{¶ 64} I reluctantly concur in both the judgment and opinion. I believe that the principal opinion accurately sets forth the current state of the law concerning the admissibility of expert witness opinions. I am troubled, however, with the application of the law to the facts of this workers' compensation case.
{¶ 65} Appellant asserts that the trial court improperly applied general tort law principles to this workers' compensation case. The principal opinion rejects this argument, and I agree with this conclusion. Although courts must liberally construe workers' compensation laws in favor of employees (see R.C.4123.95), proximate cause determinations are made in the same manner in workers' compensation cases as in other general tort actions. See Murphy v. Carrollton Mfg. Co. (1991),61 Ohio St. 3d 585, 575 N.E.2d 828.
{¶ 66} The results in this particular case are unfortunate. This case involved Valentine's prolonged exposure to chemical toxins, not a traditional workplace injury that involved machinery or other types of easily recognizable injuries. I fear that the instant case may very well be a situation in which medical science and the law are not currently equipped to adequately resolve this controversy.7 In light of the fact that this matter is in the context of a workers' compensation case, I do not believe that a relaxed causation standard is unworkable or far fetched. This, however, is a matter that is beyond our reach and must be addressed by the Ohio Supreme Court. As an intermediate appellate court, we are obligated to follow Ohio Supreme Court decisions. *Page 643
{¶ 67} I recognize that Daubert and Kumho Tire stand for the proposition that "junk science" has no place in our courtrooms. I, however, question whether the expert opinions elicited in this case should be placed in that category.
APPENDIX ONE {¶ 68} The evidence relevant to the trial court's summary judgment decision follows.
{¶ 69} Appellant retained three expert witnesses: Valentine's treating physicians at OSU hospital, Dr. Newton and Dr. Miner, and industrial hygienist Norman Brusk. Drs. Newton and Miner opined that Valentine's work environment, specifically his exposure to various toxic substances, proximately caused his brain tumor.
{¶ 70} Appellee retained two expert witnesses: Dr. Darrell A. Bigner and Charles R. Buncher, a professor of Biostatistics and Epidemiology in the Department of Environmental Health University of Cincinnati College of Medicine who testified favorably for PPG.
A. APPELLANT'S EXPERTS 1. Dr. Miner {¶ 71} Dr. Miner conceded that medical science has not identified a specific etiology for glioblastoma multiforme, with the exception of ionizing radiation, and that medical science has not established a definite link between a specific chemical and glioblastoma. Nevertheless, Dr. Miner opined that Valentine was at a greater risk of developing a malignant brain tumor than the general population, that he had an increased risk of developing malignant brain tumor secondary to the exposure to the chemicals at PPG, and that his tumor was related to his employment and exposure to chemicals. In an affidavit, Dr. Miner asserted: "It is my professional opinion, based on a reasonable medical probability, that Mr. Valentine's brain tumor was directly and proximately caused by his exposure to chemical toxins in his workplace, especially in his employment for ten years as a laboratory technician at PPG, and that his death was directly caused by that exposure." He further explained: "It is my professional opinion that it is not possible to identify a specific chemical that by itself would have resulted in Mr. Valentine's brain tumor. Indeed, it is more likely that it was the long exposure over years to a combination of chemicals that was the cause of his malignant brain tumor. Since he was exposed for a long period of time to many known carcinogens, it is not possible to identify a single causative agent. There are no laboratory experiments that can duplicate his total exposure to these chemicals. However, other industries have reported the results of people exposed *Page 644 to similar carcinogens and in those reports, the incidence of brain tumors is higher than expected."
{¶ 72} Dr. Miner readily admitted, however, that medical science has not yet proven a known etiology for glioblastoma multiforme. He qualified this statement by explaining: "I believe it's very difficult to prove what would or wouldn't cause brain tumors. One thing that seems to have been well proven is ionizing radiation. I believe there's other things that certainly contribute to formation of tumors, but it's difficult to prove in people that they are the cause of them."
{¶ 73} Dr. Miner stated that he did not agree with PPG's expert, Dr. Bigner, that "the only known cause of primary brain tumors * * * [is] ionizing therapeutic radiation." Dr. Miner believed Dr. Bigner's opinion to be "an overly dogmatic statement; and taken in the context of everything else he says, I would have trouble agreeing with." He explained his disagreement with Dr. Bigner: "Well, after reading [Dr. Bigner's opinion], you conclude that nothing else contributes to causing — I would come to the conclusion that he thinks that nothing else contributes to the cause of brain tumors besides essentially bad luck, your parents' genes and ionizing radiation, and I don't think that's true."
{¶ 74} He cannot state within a reasonable degree of medical probability which specific chemical caused Valentine's glioblastoma. He cannot state which chemical or group of chemicals caused Valentine's glioblastoma.
{¶ 75} He thinks that benzene, acrylonitriles, ethylene oxide, and toluene can contribute to glioblastoma: "[E]xposure to them increases the chances of people developing brain tumors or glioblastoma multiforme." He believes that exposure to toluene increases the risk of glioblastoma. "[L]ong-term exposure to benzene I believe within a reasonable degree of medical probability enhances the likelihood that you'll develop a glioblastoma."
{¶ 76} Appellant's counsel questioned him: "[W]hen you consider the totality of Mr. Valentine's exposure to the range of chemicals identified in Mr. Brusk's report, this would be exposure both through air contact and dermal contact and under situations where strict safety standards were not being applied and that this exposure to the range of chemicals taking place over approximately a 30-year period, do you have an opinion based on a reasonable medical probability as to whether Mr. Valentine was exposed to a risk of developing cancer, including brain cancer, that was greater than the public as a whole because of his employment at PPG?"
{¶ 77} Dr. Miner answered: "I think assuming the things that you said are true from what I glean from the Brusk report, that he was at an increased risk of developing a malignant brain tumor than the general population." Dr. Miner opined that Valentine's tumor was related to his employment and his total *Page 645 exposure to various chemicals, not that any one specific chemical or group of chemicals caused the brain tumor.
{¶ 78} To support his opinion, Dr. Miner relied upon (a) epidemiological studies, (b) animal studies, (c) his prior experience treating patients with brain tumors, and (d) differential diagnosis.
a. Epidemiological Studies {¶ 79} Dr. Miner's review of an epidemiological study from the petrochemical industry led him to believe that benzene increases the likelihood of developing a brain tumor. Dr. Miner explained: "[The whole purpose of the epidemiological study is to] show these people were working and very highly exposed to these chemicals and they had a very high instance of glioblastoma. That's the usual way the epidemiologists make associations. Epidemiologists almost never prove anything. They just make the association so significant that you can't believe otherwise." In explaining his reliance on epidemiological studies, Dr. Miner stated that "it was very clear that there was a relationship between exposures to some chemicals and the onset of brain tumors." He explained: (1) "A number of epidemiological studies document an increased risk of cancer, including brain cancer * * *, in the occupation of a lab technician/chemist whose employment involved routine handling and exposure to a number of different solvents similar to what Mr. Valentine had"; and (2) "Epidemiological studies from the petroleum industry have documented an increased risk of the development of brain tumors * * * from exposure to solvents, especially benzene."
b. Animal Studies {¶ 80} Dr. Miner stated that some animal studies have shown certain chemicals, like benzene, capable of producing brain tumors.
c. Prior Experience {¶ 81} Dr. Miner also stated that he based his opinion upon his past experience treating people diagnosed with brain tumors. When Dr. Miner worked in the Houston, Texas area, he treated at least 50 patients diagnosed with glioblastomas. He asserted: "[I]t's been my experience that people that work around some of the chemicals that I believe that David Valentine was exposed to have an unusually high instance of brain tumors." He stated that he was "often struck at the frequency of people that worked in the petrochemical industry having glioblastomas."
d. Differential Diagnosis {¶ 82} Dr. Miner stated that the following facts formed the basis for his opinion: (1) Valentine's personal history is negative for any family history of *Page 646 similar problems, (2) he did not have any exposure to chemical toxins outside of his employment, (3) industrial hygienist Brusk's report, (4) a review of the medical literature, including articles on primary medical and genetic research, animal studies and epidemiological studies, (5) Valentine's exposure to chemicals that are known to cause or suspected to cause changes in human cells that result in cancer, and (6) animal studies identifying acrylonitrile and ethylene oxide as chemicals capable of producing brain tumors in rats.
2. Dr. Newton {¶ 83} Dr. Newton agrees that the only known cause of glioblastoma multiforme is ionizing radiation. Dr. Newton has treated over 1,000 cases of glioblastoma multiforme, and he has yet to notice any pattern or common links between patients.
{¶ 84} Dr. Newton opined that Valentine contracted the glioblastoma multiforme as a result of the risks he was exposed to at PPG. Dr. Newton believes that there is a suspicious proximate relationship between PPG and Valentine's brain tumor. Dr. Newton also stated that Valentine's employment as a lab technician and environmental specialist presented a risk of developing brain cancer greater than the risk presented to the general population.
{¶ 85} Dr. Newton stated that he agreed with Dr. Bigner that ionizing radiation is the only proven cause of primary brain tumors, but emphasized that Dr. Bigner discussed proven causes. Dr. Newton stated: "[T]here are many things that could be related that have not been proven yet. They may be part of a multiple causation of cancer, which is typical in most cases. If you really have the cancer, it's often not just one thing, it's numerous things that are involved in the cancer causation. It's not typically a single proximate cause disease."
{¶ 86} Dr. Newton stated that he could not identify the "exact single proximate cause of [Valentine's] glioblastoma, but [he] suspect[ed] there are numerous proximate causes like there typically are in most of these cases." Dr. Newton also explained that he is "suspicious that [Valentine's] exposures over 28 years at PPG were part of that list of potential proximate causes." Dr. Newton stated that he could not name a specific chemical that caused Valentine's brain tumor, but thinks "it might have been generalized exposure to probably more than one of those chemicals over time that could have acted as a proximate cause or one of the proximate causes."
{¶ 87} Dr. Newton stated that he was, within reasonable medical probability, "suspicious that [Valentine's employment] was possibly one proximate cause that contributed to his brain tumor development." Dr. Newton explained that his use of the word "suspicious" meant "[m]ore likely than not." Dr. Newton opined that Valentine's death was more likely than not contracted as a result of risks he was *Page 647 exposed to in his employment. Dr. Newton gave the following reasons underlying his opinion: "Because of such intense constant exposure over a long number of years, which is the way cancer is often thought to develop. With environmental carcinogens, it's often long-term constant exposure to different agents that we feel lends to the initiation and promotion of a tumor."
{¶ 88} In Dr. Newton's August 29, 2000 letter that he sent to appellant's counsel, he more specifically explained his opinion as follows: "The etiology of PBT remains unclear, but most investigators agree it is a combination of familial genetic loading and endogenous metabolic processes and, less importantly, environmental exposures. However, some recent literature would suggest that exposure to environmental agents accounts for 60-80% of sporadic cancers, including PBT. It is important at this point to note that Mr. Valentine did not have a particularly strong family history of cancer, although there was some on his mother's side. Environmental carcinogens are suspected of acting as promoters, more so than as initiators, in the multistep process of neurocarcinogens and brain tumor development. In humans, cancer development is a long-term process that often evolves over decades. Several types of chemicals have been implicated as neurocarcinogens in animals and humans, including triazenes, hydrazines, vinyl chloride, pesticides, and others. Vinyl chloride, in particular, has been implicated in numerous studies as a potential neurocarcinogen in the work-place. Epidemiological studies are fairly consistent that industrial workers given long-term exposure to the above chemicals have an increased incidence of, and elevated odds ratios for, developing a brain tumor. Mr. Valentine was exposed to many of the above chemicals, as well as many others, over a 30 year career at PPG Industries. Although I agree with Dr. Bigner that the only proven exogenous cause of a brain tumor in humans is irradiation, I do not agree with his assessment concerning long-term exposure to neurocarcinogens in the work-place. I feel that long-term exposure to neurocarcinogens can add to the lifetime risk of developing a brain tumor and that they add to the intrinsic risk a person has from familial genetic loading for cancer. Considering that Mr. Valentine did not have a strong family history for cancer and that he was exposed to several types of neurocarcinogens over a 30 year period, I feel it is quite likely that his occupation contributed to the development of his brain tumor. This is supported by the fact that his co-worker, Harold McConnaughy, also had a similar exposure pattern to neurocarcinogens and also died of a glioblastoma multiforme. I conclude that Mr. Valentine's employment at PPG Industries constituted a risk for developing cancer that was greater than the public as a whole and that the exposure to neurocarcinogens in the workplace contributed to his contraction of the brain tumor." *Page 648
{¶ 89} In reaching his opinion, Dr. Newton relied upon scientific literature, animal studies, and epidemiological studies.
a. Scientific Literature {¶ 90} Dr. Newton recognized that some of the chemicals that industrial hygienist Brusk identified in his report are carcinogens or suspected carcinogens (as classified by cancer regulatory agencies), but states that "[n]othing's been proven," meaning that no medical proof exists that any one chemical or any combination of the chemicals causes glioblastoma multiforme.
b. Animal Studies {¶ 91} Dr. Newton stated that the following chemicals are neurocarcinogens in animals and are looked at as potential or possible causes in humans: hydrazines, vinyl chloride, acrylonitrile, and polycyclic hydrocarbons.
{¶ 92} He stated that the animal studies showing a neurocarcinogenic effect would make one "suspicious for having that same effect in people." He further explained, however, that "we don't know the dosing, we don't know how long they need to be exposed, we don't know the details of any of that stuff because those studies can't be done [in humans]." Thus, Dr. Newton opined that "it's hard to say" whether the animal studies show that a specific chemical proximately causes brain tumors in humans.
c. Epidemiological Studies {¶ 93} Dr. Newton recognized that "some epidemiological studies * * * suggest increased relative risk compared to the general population for people exposed to [solvents, hydrocarbons, and associated chemicals]." Dr. Newton referred to an article entitled "Occupational Risk Factors of Women in Shanghai, China." The study stated: "Previous studies have suggested that organic solvents are associated with brain tumors, particularly gliomas. Our results provide supporting evidence for that hypothesis."
3. Industrial Hygienist Brusk {¶ 94} Brusk reviewed Valentine's employment with PPG to determine what chemicals Valentine would have been exposed to. Brusk stated that when Valentine worked in the Quality Control Laboratories, "he had contact with chemicals that are considered to be potentially carcinogenic." The International Agency for Research on Cancer rates chemicals as carcinogenic, probably carcinogenic, or possible carcinogenic. The American Conference of Governmental Industrial Hygienists rates chemicals as confirmed human carcinogen, suspected human carcinogen, or animal carcinogen. The chemicals included acrylamide (possible carcinogenic/animal carcinogen), acrylonitrile (probably carcinogenic/suspected *Page 649 human carcinogen), benzene (carcinogenic/confirmed human carcinogen), ethyl acrylate (possibly carcinogenic), ethylene oxide (probably carcinogenic/suspected human carcinogen), propylene imine (possibly carcinogenic/animal carcinogen), propylene oxide (probably carcinogenic/animal carcinogen), styrene (possibly carcinogenic/animal carcinogen), toluene (possibly carcinogenic), dioxane (possibly carcinogenic), and polychlorinated biphenyls ("PCBs") (probably carcinogenic). Valentine also had "extensive exposures to additional solvents including toluene, xylene, MIK, MEK, and butyl alcohol. Additional effects of these chemicals is undetermined at this time. Toluene in particular is of concern because this product, as manufactured in the 60s, was known to have significant Benzene contamination."
{¶ 95} Brusk stated: "It is my professional opinion that Mr. Valentine's particular employment as a laboratory technician and environmental specialist subjected him to a risk of developing cancer from both respiratory and skin contact with the numerous carcinogens identified above that was substantially different from and greater than the risk of developing cancer faced by workers in general and/or the public as a whole." Brusk based his opinion "not only on the specifically identified chemicals, but also on the cumulative effect of Mr. Valentine's long term exposures to many toxic chemicals."
{¶ 96} Brusk opined that Valentine had "unquantifiable, but significant exposures to cancer causing and potentially cancer causing chemicals. His exposures would be from inhalation of vapors and from absorption of chemicals directly though his unprotected skin. He may also have had exposure from the transfer of chemicals from his hands to food or to his mouth by wiping."
{¶ 97} He reviewed the epidemiological study "A General Mortality Study of Production Workers in the Paint and Coatings Manufacturing Industry." He does not believe that it "reflect[s] the situation of Mr. Valentine during his work career at PPG. The study was considerably too broad to isolate the laboratory personnel. They were lumped in, if included at all, with the general work population. Therefore if there were an increase in brain cancers for the laboratory personnel, it would not show up in the study."
{¶ 98} Brusk refers to other epidemiological studies that linked employment and brain cancer: "Case-Control Study of Intracranial Tumors Among Employees at a Petrochemical Research Facility" and "Cancer Incidence Among Employees at a Petrochemical Research Facility." He recognizes that neither study could identify a specific agent, but the study concluded that the "`patterns suggest that the brain cancer excess resulted from occupational exposures.'" He also referred to "The Hazard of a Chemical Laboratory Environment — A Study of the Mortality in Two Cohorts of Swedish Chemists." The study concluded: *Page 650 "`An increase in mortality due to leukemias * * * and possibly brain tumors was observed. It is probable that employment in a chemical laboratory, and particularly in organic chemistry, is associated to some extent with the increase.'" He also referred to a study entitled "The Cancer Mortality Among Swedish Chemists Graduated During Three Decades." That study concluded: "`[T]his study supports the suggestions that chemical exposure is a cause of both leukemic and hematopoietic tumors and brain tumors and thus indicates the occupational hazards in chemical work.'" Brusk also noted that the study "Brain Cancer in Petrochemical Workers: A Case Series Report" concluded, "`The information available indicates that the number of brain tumors is excessive in a population of this size, and that the tumors are likely to be occupationally related.'" Brusk also referred to the study "Occupational Risk Factors for Brain Tumors Among Women in Shanghai, China," which concluded that brain cancer "`[r]isks were significantly elevated in occupations thought to entail exposure to organic solvents.'"
{¶ 99} In his affidavit, Brusk stated: "Based on my assessment of Mr. Valentine's workplace, the above studies, my experience as an industrial hygienist as well as a chemist, and the occurrence of clusters of brain cancers in chemical related fields, it is my professional opinion that Mr. Valentine had a higher risk of developing brain cancer because of his position as a laboratory technician than of employees in the general workforce and of the population as a whole."
B. PPG'S EXPERTS 1. Dr. Bigner {¶ 100} Dr. Bigner challenged appellant's experts' opinions. Relevant quotations from his affidavit follow: "[T]here is no reliable or reproducible scientific evidence for any opinion or conclusion that chemicals or environmental agents other than ionizing (therapeutic) radiation can cause primary brain tumors in humans. There are no peer reviewed medical or scientific reports, studies, or articles that demonstrate chemicals or environmental agents cause primary brain tumors in humans, except ionizing (therapeutic) radiation. There are no scientific reports or data in the medical or scientific literature that establishes that acrylamide, acrylonitrile, benzene, ethyl acrylate, ethylene oxide, propylene imine, propylene oxide, styrene, toluene-diisocyanate, dioxane, [PCBs], polycyclic aromatic hydrocarbons, toluene, xylene, MIK, MEK and butyl alcohol can cause or contribute to the development of primary brain tumors in humans. There is no study or report in the scientific literature that any of these chemicals can cause mutations or other DNA damage in human brain cells that is not repaired, especially glial cells and astrocytic cells which are the precursor cells of David Valentine's brain tumor. Acrylamide, acrylonitrile, ethylene oxide, propylene *Page 651 imine, polycyclic aromatic hydrocarbons, and hydrazines given at maximum tolerated doses through most of the lifetime of rodents have been demonstrated to induce brain tumors. Nevertheless, there is no reliable or reproducible epidemiological evidence that shows that chemicals capable of causing brain tumors in animals at maximum tolerated doses over a lifetime can cause brain tumors in humans. The biological plausibility of those chemicals causing brain tumors in humans is lacking. First of all, there is no documented exposure of the decedent, David Valentine, to those chemicals and if there was any exposure, it was far less than the maximum tolerated lifetime doses given to animals. At low doses, these chemicals in humans would not likely be converted by enzyme systems to their reactive metabolites which would be necessary to cause DNA damage. The high doses given to animals are necessary to saturate enzyme systems which inactivate these chemicals and make them available to enzyme pathways which could convert them to their reactive metabolites. The human brain has many defense mechanisms against the development of brain tumors. These include the blood-brain barrier and the extremely low levels of expression of genes such as P450 enzymes and glutathione-S transferase enzymes which are necessary to convert chemicals to their reactive metabolites. In the absence of reactive metabolites, DNA damage does not occur. Moreover, even if chemicals can cross the blood-brain barrier and there are reactive metabolites that can cause DNA damage, the brain is equipped with large numbers and high concentrations of DNA repair proteins which repair DNA damage as it occurs."
{¶ 101} Dr. Bigner's thus opined: "[T]here are no reliable or reproducible epidemiological studies that show that more likely than not any chemical or environmental agent has caused or contributed to the development of primary brain tumors in humans." Therapeutic radiation "is the only known and established cause of primary brain tumors in humans." "It is my opinion to a reasonable degree of medical and scientific probability and certainty that David Valentine's condition was not caused by exposure to chemicals or environmental agents in his work place."
{¶ 102} Dr. Bigner stated: "Plaintiff's contention that Decedent David Valentine was at an increased risk of developing a malignant brain tumor than the general population, that he had an increased risk of developing malignant brain tumor secondary to the exposure to the chemicals at PPG, and that his tumor was related to his employment and exposure to chemicals is not supported by any peer-reviewed medical or scientific literature or data in this specific case. There is no medical or scientific basis to determine what caused David Valentine's glioblastoma, and there is no medical or scientific basis to conclude that Mr. Valentine's glioblastoma was caused by any exposures at PPG." *Page 652
2. Buncher {¶ 103} Charles R. Buncher, professor of biostatistics and epidemiology in the Department of Environmental Health University of Cincinnati College of Medicine, explained the significance of epidemiological studies in his affidavit: "In order to establish that a chemical or environmental agent more likely than not * * * causes a glioblastoma multiforme, the epidemiological study must first establish that there is a statistically significant association between the agent and the disease."
{¶ 104} Buncher stated: "Based upon my experience and review of the medical and scientific literature there are no scientifically reliable or reproducible epidemiological studies that establish any chemical or environmental agent as a cause of a glioblastoma multiforme. There are no epidemiological studies that demonstrate that there is a statistically significant association between a specific chemical or environmental agent (with the exception of ionizing radiation) and contraction of glioblastoma multiforme in humans."
C. Epidemiological Studies {¶ 105} Following is a basic summary of some of the epidemiological studies upon which appellant's experts relied.
1. Cancer Incidence Among Employees at a Petrochemical Research Facility, JOEM, Vol. 43, Number 2, February 2001. {¶ 106} This study evaluated cancer incidence among employees at an Amoco Research Center. The study notes, "A few of the many studies of petrochemical industry workers have noted an excess of brain cancer, but none has identified a specific agent likely to be responsible for the positive associations. Most studies of chemical and petrochemical industry workers in technical and salaried occupations have reported a deficit of brain cancer and of chemists." The study states: "Brain cancer was increased in the overall study group, and this excess was restricted to white men who worked for the ACC as scientists or technicians; all cases in the latter group had worked in the 500 complex. These patterns suggest that the brain cancer excess resulted from occupational exposures, but the present study and other investigations of ARC employees have not identified a causal occupational agent, nor do they entirely rule out random variability as an explanation."
2. Occupational Risk Factors for Brain Tumors Amongst Women in Shaghai, China, JOEM, Vol. 37, Number 3, March 1995. {¶ 107} This study states: "Previous studies have suggested that organic solvents are associated with brain tumors, particularly gliomas. Our results *Page 653 provide supporting evidence for that hypothesis. Risks also appeared to increase with probability and level of benzene exposure in these data. No previous studies, however, have provided evidence of an association of benzene with brain tumors. The association we observed may be confounded by exposure to other solvents, particularly because the association with the general class of solvents was about the same magnitude as that observed with benzene. Solvents, including benzene, may be partly responsible for the excesses observed in painters and rubber workers, but both occupations entail complex exposures. Additional detailed, exposure-specific analyses are needed to determine the agents responsible for these excesses."
3. Cancer Mortality among Swedish Chemists Graduated during Three Decades. {¶ 108} This study states that it supports the suggestions that chemical exposure is a cause of both leukemic and hematopoietic tumors and brain tumors and thus indicates the occupational hazards in chemical work.
4. Brain Cancer in Petrochemical Workers. {¶ 109} This study examined 18 brain cancer deaths at one petrochemical plant. "The plant is a diversified petrochemical manufacturing facility with a large number of major product lines which over the years have included ethylene, butadiene, naphtha, ethylene dichloride, diethyl sulfate, glycols, aldehydes, acetates, alcohols, amines, organic acids, and plastics and resins (polyethylene, vinyl chloride — vinyl acetate co-polymers, phenol-formaldehyde resin). Review of the plant's chemical inventory reveals the presence of at least ten recognized or suspected carcinogens in significant quantities as raw materials." However, the study did not find a common link of chemical exposure.
{¶ 110} The study also states: "A detailed literature search for compounds inducing brain cancer has identified 26 different chemicals from experimental animal studies, as shown in Table VI. Review of available epidemiological studies provided in Table VII offers several intriguing clues, but little solid documentation for occupationally related brain tumors, except in the case of vinyl chloride. Recent mortality studies of oil refinery workers in Canada and petrochemical workers in Texas suggest the possibility of an excess of brain cancer risk among these groups, although no specific causative agent has yet been identified." The study also reported: "A comparison of experimental studies, epidemiological data, and the plant chemical inventory shows that vinyl chloride and diethyl sulfate are possible suspect agents for inducing brain cancer in these workers. On the basis of prior knowledge from human and animal studies, and its presence in the work environment under poorly controlled circumstances in the past, vinyl chloride must be the first compound considered. However, to date, examination of the *Page 654 work histories of the 18 cases does not support a significant positive association with vinyl chloride exposure, and other agents must therefore be carefully evaluated. The information available indicates that this number of brain tumors is excessive in a population of this size, and the tumors are likely to be occupationally related. There is no good evidence so far to implicate non-plant, general environmental factors. A very careful and thorough investigation of this situation must be completed, since a previously unsuspected chemical exposure may be responsible for this striking appearance of brain cancers among workers in a single petrochemical plant."
APPENDIX TWO {¶ 111} The trial court denied appellant's motion to expand discovery. Appellant argued that because Valentine's employment took him into the production area as well as the laboratory areas, the air sample testing of workers on the production floor is relevant and appropriate evidence for discovery. Appellant asserted that she is entitled to 27 years' worth of air sampling results of PPG's production work force because Valentine might have passed through production areas when working as a laboratory technician and as an environmental specialist. Appellant did not direct the court to any specific incident where it is alleged that Valentine was exposed to specific chemicals within the production area of PPG. The court stated even if "air sample tests alone from the production area would benefit [appellant], this Court is not persuaded that [appellant] needs to be provided with twenty-seven years worth of air sampling results of PPG's production work force. [Appellant's] request for air sampling data for all production workers is too broad. When conducting air sampling, it appears that PPG used a charcoal sample tube that was placed on an individual worker for approximately an eight hour shift. Consequently, as argued by PPG, air samples were taken of every place that the laboratory technician went, including the production floor. Thus, the air sampling information that has been produced already includes any exposure that a laboratory technician had when the laboratory technician passed through the production floor. Absent documentation concerning a specific incident or date whereby plaintiff demonstrates that [the deceased] was possibly exposed to chemicals similar to production workers, this Court finds that the request for the expansion of discovery is unreasonable."
{¶ 112} The court also denied appellant's request for an order compelling the completion of Louis Jordan's deposition. "The Court agrees with [appellee] that [appellant] is asking Mr. Jordan to testify regarding a risk analysis that is the subject of expert testimony and clearly beyond the scope of Mr. Jordan's qualifications to answer." *Page 655
{¶ 113} The court denied appellant's request to order Nick Cleary to appear for redeposition and specifically order him to answer all questions regarding increased risk of injury from chemical exposure at PPG. The court found that based upon Cleary's affidavit, he is not able to answer appellant's counsel's question whether someone working in a chemical plant like PPG would have a risk of exposure to harmful chemicals greater than the general public. Cleary swears that he is not qualified by education or training to do a comparative analysis between the risk of exposure to harmful chemicals in a paint plant and the risk of exposure to harmful chemicals to the general public.
{¶ 114} The court denied appellant's request for transmittal packages, messages, e-mails, and any other forms of communication sent from the Research and Development Departments in Pennsylvania to the Circleville plant's Safety Department or industrial hygiene specialist, from 1969 through 1996. The court found that it was too broad and unduly burdensome.
{¶ 115} The court denied appellant's request for PPG to produce "all product analysis prepared by process engineers to document by-products given off in the manufacturing process as discussed in Nick Cleary's deposition of December 20, 2002 at page 52." The court found appellant's request "overly broad and unduly burdensome."
{¶ 116} The court found that it already addressed appellant's request for the production of all ventilation test results and all problem analysis and memorandum accompanying such testing procedures that are described by Ralph Copeland in his deposition. The court previously ordered PPG to produce all existing documents relating to air sample testing performed from 1969 to 1996 at the Circleville facility in the labs where Valentine worked, and to produce documents relating to engineering controls or any problem analysis concerning ventilation problems at the labs where Valentine worked.
{¶ 117} The court denied appellant's request for PPG to produce all engineering and architectural designs to document the ventilation function for all of the buildings where Valentine worked from 1969 to 1996.
{¶ 118} The court denied appellant's request for all patent information to identify chemical processes and all products manufactured at the Circleville facility from 1969 to 1996. The court found that appellant's request seeking all patent information for a 30-year period is overly broad, unduly burdensome, and ambiguous.
{¶ 119} The court denied appellant's request for disclosure of the volume of every raw product purchased by the Circleville facility from 1969 to 1996. The court found appellant's request for the total volume of every raw product used by PPG's facilities over approximately 30 years to be overly broad. *Page 656
{¶ 120} The court denied appellant's request for all OSHA and EPA records for inspection. The court noted that in its June 12, 2002 entry, it ordered PPG to produce all existing accident and/or injury reports from 1969 to 1996 related specifically to chemical exposure at the Circleville facility in the labs where Valentine worked.
{¶ 121} The court denied appellant's request to order PPG to produce an affidavit from appropriate PPG employees who have carried out the search to obtain the requested document information. The court found that it had already instructed PPG to supply an affidavit verifying the nonexistence of the items that the court had ordered PPG to produce and that it claims do not exist.
APPENDIX THREE {¶ 122} In Joiner, the court upheld the trial court's finding that the four epidemiological studies on which the plaintiff relied were not a sufficient basis for the experts' opinions. The court discussed the four studies:
{¶ 123} "The first such study involved workers at an Italian capacitor plant who had been exposed to PCBs. Bertazzi, Riboldi, Pesatori, Radice, Zocchetti, Cancer Mortality of Capacitor Manufacturing Workers, 11 American Journal of Industrial Medicine 165 (1987). The authors noted that lung cancer deaths among ex-employees at the plant were higher than might have been expected, but concluded that `there were apparently no grounds for associating lung cancer deaths (although increased above expectations) and exposure in the plant.' Id. at 172. Given that Bertazzi et al. were unwilling to say that PCB exposure had caused cancer among the workers they examined, their study did not support the experts' conclusion that Joiner's exposure to PCB's caused his cancer.
{¶ 124} "The second study followed employees who had worked at Monsanto's PCB production plant. J. Zack D. Musch, Mortality of PCB Workers at the Monsanto Plant in Sauget, Illinois (Dec. 14, 1979) (unpublished report), 3 Record, Doc. No. 11. The authors of this study found that the incidence of lung cancer deaths among these workers was somewhat higher than would ordinarily be expected. The increase, however, was not statistically significant and the authors of the study did not suggest a link between the increase in lung cancer deaths and the exposure to PCB's.
{¶ 125} "The third and fourth studies were likewise of no help. The third involved workers at a Norwegian cable manufacturing company who had been exposed to mineral oil. Ronneberg, Andersen, Skyberg, Mortality and Incidence of Cancer Among Oil-Exposed Workers in a Norwegian Cable Manufacturing Company, 45 British Journal of Industrial Medicine 595 (1988). A statistically significant increase in lung cancer deaths had been observed in these workers. The study, however, (1) made no mention of PCB's and (2) was expressly limited *Page 657 to the type of mineral oil involved in that study, and thus did not support these experts' opinions. The fourth and final study involved a PCB-exposed group in Japan that had seen a statistically significant increase in lung cancer deaths. Kuratsune, Nakamura, Ikeda, Hirohata, Analysis of Deaths Seen Among Patients with Yusho — A Preliminary Report, 16 Chemosphere, Nos. 8/9, p. 2085 (1987). The subjects of this study, however, had been exposed to numerous potential carcinogens, including toxic rice oil that they had ingested." Joiner,522 U.S. at 145-146, 118 S. Ct. 512, 139 L. Ed. 2d 508.
7 It is indeed interesting to note that Valentine's coworker (Harold McConnaughy) also had "a similar exposure pattern to neurocarcinogens and also died of a glioblastoma multiforme" (i.e., a rare form of brain cancer that accounts for two to three percent of all new cancers diagnosed in the United States each year). See Dr. Newton's August 29, 2000 letter to appellant's counsel (Appendix I, ¶ 88).