Contributed by Adam Tolin
It’s an exciting time to be alive. Kids are gearing up for back to school. The NFL season is about to begin. The Mr. Robot finale just aired on USA. The stock market is crashing and Donald Trump is surging. Ok, so maybe not everything is clicking. But some good news for product liability defense lawyers came out of the Seventh Circuit last week. It affirmed a summary judgment opinion on Daubert grounds in a toxic tort case, and its holding should be helpful in defending against cases where general causation is not grounded in any reliable science. Wood v. Textron, Inc., 2015 WL 5023926 (7th Cir. Aug. 26, 2015).
As is almost always the case, the facts of the case were tragic. During its operations from 1954 to 2006, the defendant’s manufacturing plant allegedly released vinyl chloride – a toxic gas – which eventually seeped into the ground water, contaminating nearby residential wells. One of those wells belonged to the plaintiffs. Both the defendant and the Indiana Department of Environmental Management performed testing on their well which revealed varying levels of vinyl chloride. Once they learned that this toxic substance had contaminated their well, they moved. But before they moved, their kids allegedly experienced gastrointestinal issues (vomiting, bloody stools), immunological issues, and neurological issues. Fearful that vinyl chloride caused their kids’ conditions (and mindful of the known cancer risks), they sued Textron alleging that it exposed plaintiffs’ children to vinyl chloride, which caused their illnesses and substantially increased their risk of cancer and other adverse health effects.
Plaintiffs offered three different experts to establish general causation but the district court rejected each one of them as failing to withstand Daubert scrutiny. According to the district court, each expert suffered from one fundamental flaw: the experts were unable to reliably extrapolate from the scientific studies that examined exposure to vinyl chloride at much higher levels than the children were exposed to.
Take for example, Dr. Dahlgren. He testified that, in his judgment, vinyl chloride can cause and did cause the children’s illnesses. He also opined that it is highly likely that both children will develop cancer at some point in the future. In support of his general causation opinion, he relied on a series of scientific studies that allegedly “demonstrate that damage to the immune system and the nervous system are known to be caused by [vinyl chloride] exposure.” But the district could concluded the studies were far too attenuated and “fail to establish that [vinyl chloride] at the dose and duration present in this case could cause the problems that the [p]laintiffs have experienced or claim that they are likely to experience.” The Seventh Circuit agreed.
The Seventh Circuit began its analysis by acknowledging a significant and perhaps, on the surface, unfair hurdle in cases like this one: the fact that “there are no studies available on the impact of vinyl chloride on children. These studies are unavailable because of the ethical and moral concerns of introducing toxins to children. This point is well taken and, we note, the district court recognized as much.”
But the Seventh Circuit explained that this dearth in literature is not insurmountable. “Scientists have developed computer-based models to extrapolate from animal data to human subjects, and from high doses to lower doses. . . . The EPA recognizes this and other methods of extrapolation as valid approaches to bridging the gap between the studies and the general public. . . . The appellants’ experts do not mention or refer to this model of extrapolation.”
Despite the plaintiffs’ contentions, the district court did not impose “an unachievable requirement that “published literature exist on the topic of vinyl chloride poisoning in small children . . . Instead, it faulted the appellants’ experts for failing to adequately extrapolate from the studies they had.”
The Seventh Circuit explained the analytical gap between the experts’ cited studies and general causation. “Take, for example, the rejected study that analyzed the carcinogenic effect of vinyl chloride on lab rats. . . . This study found no statistically significant increase in the number of tumors developed by rats that were fed 0.03 milligrams of vinyl chloride [and] . . . [r]emarkably, 0.03 mg/kg is ten times higher than the amount the appellants allegedly ingested . . . Given these facts, [the experts’] conclusion that this study shows that [the children] are now at an increased risk of developing cancer was an inferential leap that the district court was rightly unwilling to make.”
The court went on to explain that a second rejected study suffered from similar flaws. This study analyzed the effect of vinyl chloride on French workers. But again, “[a]s for the levels of exposure, the workers were divided into exposure groups with the average level set at 3,735 parts per million. That amount is over 1,000 times greater than the 3 parts per billion to which the children were exposed.”
The bottom line is that the Seventh Circuit was unwilling to allow the plaintiff’s experts to take a general proposition – that a substance could be associated with a condition – and apply it to all times no matter the circumstances. There simply is no evidence that the small amount of exposure in this case is linked to any illness and the experts performed no reliable analyses that could extrapolate the existing data to the exposure at issue in the case.
The Seventh Circuit also agreed with the district court’s rejection of the experts’ specific causation opinions. For example, “[a]fter ruling in the alternative causes of ‘inheritance, allergy, infection or another poison,’ Dr. Dahlgren then ruled them out because, in his view, these causes ‘would have been detected by [the appellants’] doctors and treated accordingly.’ This approach is not the stuff of science. It is based on faith in his fellow physicians—nothing more. The district court did not abuse its discretion in rejecting it.”
This case is a helpful reminder that in discovery, a defendant should review all of the available literature that relates to general causation, and develop a record establishing all of the facts in the case that distinguish it from the subjects in the relevant studies.