Last year, Harris Beach wrote about a federal judge’s report recommending that the defendants’ motions for a summary judgment be rejected in a toxic criminal offense resulting from occupational exposure to orthotoluidine (“o-toluidine” or “OT”), Sarkees v. EI DuPont De Nemours & Co. (WDNY, February 25, 2020). Since then, District Judge John L. Sinatra Jr. of the West District of New York, on rare occasions, denied the report and recommendation, granted the defendants’ motion, and dismissed the lawsuit. See Sarkees, (WDNY August 21, 2020).
The case ultimately revolved around the concept of “specific causality”. As in any case of toxic tort / chemical exposure, it was the plaintiffs’ duty to show more than just contact with the alleged toxic substance. Plaintiffs had to demonstrate that OT can cause bladder cancer (“common cause”) and that OT causes Mr. Sarkees’ bladder cancer (“specific cause”). In dismissing the lawsuit, the district court concluded that the plaintiff’s specific damage appraisal under the Daubert Principles of the federal government and that of the Court of Appeal at Parker v. Mobil Oil Corp., 7 NY3d 434 (2006). While the plaintiffs have appealed (2d Cir. Docket No. 20-3170), the decision shows that the defendants can effectively use the rules for expert opinion on the cause of damage even with a mature toxic tort.
Plaintiffs alleged that James Sarkees developed bladder cancer from occupational exposure to OT for seven months in 1974. They sued the defendants for negligence under state law, lack of warning, and strict product liability theories. After the discovery, the defendants excluded the plaintiffs’ causal experts and made a summary assessment.
The judge concluded that the plaintiffs’ occupational health expert’s specific causality view was Parker Standard: a plaintiff with a toxic tort demonstrates that he was exposed to sufficient amounts of the alleged toxin to cause the disease. The plaintiffs ‘expert was unable to accurately quantify Mr. Sarkees’ exposure. However, in identifying a specific cause, the plaintiffs’ expert compared Mr Sarkees’ description of his exposures, duration of Mr Sarkees’ exposures, subsequent measurements at the facility where Mr Sarkees worked, and the epidemiological literature. Since Parker does not require precise quantification – just a scientifically reliable expression that the exposure was sufficient to cause the disease – the judge recommended that the applications be rejected.
The district court, citing Daubert and Parker, disagreed, denied the judge’s report and recommendation, granted the motions, and dismissed the lawsuit. The District Court emphasized that the appraisal had admitted the plaintiff at the time of filing that he was “not sure” that the primary epidemiological study “accurately reflected” (“the best we have”)[ed]Mr. Sarkees’ OT dose and application of the study to an individual was “not necessarily the best way to assess exposure”. In addition, Mr. Sarkees’ exposure would have placed him in the lowest exposure group in this study – whose risk of bladder cancer, while increased, was not statistically significant. Thus, after undermining the scientific basis of their opinion, the plaintiff’s specific causality view was not reliable enough to satisfy Parker and Daubert. Without an expert opinion that satisfied the element of causation, the dismissal was justified.
In cases of toxic illicit act / chemical exposure, evidence of contact or exposure to the suspected toxin is insufficient to establish the cause. Instead, the plaintiff must demonstrate that the toxin is capable of causing the alleged disease (“general cause”), and indeed in the case of the plaintiff (“specific cause”). Evidence is required either by an appraisal that meets state and / or federal admissibility standards. Courts review expert opinions to protect themselves from “junk science” obscured by an expert’s credentials. The highest level of control comes from the federal Daubert Standard, which prohibits opinions that are not based on solid methodology or based on speculation. Many states have adopted Daubert; States like New York apply their own standards, often more forgiving. Sarkees shows that defendants can use these principles to great effect even in a mature toxic tort.