                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-17-1997

Kannankeril v. Terminix Intl Inc
Precedential or Non-Precedential:

Docket
96-5818




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997

Recommended Citation
"Kannankeril v. Terminix Intl Inc" (1997). 1997 Decisions. Paper 243.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/243


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1997 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
Filed October 17, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-5818

CHARLES KANNANKERIL; MARY KANNANKERIL,
individually and as next friend of Charlene and
Crystal Kannankeril; CHARLENE KANNANKERIL;
CRYSTAL KANNANKERIL

v.

TERMINIX INTERNATIONAL, INC.; TM SPECIAL
PARTNERS, INC.; TERMINIX MGP, INC., General Partners
of the Terminix International Company Limited
Partnership; TERMINIX INTERNATIONAL; DOW
CHEMICAL U.S.A.; WHITMIRE RESEARCH
LABORATORIES, INC.; FORD CHEMICAL & SERVICE,
INC.; DENNIS BUTTIMORE, c/o Terminix International;
THE TERMINIX INTERNATIONAL COMPANY
LIMITED PARTNERSHIP

       Mary Kannankeril, Individually and as
       Next Friend of Charlene Kannankeril,

       Appellant.

On Appeal from the District Court
for the District of New Jersey
(D.C. Civil Action No. 92-cv-03150)

Argued on July 17, 1997

Before: SLOVITER, Chief Judge, ROTH and
MICHEL,1 Circuit Judges
_________________________________________________________________

1. Honorable Paul R. Michel, United States Court of Appeals for the
Federal Circuit, sitting by designation.




(Opinion filed October 17, 1997)

       Evan T. Lawson, Esq. (Argued)
       Christopher N. Cook, Esq.
       Lawson & Weitzen
       425 Summer Street
       Boston, MA 02210
        Attorneys for Appellants

       Kevin E. Wolff, Esq. (Argued)
       Robert W. Muilenburg, Esq.
       McElroy, Deutsch & Mulvaney
       1300 Mount Kemble Avenue
       P.O. Box 2075
       Morristown, NJ 07962-2075

        Attorneys for Appellee Terminix
        International

OPINION OF THE COURT

ROTH, Circuit Judge.

The Kannankerils, Dr. Mary Kannankeril, her husband,
Charles, and their children, Charlene and Crystal, sued a
pest exterminator, the Terminix International Company L.P.
("Terminix"), seeking damages for injuries allegedly arising
out of the application of pesticides to their residence. The
district court found the opinion of Dr. Benjamin Gerson,
the medical expert of Dr. Mary Kannankeril, to be
unreliable and unsupported by facts. Having excluded Dr.
Gerson's opinion, the district court held that Dr.
Kannankeril had failed to produce any evidence that her
cognitive impairment had been caused by exposure to
pesticides applied by Terminix. The court granted summary
judgment in favor of Terminix. The admissibility of Dr.
Gerson's opinion is the sole issue on which the
Kannankerils have appealed. They argue that the district
court erroneously excluded the testimony of Dr. Gerson.

We conclude that the district court improperly exercised
its gatekeeping role by excluding Dr. Gerson's testimony.

                                2



Accordingly, we will vacate that portion of the order of the
district court, granting summary judgment against Dr.
Mary Kannankeril on this point, and we will remand this
case for further proceedings consistent with this opinion.2

I. BACKGROUND

The Kannankerils entered into a one-year contract with
Terminix on May 30, 1989, for the control of carpenter ants
through the application of pesticides to certain interior
portions and the outside deck of the Kannankerils'
residence. From May 31, 1989, through October 5, 1990,
Terminix treated the Kannankeril residence on at least
twenty occasions at intervals ranging from once a month to
twice in a three day period. Terminix applied pesticides,
containing Dursban, until the Kannankerils canceled the
service on October 5, 1990.

Dursban, the active ingredient in certain pesticides used
by Terminix, is a formulation of chlorpyrifos, an
organophosphate poison. The organophosphates kill insects
by inhibiting the normal breakdown of acetylcholine, which
functions as a neurotransmitter in several life forms,
including humans. The Kannankerils argue that despite the
well-known chronic effects of chlorpyrifos, Dursban was
sprayed excessively and improperly in their home. For
example, Dursban was sprayed on the cooking range,
around the dishwasher, and on the baseboard heater.
Dursban was also sprayed in cupboards where pots and
pans were stored. Terminix, however, claims that any liquid
pesticide that was applied consisted almost entirely of
water, with minute concentrations of liquid pesticide added
to make the final active solution.

The Kannankerils' suit against Terminix involved alleged
injury to Dr. Mary Kannankeril, a former Medical Director
of Psychiatric Emergency Services at Saint Mary's Hospital
in Passaic, New Jersey. Dr. Kannankeril claims to suffer
wide-ranging physiological and cognitive symptoms from
_________________________________________________________________

2. Our decision, vacating the summary judgment against Dr.
Kannankeril, is without prejudice to any motion for summary judgment
on other grounds which Terminix may bring.

                                3



exposure to the pesticides, including Dursban, applied by
Terminix.3 The symptoms first appeared in August 1990,
over one year after Terminix began its service. The
Kannankerils did not relate Dr. Kannankeril's symptoms
with Terminix's ongoing pesticide applications until October
1990. After the entire family developed a rash, the
Kannankerils began to suspect Dursban as the cause of
their problems. When the Kannankerils complained of a
strong odor in their home after the last application,
Terminix sent Service Master to clean the Kannankerils'
residence. In July 1991, nine months after the last
application of pesticide, the Kannankerils requested that
the New Jersey Department of Environmental Protection
("DEP") test their residence for the existence of pesticides.
The DEP collected air samples from the residence on July
10, 1991. An analysis of the samples indicated non-
detectable levels of pesticides.

Dr. Kannankeril allegedly developed chronic toxicity
related to exposure to chlorpyrifos and became sensitized to
multiple other chemicals so that further exposure to
organophosphates would result in disabling physical
problems. As a result of her ill health, she gave up her
hospital position in March, 1993, and now sees patients
only in an office at home.

Plaintiffs named Dr. Benjamin Gerson, M.D., to testify as
a medical expert to establish that exposure to Dursban
caused Dr. Kannankeril's injury.4 Dr. Gerson provided the
following opinion:
_________________________________________________________________

3. Only the causation of Dr. Kannankeril's cognitive impairment remains
an issue in the case. These cognitive deficits include memory loss,
concentration loss, sleeplessness, general anxiety, and headaches. Her
other alleged physical symptoms included insomnia, numbness, muscle
twitching, pain in muscles and joints, vaginal bleeding, urinary
incontinence, nausea, skin rashes, and depigmentation patches
throughout her body.

4. Dr. Gerson's qualifications included: Physician certified by the
American Board of Toxicology and the American Board of Pathology;
Director of the Boston University School of Medicine's Laboratory of
Analytical Toxicology and Director of the Research Data Worldwide
Clinical Laboratory; Consultant to the Food and Drug Administration's

                                4



       The temporal relationship and the nature of her
       complaints lead me to conclude that with reasonable
       medical certainty, the cause of Dr. Kannankeril's
       Central Nervous System manifestations of toxicity is
       exposure to Dursban in 1989 to 1990.

App. at 51.5 Dr. Gerson is the only medical expert proffered
by the Kannankerils on causation and his opinion is limited
to the causation of Dr. Kannankeril's cognitive impairment.
His findings are based on Dr. Kannankeril's account of her
cognitive symptoms and on a report prepared by Dr. Ellen
Grober, a neuropsychologist who examined Dr.
Kannankeril. Dr. Gerson also relied on a summary report of
the times and amounts of Dursban applications to the
Kannankeril home as well as on his general experience and
readings, general medical knowledge, standard textbooks,
and standard references.

II. STANDARD OF REVIEW

A district court's ruling on admissibility of expert
testimony is reviewed for abuse of discretion. Government of
the Virgin Islands v. Sanes, 57 F.3d 338, 341 (3d Cir.
1995); In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 749 (3d
Cir. 1994). To the extent that the district court's ruling
turns on interpretation of the Federal Rules of Evidence,
_________________________________________________________________

Center for Devices and Radiological Health; Professor of Pathology and a
Professor of Pharmacology & Experimental Therapeutics at Boston
University; Instructor in Pathology, Harvard Medical School; Special
Lecturer in Clinical Laboratory Science, Northeastern University;
Assistant Professor of Pathology, Harvard Medical School; Associate
Professor of Pathology, Harvard Medical School; Director of Clinical
Chemistry and Toxicology at Veterans Affairs Medical Center in Boston,
Massachusetts.

5. Under New Jersey law, medical expert testimony must be made with
a reasonable degree of certainty. See Bondi v. Pole, 246 N.J. Super. 236
(App. Div. 1991); Vuocolo v. Diamond Shamrock Chemical Co., 240 N.J.
Super. 289 (App.Div. 1990); Johnesee v. The Stop & Shop Companies,
174 N.J. Super. 426 (App.Div. 1980). New Jersey's rule should govern in
the present case since it is a substantive law that is part of the
appellants' burden of proof. See In re Paoli R.R. Yard PCB Litig., 35 F.3d
717, 752 (3d Cir. 1994).

                                5



our review is plenary. United States v. Velasquez, 64 F.3d
844, 848 (3d Cir. 1995); Paoli, 35 F.3d at 749. We review
the district court's findings of fact under a clearly
erroneous standard. Velasquez, 64 F.3d at 848.

III. DISCUSSION

A. Standard of Admissibility for Expert Testimony

Under the Federal Rules of Evidence, it is the role of the
trial judge to act as a "gatekeeper" to ensure that any and
all expert testimony or evidence is not only relevant, but
also reliable. Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579, 589. (1993). The Rules of Evidence embody
a strong and undeniable preference for admitting any
evidence which has the potential for assisting the trier of
fact. See Holbrook v. Lykes Bros. S.S. Co., 80 F.3d 777, 780
(3d Cir. 1996). Rule 702, which governs the admissibility of
expert testimony, has a liberal policy of admissibility. See
Holbrook, 80 F.3d at 780; Paoli, 35 F.3d at 741.

Rule 702 has three major requirements: (1) the proffered
witness must be an expert; (2) the expert must testify about
matters requiring scientific, technical or specialized
knowledge; and (3) the expert's testimony must assist the
trier of fact. See Paoli, 35 F.3d at 741-42. The issue of this
appeal involves the second requirement of the expert's
testimony. In interpreting this second requirement, we have
concluded that "an expert's testimony is admissible so long
as the process or technique the expert used in formulating
the opinion is reliable." Id. at 742 (citing Daubert, 113 S.Ct.
at 2794-95). In order for the expert testimony to be
"reliable," we have required that the testimony be based on
the "methods and procedures of science," rather than on
"subjective belief or unsupported speculation." Paoli, 35
F.3d at 744. Moreover, Daubert does not set up a test of
which opinion has the best foundation, but rather whether
any particular opinion is based on valid reasoning and
reliable methodology. Admissibility decisions focus on the
expert's methods and reasoning; credibility decisions arise
after admissibility has been determined. See Paoli, 35 F.3d
at 743-46.

                                6



There are several factors that a district court should take
into account in evaluating whether a particular scientific
methodology is reliable. See Paoli, 35 F.3d at 742.6
Although these factors are neither exhaustive nor
applicable in every case, they provide a convenient starting
point for analyzing the opinion of Dr. Gerson. Our inquiry
focuses on principles and methodology and not on the
conclusions they generate. Id. at 744. The analysis of the
conclusions themselves is for the trier of fact when the
expert is subjected to cross-examination. Id. The
Kannankerils needed to demonstrate by a preponderance of
evidence only that Dr. Gerson's opinion was based on "good
grounds." Id.

B. Reliability of Dr. Gerson's Testimony

The district court refused to admit Dr. Gerson's
testimony because of insufficient factual foundation to
prove that the cause of Dr. Kannankeril's cognitive
impairment was exposure to Dursban. We conclude,
however, that Dr. Gerson's opinion meets the requirements
for the admission of expert testimony under Rule 702 of the
Federal Rules of Evidence, as set forth in Daubert and
interpreted by us in Paoli.

1. Differential Diagnosis

In its opposition to Dr. Gerson's testimony, Terminix has
_________________________________________________________________

6. These nonexclusive guidelines, drawn from Daubert and this Court's
opinion in United States v. Downing, 753 F.2d 1223 (3d Cir. 1985),
include:
       (1) whether a method consists of a testable hypothesis; (2) whether
       the method has been subject to peer review; (3) the known or
       potential rate of error; (4) the existence and maintenance of
       standards controlling the technique's operation; (5) whether the
       method is generally accepted; (6) the relationship of the technique
to
       methods which have been established to be reliable; (7) the
       qualifications of the expert witness testifying based on the
       methodology; and (8) the non-judicial uses to which the method has
       been put.

Paoli, 35 F.3d at 742 n.8.

                                7



emphasized that Dr. Gerson did not himself perform any
diagnostic medical tests. Terminix argues that Dr. Gerson
did not employ sufficient diagnostic techniques to have
good grounds for his conclusions or to have properly
performed a differential diagnosis. We have recognized
"differential diagnosis" as a technique that involves
assessing causation with respect to a particular individual.
Paoli, 35 F.3d at 758. Differential diagnosis is defined for
physicians as "the determination of which of two or more
diseases with similar symptoms is the one from which the
patient is suffering, by a systematic comparison and
contrasting of the clinical findings." STEDMAN'S MEDICAL
DICTIONARY 428 (25th ed. 1990). The elements of a
differential diagnosis may consist of the performance of
physical examinations, the taking of medical histories, and
the review of clinical tests, including laboratory tests. A
doctor does not have to employ all of these techniques in
order for the doctor's diagnosis to be reliable. See Paoli, 35
F.3d at 759. A differential diagnosis may be reliable with
less than all the types of information set out above. See id.
Indeed, as we held in Paoli, "to the extent that the district
court concluded otherwise [i.e., that a differential diagnosis
made on less than all types of information cannot be
reliable], we hold that it abused its discretion." Id.

Depending on the medical condition at issue and on the
clinical information already available, a physician may
reach a reliable differential diagnosis without himself
performing a physical examination, particularly if there are
other examination results available. In fact, it is perfectly
acceptable, in arriving at a diagnosis, for a physician to rely
on examinations and tests performed by other medical
practitioners.

These principles are applicable to the admissibility of
Dr. Gerson's expert opinion regarding Dr. Kannankeril. The
district court found that Dr. Gerson never performed any
clinical tests to support his opinion of causation. Dr.
Gerson did not "examine, or even speak to" Dr.
Kannankeril. Instead, Dr. Gerson reviewed the records of
Dr. Kannankeril's medical history. Dr. Gerson also relied on
Dr. Grober's report of Dr. Kannankeril's neuropsychological
complaints and of her cognitive impairment. Terminix does

                                8



not claim that the medical records relied upon by Dr.
Gerson were incomplete or inaccurate. As noted by this
Court in Paoli, "evaluation of the patient's medical records
is a reliable method of concluding that a patient is ill even
in the absence of a physical examination." Id. at 762. A
doctor needs only one reliable source of information
showing that a plaintiff is ill; either a physical test or
medical records will suffice for this. Id. at 762. For these
reasons, the reliability of Dr. Gerson's opinion is not
necessarily diminished by the fact that he himself did not
perform a physical examination.

Moreover, in making his evaluation, Dr. Gerson was
aware that one test, the cholinesterase blood test, did not
produce abnormal results. The district court noted that the
blood test for cholinesterase levels is "the most accepted
test method for determining exposure to Dursban."
However, the cholinesterase test result is but one of the
factors considered by Dr. Gerson. Despite the negative
results from this test, Dr. Gerson still opined that, as a
matter of reasonable medical certainty, Dursban had
caused Dr. Kannankeril's cognitive impairment. It is for the
jury to decide whether a single cholinesterase test, yielding
results within normal limits, outweighs the other factors
relied upon by Dr. Gerson and undermines his opinion.
This is an issue of credibility, not of admissibility.

Furthermore, we do not agree with the trial court's
finding that "every" objective medical test showed normal
results. The cholinesterase test was not the only clinical
test performed on Dr. Kannankeril. Dr. Grober, the
neuropsychologist at the Albert Einstein Medical Center,
confirmed a diminution in Dr. Kannankeril's cognitive
abilities.

In attacking the differential diagnosis performed by the
plaintiff's expert, the defendant may point to a plausible
cause of the plaintiff's illness other than the defendant's
actions. It then becomes necessary for the plaintiff's expert
to offer a good explanation as to why his or her conclusion
remains reliable. Paoli, 35 F.3d at 762. Dr. Gerson,
however, was never challenged by the presentation of
alternate diagnoses by other physicians. Moreover,
Terminix, in challenging Dr. Gerson's opinion, has not

                                9



raised any other theory of causation for Dr. Kannankeril's
cognitive impairment.7 The record in this case is devoid of
any alternate diagnosis which Dr. Gerson ignored or failed
to consider.

Furthermore, we reject Terminix's argument that Dr.
Gerson admitted to alternate causes other than exposure to
Dursban for Dr. Kannankeril's condition. Dr. Gerson had
testified at his deposition that something other than
exposure to organophosphates "could" have caused each of
the individual symptoms displayed by Dr. Kannankeril.
While, however, an alternate explanation for each of Dr.
Kannankeril's individual symptoms may exist separately,
Dr. Gerson concluded with reasonable medical certainty
that Dursban was the most likely cause of her condition as
a whole. Terminix's exploration of the cause of each
individual symptom goes not to the admissibility of the
evidence but to its weight.

2. Degree of Exposure

The Kannankerils also contend that the district erred in
finding that Dr. Gerson had no knowledge of Dr.
Kannankeril's degree of exposure to Dursban. According to
the district court, Dr. Gerson did not know the levels of
Dursban at the Kannankerils' home at the time of
exposure, and he did not know the amount of time
plaintiffs spent in the home. We conclude, however, that
the district court erred when it failed to recognize that Dr.
Gerson had sufficient knowledge of exposure from his
review of Terminix's application records, showing when,
how much, and where pesticide had been applied.

Terminix asserts, however, that these application records
are "unreliable as a matter of law as a tool" to determine
Dr. Kannankeril's exposure. The trial court agreed and
ruled that the only information reviewed by Dr. Gerson
which addressed actual levels of pesticides in the
_________________________________________________________________

7. Terminix had, of course, no obligation to present an alternate theory
of causation in its effort to have Dr. Gerson's opinion excluded. However,
in determining whether a proper differential diagnosis was conducted, a
consideration of other diagnoses may be relevant.

                                10
Kannankeril home was the analysis performed by the DEP
in July 1991, nine months after the last application of
Dursban. The results of that sampling indicated non-
detectable levels of pesticides.

We find that Terminix's assertion is without merit. First,
there is no expert opinion in the record to establish that an
ambient air test, particularly an ambient air test performed
nine months after the final application of Dursban, is the
only appropriate way in this case to gauge exposure to the
organophosphate. Moreover, the plaintiffs were prepared to
offer into evidence the Dursban product label which
contained warnings such as: "HARMFUL IF SWALLOWED .
HARMFUL IF ABSORBED THROUGH SKIN . CAUSES EYE
AND SKIN IRRITATION" and "Throughly wash dishes and
food handling utensils with soap and water if they become
contaminated by application of this product. Do not allow
children or pets to contact treated surfaces until spray has
dried." App. at 241-43. Under the facts as presented in this
case, the district judge erred in ruling that an expert may
rely only on the ambient air test to determine whether Dr.
Kannankeril had been exposed to Dursban. Instead, all
factual evidence of the presence of the chemicals in the
residence should be relevant in forming an expert opinion
of causation.

We conclude that it is for the trier of fact to determine
what weight to give the ambient air test results as an
indication of exposure. See Joiner v. General Elec. Co., 78
F.3d 524, 534 (11th Cir. 1996) (reversing exclusion of
expert opinions that plaintiffs' exposure to certain
chemicals caused his lung cancer where there were issues
of fact whether plaintiff was actually exposed to the
chemicals so that summary judgment based on a finding of
no exposure was inappropriate). The issue whether an
ambient air test should be given more weight than pesticide
application records goes to the weight rather than the
admissibility of evidence. See United States v. Velasquez, 64
F.3d 844, 848 (3d Cir. 1995) (citing United States v.
Jakobetz, 955 F.2d 786, 800 (2d Cir. 1992)). The trial judge
must be careful not to mistake credibility questions for
admissibility questions.

                                 11



3. Peer Review and Publication

Two other factors that a district court can take into
account in assessing reliability are peer-review and
publication. They may not, however, in every case be
necessary conditions of reliability. See Daubert, 509 U.S. at
593; Paoli, 35 F.3d at 742. In the instant case, Dr. Gerson
admitted that he has not produced any publication on
organophosphates. Because the toxic effects of
organophosphates on humans are well recognized by the
scientific community, however, Dr. Gerson's opinion is not
a novel scientific theory regarding organophosphates.8
Instead, Dr. Gerson merely reported that Dr. Kannankeril
exhibited the "signs and symptoms of chronic toxicity
related to exposure to chlorpyrifos (Dursban)." Thus,
although Dr. Gerson did not write on the topic, his opinion
is supported by widely accepted scientific knowledge of the
harmful nature of organophosphates. See also McCullock v.
H.B. Fuller Co., 61 F.3d 1038, 1042 (2d Cir. 1995) (holding
that peer review and publication or general acceptance of
an expert's theory goes to the weight of the testimony
rather than its admissibility).

Based on the record before us, we conclude that
Dr. Gerson's opinion on causation has a factual basis
and supporting scientific theory. Dr. Gerson based his
opinion on Dr. Kannankeril's medical records, Dr. Grober's
reports confirming her medical condition, and Terminix's
application receipts. He also relied on general experience
and readings, general medical knowledge, standard
textbooks, and standard references. After considering all
the relevant facts, Dr. Gerson reported that "[t]he temporal
relationship and the nature of her complaints lead
me to conclude that with reasonable medical certainty, the
cause of Dr. Kannankeril's Central Nervous System
manifestations of toxicity is exposure to Dursban in 1989 to
1990." App. at 51. Dr. Gerson's testimony is neither
conjecture nor speculation. His opinion was clearly stated
to a reasonable degree of medical certainty.
_________________________________________________________________

8. It is an acknowledged scientific fact that chlorpyrifos, the active
ingredient in Dursban, is harmful to humans and can cause the very
symptoms displayed by Dr. Kannankeril.

                                12



Whether the appellants' expert might have done a better
job is not the test. We have stated that "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."
Holbrook, 80 F.3d at 782. If the expert meets liberal
minimum qualifications, then the level of the expert's
expertise goes to credibility and weight, not admissibility.
See Paoli, 35 F.3d at 741. The Second Circuit addressed a
similar issue and commented that the expert's alleged
shortcomings were raised properly on cross-examination
and went to the credibility, not the admissibility, of his
testimony. McCullock, 61 F.3d 1038, 1043 (2d Cir. 1995).
Consequently, we reject Terminix's suggestion that Dr.
Gerson must be a specialist in Dursban to provide expert
testimony on the causation of Dr. Kannankeril's injury.

The Kannankerils' burden is only to provide an expert
opinion that is relevant and reliable and that will assist the
trier of fact. As we have repeated above, issues of credibility
arise after the determination of admissibility. Credibility is
for the jury. We conclude that, under the facts presented
here, the district court erred in ruling that Dr. Gerson's
expert testimony on causation was inadmissible.

IV. CONCLUSION

For the foregoing reasons, we hold that the district court
erred as a matter of law in refusing to permit Dr. Gerson to
testify as to his opinion of the causation of Dr.
Kannankeril's illness. Accordingly, we will vacate that
portion of the district court order which granted summary
judgment against Dr. Mary Kannankeril, and we will
remand this case for further proceedings consistent with
this opinion.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                13
