Expert witness Dr. David Egilman was previously successful in showing he had standing to appeal a judicial order in a case in which he was not a party — but that case may not help him in his latest challenge to a trial judge.

Dr. David Egilman

The Colorado Court of Appeals in 2002 overturned a sanctions order against Egilman in a toxic tort case in which he testified on behalf of four nuclear plant workers. The trial judge excluded him from appearing as an expert witness in his courtroom after finding he was “hostile, biased and vindictive.”

The judge's “negative characterization [of Egilman] may potentially jeopardize appellant's ability to obtain future employment as a future witness,” the appeals court ruled in an unpublished opinion.

“As a result, we conclude that appellant has a potential injury in fact to a protected interest and thus has standing to challenge the sanctions order,” it said.

Now Egilman has filed a non-party appeal of a decision in which a federal judge ruled that he could not testify as an expert witness for a Spokane, Wash., man who claims to have contracted lung disease from exposure to microwave popcorn.

A non-party to a lawsuit who has “an interest in the cause litigated and participated in the proceedings actively enough to make him privy to the record” may appeal a court's order or judgment.

But U.S. District Judge Rosanna Malouf Peterson never negatively characterized Egilman in her ruling in Larry Newkirk's lawsuit against ConAgra Foods and others involved in the making of Act II microwave popcorn or its butter flavoring. And she did not make any order that affects Egilman's “ability to obtain future employment.”

“If the ruling had some preclusive effect on his ability to testify in future, I can envision a scenario where the appeals court would say, 'Doctor, you have a sufficient personal interest to have standing,'” says ConAgra attorney Corey L. Gordon (Blackwell Burke, Minneapolis). “But the ruling is very case-specific, very testimony-specific. It doesn't say, 'Doctor, you can never testify in this courtroom.'”

Gordon tells On Point he is somewhat at a loss as to how to respond to Egilman's appeal: “This is a 'brave new world' for us.” But he is looking into whether there is a “procedural mechanism for challenging standing before we need to address the substantive issues.”

Much of Egilman's career as an expert witness has been clouded in controversy. In a “popcorn lung” case filed by a popcorn factory worker, the defense argued he was a zealous advocate rather than an objective expert and an Iowa judge described him as having a “checkered past.” Kuiper v. Givaudan, 602 F.Supp.2d 1036 (2009).

He previously provoked the ire of Jefferson County (Colo.) District Court Judge Frank Plaut in the case of four Rocky Flats nuclear plant workers who alleged they contracted a disabling lung disease after working with the metal beryllium. Plaut sanctioned him for violating a gag order by discussing the case on his website.

Egilman's comments were “scurrilous and inflammatory,” Plaut said, casting “great doubt on his legitimacy and integrity as a witness.”

In overturning the sanctions order, the Colorado Court of Appeals said a restriction that partially limits a party's ability to pursue employment “does not implicate a liberty interest, unless such restriction damages a party's 'good name, reputation, honor, or integrity' and thus hampers his ability to obtain future employment.”

For her part, Judge Peterson shredded Egilman's theory that popcorn consumers can contract lung disease from exposure to microwave popcorn. “The bulk of Dr. Egilman’s conclusions do not rise above 'subjective belief or unsupported speculation,'” she said.

But as Gordon observes, “All the court did was do a very detailed, thoughtful and thorough analysis of the scientific methodology that Dr. Egilman used ... He can still come back tomorrow and give testimony as an expert in the Eastern District of Washington.”

By Matthew Heller
8/12/10