Case 5:14-cv-04672-JFL Document 90-1 Filed 10/07/15 Page 1 of 8
`Case 5:14—cv—O4672—JFL Document 90-1 Filed 10/07/15 Page 1 of 8
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`UNITED STATES DISTRICT COURT
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`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
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`JASON AND JOY MARINO, H/W, et al.
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`Plaintiffs
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`v.
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`Civ. Act. No. 5:14-cv-04672-JLS
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`PILOT TRAVEL CENTERS, LLC, et al.
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`.
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`Defendants
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`DEFENDANT PILOT TRAVEL CENTERS, LLC’S MEMORANDUM OF LAW IN
`OPPOSITION TO PLAINTIFFS’ MOTION TO PRECLUDE THE TESTIMONY OF
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`PILOT’S EXPERT, ZENIA CHERNYK, D.O.
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`I.
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`INTRODUCTION
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`Plaintiffs request that this Honorable Court preclude the testimony of Pilot’s expert Zenia
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`Chernyk based upon the allegations that she is not a pathologist and her opinion does not reliably
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`flow from the data and methodology used in this case. Plaintiffs’ motion fails to consider that Dr.
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`Chernyk has been offered as a nephrologist, not a pathologist, and is a qualified expert with 34 years
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`of experience diagnosing and treating kidney disease. For the reasons set forth herein, Plaintiffs’
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`motion should be denied.
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`II.
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`RESPONSE TO PLAINTIFFS’ FACTUAL HISTORY
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`Plaintiffs’ motion sets forth a 26 page statement of facts that bears no relevance to
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`Defendant Pilot’s Expert nephrologist, Zenia Chernyk, D.O’s clear qualifications to offer expert
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`testimony herein. Plaintiffs’ lengthy statement of irrelevant facts constitutes nothing more than a
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`thinly veiled effort to distract the Court from Plaintiffs’ failure to raise a colorable issue of law to
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`challenge Dr. Chernyk’ s clear qualification to offer expert testimony under Federal Rule of Evidence
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`702.
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`As briefly noted in section J of Plaintiffs’ factual history, which begins on page 26 of their
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`motion, St. Luke’s Hospital sent Jason Marino’s renal biopsy slides to Columbia University
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`pathology for review. (Pl’s Mot. to Precl. at 26, Docket No. 80). Plaintiffs state Columbia renal
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`pathologist Barry M. Stokes, MD identified an acute injury, based upon the sentence “proximal
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`tubules display focal loss of apical brush border.” Id. However, Dr. Stokes specifically notes in his
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`report that “no acute injury is seen.” (Plaintiffs’ Exhibit 1, p. 1) (emphasis supplied).
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`Plaintiffs’ motion additionally sets forth a self-serving, and imprecise analysis of their two
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`Expert Pathologists, Dr. Arend’s and Dr. Colvin’s medical conclusions to incorrectly aver that
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`Sovereign’s expert pathologist, Dr. Palmer, M.D., Ph.D. concurred “with their ‘acute’ findings.”
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`(Pl’s Mot. to Precl. at 27, Docket No. 80). However, Plaintiffs’ selective interpretation of Dr.
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`Palmer’s report conspicuously ignores critical sections of Dr. Palmer’s report that unequivocally
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`refute Plaintiffs’ position. In stark contrast, Dr. Palmer held, that
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`[while] a few tubules have changes which could be interpreted as
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`acute [] [t]hey are rare enough that I would consider them not likely
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`to be clinically significant. However, since this biopsy is six weeks
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`after the alleged exposure, it is possible that there was previously a
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`more extensive acute injury that has since mostly resolved. But that
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`is speculating on what might have been instead of interpreting
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`only what is on the slide in front of me. A reasonable pathologist
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`might disagree and think that the rare findings could in fact be
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`clinically significant, there is room for interpretation here.
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`(P1’s Mot. to Precl. Ex. 4, at 2, Docket No. 80) (emphasis supplied).
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`The only true fact all parties can agree on is that Jason Marino had a chronic kidney
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`condition prior to any work he conducted at Pilot’s facility. (Pl’s Mot. to Precl. at 1, Docket No. 80).
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`Both Plaintiffs’ experts Dr. Arend and Dr. Colvin also identify the presence of chronic injury.
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`Indeed, the Very first sentence from Plaintiffs’ expert Dr. Colvin’s interpretation of the biopsy is:
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`“The biopsy shows advanced chronic injury affecting glomeruli and Vessels, as well as tubules and
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`interstitium, in agreement with the report from Columbia University.” (Plaintiffs’ Exhibit 2, p. 1)
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`(emphasis supplied). Dr. Arend’s report also states “The features in the sample indicate advanced
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`chronic kidney disease, likely near or at end-stage if representative of the remaining renal
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`parenchyma.” (Plaintiffs’ Exhibit 3, p. l) (emphasis supplied).
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`III.
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`LEGAL ARGUMENT
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`A.
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`Dr. Chern k’s O inion is Admissible as she is a
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`ualified Ne hrolo ist
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`Plaintiffs attempt to argue that Dr. Chernyk is not qualified to render an expert opinion
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`because she is not a pathologist. This argument holds no weight, because Pilot did not produce Dr.
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`Chernyk as an expert pathologist. Rather, Pilot produced Dr. Chernyk as its expert nephrologist, who
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`specializes in diagnosing and treating kidney conditions, to provide her clinical opinion regarding
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`causation. Plaintiffs’ motion conveniently fails to address the substantial majority of Dr. Chernyk’s
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`opinions, completely disregards her 34 years of experience diagnosing and treating kidney
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`conditions similar to Mr. Marino’s purported injuries, and sets forth argument designed entirely to
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`distract the Court from the appropriate standard regarding qualifications.
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`Federal Rule of Evidence 702 (“FRE 702”) “embodies a trilogy of restrictions on expert
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`testimony: qualification, reliability and fit.” Pritchard v. Dow Agro Sciences, 705 F. Supp. 2d 471,
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`476 aff’d, 430 Fed. Appx. 102 (3d Cir. 2011) (citation omitted). In regards to the first prong,
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`qualifications, FRE 702 specifically permits witnesses to be considered experts in certain areas
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`based upon their knowledge, skill, experience, training, or education in a certain field. Fed. R. Evid.
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`702 (Lexis, 2016). Plaintiff cannot establish any issue as to Dr. Chernyk‘s qualifications under FRE
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`702. As a nephrologist, Dr. Chemyk has been practicing medicine in the field ofkidney disease since
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`1981. (Plaintiffs Exhibit 5, p. 1). When one seeks to have a diagnosis made related to their kidneys,
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`they see a nephrologist. (Affidavit of Dr. Chernyk, Attached as Exhibit A). For eight years Dr.
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`Chernyk served as Chairman of the Department of Nephrology and Director of Acute Dialysis
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`Program at Suburban General Hospital. Id. She is highly qualified in diagnosing and treating kidney
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`disease. Dr. Chernyk’ s 34 years of evaluating patients with kidney disease qualifies her to provide an
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`expert opinion regarding Mr. Marino’s kidney disease.
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`Plaintiffs’ assertion that “the only way to discern whether the kidneys sustained an acute
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`injury is by reviewing the biopsy slides” is simply false. (Pl’s Mot. to Precl., at 29, Docket No. 80).
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`“An expert’s testimony is admissible so long as the process or technique the expert used in
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`formulating the opinion is reliable.” Pritchard, 705 F. Supp. 2d at 483. The substantial majority of
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`Dr. Chemyk’s opinion turns upon her analysis of clinical signs and symptoms indicative of long-
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`term kidney injury and acute kidney injury. Indeed, Dr. Chernyk’s report states "Mr. Marino had all
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`the signs of advanced CKD (chronic kidney disease) on presentation even without the additional
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`information from the renal biopsy which further confirms the chronicity of the problem."
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`(Plaintiff’ s Exhibit 5, p. 4) (emphasis supplied). Plaintiffs intentionally ignore the majority of Dr.
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`Chemyk’s report, which addresses her analysis of Mr. Marino’s clinical signs and symptoms. Dr.
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`Chemyk’s opinion that there was no acute renal failure is based on her analysis of the laboratory
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`findings, presence of anemia, and hypocalcemia. Dr. Chernyk states in her report that the laboratory
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`findings of Hb- 6.9, Phosphorus-l 1.0, Calcium-7.6 with normal Almubin, “demonstrate clearly that
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`his renal failure represents ESRD (end stage renal disease) rather than an ARF (acute renal failure)”
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`(See Plaintiff’ s Exhibit 5, p. 3). Dr. Chernyk additionally opines “acute injury does not cause
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`anemia unless there is co-existent active bleeding present unrelated to kidney failure, and there was
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`no evidence of it here.” Id.
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`Further, Plaintiffs’ contention that “all pathologists agree” the slides manifest “acute” injury,
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`is woefully inaccurate. Columbia University Pathologist Dr. Stokes does not identify an acute
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`injury, rather, he specifically states “no acute injury is seen.” (Plaintiffs’ Exhibit l, p. l) (emphasis
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`supplied). Both Plaintiffs’ experts, Dr. Arend and Dr. Colvin, also identify the presence of chronic
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`injury. Indeed, the very first sentence from Plaintiffs’ expert Dr. Colvin’s interpretation ofthe biopsy
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`is: “The biopsy shows advanced chronic injury affecting glomeruli and vessels, as well as tubules
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`and interstitium, in agreement with the report from Columbia University.” (Plaintiffs’ Exhibit 2, p.
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`1) (emphasis supplied). The very first sentence in the summary from Dr. Arend’s report also states,
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`“[t]he features in the sample indicate advanced chronic kidney disease, likely near or at end-stage
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`if representative of the remaining renal parenchyma.” (Plaintiffs’ Exhibit 3, p. 1) (emphasis
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`supplied).
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`Indeed, Dr. Chernyk’s description of the biopsy findings as showing chronic injury is
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`consistent with the report of Dr. Stokes and the opinions of all experts in this case, including those
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`offered by the Plaintiffs. As a treating nephrologist, Dr. Chernyk regularly reviews the biopsy
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`results and accompanying pathologist report for her patients and uses it in conjunction with all the
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`other relevant information available to her in the course of making a diagnosis. (See Exhibit A). She
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`studied pathology as part of her medical education and has significant experience in reviewing the
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`histology of kidney biopsies as part of the diagnosis and treatment of kidney disease. Id.
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`Therefore, Dr. Chernyk is qualified as a nephrologist to provide an opinion as to the
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`appropriate diagnosis of Mr. Marino because she possesses extensive knowledge, skill, experience,
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`training, and education in the field of kidney disease. As such, Pilot respectfully submits that Dr.
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`Chernyk’s testimony should be permitted.
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`B.
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`Dr. Chernyk’s Opinion Reliably Flows from the Data and Methodology
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`Plaintiffs’ argument that Dr. Chernyk’s opinion does not " reliably flow from the data and
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`methodology used in this case" is also misplaced. Plaintiffs erroneously state that “Dr. Chernyk
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`specifically cites the biopsy slides as the basis for her opinion.” (Pl’s Mot. to Precl. at 31, Docket
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`No. 80). As stated above, the biopsy interpretation is only a small portion of Dr. Chernyk’s opinion,
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`and, significantly, does not constitute the basis for her medical conclusions. The majority of Dr.
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`Chernyk’s opinion is based upon an analysis of clinical signs and symptoms which are indicative of
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`long-term kidney injury and not acute kidney injury. The Third Circuit has held that "the degree to
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`which the expert testifying is qualified" also implicates the reliability ofthe testimony. Schneider v.
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`Fried, 320 F.3d 396, 407 (3d Cir. Pa. 2003) citing In re Paoli R.R. YardPcb Litig. , 35 F.3d 717, 742
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`(3d Cir. Pa. 1994). As stated above, Dr. Chernyk is highly qualified to opine on Mr. Marino’s kidney
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`disease based upon her 34 years of experience diagnosing and treating kidney disease.
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`Plaintiffs’ contention that Dr. Chernyk fails to address the “brush border loss and nuclear
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`changes” in no way disqualifies her expert opinion. Plaintiffs’ own expert report from Dr. Arend,
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`does not find or address “brush border loss.” If Plaintiffs’ argument is to be believed, then their own
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`expert fails to address what they consider “material scientific evidence.” Additionally, Sovereign’s
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`expert Dr. Palmer states that while findings of brush border and nuclear loss are focally present,”[he]
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`think[s] they are minor and not clinically significant. To the extent they may be significant, they
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`are nonspecific findings associated with numerous possible acute injuries and cannot be specifically
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`linked to diesel.” 1 (Plaintiffs’ Exhibit 4, p. 2). Clinically insignificant findings are not “material
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`scientific evidence” as Plaintiffs contends.
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`The cases which Plaintiffs’ rely upon are also distinguishable from this case. In each case
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`Plaintiffs cite, expert testimony was excluded because the expert failed to consider relevant facts,
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`Pritchard, 705 F. Supp. at 493, or assumed facts not in the record. Dearson v. Bostrom Seating, Inc.,
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`241 F. Supp. 2d 494, 499 (ED. Pa. 2003); Wood v. Developers Diverszfed Realty Corp. , 2006 WL
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`487937, at *3 (E.D. Pa. Feb. 27, 2006). For example, Pritchard excluded a doctor’s testimony when
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`he failed to consider all of the relevant materials, specifically, the plaintiff’ s medical records.
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`Pritchard, 705 F. Supp. at 493. Here, Dr. Chernyk reviewed all the materials relevant to her
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`conclusions, including records of Mr. Marino’s hospitalization at St. Luke’s Hospital in Allentown,
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`PA from May 1, 2014 to May 9, 2014, which she lists in detail in her report. There are also no
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`allegations that Dr. Chernyk has assumed facts that are not in the record. As such, Pilot respectfully
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`submits that Dr. Chernyk’s expert testimony should be permitted.
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`Respectfully submitted,
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`/s/ Thomas R. Harrington
`Thomas R. Harrington, Pa. ID. No. 11724
`Lewis Brisbois Bisgaard & Smith, LLP
`550 East Swedesford Road, Suite 270
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`Wayne, PA 19087
`tom.harrington@1ewisbrisbois.com
`(215) 977~4060/(215) 977-4101
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`/s/ Robert D. Fox
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`1 Plaintiffs’ experts all assume Mr. Marino was exposed to diesel fuel at such a level that could
`cause acute kidney disease, yet his exposure to diesel fuel has not been proven. See Pilot’s
`Motion to Exclude and Limit Testimony of Plaintiffs Causation Experts, Docket No. 79.
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`Robert D. Fox, Pa. ID. No. 44322
`Lynn R. Rauch, Pa. ID. No. 52725
`MANKO, GOLD, KATCHER & FOX, LLC
`401 City Avenue, Suite 901
`Bala Cynwyd, PA 19004
`rfox@mank0gold.com; 1rauch@mankogo1d.com
`(484) 430-2312/(484) 430-2328
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`Attorneys for defendant Pilot Travel Centers, LLC
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`Dated: October 7, 2015
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