psychological or psychiatric causes. It is clear that neither gives consideration to the no observable effect level (NOEL) concept widely recognized in the field of toxicology. It is clear that the methodology of neither is generally recognized in the relevant medical and scientific communities or by a significant minority of the relevant communities. It is further the case that the methodology of neither is scientifically valid in this Court's view."

The Court's Judgment and Orders are subject to appeal pursuant to Minnesota rules and procedure.

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