The Sixth Circuit Court of Appeals has dismissed claims for medical monitoring filed by Painesville, Ohio, residents who were purportedly exposed to toxic chemicals, including dioxin, following a train derailment and fire that occurred in 2007 near the town. Hirsch v. CSX Transp., Inc., No. 09-4548 (6th Cir., decided September 8, 2011). While no challenge had been made to the reliability of plaintiffs’ expert witnesses, the trial court found their testimony insufficient and granted the defendant’s motion for summary judgment.
According to the appeals court, the plaintiffs’ chemist “speculated as to the amount and content of the cargo burned”; on this basis, their physicist plotted the dispersion and concentration of the burning chemicals on a map to show which residents were exposed to what levels of dioxin; and their physician then used the map to determine who was exposed to dioxin levels “above what the EPA considers acceptable—levels at which the risk of cancer increases by one case in one million exposed persons.” The court compared such a “proverbially small” risk to various risks of dying from motor vehicle accidents (lifetime risk of 1 in 88), lightning (1 in 84,000) or from a fireworks discharge (1 in 386,000).
Asking whether these plaintiffs were “actually at such an increased risk of disease that they are entitled to a medical monitoring program,” the court concluded that they were not because they failed to produce evidence to establish a genuine issue of material fact regarding whether reasonable physicians would prescribe a medical monitoring regime for them. “Viewing the facts of this case together, the Plaintiffs have alleged only a risk that borders on legal insignificance, have failed to produce evidence establishing even this hypothetical risk with any degree of certainty, and have demanded a jury trial based upon their expert’s review of this evidence and conclusory statement of the relevant legal standard.” According to the court, “a plaintiff cannot survive summary judgment with an expert’s bare opinion on the ultimate issue.” The physician had simply stated that “a reasonable physician would prescribe for the Plaintiffs and the putative class a monitoring regime.”