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From Products Liability Law Daily, October 11, 2016

Split among circuits remains over admissibility standards for medical causation experts

By Pamela C. Maloney, J.D.

A request by the wife of a worker who died from acute myeloid leukemia (AML), allegedly caused by his exposure to gasoline products containing benzene, that the U.S. Supreme Court resolve the split in the circuits over the applicable standard governing the district courts’ "gatekeeping" role under Daubert, has been denied by the High Court. The decision lets stand a decision by the U.S. Court of Appeals for the Fifth Circuit’s upholding the exclusion of opinions and reports proffered by a physician and an epidemiologist as unreliable. Without the testimony of these experts, the worker’s widow could not prove the causation element of her claims against the companies that allegedly had manufactured, supplied, distributed, and sold the gasoline. Thus, those claims were summarily dismissed. The widow also challenged the Supreme Court to modernize the standard for admissibility of expert testimony "to better comport" with the scientific method (Burst v. Shell Oil Co., Docket No. 16-241, filed August 18, 2016, denied October 11, 2016).

The decedent had worked at various gas stations from 1958 through 1971, during which time he came into regular contact with gasoline that allegedly contained benzene. He was diagnosed with AML in June 2013 and died six months later. His wife brought negligence and strict liability claims against a number of companies that allegedly had manufactured, supplied, distributed, and sold the gasoline which had been the source of the decedent’s benzene exposure, and proffered testimony by two experts in support of her allegations that her husband’s regular exposure to gasoline containing benzene caused his AML.

Procedural history. The district court had excluded the general causation testimony proffered by the wife’s first expert, a physician certified in occupational and internal medicine, holding that the doctor’s report and opinion were unreliable because, among other reasons, he failed to cite any studies specific to gasoline, which was the product at issue in the case [see Products Liability Law Daily’s June 10, 2015 analysis]. The district court also found the general causation testimony by the wife’s second expert, who was an epidemiologist, unreliable because, among other reasons, he failed to examine the substance and disease at issue, and did not exhibit statistically significant results [see Products Liability Law Daily’s June 17, 2015 analysis]. Having stricken the testimony of both of the wife’s experts, the district court granted summary judgment for the defendants, ruling that without expert testimony, she could not prove the causation element of her claims [see Products Liability Law Daily’s June 30, 2015 analysis]. Echoing the district court’s conclusion that the proper general causation inquiry was whether exposure to gasoline containing benzene can cause AML, the Fifth Circuit affirmed these rulings [see Products Liability Law Daily’s May 25, 2016 analysis].

Questions presented. The petitioner had asked the Supreme Court to resolve the following questions:

  1. Whether the "gatekeeping" power advises district court judges to narrowly interpret Rule 702, excluding expert testimony if any step renders an analysis potentially unreliable, as opposed to a liberal interpretation, excluding expert testimony when clearly based on "faulty methodology or theory?"
  2. Whether under a "weight of evidence approach," a district court should find medical causation testimony inherently unreliable where an expert’s comprehensive review and testimony is formed from individual studies in their totality?

The case is Docket No. 16-241.

Attorneys: Richard J. Fernandez (Richard J. Fernandez, LLC) for Yolande Burst.

Companies: Shell Oil Co.

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