Segal McCambridge Attorneys Succeed in Barring Plaintiff's Expert in Indiana "Mixed Dust" Litigation


March 17, 2010

After a lengthy hearing, on March 12, Judge Theodore Sosin excluded plaintiff's expert, Dr. Stephen Newman's opinions finding that the plaintiffs did not demonstrate that Dr. Newman employed a reliable methodology in reaching his opinions and conclusions and as a result Dr. Newman failed to satisfy the requirements for admissibility of expert opinions set forth in Indiana Rules of Evidence 702 and 703.

The complaints in these cases were originally filed in 2003. On March 26, 2008, the plaintiffs filed a posting of medical documentation used to support their claims.

In November of 2008, the defendants filed a motion for summary judgment and a motion to strike and motion to exclude from each case two portions of plaintiffs' medical documentation: material from Respiratory Testing Services ["RTS"] and a January 2008 report and opinions authored by Dr. Newman.

In their March 2009, response to the defendants' motion to strike and motion for summary judgment, the plaintiffs agreed the radiographic evidence used by Dr. Newman was inadmissible and had no objection to the motion to strike the RTS material. The Newman January 2008 materials and the RTS material were ordered stricken by the court. Plaintiffs then attached as exhibits to this same summary judgment and motion to strike response, a December 2008 B-read report and letter authored by Dr Newman concerning each defendant. Plaintiffs filed a summary judgment sur-response on April 23, 2009, and attached an affidavit of Dr. Frank and a collection of medical records.

The Dr. Newman letters of December 2008 and the Dr. Frank affidavits of April 2009 are the proposed evidentiary submissions which are the subject of this Motion to Strike and to Exclude. On January 14 and 15, 2010, this court conducted a hearing pursuant to Ind. R. Evid. 702 to determine whether the expert opinions of Dr. Newman and Dr. Frank proffered by the plaintiffs are based upon reliable scientific methods and principles. The only witness who testified at the Rule 702 hearing was Dr. Gary Friedman, who was called first by the plaintiffs and then by the defendants. Neither Dr. Newman nor Dr. Frank testified at the Rule 702 hearing. On January 28, 2010, this court heard argument with regard to these questions. During the hearing, plaintiffs' attorney conceded that Dr. Frank's affidavit was not timely filed. Dr. Frank's affidavit was stricken without objection. The remaining subject of the defendants' Motion to Strike was Dr. Newman's December 2008, letters and reports.

Judge Sosin found that the plaintiffs had not established the admissibility of the proposed evidence (Dr. Nerwman's reports and opinions) by a preponderance of the evidence. Specifically, the court said, "It is clear that Dr. Newman's methodology does not conform to the generally accepted standards or criteria. ... Dr. Newman's opinions in these cases, including his interpretations of these Plaintiffs' x-rays, are not based upon reliable scientific methodology or principles or generally accepted medical criteria or standards and are scientifically unreliable." Therefore, Dr. Newman's opinions and conclusions are unreliable and inadmissible under Indiana Rules of Evidence 702 and 703.

Segal McCambridge represented A.W. Chesterton, Garlock Sealing Technologies, LLC, Foster Wheeler, and Weil-McLain in these cases.  To read Judge Sosin's order, click here.