We previously wrote about a federal magistrate judge’s report and recommendation denying exclusion of Plaintiffs’ specific causation expert and granting Defendants’ motions for summary judgment in a toxic tort suit arising from bladder cancer allegedly caused by occupational exposure to ortho-toluidine (“OT”) at a manufacturing plant, and the subsequent rare move by the district judge, who rejected the report and recommendation and granted Defendants’ motions. See Sarkees v. E.I. DuPont De Nemours & Co. (W.D.N.Y.) Click below to read our initial articles on this important case.
Now, the Second Circuit has reversed the ruling of the Western District of New York, deemed the Plaintiffs’ expert’s specific causation opinion admissible, reversed summary judgment, and remanded the case for trial.
The case turned on the concept of “specific causation.” As in any toxic tort/chemical exposure case, it was the Plaintiffs’ burden to show more than just contact with the alleged toxic substance. Plaintiffs had to show through expert opinion that OT is capable of causing bladder cancer (“general causation”) and that OT caused Mr. Sarkees’ bladder cancer, including that his exposure to OT was sufficient in intensity, frequency, and/or duration to cause bladder cancer (“specific causation”).
The Second Circuit faulted the trial court, the Western District of New York, for relying on state law, specifically the seminal New York State Court of Appeals opinion, Parker v. Mobil Oil Corp., 7 N.Y.3d 434 (2006), as a basis for its procedural/evidentiary ruling under Federal Rule of Civil Procedure 702 (whereas relying on Parker to supply the substantive law on causation would have been permissible). Parker requires causation experts to supply a scientifically reliable expression that the exposure was adequate to cause the illness.
Applying Daubert and without reference to Parker, the Second Circuit found Plaintiffs’ expert’s specific causation opinion adequately supported. The trial court focused on the expert’s deposition concession to being “not sure” that the primary epidemiological study (“the best we have”) “accurately reflect[ed]” Mr. Sarkees’ OT dose, and that applying the study to an individual was “not necessarily the best way to assess exposures.” Further, Mr. Sarkees’ exposure would have placed him in the lowest exposure group examined by that study—whose risk for bladder cancer, while increased, was not statistically significant. For its part, the Second Circuit focused on other strengths in this study that allegedly supported the expert’s position, notwithstanding its weaknesses. Furthermore, the Second Circuit noted the other support to which the expert pointed, including the expert’s own inspection of the plant around the time of Plaintiff’s employment and associated biologic monitoring; National Institute for Occupational Safety and Health (“NIOSH”) reports finding increased occurrence of bladder cancer among individuals employed at the plant; and her differential etiology, by which the expert claimed to rule out other potential causes besides OT. On these grounds, according to the Second Circuit interpreting Daubert, the expert’s specific causation opinion was adequately supported. It was not necessary, as Defendants argued, to supply a quantitative risk assessment or range of Plaintiff’s exposure.
The Second Circuit’s ruling shows that even where applying Daubert scrutiny to expert specific causation opinions, a court may lean in favor of admission if the opinion is supportable on multiple grounds. As the Second Circuit held, isolated flaws in expert opinion are typically deemed a matter of weight for the defense to address on cross-examination, rather than a matter of admissibility.
