A New York federal court recently issued a recommended decision denying Defendants’ motions for summary judgment in a toxic tort case involving workplace exposure to ortho-toluidine (“o-toluidine” or “OT”), an aromatic amine and suspected human carcinogen. Sarkees v. E.I. DuPont de Nemours, (W.D.N.Y. February 25, 2020). Plaintiff was diagnosed with bladder cancer through his employer Goodyear’s monitoring program at the age of 61.

On their motion for summary judgment of Plaintiffs’ negligence and strict liability claims, Defendants argued that Plaintiffs’ experts should be precluded because the scientific research analyzing OT relied heavily on animal studies having no direct human implications and epidemiological studies failed to address the duration of exposure that Plaintiff suffered while employed by Goodyear. Plaintiffs argued Defendants’ motion should be denied because questions of fact existed since numerous studies over several decades documented how OT acts as a mutagen and epidemiological studies evidenced elevated risks of bladder cancer.

Examining the reliability of the general causation opinions of Plaintiffs’ toxicologist on general causation, and applying the Daubert standard, the Court found the opinions to be reliable. The court reasoned that animal studies, such as those cited by Plaintiffs’ experts, are informative absent human studies to the contrary. Further, the Court noted that numerous governmental agencies, including National Cancer Institute (“NCI”), the National Institute for Occupational Health and Safety (“NIOSH”), the National Toxicology Program (“NTP”), and the American Conference of Governmental Industrial Hygenists (“ACGIH”) all published reports of animal studies in relation to OT over the years.

The toxicology expert applied several inferences in support of his general causation opinion: (1) animal studies have shown higher incidences of cancer among animals exposed to OT; (2)  animals exposed to OT have hemoglobin adducts and other metabolites that are suspected to be DNA-reactive; (3) basic structure and the chemistry of DNA is the same in all living organisms; and (4) researchers found that the bacterial DNA contained strand breaks analogous to long-established literature on cancer genesis in humans. As such, the Court concluded that the opinion was not a novel scientific theory, but rather an opinion based upon decades of OT research tying together established inferences to form a conclusion that OT, once in a human body, likely has the capacity to alter DNA directly. The Court also noted that numerous governmental and industry agencies have classified OT as a carcinogen, and cited a 1985 warning by Defendant DuPont which warned end-users that overexposure to OT can have human health effects.

Similarly, the Court concluded Plaintiff’s occupational and internal medicine expert specific causation opinions were reliable under the Daubert standard. The Court reasoned that while the exact amount of exposure Plaintiff suffered would never be known, exposure assessments conducted in the late 1970s through the 1980s documented a level of exposure which would have underestimated Plaintiff’s exposure. In this regard, Defendants attempted to argue that Plaintiff’s exposure period of only seven months would have placed him in the low end of exposure categories for numerous studies—a category with weakened statistical associations. However, this argument was expressly rejected by the Court, who instead acknowledged that studies with workers classified with moderate to high exposures, like Plaintiff, had only a .92 median years of exposure, yet strong correlation to overall exposure. As such, the Court concluded that the body of literature suggests Plaintiff received enough exposure to a likely mutagen—OT—whose mechanism has no safe exposure limit, such that the mutagen would have been capable of causing cellular damage likely to manifest as bladder cancer decades later. Further, the Court agreed that other causes or risk factors of bladder cancer were not present in Plaintiff, or would have had only a marginal effect on Plaintiff’s overall risk for bladder cancer.

The Court denied Defendants’ motion for summary judgment, finding there remained key questions best left to a jury, including the ultimate question of whether OT was more likely than not a substantial contributing factor of Mr. Sarkees’ bladder cancer. The Court also rejected Plaintiffs’ request to dismiss the punitive damages without prejudice but dismissed Plaintiffs’ claim for loss of consortium. The Court held Plaintiffs’ loss of consortium claim was improper because Plaintiffs were not married at the time of exposure and they failed to allege any wrongful conduct by Defendants after their marriage in 1986.

The case is James H. Sarkees and Deborah J. Sarkees v. E.I. DuPont Nemours and Company, et al., case number 17-CV-651, pending in the U.S. District Court for the Western District of New York.

This alert does not purport to be a substitute for advice of counsel on specific matters.

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