FINDINGS OF FACT AND CONCLUSIONS OF LAW
Before the court is a motion by defendants to exclude part ofthe testimony of plaintiff's causation expert, Dr. KarlScheribel, and defendants' Motion for Summary Judgment based onthe evidence then remaining in the case. This court grants bothof defendants' motions for the reasons stated herein.
I. INTRODUCTION TO THIS CASE
The plaintiff, James R. O'Conner ("O'Conner"), worked at anuclear power plant and then later developed a medicalcondition, including bilateral cataracts, that he claims wascaused by the radiation exposure that he received at the plant.He consulted with many physicians in an effort to determinewhether or not he had a medical claim. He has consulted withand seen the following doctors regarding his alleged "injuries"caused by radiation: Dr. Karl Scheribel (ophthalmologist); Dr.John Nelson (ophthalmologist); Dr. Robert Reardon(ophthalmologist); Dr. Clarence Ward (ophthalmologist); Dr.William Bond (ophthalmologist); Dr. Michael Rosenberg(ophthalmologist); Dr. Ennio Rossi (internal medicine); Dr.Greg Ichtertz (pulmonary medicine); Dr. James Legrand (internaland pulmonary medicine); Dr. Bruce McLelland (dermatology); Dr.Mark Bullock (family medicine); Dr. Edward Silberstein(radiology); Dr. Robert Chapman (psychiatry); and Dr. RobertSadoff (psychiatry). A description of his alleged "injuries" ismore fully set forth below. He filed this lawsuit in IllinoisState Court on October 1, 1985.
In passing the Price-Anderson Act, Congress recognized thata nuclear incident might be caused by any number ofparticipants in the nuclear industry beyond the actuallicensee. Congress did not want quick and fair compensation tobe hampered by the complications likely to ensue if multipledefendants, each with its own law firm, were actively andseparately defending. In a "significant departure from normaltort law precepts," H.R.Rep. 104, 100th Cong., 1st Sess. pt. 3,at 16 (1987), Congress, through mandatory indemnificationprovisions, channelled all public liability to licensees, andaway from non-licensees, (such as contractors like LondonNuclear), who might otherwise have borne such liability underordinary tort law. See 42 U.S.C. § 2014(t), 2014(w), 2210(a).Congress noted that "regardless of whether a commercial powerplant accident was caused by actions of the licensee, the plantmanufacturer, or any other party, liability would be`channeled' to the licensee and payment would be obtained fromthe compensation pool funded by utilities." H.R.Rep. 104, pt.3, at 16. The channelling provisions alter the ordinarycongruence in tort law between causing and bearing liability.S.Rep. No. 218, 100th Cong., 2d Sess. 4, reprinted in 1988U.S.C.C.A.N. 1451, 1476, 1479 ("The Price Anderson Systemincluding . . . the predetermined sources of funding, providespersons seeking compensation for injuries as a result of anuclear incident with significant advantages over theprocedures and standards for recovery that might otherwise beapplicable under State tort law.") Consequently, contractorLondon Nuclear Services cannot separately be liable toplaintiff in any manner in this case. One law firm hasrepresented both defendants, without conflict, throughout thependency of this action, since there can only be one liabilitypursuant to Price-Anderson and that liability is channeledsolely through the licensee and through the financialprotection provided by Price-Anderson. Any disagreementsbetween defendants as to who might have done what wrong areirrelevant to O'Conner's claim for compensation underPrice-Anderson. The only relevant issues are whether the dutyowed was breached (O'Conner's exposure), and whether thatexposure caused his claimed injury (causation).
A. Procedural History
This case has a long procedural history that includes twopublished opinions on otherissues in this case. The standard of care applicable to aradiation worker receiving an occupational radiation exposurewas determined to be the federal permissible dose limits.O'Conner v. Commonwealth Edison Company, 748 F. Supp. 672(C.D.Ill. 1990). The Price-Anderson Amendments Act, upon whichthis court's jurisdiction rests, was found to beconstitutional. O'Conner v. Commonwealth Edison Company,770 F. Supp. 448 (C.D.Ill. 1991). This present opinion will notrevisit the issues in those two prior decisions but they areincorporated as part of the court's rationale for grantingsummary judgment.
Only those pleadings that are pertinent to the presentopinion are set forth here. This case was filed in state courton October 1, 1985. Defendants removed the case to this courtpursuant to the provisions of 28 U.S.C. § 1441 and thePrice-Anderson Amendments Act of 1988, 42 U.S.C. § 2210(n)(2)on September 13, 1988. On May 25, 1989, defendants filed aMotion for Summary Judgment on the grounds that there was noevidence that plaintiff had received a dose in excess of theFederal Permissible Dose Limits set forth at10 C.F.R. § 20.101, and that there was no evidence that plaintiff'soccupational radiation exposure caused any injuries to theplaintiff. Plaintiff filed his Response on July 25, 1989.Plaintiff included in his response, among other things, thedeposition testimony of Dr. Karl Scheribel in which he statesthat only radiation could have caused plaintiff's cataracts,but did not include any affidavit from him that explained thebasis of his causation opinion. At oral argument held onDecember 7, 1989, the court granted plaintiff's request to filesupplemental affidavits and information regarding the basis ofDr. Scheribel's opinion. Plaintiff then filed a Notice ofCompliance that included a short affidavit from Dr. Scheribelthat simply listed the names of four articles that supposedlyprovided the scientific basis of his opinion. The articlesreferred to in this affidavit are discussed in detail infra atSection IV F.
On March 13, 1989, this court denied defendants' Motion forSummary Judgment on the grounds that a genuine issue ofmaterial fact existed as to whether plaintiff had received adose in excess of the federal dose limits. That ruling wasbased upon what the court believed at the time was a reasonableinference from Dr. Scheribel's testimony that if O'Conner hasradiation induced cataracts, he must have received a large doseof radiation in excess of the federal limits. On June 5, 1990,defendants filed a Motion in Limine to Exclude Dr. ScheribelFrom Testifying on Causation. Defendants also filed a Motion inLimine for a Determination of the Legal Duty Owed in whichdefendants requested that the court determine that the federalpermissible dose limits set forth at 10 C.F.R. § 20.101constituted the duty of care required of a utility operating anuclear power plant and that a jury could not properlydisregard these federal dose limits and substitute their ownstandards. The court granted defendants' Motion on September26, 1990 for the reasons set forth in O'Conner v. CommonwealthEdison Co., 748 F. Supp. 672 (C.D.Ill. 1990) and also grantedplaintiff's petition for interlocutory appeal which was thendenied by the Seventh Circuit Court of Appeals. Misc. No.90-8103 (7th Cir., Oct. 26, 1990). The court denied defendants'Motion to Exclude Dr. Scheribel on July 20, 1990.
However, on August 29, 1991, after reconsidering the issue ofthe admissibility of Dr. Scheribel's testimony sua sponte, thecourt entered an Order requesting "counsel to advise the courtof the references in the record which bear on the admissibilityof Dr. Scheribel's testimony." Specifically, the courtrequested plaintiff to provide more information on "exactly howmany patients Dr. Scheribel has had with [radiation induced]cataracts" and "the information which provides the basis forDr. Scheribel's opinion." Order dated December 22, 1989.
Both parties filed briefs in response to said request.Plaintiff also filed a Motion for Direction and/orClarification requesting the court to provide plaintiff withspecific information about the court's concerns regarding Dr.Scheribel's testimony. At oral argument held on January 17,1992, the court told plaintiff's counsel that it was concernedwith the admissibility of Dr.Scheribel's testimony under Rules 702, 703, and Frye v. UnitedStates, 293 F. 1013 (D.C. Cir. 1923). Specifically, the courtadvised plaintiff that Dr. Scheribel seemed to have noverifiable scientific foundation for his opinion that onlyradiation could have caused plaintiff's cataracts. Tr. of OralArgument, Jan. 17, 1992 at 10-11. The court further advisedthat Dr. Scheribel did not appear to be qualified to opine thathe could diagnose radiation induced cataracts by simply lookingat them, and that such an opinion is not accepted in thescientific community. Id. at 13-14. Finally, the courtspecifically warned plaintiff that if he did not supplement therecord to demonstrate that Dr. Scheribel was qualified and thatthere was a verifiable scientific basis for Dr. Scheribel'sopinion, the court would exclude him from testifying and wouldgrant defendant's Motion for Summary Judgment since theremaining record would be insufficient to go to a jury. Id. at19. Both parties then filed briefs in response to the court'scomments. Plaintiff has had sufficient time and sufficientopportunity to establish the verifiable basis of his expert'sopinion, if there is any, or to substitute a new expert. Uponthis extensive record the court now rules.
B. The Uncontested Facts of this Case
These uncontested facts are mostly taken from the statementof uncontested facts that both parties agreed to in thePretrial Order. Other facts in this case can be found in thecourt's two prior Opinions. See O'Conner v. Commonwealth EdisonCompany, 748 F. Supp. 672 (C.D.Ill. 1990); O'Conner v.Commonwealth Edison Company, 770 F. Supp. 448 (C.D.Ill. 1991).
In September and October of 1983, when he was 43 years old,O'Conner took a job as a pipefitter at Quad Cities. At thattime the plant was shut down to change fuel. This is known asa refueling outage. After passing a pre-employment physicalexam, O'Conner worked 14 days in the month of September, and 17days in the month of October, 1983.1 Although he wasactually employed as a pipefitter by Morrison ConstructionCompany, a subcontractor at the plant, O'Conner was subject toextensive control by Commonwealth Edison as required by the NRCsince this particular pipefitting work needed to be performedin an area containing radioactive materials.
When radioactive material is in an area, that area isdesignated as a radiation controlled area and access to thearea is limited to only those radiation workers who have beenspecially trained to work in such an area. A worker with suchtraining is known as a radiation worker — to distinguish himfrom a regular worker at the plant who does not have thistraining and therefore cannot enter any radiation controlledareas.
O'Conner worked as a radiation worker doing pipefitting, notas a regular worker doing pipefitting. As such, he was requiredto complete a radiation training course before he could enterany radiation controlled areas. After he completed the coursehe still could not enter any radiation controlled areas withoutfirst reading and signing in under a Radiation Work Permit,known as an RWP, which listed the actual levels of radiation inthe work area and specified how the worker must dress and whatradiation measuring devices the worker must wear at all timeswhile he was in the radiation controlled area doing his work.O'Conner always obeyed these requirements. He never entered aradiation controlled area without the proper protectiveclothing or the proper radiation measuring instruments.
Radiation is measured in units just as distance is measuredin units such as inches, yards or miles. The basic radiationunits that are important in this case are known as "rem" and"millirem." One rem is equal to 1,000 millirem and conversely,one millirem is equal to one thousandth of a rem. To make theseunits of measurement more meaningful it is helpful to comparecommon doses all humans receive. The average American receivesabout 300 millirem per year from natural background radiationwhich is ubiquitous. Caputo v. Boston Edison Co., 924 F.2d 11,12 n. 1(1st Cir. 1991); Bubash v. Philadelphia Electric Co.,717 F. Supp. 297, 299 (M.D.Pa. 1989).
Although mankind has produced many sources of radiation, natural background remains the greatest contributor to the radiation exposure of the U.S. population today. Background radiation has three components: terrestrial radiation (external), resulting from the presence of naturally occurring radionuclides in the soil and earth; cosmic radiation (external), arising from outer space; and naturally occurring radionuclides (internal), deposited in the human body.
Johnston v. United States, 597 F. Supp. 374, 389 (D.C.Kan. 1984)(quoting BEIR III at 37). In addition to natural backgroundradiation, humans receive annual exposure from numerous medicalsources and consumer products. For example, a routine chestx-ray gives a patient a dose of approximately 20 millirem.Hennessy v. Commonwealth Edison Co., 764 F. Supp. 495, 499(N.D.Ill. 1991). Moreover, the average American will receive6.5 rem (6,500 millirem) from medical and dental x-rays by thetime he is 65. Johnston v. United States, 597 F. Supp. at 390.Construction materials and radium clocks provide an annual doseof about 7-9 millirem, and television sets provide an annualdose of 1 millirem. Id.; Allen v. United States, 588 F. Supp. 247,328 (D.Utah 1984), rev'd on other grounds, 816 F.2d 1417(10th Cir. 1987); cert. denied, 484 U.S. 1004, 108 S.Ct. 694,98 L.Ed.2d 647 (1988).
The amount of radiation to which a radiation worker isexposed is known as his dose. The dose of a radiation worker isrecorded by radiation detection devices that he wears whileworking.
One type of radiation detection device that all nuclearworkers are required to wear is known as a film badge (or TLD).It is designed to record the worker's radiation exposure andsave it for a two week period of time, after which the filmbadge is processed and the two week dose is recorded in theworker's radiation exposure records. A second type of radiationdetection device is known as a self-reading pocket dosimeter(SRPD). This device can be read at any time by looking at it.Some SRPD's read out with digital numbers like a digital watch,while others read out with a gauge like a car's speedometer.O'Conner wore a film badge and two SRPD's when he worked atQuad Cities.
O'Conner's main complaint is that he felt warm while workingon the night of October 3 and therefore felt something hadhappened to overexpose him. O'Conner's Dep. at 34. He allegesthat he subsequently learned that London Nuclear was performinga dilute chemical decontamination on the same night andconsequently that procedure must have caused him to receive"excessive" radiation exposure. Plaintiff never defined what"excessive" exposure was or offered any expert testimony thathis dose exceeded the federal permissible dose limitsapplicable to radiation workers. O'Conner v. CommonwealthEdison Co., 748 F. Supp. at 675. In fact, his radiation exposureduring the night of October 3, 1983 was measured at a maximumof .045 rem (45 millirem) on one of his SRPD's (the other SRPDmeasured .038 rem (38 millirem). His exposure for all ofSeptember and October was recorded at 1.465 rem by his filmbadge. It is uncontested that these does, if accurate, simplyare insufficient to cause cataracts because they fall far shortof the threshold exposure necessary to cause cataracts. Sincethe minimum dose necessary to cause cataracts is 200 rem (Aff.of Dr. George R. Merriam Jr. at ¶ 14, Section I D infra), adose of .045 rem would be about 4,444 times too small to causea cataract.
Defendants maintain that unless plaintiff can offer anycredible evidence that O'Conner received a dose of 200 rem ormore at one time, he cannot pass the required threshold dose inorder to provide the necessary factual support for any expertopinion that radiation caused his cataracts. Defendants furthercontend that unless the plaintiff can offer any credibleevidence that O'Conner received a dose in excess of 12 rem ayear (or 3 rem in any quarter of the year) he cannot presentthe necessary factual basis for an expert opinion that the dutyowed was violated. Plaintiff maintains that the testimony ofDr. Karl Scheribel meets both requirements.
C. Consensus Scientific Background for this Case
Radiation exposure and its effects upon humans is a verycomplex subject. Much background on this scientific subject canalready be found in published case law. Johnston v. UnitedStates, 597 F. Supp. 374, 384-395 (D.Kan. 1984); Allen v. UnitedStates, 588 F. Supp. 247, 260-329 (D.Utah 1984); Akins v.Sacramento Municipal Utility District, 6 Cal.App.4th 1605, 8Cal.Rptr.2d 785 (3rd Dist. 1992). This court will not repeatthat published background material but will only add to it thefollowing discussion of radiation induced cataracts.
Extensive discovery has established that there is a nationaland an international scientific consensus on the biologicaleffects of ionizing radiation causing cataract formation in thelens of the eye. This scientific consensus is reflected in anextensive body of scientific literature and by numerous studiesthat have been performed by scientists seeking to prevent thedevelopment of cataracts in patients undergoing x-ray therapyinvolving large amounts (thousands of rem) of radiation. Thefour leading scientists who have pioneered such research areDrs. David G. Cogan, George R. Merriam, Jr., Arthur E. Uptonand George W. Casarett.2 Each has been studying thebiological effects of radiation for decades. Their work hasprovided the scientific and medical basis for national andinternational scientific organizations such as the UnitedNations Committee on the Effects of Atomic Radiation("UNSCEAR"),3 the International Council on RadiologicalProtection ("ICRP"),4 the National Council on RadiationProtection and Measurements ("NCRP")5 and the NationalAcademy of Sciences Committee on the Biological Effects ofIonizing Radiation ("BEIR")6 to develop the consensusknowledgeand principles on radiation induced cataracts. Since thereports of these various scientific groups are preparedentirely outside the context of ongoing litigation, theyprovide an unusually objective statement of the known sciencein this field.
This scientific consensus concludes, among other things, thatradiation induced cataracts have a characteristic appearancebut are not pathognomonic. "Pathognomonic" is the medical termfor a specifically distinctive characteristic of a disease orpathologic condition on which a diagnosis can be made.(Dorland's Medical Dictionary (26th ed. 1985) at 977. See Aff.of Dr. Apple at ¶ 14; Aff. of Dr. Silberstein at ¶¶ 20-22; Aff.of Dr. Casarett at ¶¶ 10-11; Aff. of Dr. Cogan at ¶ 16; Aff. ofDr. Merriam at ¶¶ 25-26). This characteristic appearance isknown as a posterior subcapsular cataract, because of itslocation in the back (posterior) part of the lens just belowthe capsule (subcapsular). Dorland's Medical Dictionary (26thed. 1985) at 229. All radiation induced cataracts will be ofthe posterior subcapsular type (characteristic) but not allposterior subcapsular cataracts will be radiation induced (ifit were otherwise they would be pathognomonic). Aff. of Dr.Cogan at ¶ 16. As we will see below, the failure to understandthis distinction was one reason why Dr. Scheribel's opinion islogically flawed.
Radiation effects can be divided into acute (ornonstochastic) effects and stochastic effects. Acute effectswill only occur above a certain dose threshold because they arethe result of accumulated physical damage to cells. Stochasticeffects theoretically can occur at any dose level because theyare thought to start with a single altered cell, but the riskof the effect is related to the dose received, i.e., less riskat lower dose and more risk at higher dose. Health Effects ofExposure to Low Levels of Ionizing Radiation: 1990 ("BEIR V")at 396, 398. (This book is the latest edition of a report ofthe National Academy of Sciences concerning radiation healtheffects. It is eminently authoritative. Johnston v. UnitedStates, 597 F. Supp. 374, 383-84 (D.Kan. 1984)). Cataracts arean example of an acute effect while cancer is an example of astochastic effect. BEIR V at 398. The scientific consensusestablishes that radiation induced cataracts are an acuteeffect with a certain threshold: it takes a certain amount ofradiation to cause a cataract (the threshold amount), andexposures below that amount simply will not cause any cataract.Aff. of Dr. Upton at ¶¶ 6, 8; Aff. of Dr. Cogan at ¶ 11-12;Aff. of Dr. Merriam at ¶ 16.
D. The Threshold Amount of Radiation Required to Cause Cataracts
The threshold amount of radiation necessary to cause acataract is about 200 rem received at once or about 600 remspread out over time. During the 1930's and 1940's largeamounts (thousands of rem) of radiation (x-rays) were beamedinto patients heads in order to treat a variety of medicalconditions. Aff. of Dr. David G. Cogan at ¶ 7. The medicalcommunity noticed that cataracts sometimes resulted but did notknow what dose level caused the cataracts and consequently howtreatments could be changed to avoid the side effect of causingcataracts. Aff. of Dr. George Merriam at ¶¶ 6-7. Twoophthalmologists, one at the National Institute of Health (Dr.David Cogan) and one at Columbia Presbyterian Hospital (Dr.George Merriam) undertook very detailed scientific studies tofind these answers so that unnecessary cataracts could beprevented.
Dr. David G. Cogan has studied radiation induced cataractsfor 40 years. Aff. of Dr. Cogan at ¶ 4. He has publishedfourteen medical and scientific papers on the subject,the first one in 1949 that was a study of cataracts in theJapanese who survived the two atomic bombs that ended WWII.Aff. of Dr. Cogan at ¶¶ 5-6. Based upon his extensive study ofhumans and animal experiments, Dr. Cogan has concluded thatradiation simply does not cause cataracts unless the dose is atleast 600 rem (600,000 millirem) when that dose is deliveredover a period of months. Aff. of Dr. Cogan at ¶¶ 4-9. Dr. Coganalso discovered that the latency period between exposure anddiagnosis is 13 years. Aff. of Dr. Cogan at ¶¶ 13-20. Dr. Coganhas examined the specific facts of this case and concluded thatO'Conner's cataracts could not have been caused by hisemployment at Quad Cities because his dose was too small andbecause the latency period was too short. Aff. of Dr. Cogan at¶¶ 21-23.
Dr. George R. Merriam, Jr. has studied radiation inducedcataracts in humans and animals for 36 years. Aff. of Dr.Merriam at ¶ 8. He has published 19 medical and scientificpapers on the subject. Aff. of Dr. Merriam at ¶ 9. Dr.Merriam's studies have shown that radiation does not causecataracts unless the dose is 200 rem (200,000 millirem)delivered all at once or 400 rem (400,000 millirem) deliveredover 3 weeks to 3 months or 550 rem (550,000 millirem)delivered over more than 3 months. This last number, 550 rem,and the associated time frame would be the same as Dr. Cogan's600 rem delivered over a period of months. Aff. of Dr. Merriamat ¶¶ 12-16. Dr. Merriam also found that the latency periodbetween the exposure and the diagnosis of the cataract isextended with lower doses (200 to 400 rem) and with theradiation delivered over a longer period of time (many months).Aff. of Dr. Merriam at ¶ 13. For a dose of 250 rem (250,000millirem) delivered all at once, it would be an average of 11years and 8 months before a radiation induced cataract wouldappear, if one did happen to appear at all. Merriam and Focht,A Clinical Study of Radiation Cataracts and the Relationship toDose, the American Journal of Roentgenology, Radium Therapy andNuclear Medicine, at 299, Table V. He also found that a dose of700 rem (700,000 millirem) was needed to produce even a 50%chance of developing any cataract at all. Aff. of Dr. Merriamat ¶ 15. Thus, cataracts would not appear at doses below 200rem and even at 700 rem, the chances would only be 50-50 that acataract may appear, and if so, it would only appear after manyyears had passed from the time of exposure. Dr. Merriam hasexamined the specific facts of the present case (i.e., a doseof .045 rem on October 3 or 1.465 rem for September, October1983, and the 10 month latency period between exposure andfirst diagnosis) and concluded that radiation exposure at theQuad Cities simply could not have caused O'Conner's cataracts.Aff. of Dr. Merriam at ¶¶ 17-20.
Dr. Arthur C. Upton has been studying radiation inducedinjury to man and animals for 38 years and he has publishedfour articles on radiation induced cataracts. Aff. of Dr. Uptonat ¶ 3. Dr. Upton was a member of the United States Delegationto the 1977 United Nations Committee on The Effects of AtomicRadiation (UNSCEAR). Aff. of Dr. Upton at ¶ 4. The 1977 UNSCEARReport focused on radiation carcinogenesis. The 1982 UNSCEARReport focused on threshold effects, including cataracts. Aff.of Dr. Upton at ¶ 6. Distinguished UNSCEAR radiation scientistsfrom all over the world studied the world's scientificliterature on the subject and condensed it into a report whichreflects the world scientific consensus. Aff. of Dr. Upton at ¶5. As to radiation induced cataracts UNSCEAR concluded:
One of the conclusions of the present report is that at low doses and dose rates [as would be experienced occupationally] the induction of non-neoplastic effects [such as cataracts] is not observed.
UNSCEAR, 1982, at 11.
[T]he human lens responds to doses of ~ 2 Gy [200 rem] in a single treatment, or ~ 4 Gy [400 rem] when fractionated, resulting in the formation of cataract . . . The extent of cataract formation, as well as the incidence, is dose dependent. Higher doses yield more progressive cataracts with greater loss of vision. The latent period varies from 0.5 to 35 years; with an average of 2-3 years, although latency is also dose dependent . . . Recent reviews . . . suggest that a threshold for cataract for occupational exposure of lengthy fractionation is in the range of 6-14 Gy [600 to 1,400 rem].
UNSCEAR, 1982, at 598.
Dr. Upton also chaired The International Commission onRadiological Protection's (ICRP) task group which surveyed theworld literature and wrote ICRP Publication 41: NonstochasticEffects of Ionizing Radiation. Aff. of Dr. Upton at ¶¶ 7-8.This report was adopted by the ICRP in 1984. It concluded:
At high doses, lens opacities (cataracts) develop within months, progress rapidly, and eventually cloud the lens completely, while at lower doses the opacities may take years to develop, remain microscopic in size, and cause no scientific impairment of vision.
ICRP No. 41, at 17.
The threshold for x radiation for induction of minimally detectable lens opacities in the largest series of radiotherapy patients studied to date for such lesions (233 patients) was estimated to vary, from about 2 Gy [200 rem] in a single exposure to as much as 5.5 Gy [550 rem] when the dose was fractionated over a period of 3-13 weeks.
ICRP No. 41, at 18.
The lowest dose observed to cause a progressive cataract [such as Mr. O'Conner has] among these patients, some of whom were followed up to 35 years after irradiation, was 5 Gy [500 rem] . . . From these observations, it may be inferred by extrapolation that a dose of more than 8 Gy [800 rem] of low-LET radiation [the type of radiation Mr. O'Conner received] would be required to produce a vision-impairing cataract under the highly protracted exposure conditions characteristics of occupational irradiation.
ICRP No. 41, at 18.
According to these two highly respected national andinternational bodies of radiation protection scientists whohave surveyed the world literature on the subject, if there isany possibility that O'Conner's dose on the night of October3-4 were to cause a cataract that dose would have to be atleast 200 rem. His daily dose was actually measured by twoindependent scientific devices at .045 rem and .038 rem, whichis 4,444 times too low to cause a cataract. If there is anypossibility that O'Conner's total occupational dose fromSeptember and November of 1983 were to cause a cataract, itwould have to be at least 800 rem. However, his total dose wasactually measured by scientific instruments to be 1.465 rem,which is about 546 times too low to cause cataracts. Yet,plaintiff's expert, Dr. Scheribel, proposes to testify thatO'Conner has radiation induced cataracts, based solely upon hisvisual examination.
Dr. Lauriston S. Taylor is the founder of the ICRP and theNational Counsel on Radiation Protection and Measurements(NCRP). Aff. of Lauriston S. Taylor at ¶ 3. He co-chaired NCRPReport Number 39: Basic Radiation Protection Criteria which waspublished in 1971 after a review of the world scientificliterature (Aff. of Lauriston S. Taylor at ¶ 5): NCRP No. 39concluded:
A long latent period exists between the time of the exposure and the onset of the development of cataracts. The interval varies inversely with dose, and five or more years may elapse between an exposure and the appearance of opacification. For very high doses, the interval may be reduced to months.
Cataract formations in the human being has been considered to be a "threshold phenomenon," since exposures of the order of 600 R [rem] incurred in the course of therapeutic irradiations were required to produce opacification over the period of observations. Observation of survivors of the bombings at Hiroshima and Nagasaki have to date been consistent with the thesis that large doses of radiation are required to produce vision-impairing lens opacification.
NCRP Report No. 39, at 39.
Dr. George W. Casarett was Professor Emeritus and FormerProfessor of Radiation Biology and Biophysics and Radiologyat the University of Rochester School of Medicine. He chairedthe committee that prepared NCRP Report No. 91: Recommendationson Limits for Exposure to Ionizing Radiation (1987). Itconcluded:
The specific objectives of radiation protection are: (1) to prevent, to the extent practicable, the occurrence of severe radiation induced nonstochastic diseases [such as cataracts] by adhering to dose equivalent limits that are below the apparent practical threshold dose equivalent levels [so that no such effects will ever occur in the exposed population] . . .
NCRP No. 91, at 4.
For avoidance of nonstochastic effects [such as cataracts], the following annual dose equivalent limits are recommended for the occupational case: 150 mSv (15 rem) for the crystalline lens of the eye.
NCRP Report No. 91, at 26 (emphasis added).
The national scientific consensus, as reflected by the 1987NCRP recommendations is that even if a radiation worker isallowed to receive a dose of 15 rem to his eye for each yearduring his occupational lifetime (which may be 40 years), hestill will not be expected to develop a radiation inducedcataract. Fifteen rem per year for forty years would equal alifetime occupational dose to the eye of 600 rem, which wouldnot be expected to cause a single cataract in workers soexposed.
Dr. Henry N. Wellman, Radiologist, served on the NationalAcademy of Sciences Committee on the Biological Effects ofIonizing Radiation which wrote The Effects on Populations ofExposure to Low Levels of Ionizing Radiation: 1980 BEIR III.Aff. of Dr. Henry N. Wellman at ¶ 4. This committee of theUnited State's most knowledgeable scientists in this field alsostudied the world literature on radiation induced cataracts andconcluded:
The available data suggest a sigmoid dose-response relationship with an apparent threshold for lens opacification. Threshold doses in many for x-rays and gamma rays delivered in a single exposure vary from 200 to 500 rads [rem], whereas the threshold for doses fractionated over periods of months is around 1,000 rads [rem].
BEIR III at 499.
The United States National Academy of Sciences (BEIR) agreeswith the world scientific consensus as represented by UNSCEAR,ICRP and NCRP reports that it takes a dose of at least 200 remdelivered all at once or a dose of approximately 1,000 remdelivered over many months to exceed the threshold forradiation induced cataracts. Even at those large doses, lessthan 50 percent of the exposed individuals would developcataracts. They are simply the minimum doses at which even oneradiation induced cataract might appear in a group of exposedpersons.
II. THE PRESENT EVIDENTIARY ISSUE
The issue that is the subject of this present Opinion is theadmissibility of certain expert opinion testimony thatplaintiff would offer at trial from a trial depositiontranscript. Plaintiff's causation expert, Dr. Karl Scheribel,would state:
I know what cataracts look like when they have been induced by radiation, by what ever dosage or time of exposure there was. Radiation cataracts are [a] clinically describable and definable condition which, when present, cannot be mistaken for anything else.
Dr. Scheribel's Evidence Deposition at 69. From the court'sreview of all the scientific material on radiation inducedcataracts, Dr. Scheribel appears to be the only doctor orscientist who will make such a statement, and it directlycontradicts the consensus science that radiation inducedcataracts are not pathognomonic. The real question then becomesshould this "lone voice" be allowed to testify against the vastscientific consensus? Plaintiff maintains that the answer is"yes," and the jury, as the judge of the facts, would thendetermine which position has the most credibility.
Defendants maintain that this opinion is inadmissible underthe Federal Rules of Evidence. Essentially, they argue that itconstitutes what has become known as "junk" science. Theessence of Dr. Scheribel'stestimony in this case is that he claims that radiation inducedcataracts can be positively identified by just looking at them.Dr. Scheribel's Evidence Deposition at 69. If that is medicallyand scientifically true, and since we know that it takeshundreds of rem to cause a radiation induced cataract, itprovides the basis for a reasonable inference that O'Connermust have been exposed to radiation above the federal standardsin order to produce this cataract effect. Thus, Dr. Scheribel'sproposed testimony is key to the plaintiff's case on duty owedas well as on causation. But defendants maintain that Dr.Scheribel's statement is medically and scientifically untrue.They point out that a valid logical conclusion cannot arisefrom a false premise no matter how correct the logic used tobuild upon the false premise.
Defendants assert this case is a classic example of "junk"science, not only failing to assist the jury as expert opiniontestimony should under Rule 702, but actually misleading anyjuror who would hear it. Consequently, defendants maintain thatDr. Scheribel's proposed statement should not be admitted intoevidence. Relying upon cross-examination to expose the error isnot sufficient, defendants claim, because that mechanism reliesupon an unsophisticated lay person to arbitrate complexscientific issues which they may not even comprehend. Thus, theadmissibility of Dr. Scheribel's testimony becomes the focalpoint of the case. "The trial judge, of course, decides whetherparticular evidence is competent." Spaeth, Proposed Amendmentsto the Federal Rules on Admissibility of Scientific Evidence, AJudge's Perspective, 115 F.R.D. 112, 113 (1987).
III. RESOLUTION OF THE EVIDENTIARY ISSUE IN THIS CASE
A. Dr. Scheribel's Expertise and Opinion
Dr. Scheribel is a board certified ophthalmologistspecializing in contact lenses. Dr. Scheribel's Evidence Dep.at 12. In his curriculum vitae ("CV"), Dr. Scheribel describeshis work as "teaching of the fitting of hard and soft contactlenses and the problems associated with the same, teaching ofexternal disease and attending physician at three generalophthalmology clinics." Dr. Scheribel's CV, a copy of which isattached as Exhibit A to his Evidence Deposition. He is not aradiation physicist and has not studied or performed anyresearch in radiation physics or nuclear biology (Dr.Scheribel's Evidence Dep. at 66), or reviewed any of therelevant literature on radiation induced cataracts prior totestifying at his evidence deposition taken on June 10, 1988.Dr. Scheribel's Evidence Dep. at 63. He has not conducted anystudies of the medical effects of radiation exposure on the eye(Dr. Scheribel's Evidence Dept. at 22), and has not written anybooks, articles, scientific papers or treatises on the effectsof radiation on the eye. Dr. Scheribel's Evidence Dep. at 62.He has published only four scientific papers, and presentednearly a dozen invited lectures, eight of which were on contactlenses. Dr. Scheribel's CV. He admitted that he is not familiarwith what would be considered an "excessive" amount ofradiation, and was unable to explain what a "rad" was. Dr.Scheribel's Discovery Dep. at 28. Yet, it is through Dr.Scheribel that plaintiff expects to prove that his dose was toohigh. He could not state what medical effects a single rad tothe eye would have. Dr. Scheribel's Discovery Dep. at 29.Further, Dr. Scheribel admitted that he was not familiar withthe dose response curves of biological effects of radiation,was not familiar with what effect a 400 rem dose would have onthe eye, and did not know what amount of radiation would berequired to induce radiation cataracts. Dr. Scheribel'sEvidence Dep. at 69. His total experience with radiationinduced cataracts is observing only five patients who Dr.Scheribel believes had cataracts induced by radiation therapyfor cancer. Dr. Scheribel's Discovery Dep. at 41-42. Since Dr.Scheribel's personal experience is that only radiation therapyhas produced cataracts, he essentially admits that dose is avery crucial element and must be independently verified beforea diagnosis can be made. Otherwise, there is no logic to histhought process since many, if not all, of the other patientswith cataracts would have had low dose exposures from commondiagnostic x-rays.Since Dr. Scheribel claims that he has seen about 4200 patientswith cataracts (Aff. of Dr. Scheribel at ¶ 2) and only fivewere radiation induced, his opinion, as originally given (whenhe admitted that he had not reviewed any medical literature),rested on less than twelve hundredths of one percent of thecataracts he has seen.
Dr. Scheribel examined the plaintiff on May 13, 1985. Dr.Scheribel's Evidence Dep. at 13. O'Conner was also examined byhim on the following dates: 11/4/86; 9/8/87; and 6/10/88.Plaintiff provided Dr. Scheribel with his "medical history"stating that he "had cataracts caused by a radiation exposurein October of 1983." Dr. Scheribel's Letter to Attorney KennethD. Peters dated June 27, 1985. O'Conner did not reveal to Dr.Scheribel that his father also had bilateral cataracts atapproximately age 40. Dr. Scheribel's Discovery Dep. at 23. Dr.Scheribel looked into O'Conner's eyes with a microscope anddiagnosed him as having posterior subcapsular cataracts.
It is uncontested that O'Conner, like his father, hasposterior subcapsular cataracts. Aff. of Dr. McGrath attachedto Supplement to Defendants' Reply to Plaintiff's Motion inLimine to Exclude Evidence or Reference to Dr. Philip McGrathor Plaintiff's Father's Eye Condition; Dr. O'Brian's Dep. at52-53. It is also uncontested that such cataracts can be causedby many factors including genetics and very large doses ofradiation. However, Dr. Scheribel quickly leaped to theconclusion that plaintiff's cataracts could only have beencaused by radiation exposure. Dr. Scheribel's Evidence Dep. at27-28, 53. Dr. Scheribel based this opinion on the historygiven by O'Conner and upon his own erroneous belief thatradiation induced cataracts have a clinically unique appearancethat "cannot be mistaken for anything else."
Thus, Dr. Scheribel's proposed testimony is not thatradiation can cause cataracts or that plaintiff has the type ofcataracts that can be caused by radiation. Both opinions areadmissible and medically valid. His challenged testimony isthat only radiation exposure received at Quad Cities could havecaused plaintiff's cataracts. Defendants maintain that suchtestimony is not admissible under Rules 702, 703 and the Fryetest, supra p. 7, because it is medically erroneous.
B. Inference from Dr. Scheribel's Opinion on Duty Owed Issue
This court has ruled in a prior opinion that the standard ofcare in this case is compliance with the federal numerical doselimits. The readings on the radiation measuring instrumentswhich O'Conner wore establish such compliance unless there issome credible evidence that he must have received much moreradiation. Plaintiff claims that since Dr. Scheribel willtestify that O'Conner does have radiation induced cataracts, ajury is justified in ignoring the actual radiation measurementsmade at the time by the scientific instruments that he wore andsubstituting their belief that somehow he received hundreds ofrem. Defendants maintain that Dr. Scheribel's testimony thatonly radiation exposure received at Quad Cities could havecaused plaintiff's cataracts is inadmissible and medicallyinvalid. Without it plaintiff has no credible evidence uponwhich a reasonable jury could even infer that O'Conner receiveda dose above the standards. Although on the surface Dr.Scheribel's opinion at issue here seems to be a causationopinion, it is also a medical opinion which serves, ifadmissible, as the only basis upon which the plaintiff canargue an inference of breach of the duty owed. Consequently,the opinion that is challenged here as being inadmissible isessential to both plaintiff's duty owed and causation burden ofproof.
C. The Federal Rules of Evidence
A court may admit expert testimony if the subject of suchtestimony is beyond the knowledge of the average layman and it"will assist the trier of fact to understand the evidence or todetermine a fact in issue." Fed.R.Evid. 702; Carroll v. OtisElevator Co., 896 F.2d 210 (7th Cir. 1990). An expert witnessis not permitted to guess or base his opinion on surmise orconjecture. Brown v. Chicago & North Western Transp., 162 Ill. App.3d 926,936, 114 Ill.Dec. 165, 516 N.E.2d 320, 328 (1stDist. 1987); In Re Agent Orange Prod. Liab. Litigation,611 F. Supp. 1223, 1244, 1248-49 (E.D.N.Y. 1985), aff'd,818 F.2d 187 (2nd Cir. 1987), cert. denied, Lombardi v. Dow Chem. Co.,487 U.S. 1234, 108 S.Ct. 2898, 101 L.Ed.2d 932 (1988); Johnstonv. United States, 597 F. Supp. 374 (D.Kan. 1984). A court is notbound by the mere assertions of an expert, but it must "payspecial attention to expert testimony," United States v. Lundy,809 F.2d 392, 395 (7th Cir. 1987), and must "look behind theexpert's ultimate conclusion . . . and analyze the adequacy ofits foundation." Peterson v. Sealed Air Corp., 1991 WL 66370,1991 Lexis 5333 (N.D.Ill. 1991) (quoting Richardson v.Richardson-Merrell, Inc., 857 F.2d 823, 829 (D.C. Cir. 1988)).Otherwise any case in which an expert was willing . . . to[testify] "to a reasonable degree of scientific certainty" and[say] "the basis of my opinion is X, on which experts in myfield reasonably rely," every case requiring expert testimonywould get to the jury. If a court is not permitted to examinethe basis of an expert opinion in order to rule on theadmissibility of that opinion, then Rule 703 should read: "Anexpert may cite as the basis of his opinion anything he likes."In re Paoli R.R. Yard PCB Litig., 706 F. Supp. 358, 368 (E.D.Pa.1988), rev'd on other grounds, 916 F.2d 829 (3rd Cir. 1990);accord, Richardson v. Richardson-Merrell, Inc., 857 F.2d 823,830 (D.C. Cir. 1988) (whether expert's opinion has adequatebasis is question of law for court), cert. denied,493 U.S. 882, 110 S.Ct. 218, 107 L.Ed.2d 171 (1989). See also Mid-StateFertilizer Co. v. Exchange Nat'l Bank, 877 F.2d 1333, 1339 (7thCir. 1989). Such scrutiny is required because an expert'sopinion "bears an aura of reliability and trustworthiness." Itis axiomatic that summary judgment is not precluded merelybecause a party has produced an expert to support its position.Peterson v. Sealed Air Corp., 1991 WL 66370, 1991 Lexis 5333(N.D.Ill. 1991); Mid-State Fertilizer Co., 877 F.2d at 1339.United States v. Tranowski, 659 F.2d 750, 757 (7th Cir. 1981)(quoting United States v. Brown, 557 F.2d 541, 556 (6th Cir.1977)). The subject of radiation and its effect on humans iscomplicated and not easily understood. Therefore, it isnecessary to qualify would-be experts who might otherwiseobfuscate the issues and interfere with the outcome of thiscase. See Akins v. Sacramento Municipal Utility District,6 Cal.App.4th 1605, 8 Cal.Rptr.2d 785 (3rd Dist. 1992). As theSeventh Circuit has warned, "there is not much difficulty infinding a medical expert witness to testify to virtually anytheory of medical causation short of the fantastic." Stolesonv. United States, 708 F.2d 1217, 1222 (7th Cir. 1983). JudgeLearned Hand observed that expert testimony creates the risk ofa special type of prejudice:
The trouble with all this is that it is setting the jury to decide, where doctors disagree. The whole object of the expert is to tell the jury, not the facts . . . but general truths derived from his specialized experience. But how can the jury judge between two statements each founded upon an experience confessedly foreign in kind to their own? It is just because they are incompetent for such a task that the expert is necessary at all.
Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1112 n.10 (5th Cir. 1991), petition for cert. denied, ___ U.S. ___,112 S.Ct. 1280, 117 L.Ed.2d 506 (1992), (quoting Hand,Historical and Practical Considerations Regarding ExpertTestimony, 15 Harv.L.Rev. 40, 53 (1901)).
Federal Rules of Evidence 702 and 703 provide courts with themeans to screen carefully the qualifications, and factual andscientific bases of an expert's opinion. Lundy, 809 F.2d at395. A court has broad discretion to exclude an expert'sopinion if it cannot withstand the requirements of Rules 702and 703. Twin Disc, Inc. v. Big Bud Tractor, 772 F.2d 1329 (7thCir. 1985) (court has broad discretion to assess admissibilityof expert testimony); Contractor Utility Sales Co. v.Certainteed Corp., 748 F.2d 1151, 1155 (7th Cir. 1984) (same).The Federal Rules of Evidence allow a court to intercede and tolimit expert testimony where a witness attempts to give anopinion on a subject for which he is not qualified, when thereis no factual basis for that proffered opinion, when thatopinion is based upon an error of logic, and when the expertcannot supply the courtwith any verifiable scientific support for the opinion. TheRules recognize that there is some limit to every expert'sexpertise and that he can not be allowed to go beyond it. Forexample, no medical doctor is automatically an expert in everymedical issue merely because he or she has graduated frommedical school or has achieved certification in a medicalspecialty. Indeed, a medical doctor who is quick to proclaimgeneral and universally binding principles based on his or herown very limited knowledge or experience in the precise medicalissue in question is more likely to mislead a jury than to helpthem find the truth. In science, a proposition is not true justbecause one claiming to be an "expert" is willing to make sucha statement. In law, a statement is not admissible just becausea self-proclaimed "expert" is willing to say it on the witnessstand. Scientific truths must be verifiable or they are notscientific truths at all. An expert's opinion must also beverifiable or it is not expert at all. Rules of both scienceand evidence require a scientist or an expert to have averifiable scientific basis for his opinion. Such controls areimportant in both fields to minimize error due to "junk"science.
D. Rule 702
An expert witness must be qualified by specialized"knowledge, skill, experience, training or education."Fed.R.Evid. 702; Carroll v. Otis Elevator Co., 896 F.2d at 212.However, an "expert's opinion is helpful only to the extentthat expert draws on some special skill, knowledge, orexperience to formulate that opinion." United States v. Benson,941 F.2d 598, 604 (7th Cir. 1991).7 District courts mustensure that expert opinion testimony is in fact expert opinion,"(that is, an opinion informed by the witness' expertise)rather than simply an opinion broached by a purported expert."Id. See also Lundy, 809 F.2d at 396 (7th Cir. 1987). "Whether awitness is qualified as an expert can only be determined bycomparing the area in which the witness has superior knowledge,skill, experience, or education with the subject matter of thewitness's testimony." Otis Elevator Co., 896 F.2d at 212; Jurkav. Commonwealth Edison Co., No. 88 C 7852 Transcript ofProceedings at 5 (N.D.Ill., Aug. 9, 1990) (summary judgmentappropriate because plaintiff had an "unqualified expert whorelies upon an insupportable theory of causation"). A medicaldegree "alone does not qualify [an expert] to give an opinionon every conceivable medical question." Christophersen, 939F.2d at 1113.8
O'Conner intends that Dr. Scheribel would give to the jury attrial an opinion in the unique, sophisticated and highlyspecialized field of radiation induced cataracts, and yet Dr.Scheribel does not qualify as an expert in this field throughpersonal experience, specific education or even study of therelevant literature. In short, Dr. Scheribel's opinion thatradiation cataracts are pathognomonic is not based on anyspecial skill, knowledge, research or experience. He admittedin deposition that he never studied or performed research inradiation physics, that he has never conducted any studies onthe medical effects of radiation on the eye, that he did notknow the threshold dose required to induce cataracts and thathe did not even have a rudimentary knowledge of the doseresponse curves for the effects of radiation. Dr. Scheribel'sEvidence Dep. at 22, 62, 66, 69.
Based on the five patients he has observed with cataractsinduced by radiation therapy, he developed his "bindinguniversal rule" that he applied to O'Conner, thus committingthe logical fallacy known as the Converse Accident (hastygeneralization). The logical fallacy of Accident is theimproper application of a general rule to a particular case.The logical fallacy of Converse Accident (hasty generalization)is the reverse. It occurs when a person erroneously creates ageneral rule from observing too few cases. Dr. Scheribel hasillogically created a "binding universal rule" based uponinsufficient data.
For example, observing the value of opiates when administered by a physician to alleviate the pains of those who are seriously ill, one may be led to propose that narcotics be made available to everyone. Or considering the effect of alcohol only on those who indulge in it to excess, one may conclude that all liquor is harmful and urge that its sale and use should be forbidden by law. Such reasoning is erroneous and illustrates the fallacy of converse accident or hasty generalization.
I. Copi, Introduction to Logic, at 68 (3rd ed.).
When pressed by this court for the bases of his opinion heabandoned any reliance on his personal experience and reliedonly on medical articles (which he admitted he had not readbefore giving his opinion). See Aff. of Dr. Scheribel.
E. Ruling on Rule 702
As shown by the testimony of five of the world's leadingexperts in the field of radiation induced cataracts(see Affidavits of Drs. Merriam, Cogan, Upton, Wellman andCasarett), and the testimony of plaintiff's treatingophthalmologists (Cf. Dr. Bond's Dep. at 17; Dr. Nelson's Dep.at 16; Dr. Ward's Dep. at 34, 6, 10, 23), this field is highlyspecialized and is not a part of the routine practice ofordinary ophthalmologists. It requires a demonstratedexpertise, if not by experience, at least by a study of all thepublished literature. Dr. Scheribel has no such experience anddid not even take the time to examine the published literaturebefore giving his bald opinion. Accordingly, Dr. Scheribel isnot qualified to render an expert opinion that radiationcataracts are pathognomonic or that plaintiff's cataracts couldonly be caused by radiation exposure. His testimony on this onepoint can be excluded on that basis alone. Fed.R.Evid. 702. Dr.Scheribel is qualified to testify on matters of generalophthalmology, such as the fact that O'Conner has posteriorsubcapsular cataracts. But such testimony is not sufficient tosurvive a motion for summary judgment on the facts of thiscase.
F. Rule 703
An additional independent evidentiary basis exists forexcluding Dr. Scheribel's opinion. An expert's opinion musthave a sufficient verifiable scientific basis; the scientificdata underlying his opinion must be of the type that isreasonably relied upon by experts in the field. Fed.R.Evid.703; United States v. Lundy, 809 F.2d at 395; United States v.Tranowski, 659 F.2d at 755; Viterbo v. Dow Chem. Co.,826 F.2d 420, 422 (5th Cir. 1987) (where expert's opinion is notsupported by scientific evidence his opinion "that it is so" isnot admissible); In Re Agent Orange, 611 F. Supp. at 1244."Courts are particularly wary of unfounded expert opinion whencausation is the issue." Id. at 1249. This is especially truein cases such as this where the plaintiff claims that exposureto a toxic substance caused his injury. The court is concernedthat the jury may blindly accept an expert's opinion thatconforms with their underlying fears of toxic substanceswithout carefully understanding or examining the basis for thatopinion.
Whether an expert's opinion has a sufficiently verifiablescientific basis is an issue of law for the court to decide.Richardson, 857 F.2d at 833. Although an expert opinion isindispensable to a case,
that is not to say that the court's hands are inexorably tied, or that it must accept uncritically any sort of opinion espoused by an expert merely because his credentials render him qualified to testify.
Id. at 829. A court has a duty "to examine the reliability ofan expert's sources to determine whether they satisfy thethresholdestablished by [Rule 703]." Christophersen, 939 F.2d at 113(quoting Slaughter v. Southern Talc Co., 919 F.2d 304, 306-07(5th Cir. 1990)).
Such critical evaluation of the bases of an expert's opinionfurthers the court's interest in providing relevant, accurateinformation to the jury to help it decide a fact in issue.Where the basis of an expert's opinion "is of such littleweight" the jury should not be allowed to receive the opinionbecause such unsupported opinion "offers no expert assistanceto the jury." Viterbo, 826 F.2d at 422; United States v. Davis,772 F.2d 1339, 1344 (7th Cir. 1985), cert. denied,474 U.S. 1036, 106 S.Ct. 603, 88 L.Ed.2d 581 (1985). If the basis of theexpert opinion is unsound, his conclusion is inaccurate, andthe jury does not have sufficient evidence on which to decidethe case. See, e.g., Ealy v. Richardson-Merrell, Inc.,897 F.2d 1159, 1161-62 (1990); Brock v. Merrel Dow Pharm. Inc.,874 F.2d 307, 309 (5th Cir. 1989). Courts must reject opinions "foundedon critical facts that are plainly untrustworthy, principallybecause such an opinion cannot be helpful to the jury."Christophersen, 939 F.2d at 1114.
In December 1989, this court entered an Order requestingplaintiff to supplement "the information that provides thebasis for this opinion," that "radiation cataracts cannot bemistaken for anything else." See court Order dated December 22,1989. In response, plaintiff submitted an affidavit by Dr.Scheribel which stated: "Regarding my opinion . . . I rely onscientific articles such as those attached to this affidavit."In his Affidavit, Dr. Scheribel did not claim to rely on hispersonal experience of seeing only five cases of radiationinduced cataracts as support for his opinion. Thus, heabandoned the sole basis upon which he had made his opinionbecause in his deposition he admitted that he had not reviewedthe medical literature prior to coming to his conclusion. Dr.Scheribel attached or listed the following articles andexcerpts: (1) Diseases of the Lens and Vitreous; Glaucoma andHypotony by Duke-Elder, Vol. XI, (1969) pages 82-83; (2) Duane,Clinical Ophthalmology, page 8; (3) Apple, Diseases of the Lens(a medline search failed to reveal any such book or article anddefendants repeated requests for a copy of the article from theplaintiff have remained unanswered);9 and (4) an excerpt ofa section entitled "X-Ray and Radium Cataracts" from an unknownbook by an unknown author. See Aff. of Dr. Scheribel at ¶ 3.
"The mere recitation of a list of studies is not a magicalincantation paving the way to the witness stand unless it isaccompanied by reasoned and scientifically accepted analysis."Eggar v. Burlington Northern Railroad Co., 1991 WL 315487, 6(D.Mont., Dec. 18, 1991) (quoting Carroll v. Litton SystemsInc. No. B-C-88-253, 1990 WL 312969, 1990 U.S.Dist. Lexis 16833(W.D.N.C., Oct. 29, 1990) (magistrates opinion adopted bydistrict court by Order dated July 15, 1991)).
The court has examined these references and the associatedaffidavits and briefs and concludes that not one of thesearticles or excerpts supports Dr. Scheribel's opinion that aradiation induced cataract "cannot be mistaken for anythingelse." To the contrary, the three articles (that were attached)all stated what consensus science has discovered through yearsof research: posterior subcapsular cataracts have acharacteristic appearance in that radiation induced cataractsare of the posterior subcapsular type, but not all posteriorsubcapsular cataracts are radiation induced. Duke-Elder, Systemof Ophthalmology, (1972) Vol. XIV, Ch. X at 994-95; Aff. of Dr.Apple at ¶ 14; Aff. of Dr. Silberstein at ¶ 22; Aff. of Dr.Apple at ¶¶ 14, 19. Dr. Scheribel's first reference to a dated1969 edition of the Duke-Elder Series cited the wrong pages andtotally missed the relevant sections pertaining to radiationinduced cataracts in humans. He cited from a section in ChapterThree titled Experimental Cataract that concerns experimentallyproducing cataracts in animals, not inhumans at all. This error is particularly egregious since thevery section Dr. Scheribel cited explicitly instructs thereader to turn to the section that is directly relevant toradiation cataracts:
A radiational cataract . . . These will be discussed in the volume of Injuries where full details with the appropriate bibliographics will be found.
Duke-Elder, System of Ophthalmology, (1969 ed.), Vol. XI,Chapter III, at 81. It would appear that Dr. Scheribel nevereven read the pages that he cited to the court or he would haveseen his error.
An examination of that relevant section directly contradictsDr. Scheribel's opinion: "The clinical picture of a radiationalcataract from whatever source it is derived ischaracteristic [not pathognomonic]." Duke-Elder, System ofOphthalmology, (1972 ed.), Vol. XIV, Chapter X, at 994-95(emphasis added). The court notes that Duke-Elder cites to andrelies upon the very studies performed by defendants' experts,Drs. Merriam and Cogan. This court finds that Dr. Scheribelmisinterpreted and cited the wrong sections of the veryreference upon which he himself relies. Thus, Duke-Elder doesnot provide a basis for Dr. Scheribel's opinion, but ratherdirectly supports the defendants' position.
Dr. Scheribel's second reference is to Duane. The pertinentsentence from the single page attached to Dr. Scheribel'sAffidavit simply says that "Other methods used to producecataracts are radiation . . . Radiation cataracts appear to beconfined locally to the region of the lens receivingirradiation while the shielded region is less damaged." Thisstatement does not support Dr. Scheribel's opinion that aradiation induced cataract is so unique in appearance that itcan be clinically identified as being caused by radiation andnothing else. To the contrary, Duane only says that a radiationinduced cataract is of the posterior subcapsular type which is"a very common variety." Duane, Clinical Ophthalmology, Vol. I,Chapter 72 at 16. Again, the court finds that Duane contradictsDr. Scheribel's opinion and directly supports the affidavits ofall the defense experts. Dr. Scheribel's third reference is toDiseases of the Lens by Apple.
Since this issue was briefed in January 1991, the "Apple"reference Dr. Scheribel was attempting to cite, and claimed torely upon, has been located by defendants. Dr. David Apple haspublished, along with Dr. Rabb, a book entitled OcularPathology. Aff. of Dr. Apple at ¶¶ 7-9. This must be the bookwhich Dr. Scheribel miscited as "Diseases of the Lens, Apple'sby Apple." Since Dr. Scheribel's affidavit is dated January 12,1990, he must have been referring to the 3rd edition which waspublished in 1985 and was the most current edition available in1990. However, he must not have actually reviewed the booksince Dr. Apple states that posterior subcapsular cataracts canbe caused by many conditions and that their appearance is"identical" regardless of the cause:
One of the most common pathologic reactions of the lens epithelium is an abnormal overgrowth, or proliferation of the equatorial cells, creating a posterior migration of the lens epithelium . . . This reaction occurs in most idiopathic "senile" posterior subcapsular (cupuliform) cataracts . . .
Posterior migration and bladder cell formation signify a histopathologic lesion, not a specific disease. Therefore, such diverse conditions as senile cataract, secondary traumatic cataract, and congenital cataract associated with hyaloid vascular remnants can create an identical tissue reaction.
Apple, supra at 127 (emphasis in original). Thus, a radiationinduced cataract is just one type of secondary traumaticcataract. Dr. Apple concluded that radiation induced cataractsare not pathognomonic and he even used italics to warn thereader that posterior subcapsular cataracts are caused by"diverse conditions" and "are not a specific disease." Aff. ofDr. Apple at ¶ 10. Dr. Apple himself even filed an affidavitwith this court stating that Dr. Scheribel's opinion is wrongand certainly is not supported by Dr. Apple's book.
In 1991 Dr. Apple published the fourth edition of OcularPathology. It contains the same language on this point as thethird edition except that the italics are no longer used.Apparently, Dr. Apple feltthat the point was so obvious that it no longer needed theadditional emphasis.
Dr. Scheribel's fourth reference is to an attached article byan unknown author extracted from an unidentified source. Dr.Scheribel failed to provide the name of the book or pamphletfrom which he copied the attachment and failed to provide afull and proper reference so that the court and defense counselcould examine the entire material in context. Even without fullcitation, a review of that reference shows that it too directlycontradicts Dr. Scheribel's opinion and merely informs thereader that a radiation cataract is of the posteriorsubcapsular type. It states that: "Exposure of the eye to x-rayand radium can produce typical lens changes." (page 79). Inother words, such a radiation induced cataract "can" have theappearance of a "typical" posterior subcapsular cataract suchas those occurring naturally or produced by many other causes.If a radiation induced cataract has such a "typical"appearance, that hardly means that no other cataract ever hasthat same typical appearance. Certainly all radiation inducedcataracts are of the posterior subcapsular type but one cannotmake that statement backwards. It is not true that allposterior subcapsular cataracts are radiation induced, as Dr.Scheribel's proffered opinion maintains. While it is true thatall men are human, it is not true that all humans are men. Dr.Scheribel's error in logic is just as elementary. In sum, eachof his cited references fail to support his blanket assertionthat a radiation cataract "cannot be mistaken for anythingelse." The court finds Dr. Scheribel's opinion without supportin the very articles upon which he claims to rely and that hecites to the court as the basis for his opinion, as requestedby this court.
Drs. Cogan, Merriam, Casarett, Silberstein and Apple eachreviewed Dr. Scheribel's opinion that radiation inducedcataracts are pathognomonic and each concluded that Dr.Scheribel's opinion was not supported by the medical andscientific experts in the field of radiation induced cataracts.These experts have testified as follows:
11. Dr. Scheribel's assertion that posterior subcapsular cataracts can be identified as definitely being due to radiation exposure if they have a clear area "fore and aft" of the cataract is wrong as a matter of medical science.
Aff. of Dr. Casarett at ¶ 11.
16. Although a radiation-induced cataract is of the posterior subcapsular type and usually develops a doughnut shape in its early states, not all cataracts with those characteristics are radiation-induced. It is simply not possible to look at the appearance of a cataract and determine that it could only have been caused by radiation exposure.
20. I do not believe that the opinion which Dr. Scheribel expressed in [his evidence] deposition represents the consensus scientific and medical view of experts in radiation-induced cataracts because it does not adequately account for the factors of dose threshold, latency period and nonspecificity of morphology as identified previously in this affidavit.
Aff. of Dr. Cogan at ¶¶ 16, 20.
25. Dr. Scheribel's blanket assertion that any cataract with a clear area "fore and aft" must necessarily be radiation induced is wrong as a matter of medical science.
26. Radiation-induced cataracts often have a characteristic doughnut shape which has not been reported by Dr. Scheribel but even that morphologic state is not conclusive proof that a cataract is radiation-induced. Medical science simply cannot tell from looking at a cataract whether or not it was caused by a prior radiation exposure.
Aff. of Dr. Merriam at ¶¶ 23-26.
Dr. Edward B. Silberstein is Professor of Radiology andMedicine at the University of Cincinnati Medical Center, and heperformed an extensive medical evaluation of O'Conner onJanuary 7, 1985. Dr. Silberstein also reviewed Dr. Scheribel'sopinion. Dr. Silberstein concluded:
There is no basis in medicine for Dr. Scheribel's statement that he can tell a radiation induced cataract from any other cataract because of its unique appearance.
Aff. of Dr. Silberstein at ¶ 22. Dr. Apple concluded:
13. Dr. Scheribel is wrong as a matter of medical science to claim that he, or anyone else, can tell that a certain posterior subcapsular cataract was caused by radiation just by looking at it.
15. No reasonable expert in ophthalmology would attempt to diagnose a radiation induced cataract simply by looking into a patient's eye and listening to his story about being exposed to an excessive amount of radiation.
Aff. of Dr. Apple at ¶¶ 13, 15.
This court agrees. The court finds that the "opinion" Dr.Scheribel intends to give to the jury is not only withoutverifiable scientific support, it is actually directlycontradicted by his own claimed sources and by consensusmedical science. Such a scientifically erroneous "opinion"cannot help the jury discover the truth here. It could onlyserve to mislead them.
A second independent Rule 703 basis exists for excluding Dr.Scheribel's opinion. When confronted with difficult medicalquestions, "courts must critically evaluate the reasoningprocess by which the experts connect data to their conclusionsin order for courts to consistently and rationally resolve thedisputes before them." Brock v. Merrell Dow Pharm. Inc.,874 F.2d 307, 310 (5th Cir. 1989), cert. denied, 494 U.S. 1046, 110S.Ct. 1511, 108 L.Ed.2d 646 (1990). As the court observed inPeterson v. Sealed Air Corp., 1991 WL 66370, 1991 Lexis 5333(N.D.Ill., April 22, 1991):
In order to create a genuine issue of material fact, an expert's testimony must include a process of reasoning based on a firm foundation. "An expert who supplies nothing but a bottom line supplies nothing of value to the judicial process."
Id., (quoting Mid-State Fertilizer Co., 877 F.2d at 1339). Acourt that is untrained in science may not feel well suited todetermine whether an expert's opinion has a valid andverifiable scientific reasoning process. But the Federal Rulesof Evidence provide a helpful yardstick with which to measureand judge expert opinion testimony: would a reasonable expertin the field rely on the data and reasoning used? Tranowski,659 F.2d at 755; Lundy, 809 F.2d at 395.
Here Dr. Scheribel originally based his opinion on only fiveother patients who he claims had radiation induced cataractsand on his unfounded belief that radiation induced cataractsare pathognomonic. Such a basis is scientifically insufficientto generate any "binding universal rule" and would not berelied on by a reasonable expert in the field of radiationinduced cataracts for three reasons. Aff. of Dr. Silberstein at¶ 18; Aff. of Dr. Apple at ¶ 15; Aff. of Dr. Merriam at ¶ 23.
Dr. Scheribel's limited experience with only five otherpatients with radiation induced cataracts cannot serve as avalid scientific basis from which to derive his "bindinguniversal rule." See Aff. of Dr. Silberstein at ¶¶ 16-18; Aff.of Dr. Apple at ¶¶ 14-18. From such meager experience hecreated a broad, general and inflexible universal rule thatonly radiation could have caused O'Conner's cataracts. Asstated earlier, Dr. Scheribel committed the logical fallacyknown as Converse Accident (hasty generalization). In Nemmersv. United States, 681 F. Supp. 567 (C.D.Ill. 1988), aff'd,870 F.2d 426 (7th Cir. 1989), plaintiffs sued for injuries arisingfrom the birth of their son, and defendant sought to introducethe expert testimony of an actuary on future economic trends.Id. at 577. Although the expert had training and experience asan actuary, thereby qualifying as an expert in that field, shehad no education, training or experience in the particularsubject on which she was to offer her opinion, e.g., long-termfuture economic trends. Id. at 580. This court determined thatthe expert did not have a sufficient basis to render such anopinion. The court reasoned:
While personal experience may well act as a basis for a witness qualified as an expert . . . personal experience alone is simply not enough, in the court's opinion, where the experience does not include some theoretical foundation.
Id. at 580. This court noted that the actuary had not conductedresearch or consulted any authorities on the subject of herproffered opinion and had no knowledge of rudimentary andessential concepts necessary for a reliable opinion. Id.
Here, Dr. Scheribel is trained in a particular field and hasexperience in that field (general ophthalmology). But hisseverely limited personal experience of seeing only fivepatients with radiation induced posterior subcapsular cataractsdoes not provide a sufficient foundation for a scientificreasoning process that concludes that every posteriorsubcapsular cataract must be caused by radiation and nothingelse. He has "neither conducted any research, nor consulted anyauthorities" and admitted that he does not have evenrudimentary knowledge of radiation induced diseases. Dr.Scheribel's Evidence Dep. at 22, 62, 66, 69; Dr. Scheribel'sDiscovery Dep. at 28-29, 41-42. His limited personal experiencesimply cannot provide a sufficient scientific basis upon whichany scientific reasoning process can discover a "bindinguniversal rule."
Second, Dr. Scheribel failed to assess properly O'Conner'sradiation dose before concluding that the radiation caused hiscataracts. Aff. of Dr. Apple ¶¶ 15-17; Aff. of Dr. Silbersteinat ¶ 12. As set forth previously, any expert with evenrudimentary knowledge of this field would know that radiationinduced cataracts require a certain threshold dose and wouldcarefully seek to discover the exact dose involved beforegiving a causation opinion. Dr. Scheribel did the opposite: hepresumed that the cataracts were radiation induced, and thenpresumed that the plaintiff must have somehow been exposed to ahigh enough dose to exceed the threshold in order to havecaused the cataracts, thereby justifying his initial diagnosis.This is circular reasoning. In Christophersen, the trial courtexcluded the opinion of an expert who testified thatplaintiff's occupational exposure to nickel and cadmium fumescaused his fatal cancer. In affirming the court's decision toexclude the expert, the United States Court of Appeals, FifthCircuit (en banc) determined that an accurate assessment ofplaintiff's dose was critical to giving a reliable opinion oncausation. The court stated that the facts and data relied onby the expert in assessing the dose received by the plaintiffwere not the type reasonably relied on by experts in the fieldand therefore, "accurate dosage and exposure information wasnot used." Id. at 1113. The court explained:
If the dosage of the harmful substance and the duration of exposure to it are the types of information upon which experts reasonably rely when forming opinions on the subject, then the district court was justified in excluding Dr. Miller's opinion that is based upon critically incomplete or grossly inaccurate dosage or duration data.
939 F.2d at 1114.
An expert in radiation induced cataracts would requireknowledge of a patient's radiation dose before findingcausation. He would not rely only on the story told by thepatient to determine the patient's radiation dose. Rather, theexpert would review the patient's actual dosimetry records, andexamine (or perform) the appropriate medical tests to determinethe dose received. Aff. of Dr. Apple at ¶ 16; Aff. of Dr.Silberstein at ¶ 12. He would also review the scientificliterature to learn the threshold dose of radiation and minimumlatency period required to cause cataracts. As Dr. Silbersteinexplained:
12. The proper medical methodology used by any reasonable expert in the field to assess a claimed dose of 400 rem includes: obtaining an accurate history from the patient, obtaining copies of the dosimetry records for the individual, performing a whole body count to check for internal deposition of radionuclides, obtaining the patient's medical records from the weeks after the claimed incident so that the blood counts can be checked for a reduced lymphocyte count, obtaining a current blood sample and checking it for increased chromosome aberrations, examining his medical records for evidence of the acute radiation syndrome which would occur within a day of a dose of 400 rem, and examining his work records to see if he was able to work in the days following the alleged exposure.
15. By the time that Dr. Scheribel gave his Opinion in this case at his Evidence Deposition on June 10, 1988, all this work performed by our laboratory in assessing Mr. O'Conner's dose had been in existence for about four years yet he failed to ask for, obtain or use any of this essential data in performing his analysis.
16. I have reviewed a copy of Dr. Scheribel's Evidence Deposition and a copy of his Affidavit dated January 12, 1990.
17. The methodology which Dr. Scheribel used to come to his opinion of causation in this case is to first uncritically accept what Mr. O'Conner told him about receiving a high dose and then to assume that radiation induced cataracts are pathognomonic.
18. Both parts of Dr. Scheribel's methodology are errors and are not a methodology which any reasonable expert in radiation doses or radiation effect on humans would use.
26. What Dr. Scheribel did in this case is not a differential diagnosis. By its very name differential diagnosis requires the physician to acquire all of the evidence, to consider all of the evidence acquired, to consider all of the possible diseases, and then to use this data to make the best diagnosis on the facts of an individual case. Dr. Scheribel did no such thing in this case. He failed to follow the methodology, as described above, which any reasonable expert in this field of medicine would follow, before attempting to make a differential diagnosis as to whether a certain cataract was radiation induced.
Aff. of Dr. Silberstein at ¶¶ 12, 15, 16-18, 26. See also, Aff.of Dr. Merriam at ¶¶ 23-24 where he states:
23. . . . Dr. Scheribel did not follow the method of analysis which would be reasonably relied upon by an expert in radiation-induced cataracts.
24. . . . Dr. Scheribel failed to require some objective evidence of dose, he failed to research the threshold dose for cataractogenesis, he failed to account for the long latency period necessary for a dose of even 200 rem, and he failed to realize that posterior subcapsular cataracts are rather common in men aged 40 through 49.
Commonwealth Edison maintained extensive dosimetry records,which were available for examination. Blood samples were takenwithin four weeks of the alleged exposure. If the plaintiff'sdose had been over 100 rem, his absolute lymphocyte count wouldhave been less than 1000. O'Conner's actual lymphocyte countwas 2,105, well within normal limits "indicating that hisradiation exposure is not what he claims." letter by Dr. EdwardB. Silberstein dated April 2, 1985, a copy of which is attachedas Exhibit 2 to Dr. Silberstein's Affidavit. A second test todetermine O'Conner's dose was performed at Oak Ridge NationalLaboratory. This test analyzed his chromosomes and ruled out adose of any more than 25 rads, which is the lower limit ofsensitivity of this test. See Chromosome Analysis of BloodSample by Dr. R. Julian Preston and Aff. of Dr. Silberstein at¶ 23. The proper methodology for determining whether O'Connerreceived radiation exposure sufficient to cause cataracts isset forth in Dr. Silberstein's Affidavit at ¶ 12 and Dr.Apple's Affidavit at ¶ 16.
The court finds that Dr. Scheribel's opinion is based oncritically incomplete and grossly inaccurate dose data. Dr.Scheribel never attempted to assess O'Conner's dose andadmitted that he did not know O'Conner's dose when he gave hisopinion. Dr. Scheribel's Evidence Dep. at 63. Instead, herelied on O'Conner himself, who told Dr. Scheribel "that he hadcataracts caused by a radiation exposure in October of 1983."Dr. Scheribel's letter to attorney Kenneth D. Peters dated June27, 1985; Dr. Scheribel's Evidence Dep. at 23. Each ofO'Conner's actual test results were in existence and availableto Dr. Scheribel when he examined O'Conner in May, 1985. Aff.of Dr. Silberstein at ¶ 14. However, he did not examine thedosimetry records, did not review the blood test results, didnot review the chromosome analysis, anddid not review the relevant scientific literature. Dr.Scheribel's Evidence Dep. at 69.
Third, an expert would not reasonably rely on the merepresence of posterior subcapsular cataracts to opine that suchcataracts were radiation induced. Aff. of Dr. Silberstein at¶ 17; Aff. of Dr. Apple at ¶¶ 14, 15. The reliable expert wouldknow (or at a minimum discover), based on even a cursory reviewof the appropriate medical literature, that radiation inducedcataracts have a characteristic appearance, but that not allcataracts with such characteristic appearance are caused byradiation, there being numerous other causes. Aff. of Dr. Appleat ¶ 14. An expert would attempt to rule out each otherpossible cause of posterior subcapsular cataracts. By makingsuch inquiries the expert would learn the true dose received,realize that the dose was insufficient to cause cataracts, andinvestigate other more likely causes for O'Conner's cataracts.Aff. of Dr. Silberstein at ¶ 26.
Just as a medical opinion without a verifiable scientificbasis is inadmissible, an expert opinion that actuallycontradicts directly the scientific consensus is inadmissible.See Ealy v. Richardson-Merrell, Inc., 897 F.2d 1159, 1162 (D.C.Cir. 1990) ("[A]n opinion refuting . . . scientific consensusis inadmissible for lack of an adequate foundation"); accord,In Re Agent Orange, 611 F. Supp. at 1242. See also, Lynch v.Merrell-National Laboratories, 830 F.2d 1190 (1st Cir. 1987).
Without citing any case authority, plaintiff attempts toavoid the stringent requirements of Rule 703 by claiming thatthere is a distinction between a treating physician and a"nontreating expert hired for litigational purposes." Plaintiffconcludes that "the testimony of a treating physician . . .should not be evaluated in light of Rule 703." However, evenunder Illinois state law, that assertion is clearly wrong. Inadopting Federal Rule of Evidence 703, the Illinois SupremeCourt stated:
[W]e believe that Federal Rule of Evidence 703 . . . makes no distinction between the opinions of treating and non-treating doctors . . . the key element in applying Federal Rule 703 is whether the information upon which the expert bases his opinion is of a type that is reliable.
Wilson v. Clark, 84 Ill.2d 186, 49 Ill.Dec. 308, 312,417 N.E.2d 1322, 1326 (1986). At oral argument plaintiff assertedthat a treating physician who testifies as an expert must betreated differently than a "Rule 220 expert under IllinoisCivil Practice," in that they do not fall under Rule 702 and703. Tr. of Oral Argument, Jan. 17, 1992 at 4-5. This courtasked for case authority on that point. Tr. at 25. Plaintiff'sbrief failed to provide any such authority. Perhaps plaintiffwas confused by Illinois Supreme Court Rule 220 governingdisclosure of the identity of an expert hired to testify attrial, in contrast to disclosure of treating physicians.
G. Ruling on 703
Having exercised its duty mandated by Rule 703 to examine thebasis of expert opinion testimony and the reasoning processused, the court finds that Dr. Scheribel's opinion has noverifiable scientific basis and no verifiable scientificreasoning process.
The court further finds that Dr. Scheribel's opinion directlycontradicts consensus science. Aff. of Dr. Apple at ¶ 13 ("Dr.Scheribel is wrong as a matter of medical science to claim thathe, or anyone else, can tell that a certain posteriorsubcapsular cataract was caused by radiation just by looking atit."); Aff. of Dr. Silberstein at ¶ 18 ("There is no basis inmedicine for Dr. Scheribel's statement that he can tell aradiation induced cataract from any other cataract because ofits unique appearance."); Aff. of Dr. Cogan at ¶ 25 ("Dr.Scheribel's blanket assertion that any cataract with a cleararea "fore and aft" must necessarily be radiation induced iswrong as a matter of medical science."); Aff. of Dr. Casarettat ¶ 11 ("Dr. Scheribel's assertion that posterior subcapsularcataracts can be identified as definitely being due toradiation exposure if they have a clear area "fore and aft" ofthe cataract is wrong as a matter of medical science."); Aff.of Dr. Merriam at ¶¶ 23-26 ("Medical science simply cannot tellfrom looking at a cataractwhether or not it was caused by a prior radiation exposure.").Therefore, his opinion is more dangerous than an opinionlacking a verifiable scientific foundation. The court thereforefinds that Dr. Scheribel's opinion must be excluded under Rules703 and 403.
H. The Frye Test
Frye is not a rule but an evidentiary doctrine incorporatedinto Federal Rules of Evidence 702 and 703 by this Circuit thatis designed to test the reliability of scientific evidence. SeeUnited States v. Carmel, 801 F.2d 997, 998-99 (7th Cir. 1986)("This Circuit . . . has reaffirmed the Frye standardsubsequent to the passage of the Federal Rules of Evidence")(citing United States v. Tranowski, 659 F.2d 750, 754-57 (7thCir. 1981)). It has been applied by the courts of this Circuitin both criminal and civil cases. See, e.g., United States v.Carmel; Grove Fresh Dist., Inc. v. New England Apple Prods.Co., 1991 WL 169058 (No. 89C1115) (N.D.Ill., Aug. 27, 1991).Part and parcel of the law interpreting the Federal Rules ofEvidence, the Frye doctrine applies in all proceedings beforethe courts of this Circuit, both federal question anddiversity. See Fed.R.Evid. 101; C. Wright, A. Miller & E.Cooper, 19 Federal Practice and Procedure § 4512 ("If a Rule ofEvidence covers a disputed point of evidence, the Rule is to befollowed, even in diversity cases, and the state law ispertinent only if and to the extent the Rule makes it so.").
Plaintiff's contention that the direction of thePrice-Anderson Act to apply certain state law somehow changesthis is without merit. The Federal Rules of Evidence govern theadmissibility of an expert's testimony in the federal courts.See Richardson v. Richardson-Merrell, Inc., 857 F.2d 823, 825n. 9 (D.C. Cir. 1988), aff'd, 857 F.2d 823 (D.C.App.), cert.denied, 493 U.S. 882, 110 S.Ct. 218, 107 L.Ed.2d 171 (1989);Ealy v. Richardson-Merrell, Inc., 897 F.2d 1159, 1163 (D.C.Cir. 1990), cert. denied, ___ U.S. ___, 111 S.Ct. 370, 112L.Ed.2d 332 (1990). Hence, unless the Price-Anderson Act wasintended to supplant the Federal Rules of Evidence,admissibility of scientific evidence through opinion testimonywill be governed by those Rules, even if substantive rights areaffected. See, e.g., Bushman v. Halm, 798 F.2d 651, 660 n. 11(3rd Cir. 1986); c.f., In re Sugar Indus. Antitrust Litig., 73F.R.D. 322, 353 (E.D.Pa. 1976) (any modification of existingsubstantive rights which may be caused by application ofFed.R.Evid. 703 and 403 cannot be avoided because these rules"result from . . . congressional enactment . . . and not fromany exercise of the United States Supreme Court's power topromulgate rules of procedure.").
This case is subject to the Price-Anderson Act. O'Conner v.Commonwealth Edison Co., 748 F. Supp. 672, 673 (C.D.Ill. 1990);O'Conner v. Commonwealth Edison Co., 770 F. Supp. 448 (C.D.Ill.1991). Although that Act expressly reserves application ofstate substantive law, it does not limit the applicability ofthe Federal Rules of Evidence here. Nor does it limitapplication of federal case law interpreting those rules. Thus,the court finds that the Frye doctrine must be applied here.
Even the state courts of Illinois would apply Frye here. SeePeople v. Jordan, 103 Ill.2d 192, 82 Ill.Dec. 925, 932,469 N.E.2d 569, 576 (1984); People v. Ferguson, 172 Ill. App.3d 1,122 Ill.Dec. 266, 271-72, 526 N.E.2d 525, 530-31 (2nd Dist.1988). Illinois Supreme Court Rule 220(a)(1) provides inpertinent part:
An expert is a person who, because of education, training or experience, possesses knowledge of a specialized nature beyond that of the average person on a factual matter material to a claim or defense in pending litigation and who may be expected to render an opinion within his expertise at trial.
Rule 220(a)(1). The burden of establishing the expert'squalifications rests on the proponent of his testimony.Jordan, 103 Ill.2d 192, 82 Ill.Dec. at 932, 469 N.E.2d at 576;People v. Leahy, 168 Ill. App.3d 643, 119 Ill.Dec. 230, 234,522 N.E.2d 892, 896 (2nd Dist. 1988). The qualification of anexpert is within the sound discretion of the trial court.Harris v. Granite City, 8 Ill.Dec. 648, 52 Ill. App.3d 782,785, 365 N.E.2d 1034, 1037 (5th Dist. 1977); Graham, M.Cleary & Graham's Handbook of Illinois Evidence § 702.2 at494-95. Thus, under state law, as under the federal rules, anexpert must be qualified as an expert before giving expertopinion.
Further, the Illinois Supreme Court has adopted Federal Ruleof Evidence 703 and, by inference, decisional law of thisCircuit interpreting that rule. Wilson v. Clark, 84 Ill.2d 186,49 Ill.Dec. 308, 417 N.E.2d 1322, cert. denied, 454 U.S. 836,102 S.Ct. 140, 70 L.Ed.2d 117 (1981). Therefore, under stateevidence law, the Frye doctrine must be applied; an expert musthave a verifiable scientific basis for his opinion.Consequently, whether this court applies the Illinois Rules ofEvidence or the Federal Rules of Evidence, the same analysisand result will obtain: unless Dr. Scheribel's profferedopinion passes the scrutiny of Rule 703 and Frye, it is notadmissible.
Under Frye, the methodology and reasoning used by an expertto reach his conclusion must be generally accepted within therelevant scientific community. United States v. Smith,869 F.2d 348, 351 (7th Cir. 1989); Tranowski, 659 F.2d at 756;Christophersen, 939 F.2d at 1113; Frye, 293 F. at 1014; Mercadov. Ahmed, 756 F. Supp. 1097, 1102 (N.D.Ill. 1991). Plaintifferroneously argues that Frye does not apply to this casebecause it was "decided prior to the enactment of the Rule[sic] of Evidence" and because it is "absent from the advisorycommittee notes." Plaintiff's Brief at 10. However, thevitality of Frye is well established in the Seventh Circuit.See United States v. Smith, 869 F.2d 348, 351 (7th Cir. 1989);United States v. Carmel, 801 F.2d 997, 999 (7th Cir. 1986);Tranowski, 659 F.2d at 756. Moreover, none of the cases thatemploy the Frye analysis limit its application to "criminal"cases as suggested by plaintiff. Thus, plaintiff's attempt todistinguish Frye is without merit.
Although generally an expert's conclusion may be admissibleeven when it is controversial or unique, it is not admissiblewhen scientific truth has "so completely hardened as to preventlegitimate difference of true expert opinion in a particularconcrete field." Christophersen 939 F.2d at 1111, n. 8 (quotingOsborne v. Anchor Laboratories, Inc., 825 F.2d 908, 915 n. 10(5th Cir. 1987), cert. denied, 485 U.S. 1009, 108 S.Ct. 1476,99 L.Ed.2d 705 (1988)).
I. Ruling on Frye
Here, Dr. Scheribel's opinion is based on an underlyingerroneous opinion that radiation induced cataracts arepathognomonic. This "binding universal rule" is not accepted byscientists who specialize in the field of radiation inducedcataracts. Aff. of Dr. Apple at ¶ 13; Aff. of Dr. Silbersteinat ¶ 22; Aff. of Dr. Casarett at ¶ 11; Aff. of Dr. Cogan at ¶¶24-25; Aff. of Dr. Merriam at ¶¶ 22-26. Moreover, he has neverproved the reliability of his dogmatic assertion, never havingperformed (or even reviewed) any studies on the subject. Hisopinion is further flawed because he did not consider thenumerous variables that should have been considered indetermining cause. For example, he did not consider all of theother conditions10 in O'Conner's medical history that madeit more likely that his cataracts resulted from thoseconditions rather than the minute radiation exposure that therecord reflects he received, especially the fact thatO'Conner's father also developed posterior subcapsularcataracts at the age of 39.11
In Mid-State Fertilizer Co. v. Exchange Nat'l Bank,877 F.2d 1333 (7th Cir. 1989), plaintiff filed an affidavit by an expertthat had no reasoning for the conclusions it contained. Inaffirming the trial court's granting of summary judgment, theappellate court observed that a court should not rely on anexpert opinion that an expert "would not tolerate in hisprofessional life." Id. at 1339. See also Johnston, 597 F. Supp.at 410 (if expert's opinion was given to "anyone other than ajury or this court he would become an immediate laughingstock!"). The court stated that "Judges should not be buffaloedby unreasoned expert opinions," and concluded:
Ukase [an edict] in the guise of expertise is a plague in contemporary litigation. "The importance of safeguarding the integrity of the [judicial] process requires the trial [or appellate] judge, when he believes that an expert's testimony has fallen below professional standards, to say so, as many judges have done." [Citations omitted]. Professor Bryan cast aside his scholar's mantle and became a shill for [the plaintiff]; Judge Hart, by observing that the emperor had no clothes, protected the interests of the judicial system.
Mid-State Fertilizer Co., 877 F.2d at 1340. See also Johnston,597 F. Supp. at 411 (rejecting experts "because they have becomeadvocates for a cause and have therefore departed from theranks of objective expert witnesses"). Each expert in the fieldof radiation induced cataracts, including Dr. Apple, on whosework Dr. Scheribel claims to rely, has testified that Dr.Scheribel's reasoning and methodology are not accepted in thescientific community.
IV. EFFECT OF INADMISSIBILITY ON DUTY OWED
A. The Standard of Care Owed
As has been determined previously by this court, the standardof care that a public utility licensee owes to radiationworkers like O'Conner is to keep their radiation exposures fromexceeding the permissible dose limits that have beenestablished by the federal regulators. O'Conner v. CommonwealthEdison Company, 748 F. Supp. 672 (C.D.Ill. 1990). Dose is asubject requiring expert testimony because it is well beyondthe knowledge and expertise of any average person. The heart ofDr. Scheribel's testimony is that only radiation exposurereceived at Quad Cities could have caused plaintiff'scataracts. This opinion is inadmissible and medically invalid.Without it plaintiff has no expert opinion testimony or otheradmissible evidence from which a reasonable jury could eveninfer that O'Conner received a dose above the standards.
Plaintiff's allegation that, at times, doses were misrecordedis insufficient to supply the necessary exposure testimonybecause it is not expert testimony, it is not specific to hisdose on the night of the alleged incident (October 3, 1983),and it does not establish that his dose exceeded the federalpermissible dose limits. It remains only an allegation that isinsufficient to forestall summary judgment under Rule 56(e).Nor does the testimony of Jessie Wilson supply what is missinghere: admissible expert opinion testimony that plaintiff's doseexceeded the federal permissible dose limits. Mr. Wilson'stestimony is only that on one occasion in 1981, two yearsbefore the alleged incident, at a time when O'Conner was noteven employed at Quad Cities, a technician made a mistake inrecording Mr. Wilson's daily SRPD reading and promptly changedit when Mr. Wilson called it to his attention. Mr. Wilson'sDep. at 65. This isolated incident is insufficient, taken aloneor together with the rest of plaintiff's evidence in therecord, to give rise to a reasonable inference that theradiation dose he received at Quad Cities exceeded the federalpermissible dose limits.
Although on the surface Dr. Scheribel's opinion at issue hereseems to be a causation opinion, it is also a medical opinionwhich serves, if admissible, as the only basis upon which theplaintiff can argue an inference of breach of the duty owed.Since it is not admissible under Rule 702, Rule 703 orFrye, if plaintiff is unable to offer any other expert opiniontestimony that his dose exceeded the 12 rem per year(or 3 rem per calendar quarter) permissible dose limits,summary judgment must be granted to the defendants on the dutyowed issue. Of course, Dr. Scheribel is not an expert ondosimetry and therefore, is not qualified to give any opinionon dose and, as shown above, his erroneous "binding universalrule" is not binding, is not universal, is not a rule, and isnot admissible.
B. The Other Evidence Plaintiff Offers
O'Conner has not been able to offer any testimony by aqualified witness that his dose exceeded the permissible doselimits. Plaintiff's only dose expert is Dr. Martin Welt.Counsel for plaintiff took Dr. Welt's Evidence Deposition onMarch 17, 1989 because Dr. Welt was scheduled to beincarcerated in a federal prison at the time this case wasoriginally scheduled for trial. Dr. Welt's Dep. at 176-77. Dr.Welt admitted at that deposition that he had been convicted infederal court of (1) participating in a conspiracy to defraudthe United States, and to lie to the NRC; (2) causing a foodirradiation plant to be operated by defeated safety interlocks;(3) causing others to lie to the NRC; (4) lying to NRCinvestigators; and (5) preparing a false, backdated document.Dr. Welt's Dep. at 173-76. Dr. Welt testified that it is"highly unlikely" that O'Conner received the dose herepresented to his doctors, that the maximum dose he could havereceived was only 50% more than the dosimeters recorded, andthat there was no violation of the standard of care here:
Q. You indicated in your direct examination, that you agreed that it's highly unlikely that Mr. O'Conner got the 300 or 400 rads of exposure that he told his doctors that he received.
A. That is correct.
Dr. Welt's Dep. at 47.
Q. On July 5th 1988 you wrote a letter to Mr. Janssen which contained your opinion on the dose which Mr. O'Conner received. Isn't that correct?
Q. And in that area you indicated that this dose was as recorded by the measuring devices plus 50%, correct?
A. Right. I said that would be the maximum of the limit.
Q. Do you stand by that?
Dr. Welt's Dep. at 55-56.
Q. Do you believe that the radiation safety officer violated the standard of care by allowing Mr. O'Conner to receive the 45 millirem dose [.045 rem] recorded by his self-reading pocket dosimeter?
Dr. Welt's Dep. at 49.
The limits of Dr. Welt's opinion are clear. Even if O'Connerreceived 50% more than his dosimeters actually measured, hisdose would not exceed 3 rem per calendar quarter or 12 rem peryear. Dr. Welt's opinion does not get O'Conner past the dutyowed. No reasonable jury could conclude on this evidence thatthe plaintiff has proven a violation of the duty owed.
C. Conclusion on Duty Owed
After seven years of extensive litigation, plaintiff has beenunable to offer any admissible evidence upon which a reasonablejury could conclude that the dose of radiation which hereceived at Quad Cities was sufficient to have violated theduty owed. Indeed, the only reasonable conclusion which a jurycould reach upon the evidence presented in this case is thathis dose of radiation was well within the duty owed. Sinceplaintiff, after adequate time for discovery, has failed tomake a showing sufficient to establish the existence of anelement (breach of duty owed) essential to his case, Rule 56(c)mandates the entry of summary judgment. Celotex Corp. v.Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d265 (1986).
V. EFFECT OF INADMISSIBILITY ON CAUSATION
A. The Standard
To prove causation, plaintiff must introduce expert testimonyto a reasonable degree of medical certainty that his allegedinjuries were caused by his radiation exposure.Warner/Elektra/Atlantic Corp. v. County of DuPage, 762 F. Supp. 784,788 (N.D.Ill. 1991); McCord-Shell v. Volkswagen ofAmerica, Inc., 736 F. Supp. 172, 173-74 (N.D.Ill. 1990).
B. The Other Evidence Plaintiff Offers
No other medical witnesses offered by the plaintiff havetestified based on an adequate factual or scientific foundationwith a reasonable degree of medical certainty that O'Conner'scataracts were caused by radiation. During the course of thiscase, plaintiff has consulted with and has been evaluated by atleast four other ophthalmologists, Drs. William Bond, RobertReardon, John Nelson and Clarence Ward. Consistent withconsensus science, each of these four physicians testified inagreement with defendants' experts that radiation inducedcataracts are not pathognomonic but rather, only arecharacteristic.
No other medical witnesses offered by the plaintiff havetestified with a reasonable degree of medical certainty thatO'Conner received any other physical injury as a result of hisradiation exposure. However, in addition to alleging thatradiation exposure caused his cataracts, plaintiff alleged, butfailed to substantiate with expert testimony, that theradiation exposure caused his bones to have contractions; agroin rash; difficulty staying awake; diarrhea for over oneyear; "borderline leukemia;" difficulty breathing; hisfingernails to become powdery and break off; his hair to fallout; and elevated triglyceride levels. O'Conner's Dep. at 50,53, 55; Plaintiff's Pre-trial Memorandum at 6. His physician,Dr. Bullock has testified that:
There were no clinical tests that I made that showed abnormalities.
Dr. Bullock's Dep. at 36.
Q. So your impression . . . is based only upon what he told you and what he reported in the history to you?
Dr. Bullock's Dep. at 35-36. Dr. Ichtertz has testified:
Q. With regard to Mr. O'Conner's pulmonary complaints . . . are you treating other patients with those same symptoms who have not been exposed to radiation?
A. Sure. Many of them. It's common symptoms.
Q. And based on what Mr. O'Conner told you . . . it was because of that that you attributed his pulmonary complaints and problems to radiation exposure, isn't that true?
A. That's correct.
Dr. Ichtertz's Dep. at 24-25. Dr. LeGrand has testified:
A. . . . I must admit to be fair to say that I was not able to determine by my examination on a consistent basis any clinical evidence of significant either acute or chronic changes one might see with radiation exposure.
Dr. LeGrand's Dep. at 21.
A. I was never able to find any significant evidence of bronchial spasm . . . He had indicated to me that at times he was breathless, but he admitted that he was relatively sedentary . . .
Dr. LeGrand's Dep. at 13.
Without question, the most thorough and skilled medicalexamination that was performed on O'Conner in an attempt todetect any possible physical effects of his alleged "radiationoverexposure" was the complete work-up performed by Dr. EdwardB. Silberstein at the E.L. Saenger Radioisotope Laboratory. Dr.Silberstein concluded:
While the sensitivity of presently existing biological testing cannot eliminate the possibility that Mr. O'Conner was exposed to a dose below 25 rem, there is no medical evidence to suggest that he received a dose greater than the dose recorded by his film badge . . . His own blood proves that he did not get a dose of 400 rem as he claims. The dose which he did receive had no visible biological effect upon him which medical testing could demonstrate.
Aff. of Dr. Silberstein at ¶ 23. Plaintiff has failed toprovide any evidence of any adverse medical effect from hisexposure to occupational levels of radiation below the federalpermissible dose limits. No reasonable jury could concludeotherwise.
C. Conclusion on Causation
After seven years of extensive litigation and numerousmedical examinations, plaintiff has been unable to make asufficient showing to establish the existence of an element(causation) essential to his case. The only reasonableconclusion a jury would come to is that his dose was about 4444times too small to have caused his cataracts. Consequently, oncausation, as well as on duty owed, entry of summary judgmentis mandated for the defendants. Celotex Corp. v. Catrett,477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).
In sum, the court GRANTS the defendants' Motion to Excludethe indicated portions of Dr. Scheribel's testimony and alsoGRANTS the defendants' Motion for Summary Judgment on the basisthat the evidence then remaining in this case is insufficientto establish the existence of elements (breach of duty andcausation) essential to plaintiff's case and upon whichplaintiff will bear the burden of proof at trial. Celotex Corp.v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d265 (1986).
The Clerk is directed to enter judgment for the defendantsand against plaintiff on all claims.
1. Specifically, Mr. O'Conner worked on the following dates:September 14, 15, 16, 17, 19, 20, 22, 23, 24, 26, 27, 28, 29,30, and October 1, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15,17, 18, 19, and 20.
2. Aff. of Dr. Apple at ¶ 5. Dr. David Apple is Professorand Chairman of the Department of Ophthalmology at the MedicalUniversity of South Carolina. He is also the author of theauthoritative textbook entitled Ocular Pathology (4th ed.1991). This is the Dr. Apple upon whom plaintiff's expertclaims to rely. A review of the other sources cited by Dr.Scheribel in his affidavit reveal that they also cite thesepioneers in researching radiation induced cataracts as theleading experts in this field. Thus, even plaintiff's ownexpert must agree with this characterization.
3. The United Nations Committee on the Effects of AtomicRadiation (UNSCEAR) was established by the United NationsGeneral Assembly in 1955. The committee is made of eminentexperts in the field of radiation from the internationalscientific community. It periodically issues Reports thatsummarize the main conclusions of all of the world's publishedscientific literature in the field. UNSCEAR, 1982 at 5. Thesereports of consensus science can be used to measure thevalidity of the claims of the litigants.
4. The International Commission on Radiological Protectionwas founded in 1928, and since 1950 has been providing generalguidance on the widespread use of radiation sources. ICRPPublication 41: Nonstochastic Effects of Ionizing Radiation(1984). The ICRP is comprised of eminent internationalscientists who review the world's literature on issues relatedto the health effects of radiation and periodically publishreports containing reliable consensus science statements inthis field. These reports can be used by a court to evaluate anexpert's claims.
5. The National Council on Radiation Protection andMeasurements ("NCRP") is a nonprofit corporation that waschartered by the United States Congress in 1964 to collect,analyze and disseminate information and recommendations onradiation protection and measurements and to provide a meansfor organizations that are concerned with the scientificaspects of radiation protection to cooperate in sharinginformation in the field. The Council is made up of experts whohave detailed knowledge and competence in the particular areaof the eighty-two scientific committees of the Council. NCRPReport Number 39: Basic Radiation Protection Criteria Report(1971). It publishes reliable consensus science reports in thisfield. These reports can be helpful to a court in assessing thevarious claims made by litigants and their experts.
6. The National Academy of Sciences was established byPresident Abraham Lincoln in 1863 to provide the federalgovernment with the advice of the best scientific minds in thiscountry. It has a committee specifically dedicated to thehealth effects of ionizing radiation that issues periodicreports containing the most recent knowledge in this field. Themost recent report is "Health Effects of Exposure to Low Levelsof Ionizing Radiation: 1990 ("BEIR V"). This publication iscommonly known as BEIR V because it is the fifth report of theBiological Effects of Ionizing Radiation (BEIR) Committee ofthe National Academy of Sciences. As Judge Kelly stated inJohnston v. United States, 597 F. Supp. 374 (D.Kan. 1984) of theBEIR Committee and BEIR V's predecessor, BEIR III:
The Court has drawn from the findings of a collection of studies known as the BEIR Committee for the purpose of definitions and indeed for much of what is ultimately concluded by the Court as reasonably probable . . . The Committee personnel read as a `Who's Who' from pertinent disciplines. The document, BEIR III . . ., is the result of a massive study. The Court finds the findings of the study to be entirely persuasive and relevant in these cases. 597 F. Supp. at 383-84. The BEIR Reports are reliable authorities containing the distilled advice of scientists who have reviewed all of the eminent scientific literature in this field. It provides a yardstick by which a court can measure the validity of the various expert opinions offered by litigants.
7. Illinois state law is in accord. See Broussard v. HuffmanMfg. Co., 108 Ill. App.3d 356, 63 Ill.Dec. 854, 858,438 N.E.2d 1217, 1221 (1982) (expert's testimony must be on questionscoming within his field of training or expertise); See e.g.,People v. Huddleston, 176 Ill. App.3d 18, 125 Ill.Dec. 606,615, 530 N.E.2d 1015, 1024 (1988) ("the degree and manner ofknowledge and experience that is required of the alleged expertis directly related to the complexity of the subject and thecorresponding likelihood of error by one insufficientlyfamiliar therewith").
8. Illinois state law is in agreement. See Harris v. GraniteCity, 52 Ill. App.3d 782, 8 Ill.Dec. 648, 651, 365 N.E.2d 1034,1037 (1977) ("A witness is not qualified as an expert merelybecause he is employed in a certain capacity or engaged in aparticular occupation. Mere observation . . . is not enoughunless . . . he has some experience, or made some study of thetype of problem involved."); Baty v. Baty, 83 Ill. App.3d 113,38 Ill.Dec. 516, 518, 403 N.E.2d 747, 749 (1980) (the test ofcompetency of an expert is whether the expert disclosessufficient knowledge of the subject matter).
9. A copy of the most recent request is a letter datedJanuary 31, 1992 from Mr. Jose to Ms. Maher.
10. Many conditions can cause posterior subcapsularcataracts. Among the many conditions that can cause them (andthat are applicable to Mr. O'Conner) are congenital andhereditary factors, eye trauma, cortisone, prednisone, obesity,drugs prescribed for hypertension, sunlight, galactosemia,prolonged use of eye drops, chronic diarrhea and elevatedtriglyceride levels. Aff. of Dr. Apple at ¶ 12; Aff. of Dr.Merriam at ¶¶ 19; Dr. Bond's Dep. at 17; Dr. Nelson's Dep. at23, 29, 32, 47; Dr. Ward's Dep. at 15-16, 18-19, 21-22, 29-30;Dr. Reardon's Dep. at 19-21.
11. See Aff. of Dr. McGrath attached to Supplement toDefendants' Reply to Plaintiff's Motion in Limine to ExcludeEvidence or Reference to Dr. Philip McGrath or Plaintiff'sFather's Eye Condition; Dr. O'Brian's Dep. at 52-53; Aff. ofDr. Cogan at ¶ 21; Aff. of Dr. Merriam at ¶ 17. Having arelative who develops cataracts at such a young age greatlyincreases the likelihood of developing early cataracts. Aff. ofDr. Cogan at ¶ 23; Aff. of Dr. Merriam at ¶ 20; Dr. Bond's Dep.at 17. Yet, Mr. O'Conner did not reveal this very significantfact to Dr. Scheribel who then failed to consider such animportant predisposing factor before concluding that onlyradiation could have caused Mr. O'Conner's cataracts. Dr.Scheribel's Discovery Dep. at 23.