One expert's "whole person aggravation" theory of causation and other experts' neurological symptom causation testimony were inadmissible in a toxic torts case under the Daubert standard for expert testimony, a federal appeals court decided July 23 (Schudel v. General Electric Co., CA 9, No. 95-35092, 7/23/97).
Extrapolating conclusions from studies involving different chemicals, different exposure duration, and different levels of exposure was not an acceptable scientific method, and the experts' testimony was not reliable under the strictures of Daubert and Fed.R.Ev. 702, the U.S. Court of Appeals for the Ninth Circuit ruled.
Testimony from another expert, who could not say the plaintiff's injury more likely than not was caused by exposure to the chemicals, did not meet Daubert's relevance requirement, the court found.
Solvents Used In PCB Clean Up.Kaiser Aluminum and Chemical Corp. contracted with General Electric Co. to clean up polychlorinated biphenyls at Kaiser's facility in Spokane, Wash. The plaintiffs or their spouses worked for GE on the cleanup, and alleged they developed various neurological and respiratory problems from exposure to two cleaning solvents, trichloroethane (TCA) and perchloroethylene (Perc).
After nine weeks of trial, a jury returned verdicts totaling $14 million for the 10 plaintiffs. The defendants moved for judgment notwithstanding the verdict or a new trial.
The district court upheld the verdict in favor of plaintiff Deborah Williams, but vacated the other nine verdicts, and ordered a new trial on claims for which it did not grant a JNOV.
Daubert Standard. The neurological symptoms causation testimony of William Morton, Daniel Goldstein, and Paula Lantsberger was inadmissible under Fed.R.Ev. 702, the Ninth Circuit held.
Under Daubert v. Merrell Dow Pharmaceuticals Inc., and Fed.R.Ev. 702, a trial judge must determine whether the proposed scientific testimony is both reliable and relevant. Scientific knowledge is reliable if it is grounded in the methods and procedures of science, and is relevant if the "reasoning or methodology properly can be applied to the facts in issue," the Ninth Circuit explained, quoting Daubert.
The relevance determination must "consider the applicable substantive standard," and under Washington tort law, a plaintiff must show that the "act complained of probably or more likely than not caused the subsequent disability," the appeals court explained.
Problems With Causation Evidence. Morton testified that Williams suffered from solvent-induced toxic encephalopathy which "more probably than not" was caused by exposure to Perc and TCA. While that testimony met the relevance requirement, it did not meet the reliability requirement, the court determined.
Morton's conclusions were based on extrapolations from studies that involved organic solvents other than Perc or TCA, and which examined long-term exposure at low concentrations or short-term exposure at very high concentrations, the court observed. Williams' exposure was for a short-term and at moderate concentration levels. Morton "did not establish it was scientifically acceptable to draw general conclusions about the neurotoxicity of TCA and Perc from studies of other chemicals; indeed, the testimony indicated small differences in molecular structure often have significant consequences," the court said.
Williams' exposure was "neither long enough nor intense enough to fall with the ranges described" in the studies Morton relied on, and there was "no showing that the necessary extrapolation was scientifically acceptable," the court concluded.
Goldstein's evidence "suffered from similar deficiencies," the court determined. He testified that it would be improper to infer conclusions about the toxicity of Perc and TCA based on the toxicity of other solvents, and that repeated exposure to "nonpersistent toxins such as organic solvents" over a long period must be documented to establish a causal relationship. He also acknowledged that the biochemical mechanism of neurotoxicity from Perc and TCA has not been demonstrated, the court noted.
Lantsberger offered two theories of causation: a specific condition causation theory and a "whole person aggravation" theory.
Lantsberger's testimony failed to meet Daubert standards because she testified it was only a "possibility," not a "probability" that Williams suffered organic brain damage from exposure to solvents at the facility. Lantsberger admitted she could not testify to a "specific cause and effect relationship between Williams' exposure and health problems," and instead relied upon a " 'whole person aggravation' theory without establishing that the theory had a scientific basis," the court concluded.
Judge James R. Browning wrote the opinion.
Plaintiffs were represented by Craig F. Schauermann, William Y. Thayer, and David L Gedrose of Schauermann & Thayer in Vancouver, Wash., Marcia M. Meade of Dawson & Meade in Spokane, Wash., and Thomas C. Phelan of Vancouver, Wash.
Hollingsworth and Donald W. Fowler of Spriggs & Hollingsworth in Washington, D.C. and James B. King of Keefe, King & Bowman in Spokane, represented G.E.
Material presented on this home page constitutes opinion of the author.
Copyright © 1997 Steven J. Milloy. All rights reserved. Site developed and hosted by WestLake Solutions, Inc.