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.
5