NOT PRECEDENTIAL



                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            _____________

                                No. 10-2168
                               _____________

                     ROBERT T. PRITCHARD, SR.;
                 ELIZABETH ANN PRITCHARD, his wife,
                                           Appellants
                                 v.

   DOW AGRO SCIENCES, a division of DOW CHEMICAL COMPANY;
SOUTHERN MILL CREEK PRODUCTS OF OHIO; RESIDEX CORPORATION
                        _____________

               On Appeal from the United States District Court
                  for the Western District of Pennsylvania
                      District Court No. 2-07-cv-01621
               District Judge: The Honorable Nora B. Fischer

              Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                               May 10, 2011

        Before: SMITH, CHAGARES, and VANASKIE, Circuit Judges

                            (Filed: June 2, 2011)

                          _____________________

                                OPINION
                          _____________________

SMITH, Circuit Judge.

     Robert T. Pritchard, Sr. alleges that he developed cancer as the result of
exposure to Dursban, a pesticide produced by defendant Dow AgroSciences. His

wife claims to have suffered derivative injuries. In support of their complaint, the

Pritchards solicited the expert testimony of Dr. Bennet I. Omalu, who provided the

District Court with a report and, later, a declaration stating that Dursban caused

Robert Pritchard‟s cancer. Although the court found Dr. Omalu to be a qualified

expert, it ruled (on Dow‟s motion) that his proposed testimony was unreliable and

therefore inadmissible at trial under Daubert v. Merrell Dow Pharmaceuticals, 

(1993), and Federal Rule of Evidence 702. The parties stipulated that the

exclusion of Dr. Omalu‟s testimony doomed the Pritchards‟ lawsuit, because the

plaintiffs have no other evidence of causation.       The court therefore entered

judgment for the defendants. Plaintiffs appeal the Daubert/Rule 702 ruling in the

hope of breathing life back into their case.     The District Court had diversity

jurisdiction under 28 U.S.C. § 1332; our jurisdiction to review its final judgment is

premised on 28 U.S.C. § 1291. A decision to exclude expert testimony is reviewed

for abuse of discretion, though we apply de novo review to the District Court‟s

articulation of the governing legal standards. See Elcock v. Kmart Corp., 

, 745 (3d Cir. 2000).

      The Pritchards raise two arguments on appeal, neither of which has merit.

First, they say that the District Court violated the doctrine of Erie Railroad Co. v.

Tompkins, 

(1938), by applying substantive rules of federal common

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law in a diversity action that is properly governed by state law. Specifically, they

argue that, in the course of finding that Dr. Omalu‟s testimony was unreliable, the

District Court erroneously relied on three principles that are “at odds with

Pennsylvania substantive law governing the level of certainty required to establish

causation”:

              (i) that an expert must rule out unknown or ideopathic
              [sic] [i.e., uncertain] causes of injury; (ii) that he may not
              rely upon a study showing less than a two-fold increased
              risk; and (iii) that he may not rely upon a study that is not
              statistically significant across a 95% confidence interval.

Br. for Appellants 5 (footnote omitted). It is true that the District Court noted that

Dr. Omalu did not rule out unknown or idiopathic causes; that the court considered

the fact that the epidemiological study on which the doctor wished to rely showed

only “a relative risk of 2.0”; and that the court observed that the proposed

testimony was “not grounded in science as [Dr. Omalu] has not presented any

statistically significant evidence showing an association between any of the

chemical agents at issue and [non-Hodgkins lymphoma].” See Pritchard v. Dow

Agro Sciences, 

, 492, 486, 493 (W.D. Pa. 2010). But Judge

Fischer merely considered these factors, among “a host of other deficiencies,” as

components of her determination that the proffered testimony failed to satisfy the

admissibility standard. 

She explicitly “did not adopt any „bright-line‟

rules but instead evaluated the Plaintiffs‟ proffer of Dr. Omalu using a „flexible‟

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approach as directed by the Court of Appeals in Heller [v. Shaw Industries, 

(3d Cir. 1999)].” 

did not hold that an expert must do this

or may not do that, but rather considered together all of the particular steps taken in

this case—in light of which it found the doctor‟s methodology and proposed

testimony unreliable and thus inadmissible.        This was an evidentiary ruling,

separate and distinct from any substantive question regarding causation (which the

court never had reason to reach). See In re Paoli R.R. Yard PCB Litig., 

, 761 n.31 (3d Cir. 1994). Such procedural issues are governed by federal law,

which the court applied correctly. Its decision does not violate Erie.

      The Pritchards‟ second argument is that the District Court improperly

“invaded the province of the jury” by excluding Dr. Omalu‟s testimony after

weighing the plaintiffs‟ proffered evidence against the defendants‟—the suggestion

being that a jury should have been presented with both sides‟ testimony and

allowed to decide which was more credible. “The Rules of Evidence embody a

strong preference for admitting any evidence that may assist the trier of fact,”

Pineda v. Ford Motor Co., 

, 243 (3d Cir. 2008), so testimony should

not be excluded simply because a judge thinks its probative value is outweighed by

other evidence. The District Court engaged in no such balancing. Instead, it

rightly concluded that Dr. Omalu‟s proposed testimony was unreliable due to

numerous cracks in its scientific foundation. Specifically, Dr. Omalu cited only

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one specific study in support of his general conclusion that Dursban causes

cancer—and in fact, he relied not on the study itself but on his own reinterpretation

of the study‟s findings using a lower confidence interval. (That is, he recalculated

the study‟s conclusions so as to serve his client‟s litigation needs while

simultaneously rendering them less scientifically reliable.) Moreover, the plaintiffs

offered no evidence to explain the methods through which Dr. Omalu recalculated

the study‟s results, leaving the court unable to evaluate the reliability of his

methodology.     The District Court therefore correctly rejected Dr. Omalu‟s

reinterpretation of the study as a sound basis on which to form an expert opinion.

Because his assertions regarding general causation were otherwise unsupported,

the court properly excluded them. Judge Fischer was also on firm ground when

she deemed unreliable Dr. Omalu‟s specific conclusion that Dursban had caused

Mr. Pritchard‟s illness. That conclusion was not supported by evidence in the

medical records, discovery responses, deposition testimony, application records, or

any other information regarding Mr. Pritchard‟s exposure to Dursban or other

pesticides. Dr. Omalu also failed to adequately address possible alternative causes

of Mr. Pritchard‟s cancer. Although the District Court did reference certain of the

defendants‟ evidence, it did so only after deciding that Dr. Omalu‟s proposed

testimony was fatally unreliable. It did not base its ruling on improper balancing.

      The District Court committed no error in excluding Dr. Omalu‟s testimony,

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so we will affirm its judgment.




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