Some toxic tort plaintiffs need to get their act together when it comes to lining up expert witnesses.
Every day, I scour the federal and state courts for “game-changers,” decisions on issues that determine whether a case is won or lost.
And all too often I see cases involving poisonous products being scuttled because the plaintiff’s expert lacks the basic credentials, science or conviction to render a credible opinion on causation.
Now, we all know these cases are tough to win. Typically, the plaintiff’s attorney is faced with pushing the boundaries of both law and science.
But if you don’t have a squared-away expert, you probably shouldn’t be wasting everybody’s time.
A perfect example of this is a recent case out of the 7th Circuit.
Billy and Mary Ann Cunningham of Martinsville, Indiana, lived in a building from which they operated a photography studio.
Their studio was located next to a building that until 1991 contained a dry-cleaning business run by a company called Masterwear.
The Cunninghams experienced headaches and severe respiratory problems until they moved. An EPA investigation concluded that their building contained perchloroethylene (PCE) vapors.
Although there is apparently no national standard for PCE contamination, the levels of PCE in the Cunninghams’ building was higher than what the Indiana EPA considers safe.
According to the Cunninghams, the PCE contamination was the result of Masterwear’s failure to properly store chemicals used in its dry-cleaning business.
So they sued Masterwear, seeking damages for their health problems and the depressed price for which they ultimately sold their studio.
So far so good until we get to the Cunninghams’ medical expert.
Problem Number One: According to the 7th Circuit’s opinion, despite the fact that the expert was a doctor who specialized in the treatment of respiratory diseases, he had never treated a respiratory illness caused or aggravated by exposure to PCE.
Problem Number Two: The doctor had no knowledge as to why the Indiana EPA set the PCE safety standard where it did.
On this point, the court explained: “Suppose that a concentration of some chemical above a certain level has been found to increase the incidence of birth defects, and as a result that level is fixed as the maximum safe level of exposure to the chemical; a person who was exposed to a higher level of the chemical and developed asthma could not attribute his ailment to his exposure.”
Problem Number Three: In light of his not being a toxicologist, the Cunninghams’ expert was unable to present a viable causation theory through direct testimony or citation to scientific studies .
As succinctly summed up by the court, the expert “thus presented no evidence from which a trier of fact could infer that the plaintiffs’ exposure to PCE is likely to have contributed significantly (or for that matter at all) to their ailments.”
Is it any wonder that this case was dismissed? (Cunningham v. Masterwear Corp.)
— Pat Murphy
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