Full opinion text
OPINION AND ORDER GEORGE C. SMITH, District Judge. Plaintiffs James P. Conde, Rhonda Conde, Ryan Conde, Autumn Conde, and Kimberly Conde bring this action alleging that Defendant Velsicol Chemical Corporation (“Velsicol”) caused them personal injuries and deprived them of the economic value of their home when Swat Exterminators applied Velsicol’s Gold Crest C-100 insecticide to their home. The Condes allege that their exposure to chlordane, the insecticide, caused them headaches, nausea, diarrhea, liver problems, blood irregularities, immune system dysfunction, and other personal injuries. They further allege their house is uninhabitable. Velsicol has filed the following motions: 1. For summary judgment on issues of medical causation filed June 1, 1992. 2. For summary judgment on fear and emotional distress claims filed June 1, 1992. 3. For summary judgment on product defect claim filed June 1, 1992. 4. For summary judgment on claims for punitive damages filed June 1, 1992. 5. For summary judgment on property damage claims filed June 1, 1992. 6. For summary judgment on warning claims filed June 1, 1992. 7. In limine to exclude opinion testimony of plaintiff Dr. James P. Conde filed June 1, 1992. 8. In limine to exclude opinion testimony of Peter McConnachie, Ph.D. and Arthur Zahalsky Ph.D. filed June 1, 1992. 9.To strike improper Rule 56 material filed July 16, 1992. 10. In limine to exclude evidence of testimony relating to the Illinois grand jury proceeding filed July 16, 1992. 11. In limine to exclude evidence and testimony concerning the August 11, 1987 Memorandum of Understanding and Accompanying Voluntary Product Withdrawal filed July 16, 1992. 12. In limine to exclude from evidence the July 1987 EPA draft Technical Support Document filed July 16, 1992. 13. Second motion to strike improper Rule 56 materials filed August 21, 1992. 14. In limine to exclude evidence and testimony relating to (1974-75) EPA Cancellation proceedings filed September 11, 1992. 15. To exclude evidence and testimony of the 1986 Carcinogenicity Assessment Group Report (CAG) filed September 11, 1992. 16. In limine to exclude opinion testimony of Robert K. Simon, Ph.D. relating to product defect filed September 11, 1992. 17. In limine to exclude opinion evidence concerning the alleged nature of untested house debris as “hazardous waste” filed September 11, 1992. 18. In limine to exclude opinion evidence by Dr. Simon and others concerning alleged presence of transnonachlor in plaintiffs’ blood filed September 11, 1992. 19. In limine to exclude evidence concerning death and alleged illnesses of family cat filed September 10, 1992. 20. In limine to exclude evidence and testimony regarding certain state regulatory proceedings and actions filed September 10, 1992. On June 23, 1992, plaintiffs filed a motion for leave to file a. second amended complaint. The Court will address in this Opinion plaintiffs’ motion- for leave to file an amended complaint and Velsicol’s motions for summary judgment on medical causation, the product defects claim, and the property damage claims, as well as its motions to exclude the opinion testimony of Drs. Conde, McConnachie, and Zahalsky, the motions to strike Rule 56(e) material, and the motion to exclude the July 1987 EPA Technical Support Document. In considering the motions, the Court first outlines the basic facts relating to the Condes’ claims against Velsicol. Next the Court grants plaintiffs’ motion for leave to file an amended complaint. Then the Court considers the motion for summary judgment on the product defects claim. The Court holds that, reserving ruling on the element of medical causation, plaintiffs state a claim under the consumer expectation test, but that defendant is entitled to summary judgment under the risk benefit analysis. The Court then turns to the evidentiary motions and denies Velsicol’s June 1, 1992 motions to exclude the opinion testimony of Drs. Conde, McConnachie, and Zahalsky. Next the Court grants Velsicol’s motion to strike the Epstein article, Harbison affidavit, and Hollingsworth letter, but denies the motion as to the Infante article. The Court denies Velsicol’s motion to exclude the 1987 TSD. Then the Court grants Velsicol’s motion for summary judgment on medical causation, concluding that plaintiffs have failed to offer opinion testimony admissible under Rules 702 and 703, Fed.R.Evid. from which a jury could find by a preponderance of the evidence that the Condes’ exposure to chlordane caused their symptoms and diseases. Having granted summary judgment on medical causation, the Court further concludes that Velsicol is consequently entitled to summary judgment on plaintiffs’ product defects claim. Finally, the Court denies Velsicol’s motion for summary judgment on the property damage claims, finding a conflict of material fact about whether the Conde home has suffered compensable property damage. BASIC FACTS The Court views the facts in the light most favorable to plaintiffs. When there are fact conflicts, the Court accepts the facts asserted by plaintiffs as true. In 1982 Darrell Mitchell contracted with the Condes to construct a new home for them at 33449 Wills Hill Road, Pomeroy, Ohio. Mitchell was to provide the Condes with a full pre-treatment of insecticide to protect the home against termites and other pests. He failed to do so. In the Spring of 1983 the Condes had already moved into the house although construction still continued. To provide some termite protection, Mitchell and John Swepston, owner/operator of Swat Exterminating (Swat), agreed to. a partial treatment. Mitchell drilled holes into concrete block, and on or about April 8, 1983, Swat applied 400 gallons of Velsicol’s Gold Crest C-100 solution to the basement walls and the soil perimeter of the Conde home. Mitchell was then to refill the holes, but he failed to do so. Plaintiffs assert that following the application, chlordane seeped into the living areas, vaporized, and emitted toxic fumes throughout the house. The Condes allege that soon after their exposure all family members experienced headaches, nausea, diarrhea, and other physical discomfort caused by Velsicol’s chlordane. On April 16, 1983, Kimberly Conde, then 15 months old, was hospitalized for dehydration following a bout of severe vomiting, diarrhea, and fever. When the Condes’ search for a cause of their symptoms turned to the termiticide applied in April 1983, Velsicol told them it was safe to remain in their new home. However, they continued to experience headaches, nausea, and other physical symptoms. Their cat died unexpectedly in August 1986, and subsequent tests revealed chlordane in the cat’s liver. In November 1986, the Condes moved out of their home. Since then, they have been living in a double-wide mobile home located elsewhere on the same property. Once the Condes moved from their home, their acute symptoms subsided. Defendant Velsicol asserts, and plaintiffs do not controvert, that the highest average level of chlordane ever measured in the Conde’s home is roughly one microgram per cubic meter (1 ug/m), which is Vm part per billion. Plaintiffs state that chlordane can persist in the human body for up to 30 years. It is retained mainly in fat cells. However, defendant states, and plaintiffs do not controvert, that the Condes are unable to show the presence of chlordane in their bodies at all, despite numerous fat samples, blood samples, urine samples, and liver and bone marrow biopsies. Two of the more serious long-term consequences identified by plaintiffs are that Ryan Conde suffers from an elevated bili-rubin count and that Rhonda Conde has suffered blood irregularities and neurological injury. All plaintiffs argue that due to their chronic exposure to chlordane they have suffered damage to their immune systems and central nervous systems. Defendant asserts that the Ohio Department of Health has reported that the Conde’s house would be habitable with a relatively minor clean-up. Plaintiffs do not controvert this assertion in their responsive brief. Plaintiffs have settled their claims against Swat. The suit continues against Velsicol, the manufacturer of the termiti-cide (chlordane). AMENDED COMPLAINT Plaintiffs’ June 23, 1992 motion for leave to file a second amended complaint is GRANTED. All counts relating to Swat Exterminators, Inc. of the amended complaint are DISMISSED with prejudice. Velsicol is not prejudiced by plaintiffs’ elimination of all references to Swat Exterminating from the complaint. Swat is no longer a defendant. Plaintiffs’ claims against Velsicol have always been based on Velsicol’s conduct. If Velsicol believes it has a viable defense based on Swat’s alleged negligence, it is free to pursue that defense at trial. Velsicol’s remaining objections to assertions made in the Second Amended Complaint are the subject of other pending motions and will not be considered here. PRODUCTS DEFECTS In Knitz v. Minster Machine Co., 69 Ohio St.2d 460, 432 N.E.2d 814 (1982), the Ohio Supreme Court held that: A product design is in a defective condition if it is more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner or if the benefits of the challenged design do not outweigh the risks inherent in such design. This formulation of the test for a defective product is based on § 402A of the Restatement (Second) of Torts, which was adopted by the Ohio Supreme Court in Temple v. Wean United, Inc., 50 Ohio St.2d 317, 364 N.E.2d 267 (1977). Section 402A provides: (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The Rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller. In Leichtamer v. American Motors Corp., 67 Ohio St.2d 456, 424 N.E.2d 568 (1981), a Jeep rollover case, the Ohio Supreme Court extended the § 402A analysis to design defects. The court stated that “[wjith regard to design defects, the product is considered defective only because it causes or enhances an injury.” Id. at 465, 424 N.E.2d 568. In Cremeans v. International Harvester Co., 6 Ohio St.3d 232, 452 N.E.2d 1281 (1983) the Ohio Supreme Court held that Knitz, supra, articulated a single test with two alternatives and that a plaintiff can prove that a product is defective by showing either: that the product design is in a defective condition because the product fails to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner (the consumer expectation test); or, that judged using relevant criteria, the product design is in a defective condition because the benefits do not outweigh the risks inherent in such design (the Risk/Benefit Test). Cremeans, 6 Ohio St.3d 232, 452 N.E.2d 1281 at syllabus. Plaintiffs offer evidence to support both theories. Velsicol maintains that plaintiffs claim against Swat was that the termiticide was misapplied. Defendant argues plaintiffs’ misapplication theory is inconsistent with their products liability claim. Second, Velsicol asserts that the highest average measured air concentration of chlordane in the Condes’ house has been less than one micron per cubic meter (1 ug/m). In contrast, the permissible OSHA exposure level for workers exposed to chlordane 8 hours a day, 5 days a week, 50 weeks a year is 500 ug/m. 29 C.F.R. § 1910.000. Consumer expectation. Under the consumer expectancy prong, the defendant will incur liability for a defective product if the product is more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. Knitz, supra, at syllabus. In Knitz, supra, the court indicated that the question of whether a product was defectively designed could be considered by a jury using hindsight, that is, a product may be found to be defective in design even if it satisfies ordinary consumer expectations if the jury determines that the product’s design embodies “excessive preventable danger.” 69 Ohio St.2d at 465-466, 432 N.E.2d 814. The consumer expectancy test is designed to reflect the commercial reality that, implicit in a product’s presence on the market, is a representation that it will safely do the jobs for which it was built. Id. at 460, 432 N.E.2d 814. The test utilizes an objective standard and not the subjective expectations of a particular user or consumer. Leichtamer, supra, 67 Ohio St.2d at 467, 424 N.E.2d 568; Delk v. Holiday Inns, Inc., 545 F.Supp. 969, 971 (S.D.Ohio 1982). Velsicol contends that the presence of trace levels of chlordane in living areas cannot be regarded as an unexpected or unintended consequence of using chlordane as a termiticide. Velsicol notes that the 1983 EPA Report commented on numerous public studies which “demonstrated the possible presence of trace levels of termiti-cides in treated homes.” Defendant’s Motion for Summary Judgment at 19. Whether or not objective consumers expected trace levels of chlordane in the living areas of their homes is not dispositive under the consumer expectation test. The relevant inquiry is whether the objective consumer thought the product was safe and would not cause adverse health effects. In Delk, supra, the court held that the manufacturers of carpeting and wall covering were not liable under the consumer expectation theory of strict liability for plaintiffs’ injuries sustained in a hotel fire where the manufacturers did not advertise or represent to motel purchaser that their products were fire and smoke resistant. Plaintiffs argue that Velsicol’s labels, manuals, and advertisements contained misstatements which raised consumer expectations about product safety, including: —Independent study reveals “no evidence of any long-term latent effect.” —Chlordane “does not pose a threat to health when it has been used properly.” —There is “little opportunity for you or your pets to be exposed” to Chlordane, —Chlordane is one of the “safest insecticides presently in use for control of termites.... ” Plaintiffs assert that the second and third representations above were contrary to Velsicol’s own pre-1983 studies. Dr. Simon’s January 1992 deposition at pp. 132-134 and 140-141; W.P. Cahill and N.C. Jimenez’s March 3, 1983 Velsicol internal report. Further, plaintiffs urge, any ordinary consumer would be led to believe by the above representations that Velsicol’s chemical products were lethal to termites but would not harm them. Finally, plaintiffs allege that at the end of 1984 Dr. Conde talked with a Velsicol employee and a researcher that employee referred him to, both of whom assured him that Velsicol had no problem with chlordane and that chlordane was safe, not toxic. Dr. Conde’s October 30, 1986 deposition at pp. 24-26; Dr. Conde’s September 26,1991 depositions at pp. 206-207. Velsicol responds that plaintiffs have admitted that no Velsicol communication ever came to their attention prior to the application of Gold Crest C-100 to their house. Supplemental Answer of Plaintiffs to Interrogatories, No. 7 (April 29, 1992) (Attachment C to Velsicol’s Reply). Although plaintiffs assert that the Velsicol documents containing the alleged misstatements reached home owners, they fail to offer any evidence supporting that allegation. Velsicol alleges that most of the documents were directed to professional pest control operators. Finally, defendant argues that none of the documents suggest that there is absolutely no exposure to trace amounts of chlordane. Even had plaintiffs read the documents, they could not reasonably have formed the opinion that they would not be exposed to average levels below 1 ug/m3 (Vieth of a part per billion), the highest level of chlordane ever measured at the Condes’ home. Dr. Conde’s alleged telephone conversations with a Velsicol employee and Dr. Calo occurred long after the product was applied. Moreover, Dr. Conde testified that he did not believe the representations they made. Dr. Conde’s September 27, 1991 deposition at p. 241; Dr. Conde’s September 28, 1991 deposition at pp. 563-664 and 567-568. Risk-benefit analysis. Under Ohio law, the relevant factors in considering whether a product is defective under the risk/benefit test include: (1) the likelihood that the product will cause injury; (2) the gravity of the danger posed by the design; (3) the mechanical and economic feasibility of an alternative design; (4) the relative costs of producing, distributing and selling an alternative design; and (5) new or additional harms. that may result from an alternative design. Knitz, 69 Ohio St.2d at 466, 432 N.E.2d 814; Cremeans, 6 Ohio St.3d 232, 452 N.E.2d 1281. The plaintiff need not prove all five factors to establish that the defendant’s product is defective, but rather, “[t]he appropriate factors, and the weight allocated to each factor, will vary with the facts of each case.” Cremeans, 6 Ohio St.2d at 235, 452 N.E.2d 1281 (footnote omitted). Velsicol first argues that the 1983 EPA report conclusively establishes that Gold Crest C-100 is not a defective product. Although the 1983 EPA report concludes that the benefits of chlordane use outweigh the risks, the EPA explicitly stated that the risk assessment was incomplete. The report concludes that: After consideration of the available information on the risks and benefits for the termiticides the Agency concludes that the benefits from their use to control subterranean termites are extremely high. The risk assessment for these chemicals is incomplete because of the lack of definitive data on the extent of human exposure, the amount of exposure, and most importantly, data on the critical biological end point (health effect) in humans exposed to these pesticides. At this time in assessing the risks and benefits associated with the total national use of the termiticides based on available data, and considering the lack of data outlined above, the Agency finds that the benefits from the use of the currently registered pesticides outweigh the potential risks. The Agency recognizes that in individual cases where termiticides were improperly applied or misused in treating a residential dwelling, the risks from exposure may exceed the benefits. 1983 EPA Report at V-4, V-5 (emphasis added). Contrary to Velsicol’s assertion, the 1983 EPA report does not “conclusively” establish that the benefits of chlordane outweigh the risks. Rather, the report indicates that the risk assessment is “incomplete” due to the “lack of data.” Finally, the EPA concludes that in a misapplication case “the risks from exposure may exceed the benefits.” Plaintiffs principally rely on a July 1987 Technical Support Document (TSD) prepared by the USEPA. The TSD “presents EPA’s evaluation of the risks and benefits of [chlordane, heptachlor, aldrin and diel-drin] for use on subterranean termites.” TSD, Executive Summary at i. Plaintiffs have submitted evidence which suggests that the 1987 TSD is a final agency document representing the current EPA assessment of the risks and benefits associated with the use of cyclodien insecticides. See Memorandum of Daniel Banolo, Affidavit of William Marcus. The report relies on a National Academy of Sciences Natural Research Center’s Committee on Toxicology-(NRCCT) report which states that it could not determine a level of exposure to chlordane below which there would be no biologic effect under conditions of prolonged exposure. Id. Velsicol counters that the 1987 TSD is a draft that has never been issued by the EPA. Further, the Report is incomplete and lacks a concluding section, has never been peer-reviewed, and has been disavowed by USEPA officials in charge of the Office of Pesticide Programs at the time of its prepáration. Moreover, Velsicol asserts the 1987 TSD is irrelevant to the 1983 risk-benefit analysis required here. (The termi-ticide chlordane was applied to the Condes’ home in the spring of 1983.) Finally, the 1987 TSD is inadmissible hearsay. As such, plaintiffs cannot rely on it to resist defendant’s motion for summary judgment. The 1983 USEPA Report balanced the estimated $100 million to $3.5 billion dollar annual damage to buildings from termites against the less effective and more costly alternatives available in early 1983. It concluded that “chlordane, heptachlor, and ald-rin are the most cost-effective chemicals for termite control.” Id. at III — 7. The 1983 USEPA Report also identified health risks from these termiticides. The 1983 report concluded: the benefits from the termiticides are very high and those benefits outweigh potential risks (even though trace levels of the termiticides will remain in the building treated). Plaintiffs counter that the 1987 TSD reached the opposite conclusion. Id. at pp. i & ii. Next Velsicol argues that it is entitled to summary judgment on the risk-benefit test because plaintiffs’ expert testimony fails to create a genuine issue of fact about whether Gold Crest C-100 is defective. -Dr. Robert K. Simon, an analytic chemist, testified for plaintiffs that technical chlordane could have been manufactured so as to remove a number of unspecified “volatile components.” Defendant maintains that testimony is. entitled to no .weight because Dr. Simon has no expertise in or knowledge about the manufacture of termiticides or other chemicals. Plaintiffs’ memorandum contra makes no response to this argument. It does assert that Dr. Simon explained why the product was unsafe during his 1992 deposition at pp. 98-99 and 103-107. Similarly, Velsicol argues that plaintiffs’ expert Dr. Arthur C. Zahalsky, a geneticist and microbiologist, has no training or experience to permit him to express an opinion on alternative methods for manufacturing chlordane. Again, plaintiffs did not respond to this argument in their brief. In its reply brief, Velsicol advances four reasons Dr. Simon’s opinions are of no evi-dentiary weight. First, Dr. Simon’s conclu-sory opinion that the product is unsafe is based on his apparent opinion that a product must be absolutely safe. Second, he bases his opinions on the 1987 TSD. Dr. Simon’s November 13, 1991 deposition at p. 39. That report has no evidentiary value. Third, Dr. Simon’s opinion is based on the alleged inadequacies of Velsicol’s warning labels, but plaintiffs have withdrawn that claim. Fourth, Dr. Simon has no expertise about alternative pesticides, alternative methods of pesticide control, and no knowledge about which pesticides were available for use as a termiticide in 1983. Conclusions. Defendant has failed to demonstrate that it is entitled to summary judgment dismissing in the entirety plaintiffs’ products defects claims. Under the consumer expectation test, consumers of residential termiticides in the Spring of 1983 would reasonably have believed that there would be no serious adverse health consequences from the application of Velsicol’s Gold Crest C-100 to their residence. Consequently, if plaintiffs have admissible evidence'to offer from which a jury could find by a preponderance of the evidence that the application of the chlordane to the Condes’ residence caused the diseases and symptoms reported by Dr. Conde, they would be entitled to- have the matter go to the jury for their determination. Plaintiffs have offered no admissible evidence supporting a charge to the jury on a risk-benefit analysis theory. Plaintiffs’ experts have no knowledge of alternative termiticides available during or prior to the Spring of 1983, no knowledge of how termiticides are manufactured, and the like. Consequently, although plaintiffs have offered evidence about the likelihood that Velsicol’s product will cause, injury and the gravity of the danger posed by the product, they have failed to offer admissible evidence regarding the mechanical and economic feasibility of an alternative design, the relative costs of producing, distributing, and selling an alternative design, and the new or additional harms that may result from an alternative design. The 1987 TSD is not evidence which cures this deficiency. First, the 1987 TSD was not available to the industry during the Spring of 1983 and before. Second, the product alternatives relied upon in the 1987 TSD were not generally available in the Spring of 1983. EVIDENTIARY MOTIONS Many of the motions for summary judgment now at issue cannot be properly evaluated without first deciding several threshold evidentiary issues. Accordingly, the Court will first proceed to these issues. Motion by Velsicol In Limine to Exclude Opinion Testimony of Plaintiff Dr. James P. Conde Defendant has filed a motion in limine to exclude the intended expert opinion testimony of plaintiff, Dr. James P. Conde, on the grounds that Dr. Conde cannot be considered an expert witness under Fed. R.Evid. 702 and 703 because of his biased, non-objective status in this case as an interested party. Velsicol further maintains that Dr. Conde’s testimony should also be excluded under Fed.R.Evid. 403 because its inflammatory nature would render it unduly prejudicial in comparison to its limited probative value. Plaintiffs maintain that defendant’s motion is merely an attempt to deprive plaintiffs of their best medical evidence through the use of misleading and factually deficient allegations regarding Dr. Conde. Plaintiffs further argue that it is only because Velsicol cannot contradict Dr. Conde’s medical testimony that it has purposely decided to use “egregious ‘tactics and maneuvers’ to attempt to exclude such testimony.” Plaintiffs’ Statement Contra at p. 1. This is not the first instance the Court has had occasion to consider Dr. Conde’s dual role in this litigation. Dr. Conde is a plaintiff in this action. He is also a licensed doctor of osteopathic medicine who specializes in family practice. He is the primary treating physician for the Conde family. In October 1991, Magistrate Judge Abel, in response to defendant’s motion to compel answers to deposition questions, concluded that “Dr. Conde’s role as a party to this lawsuit is predominant and ... defendant will be allowed to depose him without being required to compensate him for his time [under Fed.R.Civ.P. 26(b)(4)(C).].” October 24, 1991 Order at 7. Magistrate Judge Abel’s ruling on the prior discovery dispute sought to reconcile a novel question of law. The question presented in that dispute was whether the Federal Rules of Civil Procedure require the defendant to provide expert witness fees in order to take the plaintiff’s deposition because the plaintiff was an “expert” as to some issue in the case. Magistrate Judge Abel answered the question in the negative. He ruled that defendant would be allowed to depose Dr. Conde for an additional four hours without payment of expert witness fees. However, when the four hours of deposition time contemplated in the October 24, 1991 Order proved to be inadequate, Magistrate Judge Abel further ruled: Dr. James P. Conde is ORDERED to sit for the completion of his deposition. He has already testified for three and a half days. I had hoped that the expert portion of his deposition could be completed within four hours. All counsel agree that Dr.. Conde’s testimony is not completed and that defendants reasonably have the right to complete Dr. Conde’s deposition as an expert. Defendants are ORDERED to pay Dr. Conde the hourly rate he previously requested for his expert testimony Dr. Conde also remains under a duty to be re-deposed as a non-expert, limited to events occurring subsequent to (or first known to defendants subsequent to) the conclusion of his previous deposition as a non-expert. Dr. Conde is not entitled to compensation for his “non-expert” testimony. December 17, 1991. Order at 2-3 (emphasis added). The October 24 and the December 17 Orders contemplate that Dr. Conde would qualify as an expert witness as plaintiffs’ treating physician. Often the testimony of the primary health care provider is the most relevant medical testimony concerning a plaintiff’s alleged injuries. Velsicol argues that Dr. Conde should not be allowed to testify as an expert under Rules 702 and-703 because he lacks the required objectivity required of expert witnesses. Velsicol argues that Magistrate Abel’s October 24, 1991 Order establishes as the law of the case that Dr. Conde cannot be considered an expert witness because his role as a party is predominant. Defendant also argues that Dr. Conde’s extreme emotional involvement in this case precludes his role as an expert witness. In Viterbo v. Dow Chemical Co., 646 F.Supp. 1420, 1425-26 (E.D.Tex.1986) (citing Johnston v. United States, 597 F.Supp. 374 (D.Kan.1984)), the court observed that “where an expert becomes an advocate for a cause, he therefore departs from the ranks of an objective expert witness, and any resulting testimony would be unfairly prejudicial and misleading.” The “most important” factor for the court in excluding the opinion testimony of plaintiff’s expert in Viterbo was that the expert “affirmatively sought employment from the plaintiff’s attorneys in this case; thus, he ... did not view Viterbo’s condition objectively.” Id. Similarly, in In re Air Crash at Detroit Airport, 737 F.Supp. 427, 430 (E.D.Mich.1989) aff'd without opinion, 917 F.2d 24 (6th Cir.1990), the court held that the president of a national “right to life” organization could not provide expert testimony as to when a fetus becomes viable because the witness could not be considered to be objective. Both of these cases, however, turn, at least in part, on the fact that the experts had preconceived notions before the litigation commenced. Dr. Conde’s affidavit opposing the motion to exclude his opinion testimony states: he conducted objective tests and made objective evaluations; he listened to the complaints of the plaintiffs; and, he conducted physical examinations and referred family members to specialists when medically indicated. Further, his affidavit states that he has undertaken an exhaustive study of the medical and scientific literature regarding chlordane and its effects on animals and humans. Should this case proceed to trial, Velsicol is clearly free to challenge Dr. Conde’s methodology, diagnosis, assumptions, and qualifications through cross-examination and through the presentation of its own witnesses. Velsicol may also argue its position that he has let his concern for his and his family’s health and their economic interest in this lawsuit affect his professional judgment. Ordinarily when the Court is confronted with a “battle of the experts, the jury must decide the victor.” In re Bendectin Products Liability Litigation, 732 F.Supp. 744, 748 (E.D.Mich.1990) (citing Ferebee v. Chevron Chemical Co., 736 F.2d 1529, 1535 (D.C.Cir.), cert. denied, 469 U.S. 1062, 105 S.Ct. 545, 83 L.Ed.2d 432 (1984)). The question here is whether defendant has demonstrated that Dr. Conde is so obsessed with what he perceives to be Velsicol’s tortious conduct that he cannot function as an expert witness at trial. Defendant cites several cases in which courts have held that plaintiffs cannot provide expert testimony in their own cases. See Proteus Books Ltd. v. Cherry Lane Music Co., 873 F.2d 502 (2nd Cir.1989); Yoder Bros., Inc. v. California-Florida Plant Corp., 537 F.2d 1347 (5th Cir.1976); In re Broad Associates Ltd. Partnership, 110 B.R. 632 (Bankr.D.Conn.1990). In Proteus Books, supra, the Court of Appeals for the Second Circuit held that the trial court’s ruling that an employee of the plaintiff could not qualify as an expert because he was an interested party was not “manifestly erroneous.” 873 F.2d at 515. In Yoder Bros., supra, the court rejected “the isolated self-serving statements of the [defendant’s] officers ... [as] not enough to constitute substantial evidence for the jury on the causation, issue_” 537 F.2d at 1371. In Broad Associates, supra, the bankruptcy court accorded no weight to the opinion testimony of the president of a Chapter 11 debtor’s corporate general partner as to estimates of the debtor’s cash flow. The court stated that “[although [the president] is an accountant, no evidence was offered that his opinion was based on an analysis of the potential cash flow of the building. He provided no detail or documentation in support of his naked assertion, and I find that his testimony was lacking in candor, self-serving, speculative, and entitled to no weight.” 110 B.R. at 637. Contrary to Velsicol’s assertion, these cases do not impose a rigid requirement that parties are not permitted to provide opinion testimony. Rather, in Yoder Bros. and Broad Associates, the testimony was admitted but accorded little weight or credibility. Proteus Books only supports the proposition that a trial court has the discretion to exclude opinion testimony when the expert has an interest in the case. In this Court’s experience, employees of a party not infrequently give “expert” testimony at trial. Plaintiffs cite Nelco Corp. v. Slater Electric, Inc., 80 F.R.D. 411 (E.D.N.Y.1978) for the proposition that one individual may be an “expert” as to some matters and an “actor” as to others. Nelco is a patent infringement case where the court permitted the witness to be deposed as to facts known to him as the co-inventor of the allegedly infringed device but not as an expert retained in anticipation of trial on the issue of infringement. • The result in Nelco is similar to Magistrate Judge Abel’s prior rulings on the discovery dispute, particularly the quoted portions from his December 17, 1991 Order. That Order recognizes that Dr. Conde wears two hats in this case. Defendants argue that even if Dr. Conde’s expert opinions meet the requirements of Rules 702 and 703, the opinions should nevertheless be excluded under Rule 403 because their prejudicial impact outweighs their probative value. Under Rule 403, the Court may exclude otherwise relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice that admission of the evidence would pose. Velsicol argues that the personal attacks on the defendant and its attorneys will cause undue prejudice and confuse the issues before the jury. The cases Velsicol cite in support of its Rule 403 argument are of only marginal relevance in making this decision. For example, Velsicol cites United States v. McFadyen-Snider, 552 F.2d 1178, 1182 (6th Cir.1977) which held that evidence that “serve[s] only to cater to the passions of the jury” must be excluded. Examination of that case, however, reveals that the Court of Appeals held that testimony that the defendant was a prostitute and had “sold herself to wealthy men” should have been excluded in a criminal wire fraud prosecution. The other cases cited by Vel-sicol, also criminal cases, are equally unhelpful when applied to this case. Conclusion. Determinations of the permissible limits of expert testimony is left to the sound discretion of the trial court. Finch v. Monumental Life Insurance Co., 820 F.2d 1426, 1432 (6th Cir.1987); United States v. Green, 548 F.2d 1261, 1268 (6th Cir.1977). “Juries are not as stupid as it pleases some people to believe.” General Mills Supply Co. v. SCA Services, Inc., 697 F.2d 704, 718 (6th Cir.1982). It is the province of the jury to weigh the credibility of witnesses, including witnesses testifying as experts. Coal Resources, Inc. v. Gulf & Western, 865 F.2d 761, 775 (6th Cir.1989). Thus, although an expert may ostensibly be clothed with the added credibility which inures to experts testifying at trial, juror common sense, cross-examination, argument by the party-opponent’s attorneys, the testimony of the party-opponent’s own expert witnesses, and a cautionary instruction from the Court, if required, will normally assure that the jury fairly evaluates the expert’s testimony. Dr. Conde is plaintiffs’ only medical causation expert. He is a family practitioner with no specialized medical training or experience in toxicology, immunology, or any of the other specialties related to the medical causation questions in this case. His testimony does not clearly link his clinical findings and the test results to the medical literature. Dr. Conde has a substantial emotional and economic stake in this lawsuit. His and his family’s health is very important to him, and both he and his family have been under great stress as a result of the symptoms and diseases they have experienced over the past nine years. The economic well-being of his family is also at risk. They have abandoned their expensive home, and they have invested substantial monies and energies in prosecuting this lawsuit. The Court reserves ruling on the admissibility of Dr. Conde’s testimony at trial as a medical causation expert but will fully credit his testimony for purposes of ruling on the pending case-dispositive motions. Motion by Velsicol In Limine to Exclude Opinion Testimony of Peter McConna-chie, Ph.D. and Arthur Zahalsky Ph.D. Velsicol moves in limine to exclude the testimony of two of plaintiffs experts, Drs. McConnachie and Zahalsky, on the grounds that the doctors’ proposed opinions are not admissible under Rules 702, 703, and 403, Fed.R.Evid. because their theories of immune system dysregulation are not generally accepted in the relevant sciéntifie and medical communities and would be unduly prejudicial in comparison to their limited probative value. Further, defendant argues that Drs. McConnachie and Zahalsky cannot offer evidence of medical causation because they are not medical doctors and, consequently, cannot make differential diagnoses.' Velsicol also argues that their opinions - should be excluded because the immune system effects they allegedly measure are not compensable injuries. Plaintiffs counter that yesterday’s scientific skepticism has become today’s scientific certainty. They maintain that the fact that there may be a dispute in the scientific community concerning the effects of chlordane on the human body should not be reason to exclude the testimony of Drs. McConnachie and Zahalsky at the pretrial stage. The admissibility of expert testimony is governed by Fed.R.Evid. 702. In accordance with the provisions of that rule, a four-part test is used to evaluate the admissability of expert testimony. The proponent of expert testimony must demonstrate that (1) the expert is qualified (2) testifying on a proper subject matter (3) which is in conformity to a generally accepted explanatory theory (4) the probative value of which outweighs its prejudicial effect. United States v. Kozminski, 821 F.2d 1186, 1194 (6th Cir.1987), aff'd on other grounds, 487 U.S. 931, 108 S.Ct. 2751, 101 L.Ed.2d 788 (1988); United States v. Green, 548 F.2d 1261 (6th Cir.1977); Sterling v. Velsicol Chemical Corp., 855 F.2d 1188 (6th Cir.1988). Velsicol challenges the competency of Drs. McConnachie and Zahalsky to testify based on all four elements of the test set out above. First, Velsicol characterizes plaintiffs’ experts as “alchemists,” “charlatans,” “inept professors,” and “phonies.” Defendant’s July 16,1992, Reply Statement at 2. Velsicol also argues that the subject matter upon which plaintiffs’ experts seek to testify is not “proper” within the meaning of the four part test outlined above, because subclinical effects (the presence or absence of molecules on the surface of cells), such as immune system dysregulation, is not a compensable injury under Ohio law. Immune System dysregulation. In Sterling, supra, the court held that expert testimony based on the theory of “clinical ecology” was inadmissable because the American Academy of Allergy and Immunology and the California Medical Association had rejected the theory as an unproven methodology lacking any scientific basis in either fact or theory. In addition, the court noted that although “numerous other professional organizations and societies, ..., have not discredited the potential usefulness of clinical ecology, few have endorsed either its scientific usefulness or the results of any experiments conducted under the guise of clinical ecology.” Sterling, 855 F.2d at 1208. The court in Sterling also emphasized the fact that plaintiffs’ experts had not conducted tests in support of their conclusions nor had they examined or interviewed the plaintiffs on whose behalf they had testified in the toxic tort litigation arising from the defendant’s dumping of hazardous waste which contaminated the local water supply. “Without the requisite clinical tests and a widely accepted medical basis for reaching its conclusions,” the court stated, “plaintiffs’ expert opinions are insufficient to sustain plaintiffs’ burden of proof that the contaminated water damaged their immune system.” Id. at 1209. Unlike the experts in Sterling, Drs. McConnachie and Zahalsky have conducted tests on the Condes. Plaintiffs assert, without pointing to specific deposition testimony, that one of defendant’s own experts, Dr. John Salvaggio, agrees that the types of tests performed by Drs. McConnachie and Zahalsky can measure immune system irregularities. Plaintiffs’ Memorandum Contra Velsieol’s Motion to Exclude Opinion Testimony of Drs. McConnachie and Zahalsky, at p. 6, citing Depositions of Dr. John Salvaggio.- Thus, it appears that a concern of the Sterling court, namely, the lack of testing, has been met here. Accordingly, the determinative question becomes whether the theories and methodologies employed by plaintiffs’ experts are “generally accepted within the relevant medical community.” In connection with Velsicol’s motion for summary judgment on medical causation, the Court will address below the issue of whether Drs. McConnachie’s and Zahalsky’s testimony about immune system dysregulation is sufficient, if credited, for a jury to find that the Condes’ exposure to chlordane caused injury to their immune systems. Differential diagnosis. Dr. McConna-chie testified during his November 26, 1990 deposition that he is not a medical doctor (Tr. 26). He cannot make medical diagnoses. (Tr. 81.) Only medical doctors can make such diagnoses. (Tr. 181.) In response to a question asking him whether he was able to give any opinions about whether the Condes have a clinical disease entity, Dr. McConnachie testified: “That’s not my job. I am not allowed to do that.” (Tr. 162.) Dr. McConnachie testified that his professional judgment leads him not to “testify about a single individual. I will study them, but I won’t testify about them....” (Tr. 413.) He further testified, “I choose not to provide individual opinions. I choose to provide group opinions, because that is how I do the scientific statistical analysis of this work.” (Tr. 414.) However, Dr. McConnachie later testified that he believed Ryan Conde “had a selective IgM deficiency.” Dr. McConnachie based this opinion on “[a]n IgM of 440.” (Tr. 456.) Dr. McConnachie said that Ryan had “a hypo IgM.” He did not know whether there was a specific disease associated with hypo IgM. (Tr. 462.) Dr. McConnachie expressed the opinion that the Condes have “an autoimmune disease” which “is a form of allergic disease” demonstrated by “sufficient antibody present.” (Tr. 470-471.) Since he is not a rheumatologist, Dr. McConnachie cannot testify about whether the Condes have any rheumatic disease. (Tr. 471.) Similarly, he is not an endocrinologist; consequently, he cannot testify whether they have any endocrine disease. (Tr. 472.) Dr. McConnachie stated that the medical records indicate Rhonda Conde has aplastic anemia. However, he is not a hematologist and cannot testify about whether the Condes have any hematologic disease. (Tr. 473.) For the same reason, “I cannot testify to anything other than I have detected autoantibodies in the Conde family.” (Tr. 473.) Plaintiffs submitted as Attachment 2 to their July 10, 1992 Statement Regarding the Admissibility of Expert Opinion Testimony the unsworn and undated “affidavit” of Dr. McConnachie. It states that he is Director of the Immunotransplant Laboratory at Memorial Medical Center, Southern Illinois University’s School of Medicine of Carbondale and Springfield, Illinois and Associate Professor in the Department of Medical Microbiology and Immunology of that Medical School. McConnachie “affidavit” ¶ 1. He performs clinical services involving tissue typing and cross-matching for renal, bone marrow, or pancreas transplants, monitoring the immune status of post-transplant patients, assessing the immune status of patients, and similar duties. Id. 112. Since 1986 part of his laboratory’s research has been “devoted to studies of the alterations and abnormalities in immune systems of individuals who have been exposed to various chemicals, including technical chlordane.” Id. ¶¶ 3. His work on the immune system has been peer-reviewed and he has presented papers at scientific meetings. Id. ¶ 4. In his November 25, 1991 deposition, Dr. Arthur C. Zahalsky testified that he is not a medical doctor. (Tr. 268.) He cannot provide medical treatment, “but I can certainly correlate the consequences with— that is, the symptoms, if you will, or the consequences with the etiology of those symptoms.” (Tr. 59.) He said that physicians rely on his “statements.” (Tr. 60.)' He has “immunological training in doing it but not medical training.” (Tr. 62.) When a doctor comes to him he can rule out a bacterial cause, a viral cause, and so on. Id. Nonetheless, he is not a treating physician; and the treating physician must rule out other medical causes. (Tr. 336.) Plaintiffs have submitted Dr. Zahalsky’s July 7, 1992 affidavit which is attached as Exhibit 1 to plaintiffs’ July 10, 1992 Statement Regarding the Admissibility of Expert Opinion Testimony. Dr. Zahalsky is a Professor of Immunology in the Department of Biological Sciences at Southern Illinois University at Edwardsville, Illinois. He has a doctorate in microbiology. Dr. Zahalsky has testified on the effects of technical chlordane on the human immune system in at least seven cases between 1986 and 1989. Zahalsky’s July 7, 199? affidavit, 111. He has co-authored a peer-reviewed paper on technical chlordane’s effect on the human immune system and presented papers on chlordane at scientific meetings. Id. 114. Although the Court agrees that Drs. McConnachie and Zahalsky cannot make a clinical diagnosis of medical causation, the Court nonetheless concludes that they have expertise in toxicology and immune system diseases which, within the meaning of Rule 702, Fed.R.Evid., may be helpful to the trier of fact in resolving medical causation issues. Consequently, their test results and their interpretations of those results and the other tests and medical evidence of record are admissible. However, the Court reserves ruling on whether the evidence offered by Drs. McConnachie and Zahalsky is sufficient to create a jury question on the issue of medical causation. Are the immune defects Drs. McConnachie and Zahalsky identify compensable injuries? There is substantial reason to doubt that the immune system “abnormalities” identified by Drs. McConnachie and Zahalsky are compensable injuries. Nonetheless, the Court views that question as an evidentiary one for the trier of fact. (The Court’s view of the probative value of the testimony is a factor in determining its “helpfulness” under Rule 702.) Motion by Velsicol to Strike Improper Rule 56 Material Velsicol moves for an order striking from the record four items relied upon by plaintiffs in their opposition to Velsicol’s motion for summary judgment on product defect claims, motion in limine to exclude the testimony of Dr. Conde and Drs. MeConna-chie and Zahalsky, and its motion for summary judgment on medical causation issues. The allegedly offending documents are: an article entitled “Corporate Crime: Why We Cannot Trust Industry-Derived Safety Studies” by Dr. Samuel Epstein (“Epstein Article); the letter to the editor by Dr. Peter F. Infante (“Infante Letter”); the December 22, 1980 Affidavit of Raymond D. Harbison filed in United States v. Price, Civ. Action No. 80-4104 (“Harbison Affidavit”); and the April 22, 1990 letter from Joe G. Hollingsworth (“Hollingsworth Letter”). 1. The Epstein Article The Epstein Article, entitled “Corporate Crime: Why We Cannot Trust Industry-Derived Safety Studies,” appears at 20 International Journal of Health Services 443 (1990). The article abstract provides: The control of pesticides, as of all synthetic chemicals, in most industrialized countries relies heavily or even entirely on safety data supplied by the manufacturers. Such a regulatory system can only be effective if the companies conducting and reporting the studies honestly disclose any adverse findings. The record shows, however, that all too often company executives and their scientists knowingly suppress or manipulate information that could affect the licensing and sale of their products. A case' in point is the gross manipulation of health and related data on the pesticides heptachlor and chlordane by the U.S. chemical company, Velsicol. The article argues that Velsicol has, inter alia, failed to publish or misrepresented test data and made false and misleading statements concerning the safety of heptachlor and chlordane. Epstein also asserts Velsicol failed to conduct epidemiological studies concerning residential chlordane/heptachlor exposure. Based on governmental, scientific, and Velsicol’s reports and studies, Epstein concludes that it is inappropriate for safety decisions to be influenced by those with a direct economic interest in policy decisions. Velsicol argues that the article, which it describes as “nothing more than a diatribe against Velsicol,” is inadmissible under Rule 56(e).. First, Velsicol argues that the Epstein article does not show that the author had any personal knowledge of the allegations contained in the article. Second, even if the article did allege personal knowledge, Dr. Epstein has not been named as an expert witness and has not been subjected to cross-examination. Third, the document is not attached to an affidavit based upon personal knowledge of any witness. Plaintiffs argue that the Epstein Article and the Infante Letter (discussed below) are admissible because Dr. Conde refers to both pieces in his affidavit in opposition to Velsicol’s Motion for Summary Judgment on Medical Causation. Additionally, plaintiffs argue that the article and letter are admissible under the learned treatise exception to the hearsay rule. Fed.R.Evid. 803(18). That rule provides that statements in learned treatises are not hearsay: To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits. Plaintiffs argue that articles from medical journals are considered learned treatises in this circuit, citing Ward v. United States, 838 F.2d 182 (6th Cir.1988). Further, plaintiffs contend the article and letter are relevant because they directly address issues raised by Velsieol in its motions for summary judgment. For example, the Epstein Article refutes Velsicol’s assertions that Gold Crest C-100 is not defective and that it was adequately tested. Thus, plaintiffs argue that the materials are probative and should be admitted. Fed.R.Evid. 403. Finally, plaintiffs contend that if the Epstein Article and the Infante Letter are deemed inadmissible, then the unauthenticated studies cited by Velsieol should also be stricken. In reply, Velsieol argues that Rule 56(e) prohibits consideration of unsworn statements merely because it has been mentioned in an affidavit. Velsieol further argues- that plaintiffs have failed to demonstrate that the Epstein Article is admissible under the learned treatise exception to the hearsay rule. The Court concludes that the Epstein Article is not admissible. First, it does not contain facts relevant to the issues raised by any of the pending case-dispositive motions. Second, there are no “facts” contained in the Article upon which the jury could rely in reaching its conclusions about whether the Condes suffered injuries as a result of their exposure to Velsicol’s product. Although the allegations against Vel-sicol in the Epstein Article are serious ones (and the Court assumes them to be true for purposes of deciding this motion in li-mine), these allegations are not relevant to resolving any of the material issues in this case. Third, Dr. Epstein was not listed as an expert witness and will not testify at the trial of this case. Fourth, plaintiffs have failed to submit an affidavit from an expert relying upon any specific factual assertions in the Epstein Article such that the Article would be admissible under Rule 803(18), Fed.R.Evid. 2. The Infante Letter The Infante' Letter was published at 29 Journal of Occupational Medicine 908 (1987) in the Letter to the Editor section. In the letter, Dr. Infante (and his associate Caroline Freeman) criticizes a chlordane mortality study performed by Shindell and Associates. Velsieol has submitted several Shindell studies relating to mortality of workers at Velsicol’s Memphis, Tennessee and Marshall, Illinois chlordane/heptachlor manufacturing plants in support of its contention that human epidemiological studies demonstrate that workers exposed to much higher levels of chlordane than the Condes suffered .no long-lasting adverse health effects. The Infante Letter asserts that a 1982 National Research Council of the National Academy of Sciences report concluded that the Shindell and Associates data “suggested a significant trend in cancer deaths with duration of employment” contrary to Shin-dell and Associates (interpretation of the data). Shindell and Urlich then updated the previous follow-up of their cohort of workers exposed to chlordane and reported “there is generally an inverse relationship between cancer mortality and length of employment for cancers overall.... ” Infante criticizes the published data supporting this conclusion for failing to include the “expected” number of total cancer deaths for each years of employment interval. In-fante argues that you would generally expect a larger number of cancer deaths for 0-4 years of employment because of relatively high turnover. 29 Journal of Occupational Medicine at 908. Infante then corrected the Shindell and Urlich data by estimating an “expected” total number of cancer deaths from labor statistics and comparing the “expected” total number of cancer deaths to the total number of cancer deaths in the Shindell and Urlich Yelsicol worker population. As adjusted, Dr. Infante stated that “their data show an almost perfect correlation between length of exposure to chlordane and lung cancer and a significant trend between length of employment and total cancer.” Id. at 909. Infante criticized Shindell and Urlich for failing to provide “their data not only for the observed, but also for the- expected cancer deaths' by length of employment.” Such data is normally included in epidemiological studies. Id. Shindell and Urlich replied to this critique of their epidemiologic study, asserting that Infante should have requested the data from them rather than making assumptions about what the “expected” rate of cancers would be. They state that they did include the “expected” rate in their epidemiological study but did not include it in the article “because the editors of this journal requested curtailment of the amount of material submitted and we elected to present the raw data rather than the calculated values.” To the Court’s non-expert eye, the actual “expected” cancer deaths supplied by Shindell and Urlich' are generally close to those assumed by In-fante in his criticism of the study. Shin-dell and Urlich did not directly respond to Infante’s claim that there is a correlation between length of employment and increased risk of death by cancer. Velsicol maintains that, like the Epstein Article, the Infante Letter is inadmissable. Velsicol argues first, that to the extent the letter reflects Infante’s opinions as an alleged expert, those opinions are irrelevant because Dr. Infante has not been named as an expert witness in this case and has not been subject to cross-examination. Defendant Velsicol relies upon the Shin-dell and Urlich update criticized by Dr. Infante. The Court concludes that Dr. In-fante’s critique of that study is admissible under Rule 803(18) as evidence tending to undermine Velsicol’s assertion that the epidemiological studies demonstrate that ehlordane is not a significant health risk. 3. The Harbison Affidavit The Harbison Affidavit, filed in United States v. Price, No. 80-4104 (D.N.J.), details Dr. Harbison’s qualifications as a toxicologist and pharmacologist and discusses the study of toxicological effects on humans and the value of animal studies in predicting the carcinogenic effects of chemicals. The affidavit also discusses the limits of the predictive value of epidemiological studies. Finally, the affidavit discusses in detail the carcinogenic and other health effects of fourteen organic and inorganic compounds. Chlordane is not discussed by Dr. Harbison. Velsicol argues that the Harbison Affidavit is not based on personal knowledge and Dr. Harbison has not been named as an expert witness. Moreover, Velsicol contends, the Harbison Affidavit is irrelevant to the questions before the Court on medical causation issues. Plaintiffs assert that the Harbison Affidavit conforms to the requirements on Rule 56(e) and is admissible as an admission by a party opponent. Fed.R.Evid. 801(d)(2). The Court concludes that the.Harbison Affidavit is not admissible here. . First, Dr. Harbison was not named as an expert by plaintiff. Second, his affidavit is not an admission by a party opponent within the meaning of Rule 801(d)(2). Third, Dr. Har-bison’s affidavit is not relevant to any of the central issues in this case. He does express opinions about the use of animal studies in determining whether a chemical poses a cancer risk in humans, Harbison Affidavit 111114-16, and expresses the opinion that “epidemiological methods are too insensitive to detect anything but extremely large increases in birth defects (terata-gens).” Id. II18. If plaintiffs had wanted to offer Dr. Harbison’s testimony on these points, they should have listed him as an expert when disclosing their expert witnesses to Velsicol. 4. The Hollingsworth Letter The Hollingsworth Letter discusses the Harbison Affidavit concluding that statements made therein are “irreconcilably at odds with testimony ... previously given by Dr. Harbison” in the chlordane/heptachlor litigation. Although the letter is labeled “PRIVILEGED ATTORNEY-CLIENT COMMUNICATION,” Vel-sicol does not assert the attorney-client privilege as a ground for exclusion. Velsi-col urges the Court to find that the letter is irrelevant and immaterial to the issues in this litigation because Dr. Harbison has not been retained as an expert, witness by either party. Plaintiffs argue that the Hollingsworth Letter is admissible as an admission of a party opponent