A recent opinion issued by the 7th Circuit Court of Appeals – Schultz v. Akzo Nobel Paints, LLC – highlights the risk of attacking causation in a dispositive motion early in the litigation, before a full record has been developed or a Daubert hearing has been held.
In Schultz, the plaintiff sued two paint manufacturers, alleging that his exposure to their products during the course of his employment was a substantial factor in causing his Acute Myelogenous Leukemia (“AML”). One of the defendants filed a motion for summary judgment on the grounds that the plaintiff could not establish causation. At that point in the proceedings, both sides had offered conflicting expert reports and deposition testimony regarding the level of benzene exposure that leads to an increased risk of developing AML. Both experts’ opinions were based on scientific literature.
The trial court granted the defendant’s motion for summary judgment, finding that the testimony offered by the plaintiff’s causation expert (an oncologist) was scientifically unreliable. The court took issue with the expert’s testimony that there is no safe level of exposure to benzene, and faulted the plaintiff’s expert for ruling out the plaintiff’s smoking history as a possible cause of his AML.
The appellate court disagreed with both findings, suggesting that the battle between the experts should have been fought before a jury at trial: “Our system relies on cross-examination to alert the jury to the difference between good data and speculation. Akzo’s counsel was also free to argue, based on its own expert’s submission, that 11 ppm-years was too low, and that risk does not arise until the 40 ppm-year level is reached” (see Opinion, p. 11). The court further stated, “Rule 702 did not require, or even permit, the district court to choose between those two studies at the gatekeeping stage. Both experts were entitled to present their views, and the merits and demerits of each study can be explored at trial” (see Opinion, p.13). On that basis, the 7th Circuit overturned the trial court’s ruling and remanded the case for further proceedings.
The Schultz decision illustrates the risk that parties face when they make an early challenge to causation in a chemical exposure case. Without the benefit of a full record, the defendant was unable to fully expose the shortcomings in the plaintiff’s expert’s testimony. The plaintiff’s expert’s testimony was based on a study that tracked the exposures and malignancies of 30 workers in China (the “Hayes Study”), as if that study is beyond reproach. In reality, there is a wealth of scientific literature – including from Occupational Safety and Health Administration (OSHA) – critiquing and contradicting the Hayes Study, but those papers would be nearly impossible to present in the context of opposing a motion for summary judgment; such motions are typically supported by brief expert affidavits, because lengthy affidavits may be overlooked by the court.
In addition, given the language in the Schultz opinion, it will be difficult for the defendant to raise another pre-trial challenge to the plaintiff’s expert in the context of a Daubert hearing, where they would have the opportunity to cross-examine the expert and present conflicting testimony and evidence. Similarly, parties run the risk that the appellate opinion will be used by plaintiffs as an implicit endorsement of the Hayes Study or the argument that there is no safe level of benzene exposure.
Parties should weigh these significant risks before filing a dispositive motion early in the litigation based on technical defects in an expert’s testimony.