Dealing a major setback to defendants in a toxic chemical exposure lawsuit, the U.S. Court of Appeals for the Ninth Circuit recently held that the testimony of three expert witnesses for the plaintiffs was improperly excluded and that summary judgment for defendants was improperly granted. (Whitlock v. Pepsi Americas, 9th Cir., No. 11-16958, 5/16/2013)

In an unpublished opinion, the Ninth Circuit Court of Appeals recently addressed whether plaintiffs’ three experts, a chemist, a toxicologist and a physician, offered exposure and causation testimony to support the plaintiffs’ injury claims which was sufficiently reliable under federal evidence rules. The claims at issue arose from alleged exposure to trichloroethylene (TCE) and hexavalent chromium from a chrome-plating facility in California. The lower court excluded all of the experts’ testimony on the grounds that it was scientifically unreliable under Federal Rules of Evidence 702, and granted summary judgment for defendants on plaintiffs’ injury and medical monitoring claims.

Reversing the lower court on all but one claim, the Ninth Circuit Court of Appeals concluded that the district court abused its discretion in excluding the expert testimony, finding among other things that the basis of the chemist’s opinions were more properly subject to attack by cross examination as opposed to exclusion, that the lower court erroneously interpreted the testimony forming the basis of the toxicologist’s opinions, and that the lower court improperly excluded the physician’s testimony without sufficient explanation for its decision. The appeals court held that the district court properly granted summary judgment to defendants on one claim as to plaintiffs’ post-1975 TCE exposure claims, concluding that plaintiffs’ experts failed to establish a sufficient link between plaintiffs’ exposure at the time period in question and their alleged injuries.

The opinion of the U.S. Court of Appeals for the Ninth Circuit in Whitlock v. Pepsi Americas is available here.