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From Products Liability Law Daily, June 27, 2013

Oncologist’s opinion that exposure to benzene in automotive paint caused worker’s leukemia improperly excluded

By John W. Scanlan, J.D.

The U.S. Court of Appeals for the Seventh Circuit reversed a grant of summary judgment to a paint manufacturer on claims that benzene in its paint caused a painter in an automotive plant to develop leukemia, finding that a district court had improperly excluded an oncologist’s testimony as unreliable (Schultz v. Akzo Nobel Paints, LLC, June 26, 2013, Wood, D.). However, the Seventh Circuit upheld the grant of summary judgment in favor of another paint manufacturer because the only evidence in the record indicating that the painter had been exposed to that company’s products was a list of possible paint products used at certain Chrysler plants during the time period in question. Although the list mentioned one of this company’s products, the document was not authenticated.

Background. Donald Schultz, who worked as a painter for American Motors Corporation from 1981 to 1989 (purchased by Chrysler in 1987), was diagnosed with acute myeloid leukemia (AML) in November 2005, and died in September 2006. Joann Schultz, his wife, brought product liability claims against Akzo Nobel Paints (formerly The Glidden Company) and Durako Paint and Color Corp., alleging that these companies manufactured or distributed the paints used at Chrysler while Donald Schultz worked there, and that the benzene in the paints caused his AML.

Joann Schultz proffered the testimony of two experts to prove causation: Dr. Stewart, an industrial hygienist, and Dr. Gore, an oncologist. Using interviews with Schultz’s coworkers and material data sheets produced by Akzo, Dr. Stewart applied the Monte Carlo Analysis and determined that Schultz had been exposed to a total of 24 parts-per-million years (ppm-years). In his deposition, Dr. Gore stated that workers who had an exposure to benzene of more than 8 and up to 16 ppm-years had an estimated 6-times increase in leukemia compared to those who had not, and for workers with an exposure greater than 16, the increase was 100 times greater. He also testified that workers with an exposure of 11 ppm-years were at an increased risk epidemiologically. Dr. Gore testified that benzene is known to cause AML and was a substantial factor in the development of Donald Schulz’s illness.

In rebuttal, Akzo proffered the testimony of David Pyatt, a toxologist, who testified that Schultz’s benzene exposure was unlikely to have caused his AML, citing a study that found only workers with a benzene exposure greater than 40 ppm-years were at a higher risk for developing AML. Dr. Gore responded that the study relied on by Pyatt was based on only 9 cases of leukemia, including 6 based on AML. Dr. Gore cited a larger study that found the risks were elevated at benzene exposures of less than 10 ppm. He also stated that the studies he relied on had found that people exposed to more than 10 ppm-years had an 8-times greater risk of developing AML than the general population, even after 15 years, whereas those exposed to less than 6 ppm-years would not be. Dr. Gore also said that he believed that there was no threshold risk of safe exposure to benzene. The district court found that Dr. Gore’s testimony was scientifically unreliable and, therefore granted summary judgment to Akzo because there was no evidence linking his illness to Akzo’s paints. It also granted summary judgment to Durako.

Admissibility of expert testimony. The district court struck Dr. Gore’s testimony in part because it found that the entirety of his opinion was unreliable because in a portion of his testimony, he opined that there was no threshold risk of safe exposure to benzene, which the court determined was merely a hypothesis. The Seventh Circuit observed that Dr. Gore’s statement might have been unnecessary because Schultz was exposed to 24 ppm-years, but this digression was not grounds for exclusion. Dr. Gore had unambiguously concluded that the level of benzene to which Schultz had been exposed was shown to be very toxic and dangerous, and there was no contradiction between his statement that studies had confirmed the dangers of exposure to more than 10 ppm-years of benzene and his statement that no one was sure of any threshold risk floor. Akzo was free to argue otherwise at trial, the court said.

The district court also noted that Dr. Gore’s conclusion differed from that of the study cited by David Pyatt, but that Dr. Gore had explained that the study had a very small sample size, unlike the study he had relied on, the Seventh Circuit said. Courts were not permitted to choose between the two studies at this stage of the litigation because their respective merits would be explored at the trial.

Although the district court also believed that Dr. Gore improperly had failed to rule out other possible causes of Schultz’s AML, including his smoking history, the Seventh Circuit stated that Joann Schultz was required under Wisconsin law to show that the product was a cause (a substantial factor) of the illness, not that it was the sole cause of the illness, in that contributed substantially to the development of the AML or significantly increased the risk of developing it. Dr. Gore applied the differential diagnosis method to examine which alternative causes should be ruled in and ruled out, and determined that Schultz’s smoking history may have contributed to the development of the disease, but ruled out to a reasonable degree of medical certainty that any other known risk factors contributed to his illness.

The case number is 12-1902.

Attorneys: Steve B. Jensen (Allen Stewart, P.C.) and Steven R. Penn (Penn Rakauski) for Joann Evelyn Schultz. Mark W. Rattan (Litchfield Cavo) for Akzo Nobel Paints, LLC. Ryan G. Braithwaite (Crivello Carlson, S.C.) for Durako Paint and Color Corp.

Companies: Akzo Nobel Paints, LLC; Durako Paint and Color Corp.; The Glidden Company.

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