       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ANAJAI CALCAÑO PALLANO, et al., )
                                )
     Plaintiffs,                )
                                )
     v.                         )                              C.A. No. N09C-11-021 JRJ
                                )
THE AES CORPORTATION, et al.,   )
                                )
     Defendants.                )

                                              ORDER

       AND NOW TO WIT, this 10th day of March, 2016, the Court having heard

and duly considered AES’s Daubert Motion to Exclude the Testimony of Dr.

Finnell; 1 Plaintiffs’ Response; 2 and AES’s Reply; 3 IT APPEARS THAT:
        0F                          1F                    2F




       1.    Richard H. Finnell, Ph.D. (“Finnell”) is a board-certified medical

geneticist and teratologist. 4 3F        For the past thirty-five years, Finnell’s academic

research and teaching activities have focused on the genetic basis of


1
   AES’s Daubert Motion to Exclude the Testimony of Dr. Richard H. Finnell (“Defs.’ Mot.
Exclude Finnell”) (Trans. ID. 57346086). This Motion is one of nineteen Daubert Motions filed
by the parties. See Pallano, et al. v. AES Corp., et al., 2015 WL 7776612 (Del. Super. Nov. 24,
2015) (Opinion Denying Defendants’ Daubert Motion to Exclude the Testimony of William P.
Konicki). The Court incorporates by reference the facts, background, and the discussion of
Delaware Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993), set forth in that opinion. The parties submitted twenty-six Joint Daubert Exhibits,
which include each expert’s report, deposition, and curriculum vitae (“J. Ex.”) (Trans. ID.
57342400). See J.Ex. 4.A–4.D Expert Report of Richard H. Finnell, PhD, DABMG (“Finnell
Expert Report”).
2
   Plaintiffs’ Response to AES’s Daubert Motion to Exclude the Testimony of Dr. Richard H.
Finnell (“Pls.’ Resp.”) (Trans. ID.57496526).
3
  AES’s Omnibus Reply in Support of Daubert Motions No. 1, 2, 3 and 4 to Exclude Drs. Bearer,
Mattison, Khattak and Finnell (“Defs.’ Reply”) (Trans. ID. 57607790).
4
  Pls.’ Resp., Ex. A Declaration of Richard H. Finnell, Ph.D. ¶ 3 (“Finnell Decl.”).
environmentally induced birth defects. 5 For the past ten years, Finnell has been
                                              4F




working on federally funded research grants in a coal-mining region in China,

where he has been studying the relationship between birth defects and selected

constituents of Coal Ash Waste, including arsenic and polycyclic hydrocarbons. 6      5F




Finnell has published over 250 peer-reviewed articles relating to medical genetics,

teratology, and birth defects. 7  6F




        2. Currently, Finnell serves as the Director of Genomic Research at Dell

Children’s Medical Center, and a tenured Professor in the Departments of

Nutritional Sciences and Chemistry at the University of Texas at Austin. 8 Finnell
                                                                              7F




spends two days a week in specialty pediatrics clinics evaluating patients with

congenital malformations. 9  8F        In this capacity, Finnell examines and evaluates

children with birth defects, interprets genetic testing, researches relevant literature,

and, based upon his analysis of all the relevant data, provides counseling to the

patients’ families with respect to the genetic and teratogenic implications for these

families. 10
           9F




        3. In reaching his causation opinions in this case, Finnell applied the same




5
  Id. ¶ 3.
6
  Id. ¶¶ 3, 12.
7
  Id. ¶ 7.
8
  Id. ¶ 5.
9
  Id. ¶¶ 5, 16.
10
   Id.


                                                   2
methodology that he applies in his clinical and research activities. 11 Finnell’s      10F




Declaration and Joint Declaration explain in detail this methodology, 12 along with
                                                                                 11F




other methodologies factored into his analyses, including the weight-of-the-

evidence analysis, 13 Bradford-Hill, 14 differential diagnosis, 15 epidemiology, 16
                        12F                    13F                         14F                     15F




toxicology, 17 genetics, 18 and risk assessment. 19
                  16F         17F                              18F




       4. Finnell provided a detailed expert report for Amparo Andujar’s failed

pregnancy, 20 Maximiliano Altagracia Calcano, 21 Isael Altagracia Andujar, 22 and
            19F                                                      20F                     21F




Starlys Garcia Deogracia. 23        22F   Finnell’s opinions are based upon his education,

training, experience, and specialized knowledge in genetics, embryology, organ

development, and the role of teratogens in the development of birth defects, and

developmental and reproductive toxicology. 24 In preparing his opinions, Finnell
                                                         23F




reviewed and relied upon medical records and clinician reports, genetic studies,

and peer-reviewed literature relating to the teratogenicity of arsenic and the effects


11
   Id. ¶ 16.
12
   Id. ¶¶ 15–19.
13
   Pls.’ Resp., Ex. B Joint Declaration of Sohail Khattak, M.D., FRCP(C), Richard H. Finnell
Ph.D., and Donald R. Mattison, M.D. ¶¶ 41–49 (“Joint Declaration”) (Trans. ID. 57496491).
14
   Id. ¶¶ 52–56.
15
   Id. ¶¶ 101–08
16
   Id. ¶¶ 69–100.
17
   Id. ¶¶ 132–39.
18
   Id. ¶¶ 140–67.
19
   Id. ¶¶ 109–31.
20
   Finnell Expert Report 4.A.
21
   Finnell Expert Report 4.B.
22
   Finnell Expert Report 4.C.
23
   Finnell Expert Report 4.D.
24
   Pls.’ Resp. at 8; Finnell Expert Report 4.D at 6–7.


                                                     3
of in utero exposure to arsenic, and peer-reviewed literature relating to the

teratogens in Coal Ash Waste. 25           24F




       5. For each child Plaintiff, Finnell discusses the medical reports he reviewed

and relied upon, and conducts an in-depth analysis of each child Plaintiff’s genetic

testing results, relevant medical literature, and how each child Plaintiff’s individual

gene variants relate (or do not relate) to their individual congenital anomalies. 26 25F




Finnell also analyzes literature relating to gene-environment interactions in the

etiology of birth defects, embryology and organ formation, and human

epidemiological and animal studies concerning Coal Ash Waste and its toxic

constituents (arsenic, PAHs , cadmium, mercury, zinc, antimony, chromium, lead,

selenium), and discusses how each of these studies factor into his causation

analysis for each Plaintiff. 27 In addition to analyzing numerous epidemiology,
                                     26F




toxicology, and medical publications, Finnell reviewed and relied upon exposure

data and expert exposure models to evaluate the timing, length, and intensity of

each Plaintiff’s exposures. 28 27F




       6.   Finnell concludes each of his reports by explaining that each child

Plaintiff’s congenital abnormities are not strictly attributed to any known genetic

factors inherited from his or her parents, and opines to a reasonable degree of

25
   Finnell Decl. ¶¶ 20–39.
26
   See e.g., Finnell Expert Report 4.B at 6–23.
27
   Id. at 23–43.
28
   Id. at 27–28; Finnell Decl. ¶¶ 40–49.


                                                  4
scientific certainty that each child Plaintiff’s congenital anomalies are likely the

result of in utero exposure to teratogenic compounds present in significant

concentrations of Coal Ash Waste, to which the mothers were exposed. 29          28F




        7. The Court is more than satisfied that Finnell’s opinions pass muster

under D.R.E. 702 and Daubert. Finnell is clearly qualified to render the expert

causation opinions at issue, and Finnell’s proffered testimony is based upon

sufficient facts and data, is the product of reliable principles and methods, and he

has applied the principles and methods reliably to the facts of this case. Finnell has

explained the literature he relies upon (and does not rely upon), the methodology

he employed, and has articulated his thought process, evaluation methods, and

conclusions.

       WHEREFORE, because the Court finds that the opinions set forth in

Finnell’s Expert Reports, Deposition, Declaration, and Joint Declaration are both

relevant and reliable, AES’s Daubert Motion to Exclude the Testimony of Dr.

Richard H. Finnell is DENIED.

       IT IS SO ORDERED.

                                                   /s/Jan R. Jurden
                                                   Jan R. Jurden, President Judge




29
  Finnell Expert Report 4.B at 43–44; Finnell Expert Report 4.C at 29–30; Finnell Expert Report
4.D at 35.


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