Initially, the Court recognizes that Hain, the baby food manufacturer, is largely attacking a Straw Man: “Hain devotes a lot of argument to faulting the Palmquists’ experts for failing to provide reliable opinions that toxic-metal exposure causes autism. But the Palmquists do not claim that heavy-metal exposure either generally causes autism or specifically caused Ethan’s autism symptoms. The Palmquists characterize Ethan’s condition as a ‘brain injury caused by heavy-metals poisoning’. Thus, the Palmquists believe their causation burden is only to show – generally – that heavy-metal exposure causes heavy-metals toxicity, which causes brain injury/decline and – specifically – that Ethan’s consumption of heavy metals in Hain’s baby food caused his heavy-metal toxicity and resultant cognitive decline. At trial, Hain may persuade the jury that many, if not all, of Ethan’s symptoms are attributable to autism that he developed independent of any exposure to heavy metals. But Hain may not impose a causation burden on the Palmquists that is wholly unrelated to the injury for which they seek to hold Hain responsible – Ethan’s heavy-metal toxicity and resultant brain injuries. Therefore, the court denies Hain’s motions primarily because they attack a claim the Palmquists have not alleged.” Then the Court goes on to reject the Defendant’s Daubert arguments in turn:
“First, Hain persuasively criticizes the credibility of two of Ethan’s treating physicians, Drs. Armen Nikogosian and Mary Megson.” But testimony based on one’s personal knowledge of the examination, diagnosis, and treatment of a patient is not subject to Rule 702.
“Next, Hain attacks the Palmquists’ experts for their varied conclusions on and weight given to Ethan’s heavy-metal tests. In response, the Palmquists both offer reasonable explanations for their experts’ divergent conclusions and maintain that disputes about the tests’ accuracy should be resolved by the jury. There is no dispute that the types of tests Ethan underwent are reasonably used by experts in the field to diagnose heavy-metal toxicity. The divergent views the Palmquists’ experts espouse of the heavy-metal testing do not support exclusion.
“Next, Hain attacks the methods that the Palmquists’ experts used to estimate Ethan’s consumption of heavy metals. But the Fifth Circuit does not require plaintiffs to show the precise level of toxins to which they were exposed. O’Neill v. Seariver Marine, 246 F.App’x 278, 279-80 (5th Cir. 2007). Moreover, experts can rely on circumstantial evidence to establish injurious exposure and the proof necessary to establish causation is relatively lenient. Though Dr. Michael Aschner’s worst-case-scenario consumption calculations may prove less persuasive to the jury than the more detailed calculations Dr. Damani Parran provided in his supplemental report, the court does not find Dr. Aschner’s methodology wholly unreliable or unhelpful.
“Lastly, Hain argues that all the Palmquists’ experts’ opinions related to causation are unreliable because they do not opine on the precise level of heavy-metal exposure needed to cause Ethan’s condition – regardless of how that condition is characterized.” However, the toxicology experts “do point to evidence of the harmful level of exposure needed to establish general causation. In Curtis v. M&S Petroleum, the Fifth Circuit noted that the district court correctly found that the plaintiff’s expert had sufficiently defined benzine’s harmful level of 200-300 ppm by reviewing government and scientific literature. Similarly, here, the Palmquists’ toxicology experts point to the heavy-metal levels that the FDA, EPA, and other reliable sources contend are harmful.”
Palmquist v. Hain Celestial Group, No.21-90, 2022 WL 18143413, 2022 U.S.Dist.LEXIS 235160 (S.D.Tex. Dec. 28, 2022).
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