• Supreme Court Rejects Case from First Circuit on Junk Science
  • February 10, 2012 | Authors: Suna Lee; Carolyn F. O'Connor
  • Law Firm: Wilson Elser Moskowitz Edelman & Dicker LLP - Florham Park Office
  • On January 9, 2012, the U.S. Supreme Court in U.S. Steel Corp., et al. v. Brian Milward, et al., No. 11-316 rejected defendants’ petition for review of a decision by the First Circuit that threatens to open the door, at least within that circuit, to scientifically unreliable expert testimony in some toxic tort actions. In a case originally filed in the District of Massachusetts, plaintiff Brian Milward alleged that he developed acute promyelocytic leukemia (APL) - a subtype of acute myelogenous leukemia (AML) - as a result of exposure to benzene while he worked as a refrigeration technician from 1973 to 2007. Plaintiff’s expert acknowledged the absence of statistically significant epidemiological studies finding an increased risk of APL as a result of benzene exposure.

    The District Court concluded that plaintiff’s expert testimony on general causation - that benzene is capable of causing APL - was scientifically unreliable on the grounds that the expert’s reliance on a judgment-based, “weight of the evidence” methodology amounted to no more than a plausible hypothesis, and thus excluded the expert from testifying at trial. Plaintiff agreed to dismiss his claims pending appeal.

    The U.S. Court of Appeals for the First Circuit reversed and reinstated the case, finding that the District Court abused its discretion in not allowing the jury to decide whether to accept the testimony. The Court of Appeals concluded that the District Court placed undue weight on the lack of general acceptance of the expert’s conclusions in the scientific community and crossed the boundary between gatekeeper and trier of fact. As the First Circuit panel put it: “The court erred in treating the lack of statistical significance as a crucial flaw.”

    There were no scientifically significant epidemiological studies to either support or contest the expert’s proffered opinion. The court went on to explain: “To be clear, this is not a situation in which the available epidemiological studies found that there is no causal link, or even one in which no cases of APL were found among benzene-exposed workers. [Citations omitted] Rather, this is a case in which the few studies that differentiate between AML and APL do not offer conclusive statistically significant evidence either way, in part because the rarity of APL makes it nearly impossible to perform a large enough study. Dr. Smith estimated that in order to obtain statistically significant results, one would need hundreds of thousands of highly exposed workers, the same number of controls, and millions of dollars in funding.” The Court of Appeals characterized the expert’s analytical gaps between the existing data and his conclusions as simply “weak factual underpinnings” affecting the weight and credibility of the testimony to be resolved by the jury - not the trial court.

    The U.S. Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), requires trial courts to serve as the gatekeepers of scientific expert testimony by assessing the reliability of such testimony before admitting it. In Daubert the court identified four factors to be considered: (1) whether the theory or technique can be and has been tested, (2) whether the technique has been subject to peer review and publication, (3) the technique’s known or potential rate of error and (4) the level of acceptance of the theory or technique within the relevant discipline. However, Daubert did not define what is considered scientifically “reliable.” Courts have ruled on admissibility on a case-by-case basis.

    What does the Court of Appeals’ decision mean for defendants seeking to exclude plaintiffs’ expert testimony as scientifically unreliable? This decision is not binding in any jurisdiction outside of the First Circuit. Elsewhere, it might or might not be considered persuasive authority. Even in the First Circuit, Milward may be distinguishable on its facts, which were particularly favorable to plaintiffs. The parties did not dispute an association between the broader category of AML and benzene exposure. Thus, in another case where there is no association whatsoever between the general group of illnesses and the substance, reliance on the Milward decision would be misplaced.

    Exceptional cases sometimes make bad law when they are applied more generally than their facts can legitimately be stretched. The Milward decision may prove to be unfavorable to defendants in the First Circuit seeking to exclude unreliable scientific expert testimony where there is an absence of directly relevant, scientifically significant studies. Taken out of context, the First Circuit’s decision might be argued to support the following:

    • Admission of expert testimony based on methodologies such as the “weight of the evidence,” which rests on the expert’s subjective judgment
    • Admission of expert testimony based on an extrapolation of data limited to a particular type of illness and applied to another type of illness without requisite scientific foundation
    • A possible chilling effect in the First Circuit on district courts’ willingness to play their crucial “gatekeeper” role under Daubert, instead letting the jury decide whether to accept the expert testimony - thereby precluding summary judgment for defendants.