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Monthly Archives: May 2011

Expert excluded in Flomax eye-injury case

A medical malpractice plaintiff from Idaho finds himself without an expert because the witness failed to adequately familiarize himself with the standards of local eye surgeons concerning a cataract patient’s past Flomax use. 

Franz Suhadolnik underwent cataract surgery on May 31, 2006. The procedure was performed by Dr. Scott Pressman, a Boise eye surgeon.

The surgery did not go well.

Dr. Pressman encountered a “floppy iris” in the eye he was working on. To be more precise, during the surgery the lens capsule came out of position, allowing vitreous fluid to leak into the anterior chamber of the eye.

This forced Dr. Pressman to place the intraocular lens in the anterior portion of the eye, rather in the preferred posterior position.

As a result of this complication, Suhadolnik is legally blind in the eye.

After the surgery, Dr. Pressman asked Suhadolnik about whether he had ever used Flomax or a similar medication that could cause a floppy iris.

As we know all too well from incessant television commercials, Flomax is used to treat males with urination problems.

As early as 2005, there were indications in the medical journals that prior use of Flomax places patients at risk of greater complications during cataract surgery. The U.S. Food and Drug Administration posted a safety alert for Flomax in November 2005. 

Suhadolnik had been prescribed Flomax in December 2005, but stopped taking it in January 2006.

Dr. Pressman claims that the first time he learned of Suhadolnik’s prior use of Flomax was following the May 2006 surgery.

In Suhadolnik’s subsequent suit for medical malpractice, he claimed that Dr. Pressman was negligent in failing to adequately inquire about his prior use of the prescription drug.

On the standard of care, Suhadolnik wanted to introduce the testimony of a Dr. Hofbauer.

Dr. Hofbauer is from Beverly Hills, California, so the central issue regarding the admissibility of his testimony was whether he had knowledge of the standard of care of Boise eye surgeons at the time of Suhadolnik’s surgery.

The trial court decided Dr. Hofbauer did not have actual knowledge of the local standards and excluded his affidavit.

Left without an expert, Suhadolnik had his case thrown out on summary judgment.

Wednesday, the Idaho Supreme Court decided that the trial judge had it right in excluding Suhadolnik’s expert.

The problem was that Dr. Hofbauer took a shortcut in trying to learn what the local standard was — relying on the deposition of Dr. Pressman. This proved fatal because Dr. Pressman said that he was unaware of a local standard of care regarding Flomax, claiming that at the time the medical evidence was inconclusive as to the risk posed to cataract patients.

The state supreme court observed that “Dr. Pressman’s deposition does not establish that the local standard has been replaced by a national standard because there is no mention anywhere in the deposition regarding a national standard. Consequently, Dr. Hofbauer’s statement that the standard of care is equivalent to a national standard is without foundation and inadmissible.”

The court faulted Dr. Hofbauer for failing to take the simple step of calling a Boise eye surgeon to discuss local standards, as well as Suhadolnik’s attorney for failing to do a better job in filling the gaps in his case.

“The record in this case does not reflect what efforts, if any, Suhadolnik or his expert made to learn the standard of care from a local practitioner (other than from Dr. Pressman’s deposition), but it isn’t too much to ask of a plaintiff that some effort be made. …

“Failing that, Suhadolnik’s counsel could have made a more valiant effort to piece together a case from Dr. Pressman’s deposition and affidavit but failed to do so,” the court said. (Suhadolnik v. Pressman)

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Judge takes $1500 bite out of trial lawyer’s wallet

Mom used to say there’s a good reason we have two ears and only one mouth.

Sometimes lawyers need to be reminded of that, particularly when it comes to keeping a judge from going on the warpath.

California attorney Daniel J. Callahan finds his wallet $1500 lighter because he made the mistake of venturing into forbidden territory when examining a witness.

Callahan represented Staar Surgical Company in a dispute with a competitor, Scott C. Moody, Inc.

In January 2010, the case was tried before a jury in the courtroom of Judge Glenda Sanders of the Orange County Superior Court.

One issue in the case was whether a former Staar manufacturer representative by the name of Greiling had conspired with Moody to steal confidential customer information from Staar.

That brought up the issue of the terms of Greiling’s employment contract and why it didn’t have a particular restrictive covenant.

On cross-examination, Callahan asked Greiling why he didn’t have the restrictive covenant in his contract. The lawyer evidently wanted Greiling to say that he wouldn’t agree to the clause because a court in another state had enforced a similar provision against him in a previous case.

The only problem with this was that Judge Sanders — fearing it would prejudice the jury – had previously ruled to exclude evidence that the restrictive covenant had been enforced in another state.

Naturally, the judge was miffed that Callahan was proceeding on this tack when he questioned Greiling. After sending the jury out, Sanders gave Callahan a dressing down, frankly wondering whether he had the capacity for understanding plain English.

Callahan pleaded innocence, saying he surely must have misunderstood the judge’s ruling.

But Judge Sanders wouldn’t buy it and imposed a $1500 sanction for Callahan’s transgression. 

Callahan was hoping that the California Court of Appeal would see things differently, but Monday the court came down firmly on the side of Judge Sanders and upheld the $1500 penalty.

“Presumably, if Callahan actually did not have a clear understanding of [Judge Sanders'] order, he would have asked for clarification on the spot, brought the matter up at a sidebar conference after the jury left or sought extraordinary relief. …

“Even assuming he did not understand the court‘s order, which argument is not supported in this record, Callahan opted to venture into the forbidden area and take his chances that an apology would cure a knowing violation of a court order,” the court said. (Scott C. Moody, Inc. v. Staar Surgical Company)

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Lawyer’s business deals with client go up in smoke

Although professional rules may allow a lawyer to have business dealings with a client provided certain formalities are observed, one’s instinct is that it is normally a bad idea given the nature of the relationship.

A California lawyer found out yesterday just how bad an idea that can be.

In early 1990, R. Thomas Fair was a partner in the Northern California firm of Hoge, Fenton, Jones & Appel. Fair was an experienced business attorney and a licensed real estate broker.

Soon-to-be client Karl Bakhtiari had just inherited a substantial amount of money and sought Fair’s advice regarding certain real estate investment opportunities.

Fair and Bakhtiari hit it off, so much so that in April 1990 attorney and client went into business together, forming Stonesfair Corporation.

The parties agreed that Fair would receive a 30 percent share of the company and that he would handle the company’s legal matters. The partnership between attorney and client blossomed in the ensuing years, with the pair creating two more companies.

As before, Fair received a minority stake in the new companies and provided legal counsel. The lawyer also received a salary, some years as much as $650,000.

Well, the good times lasted until mid-2001 when Bakhtiari and Fair ended their business relationship. The split was acrimonious and Fair sued to enforce an alleged agreement that he receive 50 percent of the back-end profits and other revenues from the companies he and Bakhtiari had formed.

Fair had one big problem in trying to enforce any agreements with Bakhtiari: the California Rules of Professional Conduct require that an attorney satisfy certain conditions before engaging in business transactions with a client.

Fair botched the rules completely, failing to obtain Bakhtiari’s written consent to their business dealings, failing to advise the client in writing of his right to seek independent legal advice, and failing to memorialize the terms of their business relationship.

Moreover, Fair allegedly failed to separate out his client relationships in his dealings, thereby operating under potential conflicts of interest.

Under rulings by the California Supreme Court, Fair’s failure to follow the rules meant that any business agreements he had with his client, Bakhtiari, were void and unenforceable.

Since Fair was barred from enforcing any contracts he had with Batkhtiari by well-established precedent, he attempted to change tack by asserting a claim for quantum meruit.

Yesterday, the California Court of Appeal gave Fair the bad news that his claim for the value of his legal services provided over the years was likewise barred.

“Unlike those rule violations in which counsel has been allowed to recover the reasonable value of services rendered and which involved no serious breach of fiduciary duty, the court could well determine that Fair’s conduct here was so fundamentally at war with [the rules of conduct and California's fiduciary duty statute], that it infected the entire relationship between Fair and his clients, and that Fair’s breach of his fiduciary duties under the statute was therefore sufficiently serious as to warrant the denial of quantum meruit recovery,” the court said. (Fair v. Bakhtiari)

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Spitting boyfriend gets just deserts

Nothing quite crosses the line like spitting in someone’s face.

Last week, the Nevada Supreme Court recognized that spitting in a domestic violence situation is much more than a matter of ugly behavior. 

Sure, breaking up is hard to do, but you gotta let it go. That’s what Timothy Lee Hobbs should have done.

Unfortunately, Hobbs evidently still had lover’s remorse back in 2008 when he saw his ex-girlfriend, Patricia McClain, having her nails done at a salon in Pahrump, Nevada.

Hobbs entered the salon and angrily spouted off about her wasting money on getting a manicure.

Since how McClain spent her money was no longer any of his concern, one doesn’t need to be Sigmund Freud to figure out that there were unresolved feelings still at work with Mr. Hobbs.

After a short argument, Hobbs left the salon. But he just had to get in a final word, so he returned. That’s how Hobbs ended up in prison.

The argument over the manicure resumed.

Now, Hobbs is reportedly a six-time felon, so self control is not one of his strong suits. Sure enough, Hobbs’ feelings got the best of him and he spit in McClain’s face.

Placing an exclamation point on the whole affair, Hobbs then went outside and tossed a rock through the windshield of McClain’s car.

Of course, police caught up with Hobbs. He was arrested and charged with domestic battery and related offenses. 

A jury found Hobbs guilty of domestic battery and injury to other property. With his priors, the trial judge enhanced his sentence and sent Hobbs to High Desert State Prison for a maximum of 25 years.

Before the Nevada Supreme Court, Hobbs argued that spitting did not constitute the use of force or violence required for a battery under the state’s domestic violence law.

Thursday, the state high court removed any doubt on that question.

The court found that the language and meaning of Nevada’s domestic battery statute is clear and that battery is the intentional and unwanted exertion of force upon another, however slight.

“Because the record clearly demonstrates that Hobbs intentionally spat on McClain and because spitting on another amounts to the use of force or violence as contemplated by [the statute], we conclude that Hobbs was properly convicted of domestic battery,” the court said. (Hobbs v. Nevada

Unfortunately, the state fumbled the ball in proving that Hobbs was a habitual criminal. Accordingly, the court decided that his sentence had been improperly enhanced.

So Hobbs gets to be released from prison after serving two years.

Hobbs’ lawyer, Harry Kuehn, complained to The Pahrump Valley Times that his client ends up serving two years for an offense that ordinarily would result in a six-month stretch in prison. 

Somehow, it’s hard to conjure up sympathy for a guy who spits in a woman’s face.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Can homeowner resist unlawful entry by police?

Earlier this month, the Indiana Supreme Court issued a decision concerning the sanctity of the home that nearly gave Rush Limbaugh a stroke.

But for those of us who typically back the police in their tough fight against criminals, the ruling should not be all that big a deal.

In Barnes v. Indiana, the state supreme court held that a homeowner has “no right to reasonably resist unlawful entry by police officers.”

That ruling came in the case of Richard Barnes, who allegedly shoved a police officer against a wall during the course of a domestic dispute. Barnes’ wife Mary had called police to the couple’s Vanderburgh County apartment on Nov. 18, 2007, complaining that her husband was throwing things around.

Richard and Mary were apparently in the midst of a breakup and Richard was moving out.

Officers Lenny Reed and Jason Henry arrived at the scene in response to the 911 call and confronted an agitated Richard outside the apartment. There, too, they met Mary.

Richard told the officers to kindly mind their own business and he and his wife went back to their apartment. The officers followed, but Richard blocked them at the door. When Officer Reed attempted entry, a struggle ensued and Richard shoved the cop against the wall.

Naturally, this didn’t set well with the officers, so Richard in short order found himself tasered, restrained in a choke hold, and arrested.

For taking on Officer Reed, a state jury convicted Richard of misdemeanor battery on a law enforcement officer, misdemeanor resisting law enforcement, and misdemeanor disorderly conduct.

Before the Indiana Supreme Court, Richard complained that police violated the Fourth Amendment when they entered his apartment without a warrant. On this basis, he whined that the jury should have been instructed that he had the right to reasonably resist unlawful entry by police officers.

Now, the right of a homeowner to resist unlawful entry probably has its origins in the Magna Carta and is support by U.S. Supreme Court decisions from early in the last century.

But the state supreme court in Richard Barnes’ case decided that it was an outdated notion that should be dispensed with.

“We believe … that a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence,” the state court said in affirming Richard’s convictions.

Limbaugh on his radio show had a cow when he heard about the court’s decision.

“It’s as though the Fourth Amendment doesn’t exist,” Limbaugh railed. “In Indiana I guess it’s official now: A man’s home is no longer his castle.”

Stepping back from Limbaugh’s heated constitutional analysis, we can see that the Fourth Amendment still has plenty of life in the wake of the Indiana Supreme Court’s decision.

Police still need a warrant, exigent circumstances or consent to enter a home. Without these lawful justifications, a homeowner will still be able to suppress evidence at trial.

Moreover, the aggrieved homeowner still has armies of lawyers eager to sue everyone in sight for a violation of his civil rights.

This case is much more about protecting police officers than individual rights.

The last thing we need is to give encouragement to the drunken yahoos in wife-beater T-shirts who feel they should be allowed to take on police under some Old West notion of defending hearth and home.

The reality is that the homeowner will lose that fight at the doorstep every time. The police have guns, training and reinforcements. Allowing a homeowner to defend his privacy rights at the scene will merely get someone hurt.

If the police do happen to be on the wrong side of the Fourth Amendment in a given instance, let the courts sort out the details and provide the appropriate remedy.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Drunk driver forced to undergo catheterization

Here’s a civil rights case that will make every guy squirm.

Jason Miller claims that Idaho State Trooper Christopher Yount violated the Fourth Amendment by forcing him to undergo a catheterization following his arrest for DUI.

In May 2007, Trooper Yount was on patrol in Priest River when he observed Miller staggering around a gas station. The trooper commenced a traffic stop upon seeing Miller get behind the wheel of his car.

The stop proved fruitful in that Miller failed field sobriety tests and admitted to smoking marijuana. So Yount arrested Miller for DUI and took him to a local hospital for a urine test.

At the hospital, Miller adamantly refused to provide a urine sample.

But Yount wasn’t about to be deterred. The trooper instructed a nurse to catheterize Miller and extract a urine sample.

Now, it is very understandable that Yount wanted to document any illegal substances in Miller’s system before they dissipated. What is harder to understand is why the trooper did not simply opt for a less-intrusive blood draw. The court record provides no explanation.

Then there’s the mystery surrounding Miller’s failure to decide that discretion is the better part of valor and volunteer the urine sample once it was clear that the trooper was going to get it one way or the other.

Sure, a catheterization is not exactly water boarding, but I don’t know of any man who wouldn’t do back flips to avoid that particular procedure.

In any event, Miller surrendered his urine sample through involuntary catheterization. Thankfully, we are spared the details of the nurse’s joust with Miller’s private parts.

Ironically, the urine test became a side show because police later discovered evidence of methamphetamine in Miller’s shirt pocket. So Miller ended up pleading guilty to a felony drug charge, with a misdemeanor DUI taking second place.

But Miller was still sore over his involuntary catheterization, so he sued Trooper Yount and the Idaho State Police under §1983, contending that the forcible taking of his urine violated the Fourth Amendment.

Miller’s case landed before the Idaho Supreme Court after the trial court refused to find that the trooper was entitled to qualified immunity.

Right off the bat, the state high court had trouble with the ultimate issue of whether involuntary catheterization violates the Fourth Amendment, bemoaning the fact that there was little authority from other courts.

The court said that the leading cases on bodily intrusion from the U.S. Supreme Court — Schmerber v. California and Winston v. Lee — while providing a useful framework, failed to answer the ultimate question presented by Miller’s lawsuit.

So the Idaho Supreme Court punted, declining to decide whether there had been a Fourth Amendment violation in this case.

Instead, in a decision handed down Wednesday, the court fell back on the unsettled state of the law to conclude that Trooper Yount was entitled to immunity and that Miller’s lawsuit should be dismissed.

“The law regarding involuntary, warrantless catheterizations where probable cause exists is too undeveloped, and the applicable legal principles too uncertain, to hold Yount personally liable for his actions in this case,” the court said. (Miller v. Idaho State Patrol

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Silent dancer fights Park Service — and loses

Unfortunately, for members of the “Look at Me!” crowd, the Bill of Rights represents a license to do whatever they want, whenever they want. 

Yesterday, the D.C. Circuit issued a stern lesson in freedom of expression to a woman who figured that a late-night dancing display at the Jefferson Memorial was the best way to honor the Founding Father’s birth.

Mary Brooke Oberwetter is a big fan of Thomas Jefferson. I’m partial to John Adams and Alexander Hamilton, but Jefferson is okay by me, too.

Anyhow, at a quarter to midnight on April 12, 2008 — the eve of Jefferson’s 265th birthday — Oberwetter and 17 of her closest friends entered the Jefferson Memorial to “celebrate and honor the former President … by ushering in his birthday with silent dance.”

According to Oberwetter, the dancing expressed admiration for Jefferson’s political legacy and “individualist spirit.” For the most part, the dancers danced by themselves, listening to music on their headphones.

Seems harmless enough.

However, National Park Service regulations prohibit “demonstrations and special events” at such sites without a permit.

Oberwetter and her friends did not have a permit, so several U.S. Park Police officers — who you can bet only wanted a quiet end to their shift — ordered the dancers to disperse.

Instead of complying with the order, Oberwetter demanded that Officer Kenneth Hilliard provide a lawful reason why she should stop her silent dancing and leave.

Now, getting huffy with a police officer is always a bad idea. Oberwetter should have known better, but she didn’t.

Oberwetter allegedly refused to comply with Officer Hilliard’s order when he proved less than responsive to her legal questions. Not taking kindly to Oberwetter’s intransigence, Hilliard arrested her for interfering with his duties.

Further, Oberwetter claims that Hilliard handled her roughly when taking her into custody, alleging that the officer ripped apart her earbud, shoved her against a pillar, and “violently” twisted her arm.

After five hours of processing, Oberwetter was released and cited for “interfering with an agency function,” and “demonstrating without a permit” in violation of National Park Service Regulations.

The charges were later dropped, but Oberwetter predictably sued the National Park Service and Officer Hilliard for excessive force and violations of her First Amendment rights to free speech.

The U.S. District Court for the District of Columbia dismissed Oberwetter’s complaint.

Tuesday, the D.C. Circuit affirmed the dismissal in a decision that must warm that heart of all those with an instinctive dislike for silent dancers, mimes and other annoying street performers.

As to Oberwetter’s central argument that the First Amendment protects her right to engage in silent expressive dancing inside the Jefferson Memorial, the D.C. Circuit said that having “created and maintained the Memorial as a commemorative site, the government is under no obligation to open it up as a stage for the roving dance troupes of the world — even those celebrating Mr. Jefferson.”

The court recognized that the interior spaces of national memorials have traditionally not been used for public assembly and therefore have been treated as non-public forums for First Amendment purposes.

“In creating and maintaining the Jefferson Memorial in particular, the government has dedicated a space with a solemn commemorative purpose that is incompatible with the full range of free expression that is permitted in public forums,” the court said.

This conclusion likewise undercut Oberwetter’s constitutional claims against Officer Hilliard in his individual capacity.

“Hilliard’s alleged conduct did not violate Oberwetter’s clearly established constitutional rights,” the court said. “She had no First Amendment right to stage an unlawful performance inside the Jefferson Memorial, and in doing so created the cause for her own arrest.”

The court expressed a similar lack of sympathy regarding Oberwetter’s excessive force claims.

The court said it “was not clearly unreasonable for Hilliard to take decisive action to subdue Oberwetter quickly and forcefully, thereby reducing the risk of interference or escape. Given that some force may have appeared reasonably necessary, Hilliard’s alleged actions were not markedly different from what we would expect in the course of a routine arrest.” (Oberwetter v. Hilliard

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Informed consent jury instructed on surgeon’s ‘habit’

A jury in a medical malpractice case ordinarily shouldn’t be told that it’s okay to infer that a surgeon acted in accordance with her customary practice, particularly with respect to a hotly contested factual issue.

But one Colorado plastic surgeon can breathe a sigh of relief now that an appellate court decided that a verdict in her favor can stand — despite the fact that a habit instruction never should have been submitted to the jury in the first place.

The beneficiary of the misguided jury instruction is Dr. Linda Huang. The Denver-area surgeon performed a breast augmentation procedure on Joan Holley.

Holley was unhappy with the results and sued Huang for medical malpractice. Specifically, Holley alleged that Huang failed to obtain her informed consent for the circumareolar mastopexy procedure performed on her right breast.  

According to WebMD, this particular procedure is used to alleviate the dreaded “droopy” breast and involves repositioning the nipple areolar complex to a location higher on the chest wall.

Holley claims that Huang negligently failed to tell her that the surgery would involve making an incision around the areola in order to place an implant and lift her right breast.

Huang insists it was her habit and practice to give such information to her patients, so it was likely that Holley was given the particulars about her surgery beforehand.

Unfortunately for Holley, the trial judge nudged the jury towards a defense verdict by giving the following instruction on habit testimony: “In case of doubt as to what a person has done, it may be considered more probable that he has done what he has been in the habit of doing, than that he acted otherwise.”

Not surprisingly, the jury found that Huang did obtain Holley’s informed consent and returned a verdict in favor of the surgeon.

On Thursday, the Colorado Court of Appeals addressed the issue of whether the habit instruction necessitated a reversal.

The court decided it did not.

Yes, the instruction was improper.

“[W]e agree with Holley that the instruction should not have been given,” the court said.

It explained that, although the instruction correctly stated the law concerning habit testimony, “that statement was never intended to guide jury deliberations. By giving the instruction, the [trial] court erroneously emphasized one type of evidence and highlighted one defense-favorable inference.”

So far so good for Holley, but then the appeals court got to the part about whether the erroneous jury instruction was sufficiently egregious to justify reversal.

On this critical point, it was Huang’s turn to smile.

Concluding that it did not “perceive the kind of error or prejudice that would warrant reversal,” the court explained that the “instruction did not require the jurors to give special weight to habit testimony, nor did it require them to draw inferences in Huang’s favor. A separate instruction properly guided the jury’s evaluation of the weight and credibility of evidence.” (Holley v. Huang

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Chicago’s losses mount in landmark disparate-impact case

On Friday, a federal appeals court placed the finishing touches on a landmark case that pitted the city of Chicago against black job applicants who claimed they were the victims of discriminatory hiring practices used to fill firefighting positions.

A year ago, the U.S. Supreme Court used Lewis v. Chicago to hold that the time for filing a charge of discrimination in disparate-impact litigation starts anew whenever the employer uses a test or other practice to make hiring decisions.

The underlying lawsuit challenged Chicago’s use of the results of a 1995 written test for firefighter positions.

Applicants who scored at least 89 were rated “highly qualified” and those who scored 64 and below received a “not qualified” rating. Those with scores between 64 and 89 were rated “qualified,” but told they were unlikely to be hired.

From May 1996 through November 2001, the city hired 11 groups of applicants, all from the well-qualified pool.

In March 1997, an African-American applicant in the “qualified” category filed a Title VII complaint with the EEOC. The complaint alleged that the city’s use of the 89 score as a cutoff had a disparate impact on black applicants.

In the ensuing litigation, Chicago argued the March 1997 complaint was untimely because it was filed more than 300 days after applicants in the qualified pool learned that the exam had a disparate impact and that they were unlikely to be hired.

The district court rejected this contention, as well as the city’s business-necessity defense. Accordingly, in 2007, the lower court awarded relief that included the hiring of 132 class members and damages.

The 7th Circuit reversed that judgment, accepting the city’s argument that the entire lawsuit was time-barred.

In rode a unanimous Supreme Court on their white horses, announcing the new rule on the accrual of disparate-impact claims.

The Supreme Court’s ruling left the 7th Circuit with two issues to consider. First the court of appeals ruled that, even under the Supreme Court’s new standard, the claims regarding the very first class of firefighter hires were still time-barred.

But that still exposed Chicago to liability regarding the remaining 10 sets of hires.

As to these claims, Chicago conceded that the cutoff score of 89 had a disparate impact on minority applicants.

But the city contended that the use of the cutoff must be deemed lawful because the actual decision to adopt the 89 score as the hiring standard came more than 300 days before the filing of a charge with the EEOC.

The 7th Circuit nixed this argument in its ruling on Friday.

“In disparate-impact litigation the question is not whether a given test or standard is lawful standing alone, but whether its application has been adequately justified. In other words, it is the application (‘use’) of a test or standard that Title VII places at issue. …

“To say that the highly qualified pool was lawfully composed does not imply that it was lawful for the employer to hire exclusively from that pool,” the court said.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Causation expert excluded in benzene contamination case

Sue Pluck claims that her cancer was caused by benzene in her well water.

But yesterday, the 6th Circuit dealt a fatal blow to Pluck’s lawsuit against BP Oil, upholding the exclusion of her expert on specific causation.

In 1996, Pluck and her husband bought a home in Franklin Township, Ohio. In hindsight, this was a bad idea because the previous owner of the home was BP Oil.

The oil company had purchased that home and others as part of a settlement with local residents over the contamination of groundwater from a leaky underground gasoline pipeline that passed through the township.

BP had made several attempts at environmental remediation in the areas of the pipeline spills, but problems persisted with trace amounts of benzene, a known carcinogen, showing up in well water.

Soon after moving into their new home, Pluck and her husband noticed a gasoline odor. Testing of their well water indicated benzene in the amount of 3.6 parts per billion (ppb). The EPA’s maximum permissible contaminant level for benzene is 5 ppb.

BP promptly installed a new well, which between 1997 and May 2002 tested negative for benzene 22 times.

Unfortunately, Pluck was diagnosed with Non-Hodgkins lymphoma later in 2002. At the time, she was 48 years old. When a 2003 test of the home’s new well showed benzene contamination of 1.8 ppb, Pluck’s doctor told her it was time to move. In 2005, the Plucks did indeed move out.

Pluck sued BP for strict liability for hazardous activity and negligence in federal court, alleging that her cancer was caused by the benzene in her well water.

For specific causation under Ohio law, a plaintiff must show that she was exposed to the toxic substance and that the level of exposure was sufficient to induce her medical condition.

Pluck’s expert on specific causation was Dr. James Dahlgren.

But BP had serious problems with Dahlgren’s testimony.

In particular, BP argued that Dahlgren’s testimony was unreliable under Daubert “because he formulated a specific causation opinion without evidence of dose, and subsequently performed an unreliable dose reconstruction in an attempt to support his opinion.”

The trial judge likewise had problems with Dahlgren’s opinion linking Pluck’s cancer to benzene exposure, ultimately concluding that the expert was attempting to offer an opinion on causation under a “no safe dose” theory, which other courts have consistently discredited.

So the trial judge excluded Dahlgren. And since Pluck had lost her expert on specific causation, the lower court entered summary judgment in favor of BP

Thursday, the 6th Circuit agreed with the district court that Dahlgren’s expert opinion was unreliable based on his inability to quantify Pluck’s dose of benzene exposure.

The court explained that although “the Plucks contend that evidence of benzene exposure existed by virtue of its presence in their wells in 1996 and 2003, it is well-settled that the mere existence of a toxin in the environment is insufficient to establish causation without proof that the level of exposure could cause the plaintiff’s symptoms. Here, Dahlgren offered no such evidence.”

Dahlgren had tried to fill in this gap in his testimony by citing a gasoline-vapor-concentration study that analyzed the correlation between benzene exposure and leukemia.

But the study simply did not provide an adequate basis for Dahlgren’s conclusions.

The court observed that Dahlgren “failed to mention that the … study ‘did not find a statistically significant association between [Non-Hodgkins lymphoma] and residing near a gasoline spill.’ The district court thus concluded, as do we, that Dahlgren’s attempt to determine Mrs. Pluck’s level of benzene exposure ‘[did] not represent a scientifically reliable methodology.’” (Pluck v. BP Oil Pipeline Company)

– Pat Murphy

patrick.murphy@lawyersusaonline.com

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