VIRGINIA M. KENDALL, District Judge.
Plaintiff Maria Moore ("Moore") brought this product liability action against P & G-Clairol Inc. ("Clairol"), alleging that she had a severe allergic reaction to Clairol hair dye. Clairol has filed a combined motion to exclude Moore's expert under the principles of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and for summary judgment (Doc. 62). Clairol asserts that the expert's testimony is not admissible because he is not qualified to opine the dye is unreasonably dangerous and that Clairol's warnings were inadequate, and his methods in reaching those conclusions were unreliable. According to Clairol, if Moore's expert's testimony is excluded, Clairol is entitled to summary judgment because Moore cannot show a causal link between the injury and the alleged defect in the dye. For the reasons detailed below, the Court grants Clairol's motion to exclude Moore's expert and enters summary judgment for Clairol.
Moore, a 17-year old student, purchased a box of Clairol Natural Instincts hair color, shade No. 36 ("the dye"), on March 2, 2007 at 5:07 pm. (Pl. 56.1 Resp. ¶ 5; Moore Dep., Pl. Ex. A at 5.) The outer packaging of the dye had a warning that stated, in part:
(Pl. 56.1 Resp. ¶ 8; Def. 56.1 Ex. 8, emphasis in original). The packaging also states: "THIS PRODUCT CONTAINS INGREDIENTS WHICH MAY CAUSE SKIN IRRITATION ON CERTAIN INDIVIDUALS AND A PRELIMINARY TEST ACCORDING TO ACCOMPANYING DIRECTIONS SHOULD FIRST BE MADE." (Pl. 56.1 Resp. ¶ 8, emphasis in original.) The inner packaging contained the following warnings:
(Pl. 56.1 Resp. ¶ 9; Def. 56.1 Ex. 9, emphasis in original.) Moore read and understood these instructions and warnings, including the warnings that the dye could cause an allergic reaction, the instructions to take an allergy test before using the dye, and the instructions to wait the prescribed "period of time" for the results of that allergy test prior to using the product on her hair. (Pl. 56.1 Resp. ¶ 10.) She also understood that the skin allergy test would cause some reaction of either a rash, redness, burning or itching at the site of application to warn her if she was allergic to the dye. (Def. 56.1 Resp. ¶ 2.)
On March 2, 2007 Moore took the allergy test and applied the dye to her arm when she got home from purchasing the dye at approximately 5 p.m. (Def. 56.1 Resp. ¶ 1; Moore Dep., Pl. Ex. A, 10:16-21.) The next morning, she applied the dye to her hair between 7 a.m. and 8 a.m., which was approximately 14 or 15 hours after she purchased it. (Pl. 56.1 Resp. ¶ 6.) The instructions on the box instructed the user to wait 48 hours after the allergy test to apply the dye. (Moore Dep., Pl. Ex. A, 10:22-11:4.) When she applied the dye to her hair, she had not suffered a reaction to the dye on her arm from the night before. (Moore Dep. Pl. Ex. A, 11:11-18.) Forty-eight hours after the skin allergy test, Moore still did not have any reaction to the dye on her arm. (Def. 56.1 Resp. ¶ 4.)
Four days after dying her hair, on March 7, 2007 Moore developed bumps on
Approximately two months later, on May 7, 2007, at the instructions of her dermatologist, Moore tested herself for an allergy to the dye by buying the same dye again and following the allergy test instructions on the box. (Pl. 56.1 Resp. ¶ 18.) This time, Moore had a "severe" reaction on the test site, which included blistering, redness, itching, swelling and scarring. (Pl. 56.1 Resp. ¶ 19.) Moore sued Clairol alleging negligence and product liability claims due to this allergic reaction to the dye. She claims both that the dye was unreasonably dangerous and that Clairol failed to adequately warn her that an allergic reaction could occur. (See Doc. 24.)
In her Rule 26(a)(2) disclosures, Moore designated Robert M. Moriarty, Ph.D. ("Moriarty") as the only witness that would present opinion testimony under F.R.E. 702, 703 or 705. (See Doc. 80-2.)
Moriarty's opinions, as stated in his report, are:
(Pl. Ex. J.)
Moriarty received several degrees in organic chemistry beginning in the 1950s, culminating in a doctoral degree in organic chemistry and served in several post-doctoral stints. (Def. 56.1 Resp. ¶ 13.) He received education and training with respect to organic synthesis, heterocyclic compounds and polymers. (Def. 56.1 Resp. ¶ 14.) He also worked as a junior chemist at Merck and Company from 1955 to 1957, where he came into contact with the rules of safety in a professional laboratory and material safety data sheets. (Def. 56.1 Resp. ¶ 16.) Since, he has worked as a chemist and chemistry. (Pl. 56.1 Resp. ¶ 27.) Moriarty has served as the chairman of the safety committee of his university's chemistry department and has been responsible for the safety of the university laboratory. (Def. 56.1 Resp. ¶ 17.) He has studied, taught, researched or written on a number of chemicals and chemical reactions, yet the majority of his publications do not refer to the chemicals in the dye. (Def. 56.1 Resp. ¶¶ 20-21.)
Moriarty has no expertise in the fields of psychology or human factors. (Pl. 56.1 Resp. ¶ 35.) He has never done any work concerning self-administered tests for consumers before they use a product, or taught or written on the subject. (Pl. 56.1 Resp. ¶ 36.) Nor does he have any background knowledge regarding allergy tests in the consumer hair dye industry or knowledge as to why the allergy test was designed the way it was from a toxicological standpoint. (Pl. 56.1 Resp. ¶¶ 37-38.) He has, however, performed thousands of laboratory tests involving mixing compounds in containers. (Pl. 56.1 Resp. ¶ 18.)
Moriarty reached his opinion that the dye is an unreasonably dangerous product by looking at each individual component in the dye, searching the literature for its biological and chemical properties, and reviewing the component's material safety data sheet to determine the hazards and toxicities for those components. (Def. 56.1 Resp. ¶ 24.) He then compiled that data. (Def. 56.1 Resp. ¶ 24.) The material safety data sheets do not provide the chemical concentration that will cause a harmful reaction in humans; although they may contain statistics concerning harmful reactions in animals. (Def. 56.1 Resp. ¶ 25.) Material data safety sheets are required to be drafted by manufacturers of chemicals by the Occupational Safety and Health Administration ("OSHA") to describe hazards associated with handling of chemicals in the workplace, and describe proper procedures for working with those chemicals. (Pl. 56.1 Resp. ¶ 48.) The data sheets Moriarty relied on do not address consumer safety issues, nor do they pertain to the concentration, formulation and packaging of the chemical ingredients in the dye or any other consumer hair dye.
Moriarty further opined that Clairol's instructions for the allergy test were too vague for a consumer to obtain a reliable result. (Pl. 56.1 Resp. ¶ 53.) Specifically, he opined that the instructions to use a plastic bowl and spoon is inadequate because the size of the bowl and spoon is not described, and the terms "small" and "equal parts," which describe the amount of dye components to use in the self allergy test, are not precise and could lead to false negatives. (Def. 56.1 Resp. ¶¶ 28, 30.) He made this determination based on: (1) his experience as a scientist; (2) his review of the self-test as written; (3) his reflection on the test and potential alternative scenarios; (4) his review of materials from Clairol regarding the adequacy of the self-test; and (4) he reviewed the testimony of one of Moore's treating physicians regarding the practice of using patch tests in medical settings. (Def. 56.1 Resp. ¶ 29.)
Moriarty did not examine how other hair dye manufacturers formulate their allergy test, nor does he know whether any manufacturers utilize any other kind of test." (Pl. 56.1 Resp. ¶ 55.) He never attempted to perform the product's allergy test himself, observed anyone else performing the test on themselves, or "ask[ed] anybody else how they interpreted the test." (Pl. 56.1 Resp. ¶ 56.)
Moriarty's causation opinion is based upon the opinions and conclusions of Moore's treating medical physicians: Dr. Nicholas Recchia and Dr. M. Ghani. (Def.
Whether scientific expert testimony is admissible is determined by reference to Federal Rule of Evidence 702 and the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). See Ervin v. Johnson & Johnson, Inc., 492 F.3d 901, 904 (7th Cir.2007). Moore, as the proponent of Moriarty's testimony, bears the burden of proof with respect to whether the admissibility requirements are met. See Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 704 (7th Cir.2009).
Rule 702 assigns the trial judge the "gate-keeping function" of "ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." Daubert, 509 U.S. at 589, 597, 113 S.Ct. 2786. The focus of this decision "must be solely on principles and methodology, not on the conclusions that they generate." Daubert, 509 U.S. at 595, 113 S.Ct. 2786. The Court applies a three-step analysis for determining the admissibility of expert testimony under Rule 702. See Ervin, 492 F.3d at 904. First, "the witness must be qualified `as an expert by knowledge, skill experience, training, or education.'" Id. (quoting F.R.E. 702.) Second, "the expert's reasoning or methodologies underlying the testimony must be scientifically reliable." Id. Third, the expert's testimony must be relevant, that is, it must "assist the trier of fact to understand the evidence or to determine a fact in issue." Id.
Clairol challenges Moriarty's opinion using the first and second prongs this test: (1) Moriarty is not qualified to reach his opinion; and (2) his methodology is not reliable. Because the Court finds that Moriarty's methodology in reaching that opinion is flawed and unreliable, there is no need to address Moriarty's qualifications to render the opinion.
Here, Moriarty concluded that the dye contains a number of chemicals that could be dangerous in certain settings. He reached this conclusion by looking at their material safety data sheets. So far, so good. But from that premise, he jumped to the conclusion that the dye itself is unreasonably dangerous because "if you mix dangerous chemicals you get a dangerous product." The problem is, he never mixed, used, chemically analyzed or tested the dye at issue, or any other hair dye. In other words, Moriarty performed no scientific analysis to determine the amounts of those dangerous chemicals that appear in the dye, and never had that information from another source. (Moriarty Dep., Pl. Ex. K, 136:14-19). Instead of testing the formulation of the dye itself, he relied on material safety data sheets for
Moriarty's methodology is similar to the methodology of the expert excluded by the Seventh Circuit in Fuesting v. Zimmer, Inc., 421 F.3d 528 (7th Cir.2005). In that case, the plaintiff's expert opined that a knee implant was defective because it was not sterilized correctly and that failure to sterilize caused the plaintiff's injuries. Id. at 531. The court noted that one "indicator of unreliability is the unjustifiable extrapolation from an accepted premise to an unfounded conclusion" and the "most significant Daubert factor is whether the scientific theory has been subjected to the scientific method." Id. at 536. Because he did not test or analyze the dye, or otherwise know the concentrations of the different chemicals in the dye, he had no scientific basis to opine whether those dangerous chemicals appear in the dye in such concentrations so as to make the dye an unreasonably dangerous product. That failure makes his methodology unreliable. See Fuesting, 421 F.3d at 536 (finding "the problem here is [the expert] did not bridge the analytical gap between these basic principles and his complex conclusions ... he did not specify [with respect to the product at issue], what quantum of each variable is required to set this agreed upon chain reaction in motion ... basic polymer science alone cannot answer these questions.").
At least one court in the Circuit similarly excluded an expert for using the same material safety data sheet approach as Moriarty used here due to this fundamental flaw in methodology. See Lemmermann v. Blue Cross Blue Shield of Wisc., 713 F.Supp.2d 791, 801-02 (E.D.Wisc.2010) (Stadtmueller, J.) (striking expert testimony and noting "[i]n essence [the expert's] `methodology' involved reading several labels and data sheets [on the chemical at issue] and, at best, parroting the conclusions of the authors of those data sheets.") As a matter of logic, products that contain dangerous chemicals are not, per se, unreasonably dangerous. Numerous household cleaners and yard care products contain a cacophony of dangerous substances; yet those products are not deemed unreasonably dangerous. Indeed, using Moriarty's methodology, natural soap would be an unreasonably dangerous product, because it contains a dangerous chemical—lye (sodium hydroxide)—that causes chemical burns and scarring when it contacts the skin. Put simply, given his methodology, Moriarty cannot state whether an individual, as a result of using the dye, will be exposed to enough dangerous chemicals to cause a reaction. Accordingly, the methodology Moriarty used was not reliable, and his opinion that the dye is unreasonably dangerous is excluded.
Moriarty does not quibble with the dye's warning that it could cause an allergic reaction. Rather, his primary objection is to the allergy test instructions; he asserts is that they are vague and imprecise
Under Federal Rule of Evidence 702, an expert witness must be qualified to testify by "knowledge, skill, experience, training, or education." F.R.E. 702. With regard to his proposed testimony concerning Clairol's instructions, Moriarty has none of these qualifications. He has no background or training in psychology or any field related to the design of warnings to consumers. He has only the most minimal experience with what should appear on a warning label, and no experience in how a consumer interprets a warning or self-test instructions.
As with his other opinions, Moriarty did no testing to reveal how a consumer interprets the dye's allergy test instructions. He did not ask anyone else to interpret the test, or conduct an experiment to determine whether consumers interpreted "small" and "equal parts" so differently as to suggest the dye's instructions could not be followed with precision by a consumer. Instead, he substituted his own experience of mixing chemicals in the laboratory and "reflecting" upon how a consumer could botch the test. That is different than showing by testing that the consumer actually botched the test. See Chapman v. Maytag Corp., 297 F.3d 682, 688 (7th Cir. 2002) (holding "[p]ersonal observation is not a substitute for scientific methodology and is insufficient to satisfy Daubert's most significant guidepost.") Moriarty stopped halfway through the scientific method by only hypothesizing. The essence of the scientific method is testing a hypothesis, something Moriarty failed to do here. See Fuesting, 421 F.3d at 536 (noting "[t]he first and most significant Daubert factor is whether the scientific theory has been subjected to the scientific method.") (internal quotation omitted).
As Moore readily asserts, her causal chain requires both Moriarty and Drs. Recchia and Ghani, Moore's treating physicians. (See Pl. Resp., Doc. 75, at 3-4 ("Dr. Moriarty has not been presented as an expert witness on the issues of medical causation ... [t]he plaintiff and Dr. Moriarty rely upon plaintiff's treating physicians... to establish medical causation").) Under Illinois law, for both negligence and strict liability claims attacking the design of a product, the plaintiff must establish a
Moore did not name her treating physicians as witnesses that would provide opinion testimony per Federal Rules of Evidence 702, 703 and 705. See Fed. R.Civ.P. 26(a)(2). Rather, she named only Moriarty. (See Doc. 80-2.) If treating physicians will present opinion testimony, they must be disclosed with Rule 26(a)(2). See Musser v. Gentiva Health Servs., 356 F.3d 751, 758 (7th Cir.2004); see also Jimenez v. United States, No. 06-c-5943, 2008 WL 3849915, at *4 (N.D.Ill. Aug. 14, 2008) (Dow, J.) (excluding treating physician opinion testimony and noting "Rule 26(a)(2) is designed so that a party does not have to assume that each of the opposing party's treating physicians might be called as expert witnesses at trial.") In Musser, the Seventh Circuit affirmed the exclusion of opinion testimony from treating physicians in circumstances nearly identical to the instant case. There, like here, the plaintiffs disclosed the treating physicians their Rule 26(a)(1) disclosures and the defendant deposed them, but the plaintiffs failed to disclose them pursuant to Rule 26(a)(2). Musser, 356 F.3d at 751. In affirming the district court's exclusion of the treater's opinion testimony, the court found:
Id. at 757-58. Further, it does not matter, for Rule 26(a)(2) disclosure purposes, that a treating physician formed her opinions during the course of treating the plaintiff, rather than for purposes of the litigation. Id. at 757 n. 2 ("a treating doctor ... is providing expert testimony if the testimony consists of opinions based on `scientific, technical, or other specialized knowledge' regardless of whether those opinions were formed during the scope of interaction with a party prior to litigation.") The requirement that treating physicians are properly disclosed is particularly justified in a product liability suit like this one, where expert testimony is critically important because such testimony is almost always required on matters of causation and the jury is often asked to resolve a "battle of the experts." Drs. Recchia and Ghani therefore may not opine on medical causation because Plaintiff failed to disclose them as experts. Setting aside Moriarty's stated "opinion" that Moore's injuries were caused by the dye, which he admits is based on the testimony of Drs. Recchia and Ghani, Moore has no expert testimony on causation.
Clairol asserts that without expert testimony that the dye is unreasonably dangerous and caused Moore's injuries, Clairol is entitled to judgment as a matter of law. Summary judgment "should be rendered if
For the foregoing reasons, Clairol's combined motion (Doc. 62) is granted and final judgment is entered for Clairol pursuant to Federal Rule of Civil Procedure 58.
