Summary Judgment Reversed; Toxic Tort Testimony Was Admissible
Donald Schultz worked as a painter for American Motors Corporation (acquired by Chrysler in 1987) from 1981 to 1989. During those years, he was exposed to an extremely high amount of benzene, a known carcinogen. In 2005, he was diagnosed with acute myeloid leukemia (AML). He passed away less than a year later. His widow brought suit on his behalf against Akzo Nobel Paints and Durako Paint, the alleged manufacturers of the benzene-laden paint used by Schultz while working for AMC and Chrysler.
As lawyers, our first question is one of causation, and indeed, that is the heart of the matter before the court today. The district court, after finding one of the plaintiff’s expert’s testimony to be based on unreliable scientific evidence, granted summary judgment to Akzo and Durako.
Akzo Off the Hook?
Not so much. The district court ruled that the testimony of Dr. Gore, an experienced oncologist, was scientifically unreliable, as he opined at one point that any level of benzene exposure was dangerous. The court's ruling was clearly erroneous, however, as Dr. Gore also provided studies showing that as little as 10ppm of benzene exposure was dangerous -- a far lower level of exposure than Schultz faced, even with fifteen years between exposure and diagnosis.
The district court also took issue with Dr. Gore's inattention to other possible contributing causes, but it was twice as wrong on that issue. For one, Dr. Gore used differential diagnosis, which evaluates a patient's entire history, from work to bad habits, to identify possible causes. Differential diagnosis, when done properly, has been approved by the Seventh Circuit as a scientifically reliable method of determining causation.
Two such causes were found: smoking and benzene exposure from paint. Dr. Gore interestingly noted that one of the cancerous chemicals in cigarettes is, shockingly enough, benzene.
The lower court also ignored the causation standard under state law, the Seventh Circuit pointed out that Wisconsin law, where the district court sits, is controlling. It provides that, in order to prevail in a products liability action, a plaintiff must show that the product "was a cause (a substantial factor) of the plaintiff's injuries or damages." A substantial factor is not akin to solo causation. The studies cited, along with the evidence of benzene exposure, suffices to show that the benzene-laden paint was a substantial factor in causing the AML.
While reversing summary judgment against Akzo, the court affirmed the summary judgment ruling in favor of Durako, as the sole evidence tying the company to paint used by Schultz was an unauthenticated internal Chrysler document that mentioned Durako as possibly providing some paint at some point in the past. As a matter of law, such vague and unauthenticated evidence is insufficient to withstand summary judgment.
- Joann Schultz v. Akzo Nobel Paints (Seventh Circuit Court of Appeals)
- Chrysler's Half-Measure Response to Anti-Semitic Harassment Costly (FindLaw's Seventh Circuit Blog)
- New Trial: Undisclosed Expert Testimony Sufficiently Prejudicial (FindLaw's Seventh Circuit Blog)
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