                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-21-1996

Holbrook v. Lykes Bros Steamship
Precedential or Non-Precedential:

Docket 94-2148




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Recommended Citation
"Holbrook v. Lykes Bros Steamship" (1996). 1996 Decisions. Paper 220.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/220


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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT


                          No. 94-2148


       GRACE A. HOLBROOK, Administratrix of the Estate of
                        JOHN P. HOLBROOK

                               V.

 LYKES BROS. STEAMSHIP CO., INC.; MARINE TRANSPORT LINES INC.;
    PUERTO RICO MARINE MGMT., INC.; SEA-LAND SERVICE, INC.;
                   SECOND SHIPMOR ASSOCIATES

                               V.

   THE BABCOCK & WILCOX COMPANY; COMBUSTION ENGINEERING, INC.;
  FOSTER-WHEELER ENERGY CORPORATION; THE GENERAL ELECTRIC CO.;
KEENE CORPORATION, Independently and as Successor in Interest to
 Ehret Magnesia Manufacturing Company, Baldwin-Hill Company and
    Baldwin-Ehret-Hill, Inc.; OWENS-CORNING FIBERGLAS CORP.;
     PITTSBURGH CORNING CORPORATION; ANCHOR PACKING COMPANY;
  AC&S, INC.; FLEXITALLIC GASKET COMPANY, INC.; GARLOCK, INC.;
OWENS-ILLINOIS GLASS COMPANY; ARMSTRONG WORLD INDUSTRIES, INC.;
HOPEMAN BROTHERS, INC.; SHOOK & FLETCHER; NATIONAL GYPSUM CORP.;
                        GAF CORPORATION,
                                  Third Party Defendants

                  (D.C. Civil No. 92-cv-01906)


           GRACE A. HOLBROOK, Administratrix for the
                   Estate of JOHN P. HOLBROOK

                               V.

ACANDS, INC.; AMERICAN ASBESTOS PRODUCTS CO.; ANCHOR PACKING CO.;
   A.P. GREEN REFRACTORIES COMPANY; ARMSTRONG WORLD INDUSTRIES,
INC.; ASARCO; ASBESTOSPRAY CORPORATION; ASBESTOS TEXTILE COMPANY;
 B.F. GOODRICH CO.; CAROLINE ASBESTOS COMPANY; CERTAINTEED CORP.;
  COLTS PATENT FIREARMS MFG. CO.; COMBUSTION ENGINEERING, INC.;
    JOHN CRANE-HOUDAILLE, INC.; DAR INDUSTRIAL PRODUCTS, INC.;
     FIBREBOARD CORPORATION; FLEXITALLIC, INC.; FOSTER WHEELER
  COMPANY; GAF CORPORATION; GARLOCK, INC.; GATKE CORP.; GENERAL
 ELECTRIC CO.; GENERAL INSULATING AND MFG. CO.; GOODYEAR TIRE AND
    RUBBER COMPANY; IMO DELAVAL, INC.; KAISER CEMENT & GYPSUM;
  KEENE CORPORATION; NATIONAL MANUFACTURING SALES; OWENS-CORNING
   FIBERGLAS CORP.; OWENS-ILLINOIS, INC.; PHILADELPHIA ASBESTOS
    COMPANY; PPG INDUSTRIES; PABCO PRODUCTS; PITTSBURGH CORNING


                               1
  CORPORATION; TURNER & NEWALL PLC.; UNION CARBIDE CHEMICALS &
 PLASTICS CO., INC.; U.S. GYPSUM COMPANY; U.S. RUBBER COMPANY;
WESTINGHOUSE ELECTRIC CORP.; ACMC, f/k/a NATIONAL GYPSUM COMPANY
               (E.D. of PA Civil No. 92-cv-01951)

               GRACE HOLBROOK, Administratrix for the
                     Estate of JOHN P. HOLBROOK,
                                              Appellant


         ON APPEAL FROM THE UNITED STATES DISTRICT COURT
            FOR THE EASTERN DISTRICT OF PENNSYLVANIA
               (D.C. Civil Action No. 92-cv-01906)


                     Argued September 11, 1995

     Before:    MANSMANN, SCIRICA and NYGAARD, Circuit Judges

                   (Opinion Filed March 21, l996)

LEONARD C. JAQUES, ESQUIRE
DONALD A. KRISPIN, ESQUIRE
MICHAEL CONNOR, ESQUIRE (Argued)
Jaques Admiralty Law Firm
1370 Penobscot Building
Detroit, MI 48226
Attorneys for Appellant

FAUSTINO MATTIONI, ESQUIRE
Mattioni, Mattioni & Mattioni
399 Market Street, 2nd Floor
Philadelphia, PA 19106
Attorney for Appellee Lykes Bros.

ROBERT B. LAWLER, ESQUIRE
MARY COOK, ESQUIRE
Wilbraham, Lawler & Buba
601 Walnut Street
The Curtis Center
Suite 450 West
Philadelphia, PA 19106
Attorney for:
Puerto Rico Marine; Sea-Land;
Second Shipmor; Acands;
A.P. Green; Armstrong World;
John Crane Houdaille; Flexitallic;
GAF; Garlock; Imo Delaval;
National Gypsum; Turner Newall; Union Carbide;
US Gypsum; Westinghouse; Combustion Engineering;
Foster-Wheeler; Owens-Corning; Shook & Fletcher.


                                 2
RICHARD C. BINZLEY, ESQUIRE
HAROLD W. HENDERSON
Thompson, Hine & Flory
629 Euclid Avenue
1100 National City Bank Building
Cleveland, OH 44114
Attorneys for Appellees:
Puerto Rico Marine; Sea-Land;
Second Shipmor.

ALEXANDER EWING, JR., ESQUIRE
Gollatz, Griffin, Ewing & McCarthy
205 North Monroe Street
P.O. Box 1430
Media, PA 19063
Attorney for Appellee Acands

WESLEY R. PAYNE, IV, ESQUIRE
Law Office of Joseph P. Sullivan
100 Penn Square East
Suyite 1050, The Wanamaker Building
Philadelphia, PA 19102
Attorney for Appellee Houdaille

JOHN A. TURLIK, ESQUIRE
Goldfein & Joseph
111 South 15th Street
Packard Building, 17th Floor
Philadelphia, PA 19102
Attorney for Appellee Garlock

REEDER R. FOX, ESQUIRE
Duane, Morris & Heckscher
4200 One Liberty Place
Philadelphia, PA 19103-7396
Attorney for Appellee Imo Delaval

ERIC J. KADISH, ESQUIRE
McCarter & English
1810 Chapel Avenue West
The Commerce Center
Cherry Hill, NJ 08002
Attorney for Appellee Owens-Illinois

STEVEN T. JOHNSON, ESQUIRE (Argued)
Johnson & Garvin
705 Second Avenue
610 Hoge Building
Seattle, WA 98104
Attorney for Appellee Owens Illinois


                                3
WILLIAM A. JONES, ESQUIRE
Sherr, Joffe & Zuckerman
200 Four Falls Corporate Center
P.O. Box 800, Suite 400
West Conshohocken, PA 19428-0800
Attorney for Appellee Westinghouse

JOHN P. McSHEA, III, ESQUIRE
Eckert, Seamans, Cherin & Mellott
1700 Market Street Suite 3232
Philadelphia, PA 19103
Attorney for Appellee Westinghouse

WILLIAM R. HOURICAN, ESQUIRE
Manta & Welge
2005 Market Street
One Commerce Square, 37th Floor
Philadelphia, PA 19103
Attorney for Appellee PPG Industries

JOHN L. DELANY, III, ESQUIRE
Delany & O'Brien
330 Market Street Suite 300
Philadelphia, PA 19106
Attorney for Appellee Combustion Engineering

JOSEPH M. O'NEILL, ESQUIRE
Marks, O'Neill, Reilly & O'Brien
1880 JFK Boulevard Suite 1200
Philadelphia, PA 19103
Attorney for Appellee Foster-Wheeler

E. MICHAEL KEATING, III, ESQUIRE
Clark, Ladner, Fortenbaugh & Young
2005 Market Street
One Commerce Square, 22nd Floor
Philadelphia, PA 19103
Attorney for Appellee General Electric

ROBERT N. SPINELLI, ESQUIRE
Kelley, Jasons, McGuire & Spinelli
1234 Market Street Suite 1300
Philadelphia, PA 19107
Attorney for Appellee Owens-Corning

ANDREW J. TREVELISE, ESQUIRE
MARILYN HEFFLEY, ESQUIRE
Reed, Smith, Shaw & McClay
1650 Market Street
2500 One Liberty Place


                               4
Philadelphia, PA 19103-7301
Attorney for Appellees:
Pittsburgh Corning; Fibreboard

LESLIE A. MILLER, ESQUIRE
Goldfein & Joseph
111 South 15th Street
Packard Building, 17th Floor
Philadelphia, PA 19102
Attorney for Anchor Packing

WILLIAM G. SCARBOROUGH, ESQUIRE
Stradley, Ronon, Stevens & Young
2600 One Commerce Square
Philadelphia, PA 19103
Attorney for Appellee Hopeman Bros.




                         OPINION OF THE COURT




NYGAARD, Circuit Judge
     John Holbrook sued several shipping companies and

manufacturers and suppliers of asbestos products, alleging that

he developed mesothelioma from exposure to asbestos-containing

products while working aboard the shipping companies' vessels.

John Holbrook died in October of 1993, and his widow, Grace

Holbrook, administratrix of his estate, was substituted as

plaintiff.   The jury found for defendants on liability.   Holbrook

now challenges several evidentiary rulings by the district court,

including the court's rulings:    1) excluding testimony from the

decedent's treating physician on his diagnosis of mesothelioma;

2) excluding testimony from a pulmonologist eliminating radiation

as a cause of John Holbrook's mesothelioma; 3) allowing testimony



                                  5
by two defense experts on radiation exposure as a cause; and,     4)

redacting references to mesothelioma contained in various

documents.   Holbrook argues that the trial judge's conduct was

unfair and requests a new trial before a different judge.    We

conclude that the court's conduct did not prevent a fair trial,

but that the court committed reversible error by excluding

testimony from appellant's experts.     We will reverse and remand

the cause for a new trial.

                                 I.

     Holbrook served as a merchant seaman aboard the shipping

companies' vessels from 1953 to 1991.    He also served aboard ship

in the South Pacific for seven months in 1962 during a government

nuclear testing operation called "Dominic I."    At trial, Holbrook

sought to prove that John Holbrook died from mesothelioma as a

result of asbestos exposure aboard the shipping vessels.    The

defendants contended that the exposure to asbestos, if any, was

minimal and could not have caused mesothelioma, and that if John

Holbrook suffered from mesothelioma, it resulted from radiation

exposure during Dominic I.   Both sides contested the

admissibility of various experts' testimony.

     The district court excluded certain testimony by Dr.

Carpenter, Holbrook's treating physician, and by Dr. Altschuler,

a board-certified physician in internal and pulmonary medicine.

The court felt that they lacked the requisite specialization to

testify as to certain matters.   It based its ruling, in part, on

its conclusion that mesothelioma and its cause is difficult to




                                 6
diagnose, and that only a few types of medical specialists would

qualify to give expert opinion testimony about it.

                                 A.

       The Federal Rules of Evidence embody a "strong and

undeniable preference for admitting any evidence having some

potential for assisting the trier of fact."    DeLuca v. Merrell

Dow Pharmaceutical, Inc., 911 F.2d 941, 956 (3d Cir. 1990). "Rule

702, which governs the admissibility of expert testimony,

specifically embraces this policy," United States v. Velasquez,

64 F.3d 844, 849 (3d Cir. 1995), and has a liberal policy of

admissibility.   In re Paoli R.R. Yard Litigation ("Paoli II"), 35

F.3d 717, 741 (3d Cir. 1994).    Together, Rules 702 and 104(a)

instruct the district court in determining the admissibility of

expert testimony. Rule 702 provides:
     If scientific, technical, or other specialized
     knowledge will assist the trier of fact to understand
     the evidence or to determine a fact in issue, a witness
     qualified as an expert by knowledge, skill, experience,
     training, or education, may testify thereto in the form
     of an opinion or otherwise.

Under Rule 104(a), the district court makes preliminary

determinations whether the proposed expert witness is qualified

and whether the testimony to be given is admissible under Rule

702.   See Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.

Ct. 2786, 2796 (1993).    This preliminary task ensures that the

testimony meets a minimum threshold of reliability and relevance.

Id. at 2795; Velasquez, 64 F.3d at 829.

       Under Rule 702, (1) the proffered witness must be an expert;

(2) testify about matters requiring scientific, technical or



                                 7
specialized knowledge; and (3) the expert's testimony must assist

the trier of fact.   Paoli II, 35 F.3d at 741-42.    Holbrook's

first allegation of error, the court's ruling excluding testimony

by her experts, concerns the first requirement.     The issue of the

admissibility of the defense experts' testimony, discussed in

section III, infra, involves the other two requirements.
                        B. Dr. Carpenter

          The first requirement of Rule 702 -- that the
     proposed witness be an expert -- has been liberally
     construed by this Court. Paoli II, 35 F.3d at 741. "We
     have held that a broad range of knowledge, skills, and
     training qualify an expert as such," and have "eschewed
     imposing overly rigorous requirements of expertise."
     Id.; see also Hammond v. International Harvester Co.,
     691 F.2d 646, 653 (3d Cir. 1982)(permitting engineer
     with sales experience in automotive and agricultural
     equipment, who also taught high school automobile
     repair, to testify in products liability action
     involving tractors).

Velasquez, 64 F.3d at 849.
     Dr. Carpenter, John Holbrook's treating physician,

specializes in internal medicine.   At trial, Dr. Carpenter

described the medical procedures undertaken to diagnose and treat

John Holbrook.   In great detail, he described the treatment,
including his injection of the chemotherapeutic agent

fluorouracil into his patient's chest cavity.     During Carpenter's

direct examination, when the subject turned to whether he

designed the treatment for a specific malignancy, the court

interrupted and stated:
     He gave the treatment that he gave. This witness has
     not been qualified and he will not be permitted to give
     an opinion to a reasonable degree of medical certainty
     as to whether or not the cancer was mesothelioma.




                                8
     The court prevented the treating physician from testifying:

(1) that he made a diagnosis for which he treated Mr. Holbrook;

(2) that his diagnosis was mesothelioma; (3) as to his

preliminary impression of the decedent; (4) as to the diagnosis

in the pathology report analyzing a tissue sample of Holbrook's

lungs, a report which Dr. Carpenter requested and on which he

relied in treating his patient; and (5) as to the decedent's

symptoms.    The court excluded this testimony because Dr.

Carpenter was not an oncologist or a specialist in what the court

inexplicably termed "definitive cancer diagnosis."    Referring to

Dr. Carpenter's reliance on the pathology report, the court

interjected that Dr. Carpenter did not make his own diagnosis,

despite the fact that Dr. Carpenter testified that he did exactly

that.

     Dr. Carpenter testified that he routinely relies on

pathology reports to assist him in treating his patients, because

pathologists have more experience examining and diagnosing tissue

specimens.    Specifically, Dr. Carpenter relied on the pathology

report he had ordered to confirm his clinical impression and

diagnosis of John Holbrook.    Dr. Carpenter's reliance on the

pathology report to confirm his diagnosis does not reflect

negatively on his qualifications or ability to diagnose his

patient; to the contrary, it reflects routine procedure in

medical treatment, as recognized by Rule 703.

     Because of our liberal approach to admitting expert

testimony, most arguments about an expert's qualifications relate

more to the weight to be given the expert's testimony, than to


                                 9
its admissibility.   Thus, witnesses may be competent to testify

as experts even though they may not, in the court's eyes, be the

"best" qualified.    Who is "best" qualified is a matter of weight

upon which reasonable jurors may disagree.

     In Paoli II, we reversed the district court's finding that a

witness was not qualified because we found that the doctor,

"while arguably a relatively poor clinician and less than fully

credible witness, qualifie[d] as an expert." 35 F.3d at 753.

Similarly, in re Paoli R.R. Yard PCB Litigation ("Paoli I"), 916

F.2d 829 (3d Cir. 1990), we stated that:
     insistence on a certain kind of degree or background is
     inconsistent with our jurisprudence in this area. The
     language of Rule 702 and the accompanying advisory
     notes make it clear that various kinds of "knowledge
     skill, experience, training or education," Fed. R.
     Evid. 702, qualify an expert as such.

Id. at 855.   Following this logic, it is an abuse of discretion

to exclude testimony simply because the trial court does not deem

the proposed expert to be the best qualified or because the

proposed expert does not have the specialization that the court

considers most appropriate.    Id. at 856.

     The court's mistaken approach restricted Dr. Carpenter's

testimony based on a requirement that the witness practice a

particular specialty to testify concerning certain matters.     In

light of our liberal standard governing the qualifications of a

proffered expert witness, and our acceptance of more general

qualifications, we hold that the district court erred by finding

that Dr. Carpenter was not qualified to render a diagnosis or to




                                 10
discuss the pathology report because he was not a pathologist,

oncologist or expert in "definitive cancer diagnosis."1

     The Notes of the Advisory Committee on Rule 703, the

corollary to Rule 702, refer to, inter alia, reliance on reports

of others, and further illustrate the trial court's error.    The

Notes provide:
     a physician in his own practice bases his diagnosis on
     information from numerous sources and of considerable
     variety, including statements by patients and
     relatives, reports and opinions from nurses,
     technicians and other doctors, hospital records, and X
     rays. Most of them are admissible in evidence, but
     only with the expenditure of substantial time in
     producing and examining various authenticating
     witnesses. The physician makes life-and-death
     decisions in reliance upon them. His validation,
     expertly performed and subject to cross-examination,
     ought to suffice for judicial purposes.

     The Federal Rules of Evidence are meant to instruct the

district courts in the sound exercise of their discretion in

making admissibility determinations and should not be interpreted

as exclusionary rules.   It would be inconsistent and run counter

to the Rules' liberal policy of admissibility to allow an outside


1
Federal Rule of Evidence 102 provides that:

     These rules shall be construed to secure fairness in
     administration, elimination of unjustifiable expense
     and delay, and promotion of growth and development of
     the law of evidence to the end that the truth may be
     ascertained and proceedings justly determined.

Our approach to expert qualifications comports with the liberal
policy of admissibility embodied in the rules and with the
mandate of Rule 102. The district court's approach, however,
would unjustly increase litigation costs by requiring litigants
in countless cases to hire a host of experts out of fear that
their treating physicians, in whom they entrusted their health
and lives, would not "make the grade" when it came time to
testify in court.

                                11
expert, hired solely for litigation purposes, to rely on and

testify about a pathology report, but exclude testimony by the

treating physician who ordered the report and relied on it for

life and death decisions about the patient's treatment.    Opinions

by physicians who have neither examined nor treated a patient

"have less probative force, as a general matter, then they would

have if they had treated or examined him."    Wier ex rel. Wier v.

Heckler, 734 F.2d 955, 963 (3d Cir. 1984).    In the context of

social security disability cases, in fact, we afford greater

weight to a treating physician's opinion. See Dorf v. Bowen, 794

F.2d 896 (3d Cir. 1986); Brewster v. Heckler, 786 F.2d 581 (3d

Cir. 1986).   "The rationale for giving greater weight to a

treating physician's opinion is that he is employed to cure and

has a greater opportunity to know and observe his patient. . . ."

Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987).    We

conclude that the court erred by excluding the treating

physician's testimony.

                         C. Dr. Altschuler

     The district judge's ruling on Dr. Altschuler's

qualifications suffers from the same flaw.2   Dr. Altschuler is

board-certified in and practices internal and pulmonary medicine.

Dr. Altschuler described his primary practice area as follows:
     [P]ulmonary medicine involves the diseases of the chest
     and lungs. It involves medical treatment, certain

2
  Defendants do not address the court's ruling on Dr.
Altschuler's testimony, other than to argue that Holbrook was
allowed to ask questions regarding the literature on radiation
and mesothelioma, that Dr. Altschuler is not very knowledgeable
in the field, and that he makes a habit of testifying on behalf
of plaintiffs.

                                12
     procedures such as looking into the lungs of patients.
     It involves an expertise in reading chest x-rays and
     understanding pulmonary function tests which are
     breathing tests. It involves treatment of occupational
     diseases that affect the chest.

Mesothelioma is a pulmonary disease.

     Dr. Altschuler testified that he was familiar with John

Holbrook's occupational work history, medical history and

records, and was also familiar with the literature on causal

agents of mesothelioma, but was not aware that radiation had ever

been linked to mesothelioma.   At his deposition, he could not

recall a firm linkage between mesothelioma and radiation.    At

trial, he stated that he had "found a few articles relating to

sporadic rare cases out of the thousands of cases of mesothelioma

each year, there are a few over the last 15 or 20 years that have

shown some relationship to radiation."   Read as a whole, Dr.

Altschuler's testimony at trial suggests that his previous

inability to recall specific literature linking radiation to

mesothelioma resulted from his conclusion, based on his

familiarity with the literature, that sporadic rare cases in the

literature did not support radiation as a major causative factor.

The district court, however, did not disallow testimony based on

Dr. Altschuler's familiarity, or alleged lack thereof, with the

literature on radiation and mesothelioma.

     When asked about radiation as a cause of mesothelioma, the

court sustained a defense objection, ruling that Dr. Altschuler

was not "qualified as a 'radiation expert' vis-a-vis cancer. He's

not an oncologist," and would not allow him to discuss the

relationship between radiation and mesothelioma.   The court


                                13
erroneously required that the expert have a specialization in

cancer and radiation, despite his expertise in lung diseases,

including mesothelioma.   In placing restrictions on Dr.

Altschuler's testimony because he did not possess the exact

background it deemed appropriate, the court erred.

                               II.

     Holbrook next alleges that the court erred by allowing

defense experts, Drs. Demopoulos and Browne, to testify that

radiation caused John Holbrook's cancer, and by not preliminarily

making the determination on admissibility of this testimony.

Holbrook's position is that this testimony lacked a sufficient

scientific basis under Rule 702, as interpreted by Daubert.
     The second requirement of Rule 702 -- that the expert
     testify to scientific, technical or other specialized
     knowledge -- is intended to ensure the reliability or
     trustworthiness of the expert's testimony.

Velasquez, 64 F.3d at 849 (citation omitted).
     Defendants sought to prove through these experts that John

Holbrook's cancer resulted from exposure to radiation in Dominic

I.   Drs. Demopoulos and Browne were permitted to testify, over
plaintiff's objections, that radiation exposure in 1962, as

opposed to prolonged asbestos exposure, was a distinct possible

cause, a very highly probable cause, and the most probable cause

of his cancer diagnosed three decades later.

                                A.

     Under Daubert's interpretation of Rule 104(a), a district

court facing a proffer of scientific expert testimony must as a

preliminary matter assess whether the reasoning or methodology



                                14
underlying the expert's testimony is scientifically valid.      The

court accomplishes this "by considering all relevant factors that

may bear on the reliability of the proffered evidence."

Velasquez, 64 F.3d at 849; see also Paoli II, 35 F.3d at 742. The

reliability requirement, however, should not be applied too

strictly.   Helpfulness to the trier of fact remains the ultimate

touchstone of admissibility.   If the expert has "good grounds"

for the testimony, the scientific evidence is deemed sufficiently

reliable.   A determination that the expert has good grounds

assures that the expert's opinions are based on science rather

than "subjective belief or unsupported speculation." Daubert, 113

S. Ct. at 2795.

                                 B.

     Holbrook argues that the district court failed in its

gatekeeping responsibility by allowing the jury to hear the

radiation testimony without first determining its admissibility.

The record shows otherwise.    The court scheduled a pretrial

Daubert hearing at plaintiff's request to determine if the expert

testimony regarding radiation exposure as a cause of mesothelioma

was admissible.   Inexplicably, Holbrook's counsel seemed

unprepared to proceed with that hearing, and the court therefore

did not hold one.   Despite this, the court nevertheless indicated

to Holbrook's counsel that it would entertain counsel's motion at

trial to strike the expert testimony.

     Although Daubert ordinarily could be construed to require

that the court make the preliminary determination outside the

jury's hearing, we cannot say that the court abused its


                                 15
discretion in adhering to the requirements of Rules 104 and 702.

The court adequately explained its reasoning when it stated:
     I will not have a hearing of such length while a jury
     is waiting to be selected . . . . This was your
     opportunity for a Daubert hearing today and tomorrow.
     It is improper to have jurors waiting for several days
     to be selected in a case that might go on for weeks.

Counsel failed to prepare appropriately and the court exercised

sound discretion in controlling the efficient and orderly

disposition of this case to avoid unnecessary inconvenience to

the jury.

                                 C.

     We also find no error in the court's refusal to strike the

testimony.    Dr. Demopoulos specializes in pathology -- the study

of disease.   His research has focused largely on the study of

cancer, a subject in which he has taught, and on which he has

written articles.   During his residency, he performed radiation

studies on animals, and during a tenure with the National

Institutes of Health, he studied radiation pathology.    Currently,

Dr. Demopoulos devises experiments to enhance the susceptibility

of tumors to radiation and to enhance the protective effects in

surrounding tissue to protect it from damage.   His testimony

revealed extensive knowledge of radiation oncogenesis,

familiarity with the Dominic I Operation and familiarity with the

radiation exposure history of John Holbrook.

     With this background, Dr. Demopoulos testified that, unlike

exposure to asbestos, there is no threshold exposure to radiation

required to cause cancer, and that "[t]he most probable cause of

Mr. Holbrook's cancer was the exposures that he sustained at


                                 16
Dominic I operations in 1962."   He based his opinion on a review

of Mr. Holbrook's medical records and exposure to radiation, and

on his own research and study.

     Dr. Browne specializes in occupational lung disease, and his

research initially focused on mesothelioma.   He has made

presentations at scientific gatherings regarding threshold levels

of exposure to asbestos and resulting mesothelioma, and has

published several papers.   At trial, he discussed his extensive

knowledge about studies of radiation as a cause of cancer,

including mesothelioma.   He testified, based on the medical and

scientific literature relating to radiation and cancer, that low

doses of radiation can cause cancer, including mesothelioma, and

that unlike asbestos exposure, there is no threshold requirement

of exposure for radiation to cause cancer.    He further testified

that, in his opinion to a reasonable degree of medical certainty,

radiation exposure could not be excluded as a cause of John

Holbrook's cancer.

     Both experts' extensive backgrounds in the study of

mesothelioma and its causes, including radiation, their review of

the literature and their review of John Holbrook's history

provided substance upon which they could offer scientific

opinions that met the required threshold of reliability.    As

required by Daubert, their procedures for examining the facts

presented to them and their own research methodologies were based

on the methods of science and did not reveal opinion based merely

on their own subjective beliefs.

                                 D.


                                 17
In a related matter, Holbrook objects to portions of the defense

experts' testimony, arguing that in several instances the

testimony was not given to the degree of certainty required.

Holbrook cites Paoli II and Schulz v. Celotex Corp., 942 F.2d 204

(3d Cir. 1991), for the proposition that medical experts must

testify to a reasonable degree of medical certainty.

In one instance at trial, the court sustained a defense objection

during cross-examination, questioning whether Dr. Browne could

state with reasonable medical certainty that radiation exposure

caused decedent's mesothelioma.      The court ruled that the

question was solely for the jury.       Dr. Browne's answer would have

helped the jury to evaluate the impact of his testimony on

plaintiff's evidence that asbestos exposure caused John

Holbrook's cancer.     Although a specific degree of certainty may

not be required, the court erred by not allowing Holbrook to pose

the question.

We have not required that when medical experts give their

opinion, they recite the talismanic phrase that their opinion is

given to "a reasonable degree of medical certainty," because

"[c]are must be taken . . . to see that the incantation does not

become a semantic trap and the failure to voice it is not used as

a basis for exclusion without analysis of the testimony itself."

Schulz, 942 F.2d at 208.      Nonetheless, as we stated in Schulz,

the phrase "is a useful shorthand expression that is helpful in

forestalling challenges to the admissibility of expert

testimony."     Id. at 208.   It also assists a reviewing court in

determining whether the jury has been given the appropriate


                                   18
standard by which to judge the opinion.   The district court,

therefore, erred by disallowing cross-examination of Dr. Browne

to determine whether his opinion met this degree of certainty.

In another instance cited by Holbrook, the court overruled an

objection to Dr. Browne's testimony, in which he stated
     that radiation is a distinct possible cause. I have no
     way of telling whether it is to a degree of medical
     certainty the cause.

"Situations in which the failure to qualify the opinion have

resulted in exclusion are typically those in which the expert

testimony is speculative, using such language as 'possibility.'"

Id. at 208.   The Federal Rules of Evidence, however, do not

require a particular phrase regarding the degree of certainty

with which experts must form their opinions, but they certainly

allow questions concerning the degree to which the opinion is

held.
     Accordingly, while the particular phrase used should
     not be dispositive, it may indicate the level of
     confidence the expert has in the expressed opinion.
     Perhaps nothing is absolutely certain in the field of
     medicine, but the intent of the law is that if a
     physician cannot form an opinion with sufficient
     certainty so as to make a medical judgment, neither can
     a jury use that information to reach a decision.

Id. at 209.
In Schulz, we reversed the trial court's decision to exclude an

expert's testimony because counsel failed to preface the question

with the precise phrase, because we found that the expert's

testimony possessed the requisite degree of certainty for

admissibility.   The expert stated his opinion in unequivocal

terms and his opinion was relied on extensively in the treatment

of the plaintiff.


                                19
It is true that in Paoli II, we reversed a summary judgment on

certain claims because the plaintiff's expert had not testified

to a degree of medical certainty.     We required that degree of

certainty in Paoli II because, under Pennsylvania law, the burden

of proof required that degree of certainty.

Here, the test is different.   Drs. Demopoulos and Browne

testified for the defense that radiation could not be excluded,

as it was a distinct possible cause of John Holbrook's cancer. In

fact, Dr. Browne testified on this issue to a reasonable degree

of medical certainty.   Although that testimony would have been

insufficient to prove that radiation exposure caused the cancer,

a burden which the defense did not bear, it was sufficiently

certain and could help the jury to evaluate testimony by

plaintiff's experts that asbestos exposure caused the cancer, an

issue on which plaintiff bore the burden of proof. Therefore, the

court did not err when it refused to strike the defense experts'

testimony.

                               III.

Holbrook also challenges the district court's ruling that

references to mesothelioma in various documents must be redacted.

Holbrook contends that she properly moved for admission of the

death certificate, autopsy report and hospital records, including

the references in them to mesothelioma, under Federal Rule of

Evidence 803(6),(8)-(9).   The court, however, required under Rule

4033 that references to malignant mesothelioma be deleted because

3
Rule 403 provides:



                                20
the authors of the documents did not testify about the bases of

their diagnoses.   In so ruling, the court stated that "[t]he

diagnosis of mesothelioma is a diagnosis that must be subjected

to cross-examination in order for it to be meaningful to a jury."

Rule 803 does not mandate admission of this evidence, but rather

allows evidence to be admitted when it would otherwise be

objectionable hearsay.   Thus, Rule 403 always remains as a

potential bar to admissibility.    Daubert, 113 S. Ct. at 2798.

Holbrook's statement that "Records of deaths are simply

admissible 'as is,'" is simply wrong, ignoring our decisions in

Schulz and Pollard v. Metropolitan Life Ins. Co., 598 F.2d 1284

(1979).   Although in Schulz we did not reach the issue whether

the district court properly refused to admit a death certificate

indicating asbestosis when the etiology of plaintiff's cancer was

in dispute, we clearly indicated that the court's analysis under

Rule 403 was in order.   942 F.2d at 209.

"[A] trial judge's decision to admit or exclude evidence under

[Rule 403] may not be reversed unless it is arbitrary and

irrational," Bhaya v. Westinghouse Elec. Corp., 922 F.2d 184, 187

(3d Cir. 1990), but the trial court should articulate its

balancing analysis.   Glass v. Philadelphia Elec. Co., 34 F.3d

188, 191 (3d Cir. 1994).   That a district court failed to take

the opportunity to articulate its balancing does not constitute

     Although relevant, evidence may be excluded if its
     probative value is substantially outweighed by the
     danger of unfair prejudice, confusion of the issues, or
     misleading the jury, or by considerations of undue
     delay, waste of time, or needless presentation of
     cumulative evidence.


                                  21
reversible error per se; however, it may require that the

appellate court do so. See id. at 192.

In Pollard we upheld the trial judge's redaction under Rule 403

of references to "accidental death" from a death certificate,

coroner's certificate and pathologist's necropsy report.    There,

the decedent's widow sought benefits under a policy covering

accidental death.   The trial court found that statements in those

documents could mislead the jury because the legal meaning of the

phrase "accidental death" as defined and used in the insurance

policy could differ from its meaning as used in the medical

reports.   To avoid this problem, the court excised from the

documents any reference to the death as accidental.   We held that

the court properly used Rule 403 to avoid unfair prejudice and

confusion.

In ruling that references to mesothelioma in various documents

would be redacted, the district court articulated its Rule 403

balancing as follows:
     [T]he diagnosis of mesothelioma is a diagnosis that
     must be subjected to examination and cross-examination
     . . . . [I]t is my ruling that under Rule 403 that
     there is an unfair risk of unfair prejudice for you to
     be able to argue that 9 other doctors unexamined in
     this Court diagnosed mesothelioma, which at best has a
     -- only a 90 percent chance of diagnosis as I
     understand the testimony through autopsy being correct.
     And a 60 percent chance at being correct if there is a
     tissue sample excised from the lung as opposed to a
     needle point examination where the risk of being right
     is - - the chance of being right is only 40 percent. .
     . . [I]n terms of trustworthiness of the diagnosis,
     it's not like there was a bone that's broken, the bone
     is broken. Here you have a diagnosis of mesothelioma
     which is something that has to be examined as to method
     of diagnosis, technique of diagnosis, certainty of
     diagnosis.



                                22
It may be argued that the difficulty of the diagnosis affects the

weight to be accorded the documents' contents, not their

admissibility.   This is not necessarily so; however, the

difficulty of the diagnosis does indeed go more to the weight

than to the admissibility of the evidence, but that does not make

it irrelevant to admissibility in light of Rule 403.    In addition

to the independent Rule 403 hurdle, Rule 803(6) and Rule 803(8)

expressly contemplate exclusion based on untrustworthiness.

The court, based on its determination that mesothelioma is

difficult to diagnose, determined that the risk of unfair

prejudice, by leaving references to mesothelioma in documents not

testified to by their authors nor relied on by qualified experts,

outweighed their probative value.    And, according to the court,

because of problems in accurately diagnosing mesothelioma, the

unexamined references were not helpful to and could potentially

have misled the jury.   The court's ruling requiring that

references to mesothelioma in various documents be redacted was

neither arbitrary nor irrational, and will be affirmed.

                               IV.

Because we find that the court erred by excluding certain

testimony, we can affirm the jury's verdict on liability only if

those errors were harmless.   See Advanced Medical, Inc. v. Arden

Medical Systems, Inc., 955 F.2d 188 (3d Cir. 1992).    "A

determination of harmless error depends on whether it is highly

probable that the error did not contribute to the judgment."    Id.

at 199.




                                23
In McQueeney v. Wilmington Trust Co., 779 F.2d 916, 923 (3d Cir.

1985), we found that the district court's refusal to admit

evidence impaired the defendants' ability to discredit a central

element of the plaintiff's case, was critical for defense against

liability, was potentially the defendants' best evidence and was

not cumulative.   As a result, we could not say that it was highly

probable that the failure to admit the evidence did not affect

the defendants' substantial rights, and we reversed the district

court.   Hence, if including the improperly excluded testimony

makes it more likely that the jury would have reached a different

decision, the error is not harmless.

Here, the testimony by plaintiff's experts bore on the critical

issue of whether John Holbrook had mesothelioma caused by

exposure to asbestos, and the treating physician's testimony

about his diagnosis may have been Holbrook's best evidence on the

existence of mesothelioma.   Likewise, Dr. Altschuler's testimony

eliminating radiation as a cause was crucial to a finding that

asbestos, not radiation, caused John Holbrook's mesothelioma.

This makes it difficult to say that it is highly improbable that

admitting this evidence would not affect the outcome.   To the

contrary, it appears that it would.    Because we cannot say that

these errors were harmless, Holbrook is entitled to a new trial.4

4
  Holbrook makes other assignments of error, and argues, without
further analysis, that the rulings were an abuse of discretion
and that the "multitude of error requires reversal and a new
trial." As we have stated, we will grant Holbrook a new trial.
The unsupported allegations of error are generally without merit,
however, even if error, they would not require a new trial.
Following our course in Schulz, we leave these issues for further
development at the next trial.


                                24
Holbrook also asserts that the district judge's conduct at trial

prejudiced her case.    Holbrook urges us to examine her attempts

to conduct direct examination of her medical experts. According

to Holbrook, "[t]he actions of the trial judge, taken as a whole,

effectively communicated to the jury that the judge had a low

opinion of plaintiff's case and her counsel."
     Unquestionably, bias and improper conduct by a trial
     judge may be grounds for a new trial if a party was
     unfairly prejudiced. Active participation by a
     district judge in trial proceedings, however, is in
     itself neither improper nor unfair.

Desjardins v. Van Buren Community Hospital, 969 F.2d 1280 (1st
Cir. 1992).

The district court's conduct (as distinguished from its

evidentiary rulings) does not warrant a new trial.     The court

interrupted counsel for both sides repeatedly and tried to

instruct both sides on the proper procedure to follow in certain

lines of questioning.     Although the court's demeanor may have

been gruff at times, Holbrook's counsel seemed to be testing the

court by pursuing issues on which the court had previously made

its rulings clear.     This conduct falls squarely within the

judge's role of controlling the court proceedings, and cannot be

fairly characterized as prejudicing plaintiff or unduly

humiliating counsel.     The trial judge's role is to preside over

the trial; passively if possible but aggressively when indicated.

The judge's efforts must vary with the exigencies of the trial.

Inadequately prepared or overly aggressive advocates may indeed

require that the trial court interpose itself more actively and




                                  25
even forcefully in the proceedings to assure fairness.   That, we

are convinced, is what the trial court did here.5

                                V.

In sum, because we conclude that the district court committed

reversible error by precluding the treating physician's testimony

about his diagnosis of mesothelioma and his reliance on the

pathology report and by restricting the pulmonologist's testimony

from eliminating radiation as a cause of the mesothelioma, we

will reverse the judgment in favor of defendants and remand the

cause for a new trial.   Her request that we reassign the case to

a new judge on remand is denied.




Holbrook v. Lykes Bros. Steamship Co., Inc., et al., No. 94-2148




SCIRICA, Circuit Judge, concurring in part

                         and dissenting in part:




5
  Liteky v. United States, 114 S. Ct. 1147 (1994) supports the
proposition that we have the power to assign the case to another
judge on remand if we determine recusal is necessary or if we
determine that reassignment is required for "further proceedings
to be had as may be just under the circumstances." Id. at 1157.
"[J]udicial rulings alone almost never constitute valid basis for
a bias or partiality motion." Id. at 1157. In view of our
holding here, however, we need not spend more time on Holbrook's
request for retrial before a different judge. Her request is
rejected.


                                26
          Although I join in Parts II and III of the opinion I do

not believe the district court's rulings on the testimony of Dr.

Carpenter and Dr. Altschuler require granting a new trial.

                                I.

          Dr. Carpenter, a specialist in internal medicine, was

John Holbrook's treating physician.    The district court did not

permit Dr. Carpenter to state that he diagnosed Holbrook with

mesothelioma because pathologists at Holy Cross Hospital rather

than Dr. Carpenter actually "made" the diagnosis.    ("[Carpenter]

himself did not make the diagnosis.    He may have relied upon a

report of a diagnosis.").    While the district court's ruling may

reflect too rigid a view of the diagnostic process, I do not

believe its limitation of Dr. Carpenter's testimony constituted

reversible error.   Reversal and remand for a new trial is

justified only where a trial judge's erroneous exclusion of

evidence is not harmless. Fed. R. Civ. P. 61 provides in part:
          No error in either the admission or the
          exclusion of evidence ... is ground for
          granting a new trial or for setting aside a
          verdict ... unless refusal to take such
          action appears to the court inconsistent with
          substantial justice.


Although the district court excluded testimony by Dr. Carpenter,

there still was substantial evidence from other sources that

Holbrook suffered from mesothelioma.    Most important was the

testimony of Dr. Reineke,6 a board certified pathologist and the




6
  The testimony of Dr. Reineke was taken by videotape and
presented at trial.


                                27
chief of pathology at Holy Cross Hospital, who testified Holbrook

had mesothelioma.7

           The crucial issue at trial was causation -- whether

John Holbrook died from mesothelioma as a result of asbestos

exposure or as a result of radiation exposure.    Given the ample

evidence that John Holbrook suffered from mesothelioma, it is

highly probable the district court's refusal to allow Dr.

Carpenter to state his diagnosis did not contribute to the

judgment of the jury.   Any error was harmless.

                               II.

           At a pretrial deposition, Dr. Altschuler, who was board

certified in internal and pulmonary medicine, admitted he had no

familiarity with the medical literature on the relationship

between radiation and mesothelioma.   He said he was not aware

that radiation had ever been linked to mesothelioma.

Nevertheless, the district court did not preclude Dr. Altschuler

from testifying based on knowledge derived from medical

literature he read subsequent to his deposition but prior to

trial.   ("You may ask him what literature he refers to with

respect to radiation and what does it say, if you choose.").     In

short, although the court refused to qualify Dr. Altschuler as an

expert on radiation, it allowed him to testify about what he

knew.


7
  Despite the district court's rulings, evidence presented to
the jury included unredacted references to mesothelioma in
hospital medical records. Furthermore, Dr. Demopoulos, a board
certified pathologist, testified that the autopsy report listed
"malignant mesothelioma" as the cause of Holbrook's death.

                                28
          In view of Dr. Altschuler's background and the court's

admission of his testimony on radiation and mesothelioma, I

cannot conclude the district court abused its discretion in

refusing to qualify Dr. Altschuler as an expert on radiation and

limiting his testimony.   Moreover, plaintiff called Francis

Masse, director of the radiation protection programs at the

Massachusetts Institute of Technology, and Dr. David Hoel,

chairman of the Department of Biometry and Epidemiology at the

Medical University of South Carolina, to testify that radiation

did not cause her husband's illness.   In light of their

testimony, the district court's limitation on Dr. Altschuler's

testimony was harmless.

                               III.
          For the foregoing reasons, I would deny plaintiff's
request for a new trial.




                                29
