1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-21-1996

Holbrook v. Lykes Bros Steamship

Precedential or Non-Precedential:

Docket 94-2148

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Recommended Citation

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1 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

 

No. 94-2148 

 

 

GRACE A. HOLBROOK, Administratrix of the Estate of 

JOHN P. HOLBROOK 

V. 

LYKES BROS. STEAMSHIP CO., INC.; MARINE TRANSPORT LINES INC.; 

PUERTO RICO MARINE MGMT., INC.; SEA-LAND SERVICE, INC.; 

SECOND SHIPMOR ASSOCIATES 

V. 

THE BABCOCK & WILCOX COMPANY; COMBUSTION ENGINEERING, INC.; 

FOSTER-WHEELER ENERGY CORPORATION; THE GENERAL ELECTRIC CO.; 

KEENE CORPORATION, Independently and as Successor in Interest to 

Ehret Magnesia Manufacturing Company, Baldwin-Hill Company and 

Baldwin-Ehret-Hill, Inc.; OWENS-CORNING FIBERGLAS CORP.; 

PITTSBURGH CORNING CORPORATION; ANCHOR PACKING COMPANY; 

AC&S, INC.; FLEXITALLIC GASKET COMPANY, INC.; GARLOCK, INC.; 

OWENS-ILLINOIS GLASS COMPANY; ARMSTRONG WORLD INDUSTRIES, INC.; 

HOPEMAN BROTHERS, INC.; SHOOK & FLETCHER; NATIONAL GYPSUM CORP.; 

GAF CORPORATION, 

 Third Party Defendants 

(D.C. Civil No. 92-cv-01906) 

GRACE A. HOLBROOK, Administratrix for the 

Estate of JOHN P. HOLBROOK 

V. 

ACANDS, INC.; AMERICAN ASBESTOS PRODUCTS CO.; ANCHOR PACKING CO.; 

A.P. GREEN REFRACTORIES COMPANY; ARMSTRONG WORLD INDUSTRIES, 

INC.; ASARCO; ASBESTOSPRAY CORPORATION; ASBESTOS TEXTILE COMPANY; 

B.F. GOODRICH CO.; CAROLINE ASBESTOS COMPANY; CERTAINTEED CORP.; 

COLTS PATENT FIREARMS MFG. CO.; COMBUSTION ENGINEERING, INC.; 

JOHN CRANE-HOUDAILLE, INC.; DAR INDUSTRIAL PRODUCTS, INC.; 

FIBREBOARD CORPORATION; FLEXITALLIC, INC.; FOSTER WHEELER 

COMPANY; GAF CORPORATION; GARLOCK, INC.; GATKE CORP.; GENERAL 

ELECTRIC CO.; GENERAL INSULATING AND MFG. CO.; GOODYEAR TIRE AND 

RUBBER COMPANY; IMO DELAVAL, INC.; KAISER CEMENT & GYPSUM; 

KEENE CORPORATION; NATIONAL MANUFACTURING SALES; OWENS-CORNING 

FIBERGLAS CORP.; OWENS-ILLINOIS, INC.; PHILADELPHIA ASBESTOS 

COMPANY; PPG INDUSTRIES; PABCO PRODUCTS; PITTSBURGH CORNING 
2 

CORPORATION; TURNER & NEWALL PLC.; UNION CARBIDE CHEMICALS & 

PLASTICS CO., INC.; U.S. GYPSUM COMPANY; U.S. RUBBER COMPANY; 

WESTINGHOUSE ELECTRIC CORP.; ACMC, f/k/a NATIONAL GYPSUM COMPANY 

(E.D. of PA Civil No. 92-cv-01951) 

GRACE HOLBROOK, Administratrix for the 

Estate of JOHN P. HOLBROOK, 

 Appellant 

 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

(D.C. Civil Action No. 92-cv-01906) 

 

Argued September 11, 1995 

Before: MANSMANN, SCIRICA and NYGAARD, Circuit Judges

(Opinion Filed March 21, l996) 

LEONARD C. JAQUES, ESQUIRE 

DONALD A. KRISPIN, ESQUIRE 

MICHAEL CONNOR, ESQUIRE (Argued) 

Jaques Admiralty Law Firm 

1370 Penobscot Building 

Detroit, MI 48226 

Attorneys for Appellant 

FAUSTINO MATTIONI, ESQUIRE 

Mattioni, Mattioni & Mattioni 

399 Market Street, 2nd Floor 

Philadelphia, PA 19106 

Attorney for Appellee Lykes Bros. 

ROBERT B. LAWLER, ESQUIRE 

MARY COOK, ESQUIRE 

Wilbraham, Lawler & Buba 

601 Walnut Street 

The Curtis Center 

Suite 450 West 

Philadelphia, PA 19106 

Attorney for: 

Puerto Rico Marine; Sea-Land; 

Second Shipmor; Acands; 

A.P. Green; Armstrong World; 

John Crane Houdaille; Flexitallic; 

GAF; Garlock; Imo Delaval; 

National Gypsum; Turner Newall; Union Carbide; 

US Gypsum; Westinghouse; Combustion Engineering; 

Foster-Wheeler; Owens-Corning; Shook & Fletcher. 
3 

RICHARD C. BINZLEY, ESQUIRE 

HAROLD W. HENDERSON 

Thompson, Hine & Flory 

629 Euclid Avenue 

1100 National City Bank Building 

Cleveland, OH 44114 

Attorneys for Appellees: 

Puerto Rico Marine; Sea-Land; 

Second Shipmor. 

ALEXANDER EWING, JR., ESQUIRE 

Gollatz, Griffin, Ewing & McCarthy 

205 North Monroe Street 

P.O. Box 1430 

Media, PA 19063 

Attorney for Appellee Acands 

WESLEY R. PAYNE, IV, ESQUIRE 

Law Office of Joseph P. Sullivan 

100 Penn Square East 

Suyite 1050, The Wanamaker Building 

Philadelphia, PA 19102 

Attorney for Appellee Houdaille 

JOHN A. TURLIK, ESQUIRE 

Goldfein & Joseph 

111 South 15th Street 

Packard Building, 17th Floor 

Philadelphia, PA 19102 

Attorney for Appellee Garlock 

REEDER R. FOX, ESQUIRE 

Duane, Morris & Heckscher 

4200 One Liberty Place 

Philadelphia, PA 19103-7396 

Attorney for Appellee Imo Delaval 

ERIC J. KADISH, ESQUIRE 

McCarter & English 

1810 Chapel Avenue West 

The Commerce Center 

Cherry Hill, NJ 08002 

Attorney for Appellee Owens-Illinois 

STEVEN T. JOHNSON, ESQUIRE (Argued) 

Johnson & Garvin 

705 Second Avenue 

610 Hoge Building 

Seattle, WA 98104 

Attorney for Appellee Owens Illinois 
4 

WILLIAM A. JONES, ESQUIRE 

Sherr, Joffe & Zuckerman 

200 Four Falls Corporate Center 

P.O. Box 800, Suite 400 

West Conshohocken, PA 19428-0800 

Attorney for Appellee Westinghouse 

JOHN P. McSHEA, III, ESQUIRE 

Eckert, Seamans, Cherin & Mellott 

1700 Market Street Suite 3232 

Philadelphia, PA 19103 

Attorney for Appellee Westinghouse 

WILLIAM R. HOURICAN, ESQUIRE 

Manta & Welge 

2005 Market Street 

One Commerce Square, 37th Floor 

Philadelphia, PA 19103 

Attorney for Appellee PPG Industries 

JOHN L. DELANY, III, ESQUIRE 

Delany & O'Brien 

330 Market Street Suite 300 

Philadelphia, PA 19106 

Attorney for Appellee Combustion Engineering 

JOSEPH M. O'NEILL, ESQUIRE 

Marks, O'Neill, Reilly & O'Brien 

1880 JFK Boulevard Suite 1200 

Philadelphia, PA 19103 

Attorney for Appellee Foster-Wheeler 

E. MICHAEL KEATING, III, ESQUIRE 

Clark, Ladner, Fortenbaugh & Young 

2005 Market Street 

One Commerce Square, 22nd Floor 

Philadelphia, PA 19103 

Attorney for Appellee General Electric 

ROBERT N. SPINELLI, ESQUIRE 

Kelley, Jasons, McGuire & Spinelli 

1234 Market Street Suite 1300 

Philadelphia, PA 19107 

Attorney for Appellee Owens-Corning 

ANDREW J. TREVELISE, ESQUIRE 

MARILYN HEFFLEY, ESQUIRE 

Reed, Smith, Shaw & McClay 

1650 Market Street 

2500 One Liberty Place 
5 

Philadelphia, PA 19103-7301 

Attorney for Appellees: 

Pittsburgh Corning; Fibreboard 

LESLIE A. MILLER, ESQUIRE 

Goldfein & Joseph 

111 South 15th Street 

Packard Building, 17th Floor 

Philadelphia, PA 19102 

Attorney for Anchor Packing 

WILLIAM G. SCARBOROUGH, ESQUIRE 

Stradley, Ronon, Stevens & Young 

2600 One Commerce Square 

Philadelphia, PA 19103 

Attorney for Appellee Hopeman Bros. 

 

OPINION OF THE COURT 

 

NYGAARD, Circuit Judge

 John Holbrook sued several shipping companies and 

manufacturers and suppliers of asbestos products, alleging that 

he developed mesothelioma from exposure to asbestos-containing 

products while working aboard the shipping companies' vessels. 

John Holbrook died in October of 1993, and his widow, Grace 

Holbrook, administratrix of his estate, was substituted as 

plaintiff. The jury found for defendants on liability. Holbrook 

now challenges several evidentiary rulings by the district court, 

including the court's rulings: 1) excluding testimony from the 

decedent's treating physician on his diagnosis of mesothelioma; 

2) excluding testimony from a pulmonologist eliminating radiation 

as a cause of John Holbrook's mesothelioma; 3) allowing testimony 
6 

by two defense experts on radiation exposure as a cause; and, 4) 

redacting references to mesothelioma contained in various 

documents. Holbrook argues that the trial judge's conduct was 

unfair and requests a new trial before a different judge. We 

conclude that the court's conduct did not prevent a fair trial, 

but that the court committed reversible error by excluding 

testimony from appellant's experts. We will reverse and remand 

the cause for a new trial. 

I. 

 Holbrook served as a merchant seaman aboard the shipping 

companies' vessels from 1953 to 1991. He also served aboard ship 

in the South Pacific for seven months in 1962 during a government 

nuclear testing operation called "Dominic I." At trial, Holbrook 

sought to prove that John Holbrook died from mesothelioma as a 

result of asbestos exposure aboard the shipping vessels. The 

defendants contended that the exposure to asbestos, if any, was 

minimal and could not have caused mesothelioma, and that if John 

Holbrook suffered from mesothelioma, it resulted from radiation 

exposure during Dominic I. Both sides contested the 

admissibility of various experts' testimony. 

 The district court excluded certain testimony by Dr. 

Carpenter, Holbrook's treating physician, and by Dr. Altschuler, 

a board-certified physician in internal and pulmonary medicine. 

The court felt that they lacked the requisite specialization to 

testify as to certain matters. It based its ruling, in part, on 

its conclusion that mesothelioma and its cause is difficult to 
7 

diagnose, and that only a few types of medical specialists would 

qualify to give expert opinion testimony about it. 

A. 

 The Federal Rules of Evidence embody a "strong and 

undeniable preference for admitting any evidence having some 

potential for assisting the trier of fact." DeLuca v. Merrell 

Dow Pharmaceutical, Inc., 911 F.2d 941, 956 (3d Cir. 1990). "Rule 

702, which governs the admissibility of expert testimony, 

specifically embraces this policy," United States v. Velasquez, 

64 F.3d 844, 849 (3d Cir. 1995), and has a liberal policy of 

admissibility. In re Paoli R.R. Yard Litigation ("Paoli II"), 35 

F.3d 717, 741 (3d Cir. 1994). Together, Rules 702 and 104(a) 

instruct the district court in determining the admissibility of 

expert testimony. Rule 702 provides: 

If scientific, technical, or other specialized 

knowledge will assist the trier of fact to understand 

the evidence or to determine a fact in issue, a witness 

qualified as an expert by knowledge, skill, experience, 

training, or education, may testify thereto in the form 

of an opinion or otherwise. 

Under Rule 104(a), the district court makes preliminary 

determinations whether the proposed expert witness is qualified 

and whether the testimony to be given is admissible under Rule 

702. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. 

Ct. 2786, 2796 (1993). This preliminary task ensures that the 

testimony meets a minimum threshold of reliability and relevance. 

Id. at 2795; Velasquez, 64 F.3d at 829. 

 Under Rule 702, (1) the proffered witness must be an expert; 

(2) testify about matters requiring scientific, technical or 
8 

specialized knowledge; and (3) the expert's testimony must assist 

the trier of fact. Paoli II, 35 F.3d at 741-42. Holbrook's 

first allegation of error, the court's ruling excluding testimony 

by her experts, concerns the first requirement. The issue of the 

admissibility of the defense experts' testimony, discussed in 

section III, infra, involves the other two requirements. 

B. Dr. Carpenter 

 The first requirement of Rule 702 -- that the 

proposed witness be an expert -- has been liberally 

construed by this Court. Paoli II, 35 F.3d at 741. "We 

have held that a broad range of knowledge, skills, and 

training qualify an expert as such," and have "eschewed 

imposing overly rigorous requirements of expertise." 

Id.; see also Hammond v. International Harvester Co., 

691 F.2d 646, 653 (3d Cir. 1982)(permitting engineer 

with sales experience in automotive and agricultural 

equipment, who also taught high school automobile 

repair, to testify in products liability action 

involving tractors). 

Velasquez, 64 F.3d at 849. 

 Dr. Carpenter, John Holbrook's treating physician, 

specializes in internal medicine. At trial, Dr. Carpenter 

described the medical procedures undertaken to diagnose and treat 

John Holbrook. In great detail, he described the treatment, 

including his injection of the chemotherapeutic agent 

fluorouracil into his patient's chest cavity. During Carpenter's 

direct examination, when the subject turned to whether he 

designed the treatment for a specific malignancy, the court 

interrupted and stated: 

He gave the treatment that he gave. This witness has 

not been qualified and he will not be permitted to give 

an opinion to a reasonable degree of medical certainty 

as to whether or not the cancer was mesothelioma. 
9 

 The court prevented the treating physician from testifying: 

(1) that he made a diagnosis for which he treated Mr. Holbrook; 

(2) that his diagnosis was mesothelioma; (3) as to his 

preliminary impression of the decedent; (4) as to the diagnosis 

in the pathology report analyzing a tissue sample of Holbrook's 

lungs, a report which Dr. Carpenter requested and on which he 

relied in treating his patient; and (5) as to the decedent's 

symptoms. The court excluded this testimony because Dr. 

Carpenter was not an oncologist or a specialist in what the court 

inexplicably termed "definitive cancer diagnosis." Referring to 

Dr. Carpenter's reliance on the pathology report, the court 

interjected that Dr. Carpenter did not make his own diagnosis, 

despite the fact that Dr. Carpenter testified that he did exactly 

that. 

 Dr. Carpenter testified that he routinely relies on 

pathology reports to assist him in treating his patients, because 

pathologists have more experience examining and diagnosing tissue 

specimens. Specifically, Dr. Carpenter relied on the pathology 

report he had ordered to confirm his clinical impression and 

diagnosis of John Holbrook. Dr. Carpenter's reliance on the 

pathology report to confirm his diagnosis does not reflect 

negatively on his qualifications or ability to diagnose his 

patient; to the contrary, it reflects routine procedure in 

medical treatment, as recognized by Rule 703. 

 Because of our liberal approach to admitting expert 

testimony, most arguments about an expert's qualifications relate 

more to the weight to be given the expert's testimony, than to 
10 

its admissibility. Thus, witnesses may be competent to testify 

as experts even though they may not, in the court's eyes, be the 

"best" qualified. Who is "best" qualified is a matter of weight 

upon which reasonable jurors may disagree. 

 In Paoli II, we reversed the district court's finding that a 

witness was not qualified because we found that the doctor, 

"while arguably a relatively poor clinician and less than fully 

credible witness, qualifie[d] as an expert." 35 F.3d at 753. 

Similarly, in re Paoli R.R. Yard PCB Litigation ("Paoli I"), 916 

F.2d 829 (3d Cir. 1990), we stated that: 

insistence on a certain kind of degree or background is 

inconsistent with our jurisprudence in this area. The 

language of Rule 702 and the accompanying advisory 

notes make it clear that various kinds of "knowledge 

skill, experience, training or education," Fed. R. 

Evid. 702, qualify an expert as such. 

Id. at 855. Following this logic, 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. Id. at 856. 

 The court's mistaken approach restricted Dr. Carpenter's 

testimony based on a requirement that the witness practice a 

particular specialty to testify concerning certain matters. In 

light of our liberal standard governing the qualifications of a 

proffered expert witness, and our acceptance of more general 

qualifications, we hold that the district court erred by finding 

that Dr. Carpenter was not qualified to render a diagnosis or to 
11 

discuss the pathology report because he was not a pathologist, 

oncologist or expert in "definitive cancer diagnosis."1 

 The Notes of the Advisory Committee on Rule 703, the 

corollary to Rule 702, refer to, inter alia, reliance on reports 

of others, and further illustrate the trial court's error. The 

Notes provide: 

a physician in his own practice bases his diagnosis on 

information from numerous sources and of considerable 

variety, including statements by patients and 

relatives, reports and opinions from nurses, 

technicians and other doctors, hospital records, and X 

rays. Most of them are admissible in evidence, but 

only with the expenditure of substantial time in 

producing and examining various authenticating 

witnesses. The physician makes life-and-death 

decisions in reliance upon them. His validation, 

expertly performed and subject to cross-examination, 

ought to suffice for judicial purposes. 

 The Federal Rules of Evidence are meant to instruct the 

district courts in the sound exercise of their discretion in 

making admissibility determinations and should not be interpreted 

as exclusionary rules. It would be inconsistent and run counter 

to the Rules' liberal policy of admissibility to allow an outside 

 

1Federal Rule of Evidence 102 provides that: 

These rules shall be construed to secure fairness in 

administration, elimination of unjustifiable expense 

and delay, and promotion of growth and development of 

the law of evidence to the end that the truth may be 

ascertained and proceedings justly determined. 

Our approach to expert qualifications comports with the liberal 

policy of admissibility embodied in the rules and with the 

mandate of Rule 102. The district court's approach, however, 

would unjustly increase litigation costs by requiring litigants 

in countless cases to hire a host of experts out of fear that 

their treating physicians, in whom they entrusted their health 

and lives, would not "make the grade" when it came time to 

testify in court. 
12 

expert, hired solely for litigation purposes, to rely on and 

testify about a pathology report, but exclude testimony by the 

treating physician who ordered the report and relied on it for 

life and death decisions about the patient's treatment. Opinions 

by physicians who have neither examined nor treated a patient 

"have less probative force, as a general matter, then they would 

have if they had treated or examined him." Wier ex rel. Wier v. 

Heckler, 734 F.2d 955, 963 (3d Cir. 1984). In the context of 

social security disability cases, in fact, we afford greater

weight to a treating physician's opinion. See Dorf v. Bowen, 794 

F.2d 896 (3d Cir. 1986); Brewster v. Heckler, 786 F.2d 581 (3d 

Cir. 1986). "The rationale for giving greater weight to a 

treating physician's opinion is that he is employed to cure and 

has a greater opportunity to know and observe his patient. . . ." 

Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987). We 

conclude that the court erred by excluding the treating 

physician's testimony. 

C. Dr. Altschuler 

 The district judge's ruling on Dr. Altschuler's 

qualifications suffers from the same flaw.2 Dr. Altschuler is 

board-certified in and practices internal and pulmonary medicine. 

Dr. Altschuler described his primary practice area as follows: 

[P]ulmonary medicine involves the diseases of the chest 

and lungs. It involves medical treatment, certain 

 

2 Defendants do not address the court's ruling on Dr. 

Altschuler's testimony, other than to argue that Holbrook was 

allowed to ask questions regarding the literature on radiation 

and mesothelioma, that Dr. Altschuler is not very knowledgeable 

in the field, and that he makes a habit of testifying on behalf 

of plaintiffs. 
13 

procedures such as looking into the lungs of patients. 

It involves an expertise in reading chest x-rays and 

understanding pulmonary function tests which are 

breathing tests. It involves treatment of occupational 

diseases that affect the chest. 

Mesothelioma is a pulmonary disease. 

 Dr. Altschuler testified that he was familiar with John 

Holbrook's occupational work history, medical history and 

records, and was also familiar with the literature on causal 

agents of mesothelioma, but was not aware that radiation had ever 

been linked to mesothelioma. At his deposition, he could not 

recall a firm linkage between mesothelioma and radiation. At 

trial, he stated that he had "found a few articles relating to 

sporadic rare cases out of the thousands of cases of mesothelioma 

each year, there are a few over the last 15 or 20 years that have 

shown some relationship to radiation." Read as a whole, Dr. 

Altschuler's testimony at trial suggests that his previous 

inability to recall specific literature linking radiation to 

mesothelioma resulted from his conclusion, based on his 

familiarity with the literature, that sporadic rare cases in the 

literature did not support radiation as a major causative factor. 

The district court, however, did not disallow testimony based on 

Dr. Altschuler's familiarity, or alleged lack thereof, with the 

literature on radiation and mesothelioma. 

 When asked about radiation as a cause of mesothelioma, the 

court sustained a defense objection, ruling that Dr. Altschuler 

was not "qualified as a 'radiation expert' vis-a-vis cancer. He's 

not an oncologist," and would not allow him to discuss the 

relationship between radiation and mesothelioma. The court 
14 

erroneously required that the expert have a specialization in 

cancer and radiation, despite his expertise in lung diseases, 

including mesothelioma. In placing restrictions on Dr. 

Altschuler's testimony because he did not possess the exact 

background it deemed appropriate, the court erred. 

II. 

 Holbrook next alleges that the court erred by allowing 

defense experts, Drs. Demopoulos and Browne, to testify that 

radiation caused John Holbrook's cancer, and by not preliminarily 

making the determination on admissibility of this testimony. 

Holbrook's position is that this testimony lacked a sufficient 

scientific basis under Rule 702, as interpreted by Daubert. 

The second requirement of Rule 702 -- that the expert 

testify to scientific, technical or other specialized 

knowledge -- is intended to ensure the reliability or 

trustworthiness of the expert's testimony. 

Velasquez, 64 F.3d at 849 (citation omitted). 

 Defendants sought to prove through these experts that John 

Holbrook's cancer resulted from exposure to radiation in Dominic 

I. Drs. Demopoulos and Browne were permitted to testify, over 

plaintiff's objections, that radiation exposure in 1962, as 

opposed to prolonged asbestos exposure, was a distinct possible 

cause, a very highly probable cause, and the most probable cause 

of his cancer diagnosed three decades later. 

A. 

 Under Daubert's interpretation of Rule 104(a), a district 

court facing a proffer of scientific expert testimony must as a 

preliminary matter assess whether the reasoning or methodology 
15 

underlying the expert's testimony is scientifically valid. The 

court accomplishes this "by considering all relevant factors that 

may bear on the reliability of the proffered evidence." 

Velasquez, 64 F.3d at 849; see also Paoli II, 35 F.3d at 742. The 

reliability requirement, however, should not be applied too 

strictly. Helpfulness to the trier of fact remains the ultimate 

touchstone of admissibility. If the expert has "good grounds" 

for the testimony, the scientific evidence is deemed sufficiently 

reliable. A determination that the expert has good grounds 

assures that the expert's opinions are based on science rather 

than "subjective belief or unsupported speculation." Daubert, 113 

S. Ct. at 2795. 

B. 

 Holbrook argues that the district court failed in its 

gatekeeping responsibility by allowing the jury to hear the 

radiation testimony without first determining its admissibility. 

The record shows otherwise. The court scheduled a pretrial 

Daubert hearing at plaintiff's request to determine if the expert 

testimony regarding radiation exposure as a cause of mesothelioma 

was admissible. Inexplicably, Holbrook's counsel seemed 

unprepared to proceed with that hearing, and the court therefore 

did not hold one. Despite this, the court nevertheless indicated 

to Holbrook's counsel that it would entertain counsel's motion at 

trial to strike the expert testimony. 

 Although Daubert ordinarily could be construed to require 

that the court make the preliminary determination outside the 

jury's hearing, we cannot say that the court abused its 
16 

discretion in adhering to the requirements of Rules 104 and 702. 

The court adequately explained its reasoning when it stated: 

I will not have a hearing of such length while a jury 

is waiting to be selected . . . . This was your 

opportunity for a Daubert hearing today and tomorrow. 

It is improper to have jurors waiting for several days 

to be selected in a case that might go on for weeks. 

Counsel failed to prepare appropriately and the court exercised 

sound discretion in controlling the efficient and orderly 

disposition of this case to avoid unnecessary inconvenience to 

the jury. 

C. 

 We also find no error in the court's refusal to strike the 

testimony. Dr. Demopoulos specializes in pathology -- the study 

of disease. His research has focused largely on the study of 

cancer, a subject in which he has taught, and on which he has 

written articles. During his residency, he performed radiation 

studies on animals, and during a tenure with the National 

Institutes of Health, he studied radiation pathology. Currently, 

Dr. Demopoulos devises experiments to enhance the susceptibility 

of tumors to radiation and to enhance the protective effects in 

surrounding tissue to protect it from damage. His testimony 

revealed extensive knowledge of radiation oncogenesis, 

familiarity with the Dominic I Operation and familiarity with the 

radiation exposure history of John Holbrook. 

 With this background, Dr. Demopoulos testified that, unlike 

exposure to asbestos, there is no threshold exposure to radiation 

required to cause cancer, and that "[t]he most probable cause of 

Mr. Holbrook's cancer was the exposures that he sustained at 
17 

Dominic I operations in 1962." He based his opinion on a review 

of Mr. Holbrook's medical records and exposure to radiation, and 

on his own research and study. 

 Dr. Browne specializes in occupational lung disease, and his 

research initially focused on mesothelioma. He has made 

presentations at scientific gatherings regarding threshold levels 

of exposure to asbestos and resulting mesothelioma, and has 

published several papers. At trial, he discussed his extensive 

knowledge about studies of radiation as a cause of cancer, 

including mesothelioma. He testified, based on the medical and 

scientific literature relating to radiation and cancer, that low 

doses of radiation can cause cancer, including mesothelioma, and 

that unlike asbestos exposure, there is no threshold requirement 

of exposure for radiation to cause cancer. He further testified 

that, in his opinion to a reasonable degree of medical certainty, 

radiation exposure could not be excluded as a cause of John 

Holbrook's cancer. 

 Both experts' extensive backgrounds in the study of 

mesothelioma and its causes, including radiation, their review of 

the literature and their review of John Holbrook's history 

provided substance upon which they could offer scientific 

opinions that met the required threshold of reliability. As 

required by Daubert, their procedures for examining the facts 

presented to them and their own research methodologies were based 

on the methods of science and did not reveal opinion based merely 

on their own subjective beliefs. 

D. 
18 

In a related matter, Holbrook objects to portions of the defense 

experts' testimony, arguing that in several instances the 

testimony was not given to the degree of certainty required. 

Holbrook cites Paoli II and Schulz v. Celotex Corp., 942 F.2d 204 

(3d Cir. 1991), for the proposition that medical experts must 

testify to a reasonable degree of medical certainty. 

In one instance at trial, the court sustained a defense objection 

during cross-examination, questioning whether Dr. Browne could 

state with reasonable medical certainty that radiation exposure 

caused decedent's mesothelioma. The court ruled that the 

question was solely for the jury. Dr. Browne's answer would have 

helped the jury to evaluate the impact of his testimony on 

plaintiff's evidence that asbestos exposure caused John 

Holbrook's cancer. Although a specific degree of certainty may 

not be required, the court erred by not allowing Holbrook to pose 

the question. 

We have not required that when medical experts give their 

opinion, they recite the talismanic phrase that their opinion is 

given to "a reasonable degree of medical certainty," because 

"[c]are must be taken . . . to see that the incantation does not 

become a semantic trap and the failure to voice it is not used as 

a basis for exclusion without analysis of the testimony itself." 

Schulz, 942 F.2d at 208. Nonetheless, as we stated in Schulz, 

the phrase "is a useful shorthand expression that is helpful in 

forestalling challenges to the admissibility of expert 

testimony." Id. at 208. It also assists a reviewing court in 

determining whether the jury has been given the appropriate 
19 

standard by which to judge the opinion. The district court, 

therefore, erred by disallowing cross-examination of Dr. Browne 

to determine whether his opinion met this degree of certainty. 

In another instance cited by Holbrook, the court overruled an 

objection to Dr. Browne's testimony, in which he stated 

that radiation is a distinct possible cause. I have no 

way of telling whether it is to a degree of medical 

certainty the cause. 

"Situations in which the failure to qualify the opinion have 

resulted in exclusion are typically those in which the expert 

testimony is speculative, using such language as 'possibility.'" 

Id. at 208. The Federal Rules of Evidence, however, do not 

require a particular phrase regarding the degree of certainty 

with which experts must form their opinions, but they certainly 

allow questions concerning the degree to which the opinion is 

held. 

Accordingly, while the particular phrase used should 

not be dispositive, it may indicate the level of 

confidence the expert has in the expressed opinion. 

Perhaps nothing is absolutely certain in the field of 

medicine, but the intent of the law is that if a 

physician cannot form an opinion with sufficient 

certainty so as to make a medical judgment, neither can 

a jury use that information to reach a decision. 

Id. at 209. 

In Schulz, we reversed the trial court's decision to exclude an 

expert's testimony because counsel failed to preface the question 

with the precise phrase, because we found that the expert's 

testimony possessed the requisite degree of certainty for 

admissibility. The expert stated his opinion in unequivocal 

terms and his opinion was relied on extensively in the treatment 

of the plaintiff. 
20 

It is true that in Paoli II, we reversed a summary judgment on 

certain claims because the plaintiff's expert had not testified 

to a degree of medical certainty. We required that degree of 

certainty in Paoli II because, under Pennsylvania law, the burden 

of proof required that degree of certainty. 

Here, the test is different. Drs. Demopoulos and Browne 

testified for the defense that radiation could not be excluded, 

as it was a distinct possible cause of John Holbrook's cancer. In 

fact, Dr. Browne testified on this issue to a reasonable degree 

of medical certainty. Although that testimony would have been 

insufficient to prove that radiation exposure caused the cancer, 

a burden which the defense did not bear, it was sufficiently 

certain and could help the jury to evaluate testimony by 

plaintiff's experts that asbestos exposure caused the cancer, an 

issue on which plaintiff bore the burden of proof. Therefore, the 

court did not err when it refused to strike the defense experts' 

testimony. 

III. 

Holbrook also challenges the district court's ruling that 

references to mesothelioma in various documents must be redacted. 

Holbrook contends that she properly moved for admission of the 

death certificate, autopsy report and hospital records, including 

the references in them to mesothelioma, under Federal Rule of 

Evidence 803(6),(8)-(9). The court, however, required under Rule 

4033 that references to malignant mesothelioma be deleted because 

 

3Rule 403 provides: 
21 

the authors of the documents did not testify about the bases of 

their diagnoses. In so ruling, the court stated that "[t]he 

diagnosis of mesothelioma is a diagnosis that must be subjected 

to cross-examination in order for it to be meaningful to a jury." 

Rule 803 does not mandate admission of this evidence, but rather 

allows evidence to be admitted when it would otherwise be 

objectionable hearsay. Thus, Rule 403 always remains as a 

potential bar to admissibility. Daubert, 113 S. Ct. at 2798. 

Holbrook's statement that "Records of deaths are simply 

admissible 'as is,'" is simply wrong, ignoring our decisions in 

Schulz and Pollard v. Metropolitan Life Ins. Co., 598 F.2d 1284 

(1979). Although in Schulz we did not reach the issue whether 

the district court properly refused to admit a death certificate 

indicating asbestosis when the etiology of plaintiff's cancer was 

in dispute, we clearly indicated that the court's analysis under 

Rule 403 was in order. 942 F.2d at 209. 

"[A] trial judge's decision to admit or exclude evidence under 

[Rule 403] may not be reversed unless it is arbitrary and 

irrational," Bhaya v. Westinghouse Elec. Corp., 922 F.2d 184, 187 

(3d Cir. 1990), but the trial court should articulate its 

balancing analysis. Glass v. Philadelphia Elec. Co., 34 F.3d 

188, 191 (3d Cir. 1994). That a district court failed to take 

the opportunity to articulate its balancing does not constitute 

 

Although relevant, evidence may be excluded if its 

probative value is substantially outweighed by the 

danger of unfair prejudice, confusion of the issues, or 

misleading the jury, or by considerations of undue 

delay, waste of time, or needless presentation of 

cumulative evidence. 
22 

reversible error per se; however, it may require that the 

appellate court do so. See id. at 192. 

In Pollard we upheld the trial judge's redaction under Rule 403 

of references to "accidental death" from a death certificate, 

coroner's certificate and pathologist's necropsy report. There, 

the decedent's widow sought benefits under a policy covering 

accidental death. The trial court found that statements in those 

documents could mislead the jury because the legal meaning of the 

phrase "accidental death" as defined and used in the insurance 

policy could differ from its meaning as used in the medical 

reports. To avoid this problem, the court excised from the 

documents any reference to the death as accidental. We held that 

the court properly used Rule 403 to avoid unfair prejudice and 

confusion. 

In ruling that references to mesothelioma in various documents 

would be redacted, the district court articulated its Rule 403 

balancing as follows: 

[T]he diagnosis of mesothelioma is a diagnosis that 

must be subjected to examination and cross-examination 

. . . . [I]t is my ruling that under Rule 403 that 

there is an unfair risk of unfair prejudice for you to 

be able to argue that 9 other doctors unexamined in 

this Court diagnosed mesothelioma, which at best has a 

-- only a 90 percent chance of diagnosis as I 

understand the testimony through autopsy being correct. 

And a 60 percent chance at being correct if there is a 

tissue sample excised from the lung as opposed to a 

needle point examination where the risk of being right 

is - - the chance of being right is only 40 percent. . 

. . [I]n terms of trustworthiness of the diagnosis, 

it's not like there was a bone that's broken, the bone 

is broken. Here you have a diagnosis of mesothelioma 

which is something that has to be examined as to method 

of diagnosis, technique of diagnosis, certainty of 

diagnosis. 
23 

It may be argued that the difficulty of the diagnosis affects the 

weight to be accorded the documents' contents, not their 

admissibility. This is not necessarily so; however, the 

difficulty of the diagnosis does indeed go more to the weight 

than to the admissibility of the evidence, but that does not make 

it irrelevant to admissibility in light of Rule 403. In addition 

to the independent Rule 403 hurdle, Rule 803(6) and Rule 803(8) 

expressly contemplate exclusion based on untrustworthiness. 

The court, based on its determination that mesothelioma is 

difficult to diagnose, determined that the risk of unfair 

prejudice, by leaving references to mesothelioma in documents not 

testified to by their authors nor relied on by qualified experts, 

outweighed their probative value. And, according to the court, 

because of problems in accurately diagnosing mesothelioma, the 

unexamined references were not helpful to and could potentially 

have misled the jury. The court's ruling requiring that 

references to mesothelioma in various documents be redacted was 

neither arbitrary nor irrational, and will be affirmed. 

IV. 

Because we find that the court erred by excluding certain 

testimony, we can affirm the jury's verdict on liability only if 

those errors were harmless. See Advanced Medical, Inc. v. Arden 

Medical Systems, Inc., 955 F.2d 188 (3d Cir. 1992). "A 

determination of harmless error depends on whether it is highly 

probable that the error did not contribute to the judgment." Id.

at 199. 
24 

In McQueeney v. Wilmington Trust Co., 779 F.2d 916, 923 (3d Cir. 

1985), we found that the district court's refusal to admit 

evidence impaired the defendants' ability to discredit a central 

element of the plaintiff's case, was critical for defense against 

liability, was potentially the defendants' best evidence and was 

not cumulative. As a result, we could not say that it was highly 

probable that the failure to admit the evidence did not affect 

the defendants' substantial rights, and we reversed the district 

court. Hence, if including the improperly excluded testimony 

makes it more likely that the jury would have reached a different 

decision, the error is not harmless. 

Here, the testimony by plaintiff's experts bore on the critical 

issue of whether John Holbrook had mesothelioma caused by 

exposure to asbestos, and the treating physician's testimony 

about his diagnosis may have been Holbrook's best evidence on the 

existence of mesothelioma. Likewise, Dr. Altschuler's testimony 

eliminating radiation as a cause was crucial to a finding that 

asbestos, not radiation, caused John Holbrook's mesothelioma. 

This makes it difficult to say that it is highly improbable that 

admitting this evidence would not affect the outcome. To the 

contrary, it appears that it would. Because we cannot say that 

these errors were harmless, Holbrook is entitled to a new trial.4

 

4 Holbrook makes other assignments of error, and argues, without 

further analysis, that the rulings were an abuse of discretion 

and that the "multitude of error requires reversal and a new 

trial." As we have stated, we will grant Holbrook a new trial. 

The unsupported allegations of error are generally without merit, 

however, even if error, they would not require a new trial. 

Following our course in Schulz, we leave these issues for further 

development at the next trial. 
25 

Holbrook also asserts that the district judge's conduct at trial 

prejudiced her case. Holbrook urges us to examine her attempts 

to conduct direct examination of her medical experts. According 

to Holbrook, "[t]he actions of the trial judge, taken as a whole, 

effectively communicated to the jury that the judge had a low 

opinion of plaintiff's case and her counsel." 

Unquestionably, bias and improper conduct by a trial 

judge may be grounds for a new trial if a party was 

unfairly prejudiced. Active participation by a 

district judge in trial proceedings, however, is in 

itself neither improper nor unfair. 

Desjardins v. Van Buren Community Hospital, 969 F.2d 1280 (1st 

Cir. 1992). 

The district court's conduct (as distinguished from its 

evidentiary rulings) does not warrant a new trial. The court 

interrupted counsel for both sides repeatedly and tried to 

instruct both sides on the proper procedure to follow in certain 

lines of questioning. Although the court's demeanor may have 

been gruff at times, Holbrook's counsel seemed to be testing the 

court by pursuing issues on which the court had previously made 

its rulings clear. This conduct falls squarely within the 

judge's role of controlling the court proceedings, and cannot be 

fairly characterized as prejudicing plaintiff or unduly 

humiliating counsel. The trial judge's role is to preside over 

the trial; passively if possible but aggressively when indicated. 

The judge's efforts must vary with the exigencies of the trial. 

Inadequately prepared or overly aggressive advocates may indeed 

require that the trial court interpose itself more actively and 

 
26 

even forcefully in the proceedings to assure fairness. That, we 

are convinced, is what the trial court did here.5

V. 

In sum, because we conclude that the district court committed 

reversible error by precluding the treating physician's testimony 

about his diagnosis of mesothelioma and his reliance on the 

pathology report and by restricting the pulmonologist's testimony 

from eliminating radiation as a cause of the mesothelioma, we 

will reverse the judgment in favor of defendants and remand the 

cause for a new trial. Her request that we reassign the case to 

a new judge on remand is denied. 

 

 

 

5 Liteky v. United States, 114 S. Ct. 1147 (1994) supports the 

proposition that we have the power to assign the case to another 

judge on remand if we determine recusal is necessary or if we 

determine that reassignment is required for "further proceedings 

to be had as may be just under the circumstances." Id. at 1157. 

"[J]udicial rulings alone almost never constitute valid basis for 

a bias or partiality motion." Id. at 1157. In view of our 

holding here, however, we need not spend more time on Holbrook's 

request for retrial before a different judge. Her request is 

rejected. 

Holbrook v. Lykes Bros. Steamship Co., Inc., et al., No. 94-2148 

SCIRICA, Circuit Judge, concurring in part 

 and dissenting in part: 
27 

 Although I join in Parts II and III of the opinion I do 

not believe the district court's rulings on the testimony of Dr. 

Carpenter and Dr. Altschuler require granting a new trial. 

I. 

 Dr. Carpenter, a specialist in internal medicine, was 

John Holbrook's treating physician. The district court did not 

permit Dr. Carpenter to state that he diagnosed Holbrook with 

mesothelioma because pathologists at Holy Cross Hospital rather 

than Dr. Carpenter actually "made" the diagnosis. ("[Carpenter] 

himself did not make the diagnosis. He may have relied upon a 

report of a diagnosis."). While the district court's ruling may 

reflect too rigid a view of the diagnostic process, I do not 

believe its limitation of Dr. Carpenter's testimony constituted 

reversible error. Reversal and remand for a new trial is 

justified only where a trial judge's erroneous exclusion of 

evidence is not harmless. Fed. R. Civ. P. 61 provides in part: 

No error in either the admission or the 

exclusion of evidence ... is ground for 

granting a new trial or for setting aside a 

verdict ... unless refusal to take such 

action appears to the court inconsistent with 

substantial justice. 

Although the district court excluded testimony by Dr. Carpenter, 

there still was substantial evidence from other sources that 

Holbrook suffered from mesothelioma. Most important was the 

testimony of Dr. Reineke,6 a board certified pathologist and the 

 

6 The testimony of Dr. Reineke was taken by videotape and 

presented at trial. 
28 

chief of pathology at Holy Cross Hospital, who testified Holbrook 

had mesothelioma.7 

 The crucial issue at trial was causation -- whether 

John Holbrook died from mesothelioma as a result of asbestos 

exposure or as a result of radiation exposure. Given the ample 

evidence that John Holbrook suffered from mesothelioma, it is 

highly probable the district court's refusal to allow Dr. 

Carpenter to state his diagnosis did not contribute to the 

judgment of the jury. Any error was harmless. 

II. 

 At a pretrial deposition, Dr. Altschuler, who was board 

certified in internal and pulmonary medicine, admitted he had no 

familiarity with the medical literature on the relationship 

between radiation and mesothelioma. He said he was not aware 

that radiation had ever been linked to mesothelioma. 

Nevertheless, the district court did not preclude Dr. Altschuler 

from testifying based on knowledge derived from medical 

literature he read subsequent to his deposition but prior to 

trial. ("You may ask him what literature he refers to with 

respect to radiation and what does it say, if you choose."). In 

short, although the court refused to qualify Dr. Altschuler as an 

expert on radiation, it allowed him to testify about what he 

knew. 

 

7 Despite the district court's rulings, evidence presented to 

the jury included unredacted references to mesothelioma in 

hospital medical records. Furthermore, Dr. Demopoulos, a board 

certified pathologist, testified that the autopsy report listed 

"malignant mesothelioma" as the cause of Holbrook's death. 
29 

 In view of Dr. Altschuler's background and the court's 

admission of his testimony on radiation and mesothelioma, I 

cannot conclude the district court abused its discretion in 

refusing to qualify Dr. Altschuler as an expert on radiation and 

limiting his testimony. Moreover, plaintiff called Francis 

Masse, director of the radiation protection programs at the 

Massachusetts Institute of Technology, and Dr. David Hoel, 

chairman of the Department of Biometry and Epidemiology at the 

Medical University of South Carolina, to testify that radiation 

did not cause her husband's illness. In light of their 

testimony, the district court's limitation on Dr. Altschuler's 

testimony was harmless. 

III. 

 For the foregoing reasons, I would deny plaintiff's 

request for a new trial.