The underlying dispute involves a group of plaintiffs — farmworkers identified as part of "Ecuador Trial Group One" — who claim that exposure to DBCP, a soil fumigant used on banana plantations, damaged their reproductive systems. Defendants include Dole Food Company Inc., Dow Chemical Company, Shell Oil Company, Chiquita Brands International Inc., AMVAC Chemical Corporation, and Del Monte Fresh Produce N.A. Inc., among others. The alleged harms from DBCP exposure identified in the record include azoospermia, oligospermia, testicular atrophy, hormonal disruption, and loss of reproductive potential.
The Daubert motion targeted Dr. Arlene Morales, a defense expert in reproductive medicine and infertility. Her qualifications were not in dispute. Dr. Morales offered opinions regarding three women — identified only as W1, W2, and W3 — who are the partners of three of the four plaintiffs in the trial group. Her two core opinions were that each partner had risk factors that could have contributed to the couple's reproductive dysfunction, and that even assuming the existence of a severe male infertility factor, it is not medically reasonable to attribute the couple's reproductive dysfunction solely to a male factor. The identified risk factors included, for W1, an incomplete infertility evaluation in 2015, three Caesarean sections, uterine fibroids, menorrhagia, anemia, and age; for W2, what the court described as apparently serious illness, spinal injury, and consequent abstinence; and for W3, age.
Plaintiffs argued that Dr. Morales failed to follow the methodology set out by the Practice Committee of the American Society for Reproductive Medicine, as published in Fertility and Sterility, Vol. 116, No. 5 (Nov. 2021), and that she was essentially repeating what the three women told her in remote video interviews rather than conducting proper clinical evaluations. The court rejected that framing. Dr. Morales reviewed all available medical records — all from Ecuador — and conducted interviews approximating clinical history-taking. The court concluded that for the limited purpose of identifying risk factors for infertility, that methodology was sufficient, and that Dr. Morales was offering opinions within her expertise using the methodology of the medical profession.
The court also addressed the relevance dispute between the parties. Defendants argued Dr. Morales's testimony goes to proximate cause; plaintiffs argued it goes at most to damages. The court indicated that plaintiffs are likely correct. The proximate cause question — whether DBCP harmed plaintiffs' reproductive systems — does not implicate the partners' fertility. But if plaintiffs seek damages tied to not having children, the partners' reproductive capacity becomes relevant. The court noted that it is unclear exactly what damages plaintiffs may seek beyond physical injury to their reproductive capacity and related emotional harm, and flagged that plaintiffs' expert Dr. Mercado appears likely to offer opinions on emotional impact.
The court cited Villa v. Marciano, 167 A.D.2d 828, 561 N.Y.S.2d 928 (App. Div. 1990), for the proposition — raised by plaintiffs in a reply brief — that failure to have children is not itself a compensable injury, with recovery available instead for physical and mental injuries flowing from a defendant's breach. The court declined to resolve the relevance and Rule 403 questions now, noting it may be better positioned to rule once plaintiffs' trial theory is clearer, and that those issues may be taken up at the Daubert hearings or deferred until trial.
The motion to exclude Dr. Morales's testimony was denied without prejudice to renewed objections based on relevance, fit, or Rule 403.