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Anne F. Danaher v. Wild Oats Markets

February 28, 2011


The opinion of the court was delivered by: David J. Waxse U.S. Magistrate Judge


Pending before the Court are two motions: (1) the Motion to Exclude Certain Testimony of Dr. Richard Wiet (ECF No. 126) filed by Cross-Claim Defendants Wally's Natural Products, Inc.'s ("Wally's") and United National Foods, Inc.'s ("United"), and (2) the Motion to Limit the Testimony of Dr. Richard J. Wiet (ECF No. 130) filed by Defendant and Cross-Claim Plaintiff Wild Oats Markets, Inc. ("Wild Oats").

Plaintiff's expert identification, served on February 4, 2009, includes a 12 paragraph statement signed by her expert, Dr. Richard Wiet. This statement sets forth Dr. Wiet's opinions. Wally's, United, and Wild Oats, through their respective motions, all seek to preclude Dr. Wiet from testifying to the opinions identified in paragraphs 10, 11 and 12 of Dr. Wiet's statement.

The motions filed by Wally's and United and Wild Oats are substantially similar and seek the same relief. As a result, Plaintiff, in her response to Wild Oats' motion, adopts and incorporates her response to the motion filed by Wally's and United. Consequently, the Court will consider and analyze the two motions together. In addition, the Court will refer to Wally's, United, and Wild Oats collectively herein as "the moving parties."


This is a negligence/product liability action in which Plaintiff alleges that she sustained an injury to her ear while using an ear candle. According to Plaintiff, she purchased two ear candles from Wild Oats and then hired Kenney to perform an ear candling procedure utilizing the ear candles purchased from Wild Oats. Plaintiff contends that during the ear candling procedure, which took place on June 30, 2006, she suffered a burn to her right inner ear, which caused damage to her ear and resulted in hearing loss. Wild Oats has asserted cross-claims against Wally's and United for indemnification.

On February 4, 2009, Plaintiff served her expert identification, disclosing Dr. Richard Wiet as her sole expert retained or specially employed by Plaintiff.*fn1 Dr. Wiet is an otolaryngologist, which is a physician specializing in diagnosing and treating diseases of the head and neck, especially those involving the ears, nose, and throat. Plaintiff's expert identification includes a 12 paragraph statement signed by Dr. Wiet, setting forth his opinions. The moving parties, through their motions, only challenge Dr. Wiet's ability to render the opinions identified in paragraphs 10, 11, and 12 of the statement, all of which concern ear candles:

10. Ear candles and the practice of ear candling are of no use or benefit in the treatment of any condition or illness involving the human ear.

11. Ear candles are unreasonably dangerous products because of the potential for damage to the structure of the middle ear associated with their use.

12. Ear candles are not reasonably safe for the use apparently intended by the manufacturers and sellers of such products because of the potential damage to the structures of the middle ear associated with their use.*fn2

The moving parties argue that these opinions do not meet the standards for the admissibility of expert testimony. Specifically, they argue that Dr. Wiet does not possess the requisite knowledge, skill, experience, training or education in the field of ear candles or ear candling, that Dr. Wiet's product liability testimony is not based on scientifically-valid reasoning or methodology, that Dr. Wiet has not identified the existence of any reliable methods or principles, and therefore cannot apply them reliably to the facts of this case, and Dr. Wiet's practice history does not qualify him as an expert regarding product defects. In support of their arguments, the moving parties direct the Court's attention to Dr. Wiet's deposition testimony concerning his lack of training, education, experience and knowledge regarding ear candles and the practice of ear candling. This deposition testimony will be discussed in detail below.


The admissibility of expert testimony is governed by Rule 702 of the Federal Rules of Evidence:

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, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and

(3) the witness has applied the principles and methods reliably to the facts of the case.*fn3 Thus, in determining whether an expert opinion is admissible, the Court conducts a two-step analysis. "First, the court must determine whether the expert is qualified by 'knowledge, skill, experience, training, or education' to render an opinion. Second, if the expert is sufficiently qualified, the court must determine whether the expert's opinion is reliable under the principles set forth in Daubert."*fn4

"To be reliable under Daubert, an expert's scientific testimony must be based on scientific knowledge, which 'implies a grounding in the methods and procedures of science' based on actual knowledge, not mere 'subjective belief or unsupported speculation.'"*fn5 "In other words, 'an inference or assertion must be derived by the scientific method . . . [and] must be supported by appropriate validation- i.e. 'good grounds,' based on what is known.'"*fn6 The Supreme Court, in Daubert, listed four nonexclusive factors for the court to consider in assessing reliability: "(1) whether the opinion at issue is susceptible to testing and has been subjected to such testing; (2) whether the opinion has been subjected to peer review; (3) whether there is a known or potential rate of error associated with the methodology used and whether there are standards controlling the technique's operation; and

(4) whether the theory has been accepted in the scientific community."*fn7 "As noted, the list is not exclusive, and district courts applying Daubert have broad discretion to consider a variety of other factors."*fn8

In analyzing the moving parties' motions under these standards, the Court bears in mind that Plaintiff has the burden of proving that Dr. Wiet is ...

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