In Allen v Martin Surfacing, 263 F.R.D. 47 (D. Mass. 2009), the survivors of a college football coach who died of amyotrophic lateral sclerosis (“ALS”) sued the firm that had resurfaced a gymnasium adjacent to decedent’s office for negligence and wrongful death in the United States District Court for the District of Massachusetts. Plaintiffs alleged that toluene, a chemical defendant had used during the weeklong resurfacing project, had accelerated the decedent’s development of ALS’ symptoms and defendant had negligently failed to warn of the chemical’s toxic nature. Defendant moved for summary judgment and/or to preclude the testimony of plaintiffs’ expert industrial hygienist, neurotoxicologist and occupational physician.
Plaintiffs offered the testimony of William Ewing, an industrial hygienist with almost thirty years of experience focusing on the properties of airborne contaminants, to establish that the decedent’s exposure to the mixture of solvents (including toluene) used in the resurfacing process bordered on or surpassed applicable guideline limits. Defendant challenged Ewing’s qualifications and methods, including his reliance on self-reported symptoms and lack of air sampling data specific to the resurfacing project in question. The court held that although Ewing did not have any specific expertise in toluene, his general industrial hygiene experience qualified him to testify. The court also found that defendant’s challenges to Ewing’s methodology went to the weight of his testimony rather than its admissibility.
Plaintiffs also offered the testimony of Dr. Marcia Ratner, a neurotoxicologist with experience in the diagnosis and treatment of patients with neurodegenerative disorders, to establish both general causation (i.e., that toluene hastens the onset and progression of ALS by adding toluene’s known neurotoxic effects to similar neurodegenerative effects that characterize ALS) and specific causation (i.e., toluene had such an effect upon decedent specifically). Defendant challenged Dr. Ratner’s qualifications as lacking particular expertise with ALS, as well as the methodological reliability of her opinions. The court held that Dr. Ratner’s general qualifications were sufficient and her lack of expertise regarding ALS specifically was a matter of weight, rather than admissibility. Further, the court found that a lack of epidemiological studies supporting her general and specific causation theories did not render them inadmissible and that, although the novelty of Dr. Ratner’s theory of specific causation and the fact that it arose from the particular set of facts at issue cut against its reliability, her testimony was nonetheless sufficiently reliable to be admitted.
Finally, plaintiffs offered Dr. Christine Oliver, an occupational physician with over thirty years of experience, to opine that the defendant was negligent both in failing to warn the decedent of the toxicity of the mixture of solvents (including toluene) used in resurfacing the gym floor and in failing to ensure adequate protection of the employees working in the building. Although the court did not limit the admission of Dr. Oliver’s medical opinions, and permitted her to testify regarding whether defendant’s practices met industry standards, it excluded her opinion that defendant was negligent because this was fundamentally a matter for the jury to decide.