The Sixth Circuit Court of Appeals has upheld the exclusion of a causation expert’s testimony in a toxic-tort case because the expert failed to reliably “rule in” benzene exposure as the cause of plaintiff’s cancer. Pluck v. BP Oil Pipeline Co., No. 09-4572 (6th Cir. 5/12/11). The court therefore upheld the dismissal of a residential exposure suit alleging that plaintiff contracted non-Hodgkin’s lymphoma from drinking water contaminated with benzene, which allegedly migrated from a pipeline owned by defendant in Franklin Township, Ohio.
According to the court, the expert’s specific-causation opinion was unreliable and thus inadmissible under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), because the expert “did not ascertain Mrs. Pluck’s level of benzene exposure, nor did he determine whether she was exposed to quantities of benzene exceeding EPA’s safety regulations.” The court also said, “[I]t is well settled that the mere existence of a toxin in the environment is insufficient to establish causation without proof that the level of exposure could cause the plaintiff’s symptoms.”