In a recent decision that provided a thoughtful Daubert analysis on admitting expert opinion testimony, the Mississippi Supreme Court recently affirmed the reversal of a multimillion-dollar benzene case based on the absence of any causation evidence. The decision will undoubtedly assist toxic tort defendants in combating unreliable plaintiff expert testimony on causation issues. The decision also reminds the judiciary that the trial courts are supposed to be “the gatekeepers of expert testimony, not the doormen.” See infra text.

In Watts v. Radiator Specialty Co., et al., No. 2006-CA-01128-SCT (Mississippi Supreme Court) (June 12, 2008), plaintiff worked as a mechanic for more than 50 years beginning in 1947. During that time, he used a product known as “Liquid Wrench” for cleaning engine parts and loosening bolts, often in a room with little or no ventilation. It was undisputed that Liquid Wrench contained “benzene.” Plaintiff was then diagnosed in 1999 with non-Hodgkin’s lymphoma that he alleged was related to his occupational exposure to benzene. Plaintiff supported his case with the expert medical testimony of Dr. Barry Levy, who opined at trial that plaintiff’s non-Hodgkin’s lymphoma was caused by his benzene exposure from the daily usage of Liquid Wrench.

At trial, the jury returned a $2 million verdict in favor of the plaintiff, based largely in part by the supporting opinions of Dr. Levy on causation. Defendants responded by moving for a judgment notwithstanding the verdict (JNOV) on the basis that Dr. Levy’s testimony should not have been introduced at trial since it was scientifically unreliable. The trial court judge found that the case studies relied upon at trial by Dr. Levy did not support his conclusions that benzene caused plaintiff’s disease and struck Dr. Levy’s trial testimony on causation in its entirety.

The record at trial revealed that the court had no reluctance in finding that Dr. Levy was qualified as an expert in epidemiology and occupational medicine issues. The issue in the case was whether Dr. Levy’s opinions on causation were reliable and relevant. Dr. Levy’s ultimate opinion that plaintiff’s non-Hodgkin’s lymphoma was caused by his benzene exposure from using Liquid Wrench over the course of many years was based on 18 medical case studies. The facts, however, showed that none of those studies concerned Liquid Wrench. Only half of the studies showed a statistically significant increase in the risk from benzene exposure. One of the studies showed that any risk of developing non-Hodgkin’s lymphoma was not related to an occupational exposure. Other studies failed to provide a dose-response ratio. Finally, and most telling, none of the studies found a causal relationship between benzene exposure and plaintiff’s specific disease. In fact, one of the reported studies affirmatively found no link between benzene exposure and non-Hodgkin’s lymphoma.

Pursuant to the United States Supreme Court’s landmark decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), which set the guidelines for the proper admission of expert testimony, the prime concern “must be solely on the principles and methodology, not on the conclusions that they generate.” Id. at 595. “These factors include whether the theory or technique can be and has been tested; whether it has been subjected to peer review and publication; whether, in respect to a particular technique, there is a high known or potential rate of error; whether there are standards controlling the technique’s operation; and whether the theory or technique enjoys general acceptance within a relevant scientific community." Id. However, the U.S. Supreme Court cautioned as follows:

“But conclusions and methodology are not entirely distinct from one another. Trained experts commonly extrapolate from existing data. But nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proferred.”

See General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997).

The Mississippi Supreme Court recognized that although Dr. Levy’s testimony that plaintiff’s disease was caused by his exposure to Liquid Wrench was “to a reasonable degree of medical certainty,” the “leap across the chasm from the data in the studies to Dr. Levy’s proffered opinion was more than the trial court could allow.” Since the testimony of Dr. Levy was properly excluded and plaintiff failed to offer any other causation evidence in the case, the Mississippi Supreme Court found that the trial court’s grant of JNOV was proper.

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This alert has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.