EDMUND A. SARGUS, JR., Chief District Judge.
This matter is before the Court on Plaintiffs Cynthia and Robert Madej's ("Ms. Madej," "Mr. Madej", or collectively, "Plaintiffs") Motion for Partial Summary Judgment (Pl.'s Mot. S.J., ECF No. 109), Defendant's memorandum in opposition (Def. Mem. Opp., ECF No. 119), Plaintiffs' Reply (Pl. Reply, ECF No. 135), Plaintiffs' motion in limine to exclude the testimony of Jonathan Raab (Pl. MIL, ECF No. 138), Defendant's response (Def. Response MIL, ECF No. 141), and Plaintiffs' Reply (Pl. Reply MIL, ECF No. 143). Also before the Court are Defendant's Motion for Summary Judgment (Def. Mot. S.J., ECF No. 117), Plaintiffs' memorandum in opposition (Pl. Mem. Opp., ECF No. 120), Defendant's Reply (Def. Reply, ECF No. 134), Defendant's motion in limine to exclude the testimony of Dr. John Molot (Def. MIL, ECF No. 106), Plaintiffs' response (Pl. Response MIL, ECF No. 126), Defendant's Reply (Def. Reply MIL, ECF No. 134), Defendant's motion in limine to exclude the testimony of Dr. Barbara Singer and Dr. Allan Lieberman (Def.'s MIL, ECF No. 107), Plaintiffs' response (Pl. Response MIL, ECF No. 125), Defendant's Reply (Def. Reply MIL, ECF No. 133); Defendant's motion in limine to exclude Plaintiffs' engineering experts (Def. MIL, ECF No. 108), Plaintiffs' response (Pl. Response MIL, ECF No. 124), and Defendant's Reply (Def. Reply MIL, ECF No. 132). Additionally, Defendant has filed a Motion for Leave to File a Sur-reply (Def. Mot. Sur-reply, ECF No. 140), Plaintiffs have filed a response (Pl. Response Sur-reply, ECF No. 144), and Defendant has filed a Reply (Def. Reply, ECF No. 145). The issues are joined and ripe for consideration. For the reasons that follow, Defendant's motions to exclude the opinions of Dr. John Molot (Def.'s MIL, ECF No. 106), and Dr. Barbara Singer and Dr. Allan Lieberman (Def.'s MIL, ECF No. 107) are well-taken, and are
This dispute arose out of the road resurfacing "chip and seal" or "chip seal" project on Dutch Creek Road in Athens County, Ohio. (Third Am. Comp. ¶¶ 3, 4, ECF No. 16.) Residents complained that the dust on the road was affecting their health, and as part of his statutory obligation to maintain the roads of Athens County, the Engineer decided to chip seal Dutch Creek Road (Def. Mot. S.J., ECF No. 117, p. 10.)
Plaintiffs allege that the completion of the "chip and seal" project within one mile of their residence could cause Mrs. Madej serious physical harm or even death. (Id. at ¶¶ 6, 7, 8, 11, 15, 23, 33, 39, 41, 42, 48.) Specifically, Plaintiffs allege that "Cindi suffers from chemical sensitivity, also known as environmental illness, which renders many substances used in road paving highly toxic to her, including but not limited to petrochemicals used in `chip and seal' road surfacing." (Id., at ¶ 4.) In support of their claims, Plaintiffs rely on three medical experts, John Molot, M.D., a Canadian physician whom they engaged as an expert witness, and treating physicians Barbara Singer, M.D. and Allan Lieberman, M.D. Discovery was completed in June, 2018, and the issues were fully joined on September 11, 2018.
On September 15, 2015, Plaintiffs filed an action in state court against the Athens County Engineer, Jeff Maiden, in the Athens County Court of Common Pleas seeking "a temporary restraining order, preliminary injunction, and permanent injunction" to stop the paving project. (ECF No. 1-1, PgId 10). Judge Patrick Lang granted a temporary restraining order, and then replaced the temporary restraining order with a preliminary injunction on September 23, 2015, following a hearing on the preliminary injunction on September 21, 2015. (Decision, ECF No. 16, PgId 144.) The state court injunction remains in place, and Dutch Creek Road has not been resurfaced. (Def. Mot. S.J., ECF No. 117, p. 2.)
During the hearing on the preliminary injunction, the Court heard testimony from Mr. Madej, and from Ms. Madej, who was permitted to testify via telephone, including testimony that Ms. Madej sleeps "in a small glass-lined room, with an old recliner being the only furniture she feels her health can tolerate. In winter, the only heat source in the room is a string of incandescent light bulbs, augmented on extremely cold nights by the addition of glass bottles filled with hot filtered water." (Decision, ECF No. 16, PgId 145-46.) The Court also heard testimony from Dr. Barbara Singer, who testified that Ms. Madej "is in extremely poor health, and suffers from ailments including anemia, several vitamin deficiencies, protein deficiency, anxiety and depression." (Id., PgId 146.) "Dr. Singer testified that in her professional medical opinion, these symptoms are caused by extreme chemical sensitivity, and that Mrs. Madej would likely suffer severe physical injury or death if the project moved forward at the current time. Finally, Dr. Singer testified that hospitalization is not a viable option, because the plastics and chemicals used at hospitals would exacerbate Mrs. Madej's illness." (Id.) In granting the preliminary injunction, the Court explained:
(Id., PgId 149-50.) On June 30, 2016, Plaintiffs filed a second amended complaint adding federal claims, and on July 7, 2016, Defendant removed the case to this court. (ECF No. 1.)
Plaintiffs filed a third amended complaint on October 18, 2016 ("complaint") asserting claims arising under the Fair Housing Amendments Act, 42 U.S.C. § 3601 et seq., and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., as well as state-law claims. In addition to monetary relief, Plaintiffs seek an order enjoining Defendant Athens County Engineer Jeff Maiden ("Engineer" or "Defendant") from completing the road resurfacing "chip and seal" project, and a declaratory judgment to the effect that "should the defendant proceed with the threatened chip and seal project on the section of Dutch Creek Road extending from S.R. 550 to Stanley Road Mrs. Madej will suffer serious physical harm or death and that the Defendant will be liable for civil assault and battery and/or wrongful death." (Third Am. Comp., ECF No. 16, PgId 138-39.) In support of the injunction, Plaintiffs attached as Exhibit 1 to the complaint an affidavit dated September 15, 2015, from Dr. Barbara Singer, Ms. Madej's treating physician, declaring that Ms. Madej "suffers from chronic chemical sensitivity resulting from toxic exposure." (Singer Aff., ECF No. 16, Ex. 1, PgId 140.) "She also currently suffers from a life-threatening anemic condition as evidenced by very low hemoglobin levels and severe vitamin B12 deficiency, as well as extreme weight loss and cardiometabolic decompensation. She is in a precarious state and even small exposures to chemical stressors create a serious hazard for her." (Id.) Dr. Singer stated that Ms. Madej "requires limited exposure or avoidance of many common materials and chemicals which include but are not limited to: diesel, jet and other fuels, exhaust, tar and asphalt, oil, herbicides and pesticides, smoke." (Id.) She stated that "[r]oadway construction and maintenance activities are of particular concern. Exposures, even in small amounts, to numerous volatile organic compounds found in petrochemical products like tar (e.g. anthracene, benzene, and phenols), many of which outgas for months are dangerous and even life-threatening for [Ms. Madej]. Potential impacts include: difficulty breathing, heart attack, paralysis, migraines, neurologic stress and damage." (Id.) Additionally, "[a]voiding exposure is crucial. [Ms. Madej] is unable to relocate from her home due to the severity and breadth of her sensitivities and the specialized living environment she requires." (Id.) "If [Ms. Madej's] road has a chip and seal or asphalt surface (or other surfacing that contains volatile organic compounds or toxins to which she is sensitive) especially while she is already in a weakened state from her anemia condition, weight loss, and cardiometabolic decompensation it is my opinion to a reasonable degree of medical certainty that she will suffer serious physical harm or possible death." (Id., PgId 141.)
Count I seeks injunctive relief to prevent the paving of Dutch Creek Road with asphalt or chip seal (Third Am. Comp., p. 1); Count II claims civil assault, battery, and/or wrongful death (Id., p. 4); Count III seeks a declaratory judgment that, should Defendant proceed with chip seal Ms. Majed will suffer assault, battery and/or death (Id., p. 5); Count IV claims a violation of the Fair Housing Amendments Act, 42 U.S.C. § 3601, et seq. (Id.); and Count V claims a violation of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (Id., p. 6.)
Defendant moves to exclude the testimony of the Ms. Madej's treating physicians, Dr. Singer and Dr. Lieberman (Def.'s MIL, ECF No. 107); Plaintiff's medical expert, Dr. Molot (Def.'s MIL, ECF No. 106); and the three engineers (Def.'s MIL, ECF No. 108). Plaintiff moves to exclude the opinion testimony of Defendant's geotechnical engineer, Mr. Raab (Pl.'s MIL, ECF No. 138). Both parties move to exclude this proffered expert testimony pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The parties have fully briefed the issues, filed the relevant reports, and have provided relevant portions of the experts' depositions.
Federal Rule of Evidence 702 requires the trial judge to perform a "gatekeeping role" when considering the admissibility of expert testimony. Daubert, 509 U.S. at 597. The rule provides as follows:
Fed. R. Evid. 702. The Supreme Court explained the gatekeeping role:
Daubert, 509 U.S. at 597.
The Sixth Circuit has described the district court's gatekeeping function under Daubert as an "obligation . . . to exclude from trial expert testimony that is unreliable and irrelevant." Conwood Co., L.P. v. U.S. Tobacco Co., 290 F.3d 768, 792 (6th Cir. 2002) (internal quotation marks omitted). The gatekeeping role progresses in three steps: First, the witness must be qualified according to his or her "knowledge, skill, experience, training, or education." In re Scrap Metal Antitrust Litig., 527 F.3d 517, 529 (6th Cir. 2008) (quoting Fed. R. Evid. 702). Second, the expert's testimony must be relevant, in that it will help "the trier of fact to understand the evidence or to determine a fact in issue." Id. (same). On this point, the Court's inquiry focuses on whether the expert's reasoning or methodology can be properly applied to the facts at issue. See Daubert, 509 U.S. at 591-93. Third, the testimony must be reliable. See Kendall Holdings, Inc. v. Eden Cryogenics, LLC, No. 2:08-cv-390, 2013 WL 53661 (S.D. Ohio Sept. 24, 2013). To determine whether expert testimony is "reliable," the court's role, and the offering party's responsibility, "is to make certain that an expert . . . employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999). Generally, the expert's opinions must reflect "scientific knowledge . . . derived by the scientific method," representing "good science." Daubert, 509 U.S. at 590, 593. Reliability hinges on whether the reasoning or methodology underlying the testimony is scientifically valid. See Daubert, 509 U.S. at 590. The expert must ground his or her testimony in the methods and procedures of science and must entail more than unsupported speculation or subjective belief. Id. Plaintiffs bear the burden to prove by a preponderance of the evidence that the testimony is reliable. Wellman v. Norfolk & Western Railway Co., 98 F.Supp.2d 919, 923 (S.D. Ohio 2000) (citing In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 744 (3d Cir. 1994)).
Daubert outlines several factors for courts to consider to help determine reliability, including "testing, peer review, publication, error rates, the existence and maintenance of standards controlling the technique's operation, and general acceptance in the relevant scientific community." United States v. Langan, 263 F.3d 613, 621 (6th Cir. 2001) (citing Daubert, 509 U.S. at 593-94). This inquiry is "flexible," however, and Daubert's factors "do not constitute a definitive checklist or test." Kumho Tire Co., 526 U.S. at 150 (emphasis in original, citation and internal quotation marks omitted). The Court's gatekeeper role "is not intended to supplant the adversary system or the role of the jury." Wellman v. Norfolk and Western Ry. Co., 98 F.Supp.2d 919, 924 (S.D. Ohio 2000) (citing Daubert, 509 U.S. at 596). Rather, it is "to keep unreliable and irrelevant information from the jury because of its inability to assist in factual determinations, its potential to create confusion, and its lack of probative value." Id.
The inquiry of whether a witness qualifies as an expert depends on his or her "knowledge, skill, experience, training, or education." Fed. R. Evid. 702. After review of the expert's qualifications, the district court makes this determination as a preliminary question under Fed. R. Evid. 104(a). Kingsley Associates, Inc. v. Del-Met, Inc., 918 F.2d 1277, 1286 (6th Cir. 1990). In doing so, the district court "has broad discretion in the matter of the admission or exclusion of expert evidence." United States v. Kalymon, 541 F.3d 624, 636 6th Cir. 2008) (quoting United States v. Demjanjuk, 367 F.3d 623, 633 (6th Cir. 2004)). As a guiding principle, the decision of whether to allow expert testimony depends on whether "it will assist the trier of fact." Id. "The issue with regard to expert testimony is not the qualifications of a witness in the abstract, but whether those qualifications provide a foundation for a witness to answer a specific question." Berry v. City of Detroit, 25 F.3d 1342, 1351 (6th Cir. 1994).
Plaintiffs' complaint asserts that "[Ms. Madej] suffers from chemical sensitivity, also known as environmental illness, which renders many substances used in road paving highly toxic to her, including but not limited to petrochemicals used in `chip and seal' road resurfacing." (Third Am. Comp., ¶ 4, ECF No. 16.) In cases involving exposure to toxic substances, the plaintiff "must establish both general and specific causation through proof that the toxic substance is capable of causing, and did cause, the plaintiff's alleged injury." Pluck v. BP Oil Pipeline Co., 640 F.3d 671, 677 (2011). Thus, causation has two levels, general and specific, and a plaintiff must prove both. As to specific causation, "[t]he plaintiff must show that [s]he was exposed to a toxic substance and that the level of exposure was sufficient to induce the complained-of medical condition (commonly called the `dose-response' relationship')." Valentine v. PPG Indus., Inc., 158 Ohio App.3d 615, 821 N.E.2d 580, 588 n. 1 (2004).
Baker v. Chevron USA, Inc., 680 F.Supp.2d 865 (2010).
It is well-established in the Sixth Circuit that employing a differential diagnosis is an appropriate means to establish causation. See Best v. Lowe's, 563 F.3d 171, 178-80 (6th Cir. 2009) (citing Hardyman v. Norfolk & Ry. Co., 243 F.3d 255, 260 (6th Cir. 2001)). "Differential diagnosis, or differential etiology, is a standard scientific technique of identifying the cause of a medical problem by eliminating the likely causes until the most probable one is isolated." Hardyman, 243 F.3d at 260. "A differential diagnosis seeks to identify the disease causing a patient's symptoms by ruling in all possible diseases and ruling out alternative diseases until (if all goes well) one arrives at the most likely cause." Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 674 (6th Cir. 2010). "[C]ourts must apply the Daubert principles carefully in considering [etiology]. `The ability to diagnose medical conditions is not remotely the same . . . as the ability to deduce . . . in a scientifically reliable manner, the causes of those medical conditions.' Gass v. Marriott Hotel Servs., Inc., 501 F.Supp.2d 1011, 1019 (W.D. Mich. 2007), rev'd on other grounds, 558 F.3d 419 (6th Cir. 2009). Doctors thus may testify to both, but the reliability of one does not guarantee the reliability of the other." Id. at 673-74.
In the case at bar, Plaintiffs assert that Ms. Madej suffers from multiple chemical sensitivity ("MCS") or environmental illness. Plaintiffs claim that the petrochemicals inherent in chip seal will undoubtedly cause her serious physical injury or death. In order to prevail on that theory, Plaintiffs must establish both general and specific causation by proving by a preponderance of the evidence that these petrochemicals in chip seal are capable of causing and will in fact cause the threatened injury. Pluck, 640 F.3d at 677.
Plaintiffs retained as an expert witness Dr. John Molot, a Canadian physician who also works on a Canadian task force studying the gaps in science surrounding MCS, fibromyalgia, and chronic fatigue syndrome. (Molot Dep., ECF No. 95, PgId 3288, 3292.) Dr. Molot explained that environmental medicine is not a recognized board certification, and he is not board certified in any medical specialty. (Id., PgId 3311.) Dr. Molot explained that MCS is "diagnosed by the history and the history is somewhat complex." (Id., PgId 3302.) The history is the subjective criteria as relayed by the patient. (Id.)
(Id., PgId 3302-3303, 3324.) Dr. Lieberman explained further that he has "no idea" which chemicals Ms. Madej is reacting to, "because there's no way to test it." (Id., PgId 3338.)
(Id., PgId 3339-3340.)
(Id., PgId 3341-3342.) Dr. Molot explained that he based his opinion on the "couple of hours" he spent with her during that one clinical visit, and on clinical notes and records from other physicians. (Id., PgId 3349.) He did not recall asphalt sensitivity being mentioned in the medical records until September of 2015. (Id., PgId 3350.)
(Id., 3350-3351.) Dr. Molot further opined that he did not think chip sealing the road would cause cardiac arrest, paralysis, or respiratory failure. (Id., PgId 3353.) Dr. Molot also testified that he has no evidence that the alternative products Plaintiffs prefer to chip seal would be safe for Ms. Majed. "Q. Have you ever tested her for exposure to any of these alternative products? A. There's no test available. Q. Okay. Have you ever seen her become symptomatic around any of these alternative products? A. I only spent two hours with her." (Id., PgId 3389.)
Assuming arguendo that general causation was proved (and the Court is not convinced that is is), it is Plaintiffs' burden to establish specific causation. "When specific causation of an injury is at issue, the Sixth Circuit requires that the expert conduct a `differential diagnosis' in order to prove such causation." Best, 563 F.3d 179; Pluck, 640 F.3d at 678, Tamraz, 620 F.3d at 674. (Def. MIL, ECF No. 106, p. 4.) Plaintiffs assert that Dr. Molot did a complete differential diagnosis, and they offer an affidavit from Dr. Molot dated June 28, 2018 (Pl. Response MIL, ECF No. 126, pp. 12-13.) Dr. Molot's affidavit states in relevant part:
(Molot Aff., ECF No. 122, ¶¶ 16-17.)
Defendant asserts that Dr. Molot's affidavit contradicts his testimony. (Def. Response MIL, ECF No. 134, p. 2.) To the extent that the affidavit contradicts Dr. Molot's prior testimony, such testimony is inadmissible. See Compton v. Midwest Specialties, Inc., 142 F.3d 296, 302-303 (6th Cir. 1998). However, even if the affidavit is accepted, it is insufficient to establish specific causation. Dr. Molot's affidavit states that "[t]he medical condition has been present for many years." Ms. Madej's alleged sensitivity to chip seal was first raised in 2015. There is simply no medical evidence to support the assertion that the specific chemicals in chip seal are the cause Ms. Madej's illness. "Specific causation establishes whether the substance or chemical in fact caused the plaintiff's medical condition." Baker, 680 F.Supp.2d, at 874. As the Sixth Circuit explained in Tamraz:
620 F.3d at 674.
Whether or not Dr. Molot attempted to conduct a differential diagnosis, his testimony is insufficient to answer "yes" to the reliability questions, and does not supply the needed proof that the products in chip seal are the cause of Ms. Madej's injury. As the Sixth Circuit noted in Nelson v. Tenn. Gas Pipeline Co., 243 F.3d 244, 253 (6th Cir. 2001), "an association does not mean there is a cause and effect relationship." "Before any inferences are drawn about causation, the possibility of other reasons for the association must be examined, including chance, biases such as selection or informational biases, and confounding causes." Id. More is required than simply proving the existence of the presence of a toxin in the environment — there must be proof that the level of the toxin present caused the plaintiff's symptoms. Id. In the case at bar, "[t]here is `too great an analytical gap between the data and the opinion proffered' for the court to admit [Dr. Molot's] opinion as testimony." Tamraz, 620 F.3d at 675-76. His testimony is also insufficient to support a finding that the proposed alternatives to chip seal would be safe for Ms. Majed.
The Court finds that Dr. Molot's causation opinions are not reliable under the standards enunciated by Daubert and, consequently, are inadmissible. Accordingly, Defendant's motion to exclude the opinions of Dr. Molot is well-taken and is
Ms. Madej began treating with Dr. Singer in 2011. (Singer Dep., ECF No. 81, PgId 1640.) Dr. Singer is a board certified primary care physician who holds a doctorate of Osteopathic Medicine. (Id., PgId 1631.) She testified that, in the past, Ms. Madej has traveled by car to her medical facility, and she examined her outside of the building, on the concrete pavement, which ran from an asphalt road. (Id., PgId 1660.) This protocol was used because Ms. Madej thought the cleaning products, paints, and carpeting inside the building would make her ill. (Id., PgId 1657.) Dr. Singer testified that she has never examined another patient outside, before or since Ms. Majed. (Id.) Dr. Singer testified that she does not have the skill set to diagnose MCS. (Id., PgId 1663.) "I don't know the criteria for diagnosing multiple chemical sensitivity." (Id., PgId 1664.) For that diagnosis, she relied on Ms. Madej's statements and a letter from Dr. Lieberman.
(Id., PgId 1665.)
(Id., PgId 1690.)
(Id., PgId 1740.)
(Id., PgId 1723.)
(Id., PgId 1752.)
Dr. Lieberman testified that he did not diagnose Ms. Majed as having multiple chemical sensitivity, as that is not a diagnosis, but is rather a description. (Lieberman Dep., ECF No. 91, PgId 2941.) As Defendant notes, Dr. Singer testified that MCS or environmental illness is not recognized by the American Medical Association, the World Health Organization, or the ICD-10 (International Statistical Classification of Diseases and Related Health Problems or "International Classification of Diseases"), a medical classification list of the World Health Organization. (Def. Mot. S.J., ECF No. 117, p. 16 (citing Singer Dep., ECF No. 81, PgId 1792-1793, 1767).) Dr. Singer further concedes that she "does not have the skill set" to speak to a diagnosis of MCS. Rather, she had diagnosed Ms. Majed with, among other things, severe anemia, lack of protein, and gastrointestinal orders. (Id., PgId 1674, 1686, 1748, 1784.) Regarding Ms. Majed's precarious health, Dr. Singer conceded, "I still don't know what caused all of this, you know, but something did. Something caused all this." (Id., PgId 1779.) This is not sufficient information to support a differential diagnosis. As the Sixth Circuit explained in Tamraz, "testimony still must be judged by its methodology, not its conclusion." 620 F.3d at 675.
As for the letter that she wrote to the County Engineer recommending that construction or maintenance activities not occur within one mile of the Madej home, Dr. Singer concedes that the one mile distance paving restriction was based solely on the request from the Madejs. (Singer Dep., ECF No. 81, PgId 1790.)
(Id.) Furthermore, when asked to opine about the list of alternatives to chip and seal proposed by the Plaintiffs as their preferred alternatives to chip seal, Dr. Singer testified that she is not familiar with any of these compounds. (Id., PgId 1755.) As Dr. Singer concedes, she is "not a specialist in chemical sensitivity." (Id., PgId 1799.)
While it is clear that Dr. Singer is a caring physician, her testimony is insufficient to support a finding of specific causation that Ms. Majed's illness is caused by the chemicals in chip seal, and is also insufficient to support a finding that the proposed alternatives to chip seal would be safe for Ms. Majed. The Court finds that Dr. Singer's causation opinions are not reliable under the standards enunciated by Daubert and, consequently, are inadmissible. Accordingly, Defendant's motion to exclude the opinions of Dr. Singer is well-taken and is
Ms. Madej's primary treating physician, Dr. Allan Lieberman, is the sole shareholder of The Center for Occupational and Environmental Medicine ("Center") in Charleston, South Carolina. (Lieberman Dep., ECF No. 91, PgId 2897.) Dr. Lieberman testified that MCS is not a diagnosis, but it is a description. (Id., PgId 2941.) He explained that he "did not diagnose [Ms. Madej]. There is no diagnosis of multiple chemical sensitivities. . . ." (Id., PgId 2961.) The only time Ms. Madej appeared at the Center in person was in 1999, and she was not seen by Dr. Lieberman personally, but was seen by his colleague. (Id., PgId 2980, 2903.) Dr. Lieberman has treated Ms. Madej via telephone, except for a hiatus in treatment from 2000 through 2006. (Id., PgId 3000.) Defendant asserts that it is undisputed that, prior to 2015, Ms. Madej had never mentioned a sensitivity to asphalt. (Def. MIL, ECF No. 107, p. 5, citing Lieberman Dep., ECF No. 91, PgId 3058.) Dr. Lieberman testified that the only testing conducted on Ms. Madej at her initial visit consisted of placing a substance he described as "petroleum derived ethanol" under her tongue. (Lieberman Dep., ECF No. 91, PgId 3086.) He did not test Ms. Madej to determine whether she was sensitive to "asphalt".
(Id., PgId 2925-2927.)
Dr. Lieberman testified that Ms. Madej stated she had been exposed to the pesticide Dursban in the 1990's, but he did not know at what dose or for what period of time. (Id., PgId 2986.) "[I]t's the toxic exposure to organophosphate pesticide that's her diagnosis, and she manifests all of these signs and symptoms related to that." (Id., PgId 2965.) However, Dr. Lieberman testified that other tests also found arsenic:
(Id., PgId 2965-2966.)
(Id., PgId 2954-2955, 2957, 2961.) Dr. Lieberman testified that one of the basic principles of environmental medicine is the "concept of total load":
(Id., PgId 2039-2940.)
(Id., PgId 2966-2967.)
Dr. Lieberman testified that he wrote three letters of medical necessity in September 2015 at the request of Ms. Madej. In his letter of September 2, 2015, he described her as suffering from "severe chemical sensitivity" and that she could be placed "in a life threatening situation by even minimal exposures to common materials and chemicals, particularly those originating from petrochemicals." Examples include heribicides/fertilizers, pesticides, petroleum products such as tar and blacktop, oil, fuels, exhaust, paints, varnishes and polyurethanes, and smoke combustion by-products. (Id., PgId 3135.) The letter stated that Ms. Madej should be contacted "a minimum of three days before initiating any road construction or maintenance activity within 1 mile of her residence." (Id.) The September 4, 2015 letter changes the requirement from notification to restriction such that activities must be restricted within one mile from her home. (Id., PgId 3137.) Finally, Dr. Lieberman wrote a September 10, 2015 letter of necessity, also requesting that activities be avoided within one mile of Ms. Madej's home:
To Whom It May Concern:
(Id., PgId 3137.)
Dr. Lieberman testified that he believed the reason he wrote the letters was to support Ms. Madej's request for an injunction. The letters were not based on new medical evidence. (Id., PgId 2936.) Dr. Lieberman also conceded that the one mile restriction on road paving was arbitrary. (Id., PgId 2930.)
Plaintiffs assert that Dr. Singer and Dr. Lieberman, the treating physicians, should be permitted to testify "like any other witness," that is, like a fact witness. (Pl. Response MIL, ECF No. 125, p. 6.) However, the issue is not whether Ms. Madej is ill. The issue is whether chip seal caused or will cause her illness. The testimony is that there is no safe exposure to any environmental pollutant for someone as sensitive as Ms. Madej, and this testimony would not help the trier of fact determine whether chip seal will harm the plaintiff and whether she has proven both general and specific causation.
Tamraz, 620 F.3d at 677.
Defendant also asserts that Dr. Lieberman's affidavit of June 28, 2018 contradicts his testimony. (Def. Reply MIL, ECF No. 133, p. 5.) To the extent that the affidavit contradicts Dr. Lieberman's prior testimony, such testimony is inadmissible. See Compton, 142 F.3d at 302-303. The affidavit attempts to clarify Dr. Lieberman's testimony regarding exposure levels. (Lieberman Aff., ECF No. 121.) He states that Ms. Madej's sensitivity level is tied to small amounts, like parts per billion. However, "the mere existence of a toxin in the environment is insufficient to establish causation without proof that the level of exposure could cause the plaintiffs' symptoms." Pluck, 650 F.3d at 679. The information Dr. Lieberman relies upon for this opinion is based solely on Ms. Majed's self-reports of when she felt she had symptoms. (Lieberman Aff., ECF No. 121, ¶ 5.) In any event, even with the additional information provided in the affidavit, there is no differential diagnosis evidence or other evidence sufficient to tie Ms. Majed's numerous symptoms and long years of illness to the chip seal at issue. The Court finds that Dr. Leiberman's causation opinions are not reliable under the standards enunciated by Daubert and, consequently, are inadmissible. Accordingly, Defendant's motion to exclude the opinions of Dr. Leiberman is well-taken and is
Defendant moves for summary judgment, asserting that Plaintiffs "have no evidence that the emissions from an application of chip seal are injurious to the residents along the road generally, and no medical evidence that it will cause Ms. Madej's alleged individual symptoms, or further injury." (Def. Mot. S.J., ECF No. 117, p. 2.) Defendant's motion is well-taken. In the absence of a valid, scientific basis to support a finding of specific causation, Plaintiffs are unable to establish a genuine issue of fact for trial.
Count I seeks permanent injunctive relief to prevent the paving of Dutch Creek Road with asphalt or chip seal. (Third Am. Comp., ECF No. 16, p. 1.) The standard for granting a permanent injunction requires that Plaintiffs demonstrate "(1) that they will suffer a continuing irreparable injury if the court fails to issue an injunction; (2) that there is no adequate remedy at law; (3) that, considering the balance of hardships between the plaintiffs and defendant[], a remedy in equity is warranted; and (4) that it is in the public's interest to issue the injunction." Sherful v. Gassman, 899 F.Supp.2d 676, 708 (S.D. Ohio 2012), aff'd sub nom., Sherfel v. Newson, 768 F.3d 561 (6th Cir. 2014). Inasmuch as the Court has ruled that the medical opinions are not admissible, Plaintiffs are unable to establish a material issue of fact on the first element of this claim, and the claim must fail.
Claim II asserts civil assault and battery and/or wrongful death. (Third Am. Comp., ECF No. 16, p. 5.) In Ohio, an assault is an unlawful offer or attempt, coupled with a present ability, to inflict an injury upon the person of another. Woods v. Miamisburg City Schools, 254 F.Supp.2d 868, 878 (S.D. Ohio 2003), citing Daniel v. Maxwell, 176 Ohio St. 207, 208 (Ohio 1964). Battery is defined as "an intentional contact with another that is harmful or offensive." Gerber v. Veltri, 702 Fed. App'x. 423, 433 (6th Cir. 2017) (citing Love v. City of Port Clinton, 37 Ohio St.3d 98, 99 (Ohio 1988). Defendant asserts that the claim is not yet ripe, because the County has not proceeded with the paving project. (Def. Mot. S.J., ECF No. 117, p. 26.) However, an assault may be supported by an offer, and certainly the planned paving project could constitute an offer. Defendant notes that chip sealing the road is not of itself unlawful, and maintenance of the road is part of Defendant's duties, see Ohio Rev. Code § 5543.01(A). (Id., p. 28.) However, Plaintiffs assert that the County is liable as a result of "wanton, reckless, and/or bad faith exercise of discretion" because Defendant "knows with substantial certainty that its actions will bring serious physical harm or death to Mrs. Majed." (Third Am. Comp., ECF No. 16, ¶¶ 28-31.) Inasmuch as the Court has ruled that the proffered medical opinions are not admissible, the scienter requirement for this claim is unsupported, and the claim must fail.
Claim III seeks a declaratory judgment "to the effect that should the defendant proceed with the threatened chip and seal project on the section of Dutch Creek Road extending from S.R. 550 to Stanley Road Mrs. Madej will suffer serious physical harm or death and that the Defendant will be liable for civil assault and battery and/or wrongful death." (Third Am. Comp., ECF No. 16, ¶ 33.) Inasmuch as Claim II is unsupported, Claim III must also fail.
Claim IV asserts that Ms. Madej has been discriminated against in violation of the Fair Housing Amendments Act, 42 U.S.C. § 3601 et seq., because of a failure to make a reasonable accommodation for her disability. (Id., pp. 5-6.) Plaintiffs assert that there is a genuine issue of material fact as to the reasonableness of the accommodation sought by the Madejs. (Pl. Mem. Opp., ECF No. 120, p. 28.) The "three operative elements" of the FHAA's reasonable accommodation requirement are "equal opportunity," "necessary," and "reasonable." Smith & Lee Assocs., Inc. v. City of Taylor, Mich., 102 F.3d 781, 794 (6th Cir. 1996). The first two elements are closely related. The first asks "whether the requested accommodation would afford the disabled resident an equal opportunity to enjoy the property." Hollis v. Chestnut Bend Homeowners Ass'n, 760 F.3d 531, 541 (6th Cir. 2014). The FHAA "links the term `necessary' to the goal of equal opportunity. Plaintiffs must show that, but for the accommodation, they likely will be denied an equal opportunity to enjoy the housing of their choice." Smith & Lee Assocs., 102 F.3d at 795 (citations omitted). "The necessity element is, in other words, a causation inquiry that examines whether the requested accommodation or modification would redress injuries that otherwise would prevent a disabled resident from receiving the same enjoyment from the property as a non-disabled person would receive." Hollis, 760 F.3d at 541. There is simply no medical evidence to support the assertion that the alternative proposed products would, in fact, provide such redress.
Claim V asserts that Ms. Madej will has been discriminated against under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., because of the County's failure to make a reasonable modification to accommodate her disability. (Id., pp. 6-7.) The specific modification Plaintiffs seek is the use of an alternative product to chip seal on the portion of Dutch Creek Road at issue. Because there is no admissible medical evidence to support Plaintiffs' claims relative to chip seal, let alone to support the safety of the proposed alternatives, there is no issue of material fact, and summary judgment is appropriate. Accordingly, Defendant's motion for summary judgment is well-taken and is
Finally, the Court notes that Ms. Madej is quite ill, a fact that is undisputed. As a citizen, her health is important to officials serving Athens County. The Court encourages the County Engineer to give Ms. Majed notice far in advance of road work and to explore any remedial measures which could reduce environmental emissions near her home.
For the reasons set forth above, Defendant's motion for summary judgment (Def. Mot. S.J., ECF No. 117) is