Last year, Harris Beach wrote about a federal magistrate judge’s report and recommendation to deny Defendants’ motions for summary judgment in a toxic tort suit arising from occupational exposure to ortho-toluidine (“o-toluidine” or “OT”), Sarkees v. E.I. DuPont De Nemours & Co. (W.D.N.Y. Feb. 25, 2020). Since then, and in a rare move, District Judge John L. Sinatra, Jr., of the Western District of New York, rejected the report and recommendation, granted Defendants’ motion, and dismissed the suit. See Sarkees (W.D.N.Y. Aug. 21, 2020).
The case ultimately 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 that OT is capable of causing bladder cancer (“general causation”) and that OT caused Mr. Sarkees’ bladder cancer (“specific causation”). In dismissing the action, the District Court concluded that Plaintiffs’ expert’s specific causation opinion was insufficient under federal Daubert principles and the New York State toxic tort causation rules established by the Court of Appeals in Parker v. Mobil Oil Corp., 7 N.Y.3d 434 (2006). While Plaintiffs have appealed (2d Cir. Docket No. 20-3170), the decision demonstrates that even in a mature toxic tort, defendants can leverage the rules for expert causation opinion to powerful effect.
Plaintiffs alleged James Sarkees developed bladder cancer from occupational exposure to OT for seven months in 1974. They sued Defendants on state law negligence, failure to warn, and strict product liability theories. After discovery, Defendants moved to exclude Plaintiffs’ causation experts and for summary judgment.
The magistrate judge concluded that Plaintiffs’ occupational medicine expert’s specific causation opinion met the Parker standard: that a toxic tort plaintiff prove exposure to sufficient levels of the alleged toxin to have caused the illness. Plaintiffs’ expert could not precisely quantify Mr. Sarkees’ exposure. But in finding specific causation, Plaintiffs’ expert compared Mr. Sarkees’ description of his exposures, the duration of Mr. Sarkees’ exposures, later measurements at the facility where Mr. Sarkees worked, and epidemiological literature. Since Parker does not require a precise quantification — only a scientifically reliable expression that the exposure was adequate to cause the illness — the magistrate judge recommended denying the motions.
The District Court, citing Daubert and Parker, disagreed, rejected the magistrate judge’s report and recommendation, granted the motions and dismissed the lawsuit. The District Court highlighted that at deposition Plaintiffs’ expert conceded 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.” Furthermore, 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. Having undermined the scientific underpinnings of her opinion, Plaintiffs’ expert’s specific causation opinion was thus not sufficiently reliable to satisfy Parker and Daubert. Without expert opinion satisfying the element of causation, dismissal was warranted.
In toxic tort/chemical exposure cases, demonstrating contact with or exposure to the alleged toxin is not enough to prove causation. Instead, the plaintiff must prove that the toxin is capable of causing the alleged illness (“general causation”) and actually did so in plaintiff’s case (“specific causation”). To prove either requires an expert opinion adequate to satisfy state and/or federal standards for admissibility. Courts scrutinize expert opinions to guard against “junk science” cloaked by an expert’s credentials. The highest level of scrutiny comes from the federal Daubert standard, which prohibits opinions not grounded in sound methodology or that rely on speculation. Many states have adopted Daubert; states like New York apply their own standards, often more forgiving. Sarkees demonstrates that even in a mature toxic tort, defendants can leverage these principles to great effect.
This alert does not purport to be a substitute for advice of counsel on specific matters.
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