Congratulations to my friend and colleague Steve Jensen for his great work in this important case. The 7th Circuit’s decision handed down this morning in Schultz v. Akzo Nobel Paints, LLC. Schultz is a benzene exposure case in which the decedent had worked with benzene-containing paints and solvents for about 7 years while working as a painter in a Chrysler/AMC automotive plant. Years later he developed Acute Myelogenous Leukemia (AML), and, after his death, his widow sued the paint and solvent suppliers for negligence and failure to warn. An industrial hygienist (Dr. James Stewart) opined that Mr. Schultz’s occupational exposures to benzene were approximately 24 parts-per-million years. A hematologist/oncologist (Dr. Steven Gore) opined that there is no known safe threshold of exposure to benzene, below which it does not create a risk of AML. Dr. Gore also opined that, in any event, based on the published epidemiology studies, Mr. Schultz’s benzene exposures were more than sufficient to increase his risk of AML many times over, and that his occupational benzene exposures were therefore a substantial factor in the development of his AML. Dr. Gore also opined that he reviewed whether any other risk factors for AML were present in Mr. Schultz’s history. D. Gore identified one such factor – smoking cigarettes – and he opined that both benzene AND smoking likely contributed to Mr. Schultz’s AML. The district court held that Dr. Gore’s opinions were unreliable and inadmissible under Rule 702 and Daubert, for two reasons. First, the court held that Dr. Gore’s opinion that there is no safe threshold has been rejected by numerous legal authorities as unreliable, and that it was “disingenuous” for Dr. Gore to rely on quantified levels increasing risk from epi studies, when his opinion was really based on the absence of a threshold. Second, the district court held that Dr. Gore’s differential diagnosis/etiology analysis was legally improper because he failed to rule out ALL alternative causes, and had in fact ruled IN smoking as a cause.
The Seventh Circuit reversed, in an opinion by Judge Diane Wood (who, over the past several years, has been a finalist in consideration for nomination to the Supreme Court). Judge Wood emphasized that it’s not part of the district court’s gatekeeping role to decide whether an expert is CORRECT. Rather, the question is whether the expert employed sound principles and methods. The opinion notes that there is nothing inconsistent about holding the opinions that: 1) there is no safe threshold level of exposure; and 2) this plaintiff’s exposures are well above levels demonstrated to increase risk of this disease in the published scientific literature. On the differential diagnosis issue, the opinion emphasizes that, under the applicable substantive law of the State of Wisconsin, the plaintiff merely has the burden of showing that the toxin is A CAUSE of the disease, rather than being the SOLE cause of the disease. So long as the expert has considered the possible alternative causes, and ruled out that any of those causes were the SOLE cause, then the expert has appropriately employed a differential diagnosis/etiology.
