Toxic Chemical

Third Circuit Affirms Exclusion of Expert Testimony Regarding Fear of Enhanced Cancer Risk

Written on Thursday, February 28th, 2019 by T.C. Kelly
Filed under: ExpertWitness

Robert Morris sued Consolidated Rail Corporation for exposing him to vinyl chloride, a toxic chemical. Morris suffered no long-term physical harm, but sued for expenses he alleged he would incur to monitor his medical condition and for emotional distress. The emotional distress claim was based on his fear that the exposure would cause cancer later in his life.

The trial judge excluded evidence from Morris’ expert witness regarding his need for medical monitoring and fear of cancer. The jury agreed that Consolidated had exposed him to a toxic chemical but, in the absence of evidence that his harm was more than temporary discomfort, awarded him only $500 in damages. The Court of Appeals for the Third Circuit affirmed the trial court’s decision to exclude the expert testimony and thus affirmed the $500 judgment.

Facts of the Case

The lawsuit arose after a freight train derailed while crossing a bridge in New Jersey, releasing about 20,000 gallons of vinyl chloride into the atmosphere. The National Cancer Institute explains that vinyl chloride “is associated with an increased risk of a rare form of liver cancer (hepatic angiosarcoma), as well as brain and lung cancers, lymphoma, and leukemia.”

The train apparently derailed because the swing-span bridge was not in a locked position. In the year before the accident, the National Transportation Safety Board received 23 complaints from train crews about the failure of the bridge to close and lock. Consolidated owned the bridge and the train that derailed while crossing it.

Morris was enveloped by a cloud of vinyl chloride after the derailment. He sued Consolidated and retained Dr. Omowummi Osinubi to determine whether he had any medical conditions associated with the exposure and whether he would benefit from a medical monitoring program.

Dr. Osinubi prepared an expert report. He concluded that Morris faced an increase in the risk of liver cancer due to his exposure to vinyl chloride and that annual weight-loss and lifestyle coaching would reduce that risk.

Consolidated moved to exclude Dr. Osinubi’s testimony on the ground that it was not supported by a reliable methodology. The trial court granted the motion. While Consolidated also argued that Morris could not prevail at trial without Dr. Osinubi’s testimony, the trial court allowed the case to proceed to trial based on Morris’ own testimony concerning the pain and suffering that resulted from his exposure to a toxic chemical.

Daubert Hearing

The trial court conducted a Daubert hearing before excluding Dr. Osinubi’s testimony. For reasons that are not made clear in the appellate opinion, Dr. Osinubi did not attend the hearing. The outcome of the case may have been different if Dr. Osinubi had been present to defend his methodology.

Consolidated relied on the testimony of its own expert, Dr. Douglas Weed, who agreed that exposure to vinyl chloride increases the risk of liver cancer, but faulted Dr. Osinubi’s report for not making clear that it only increases the risk of a specific type of liver cancer.

More problematic is that Dr. Osinubi’s report relied on data about the increased cancer risk caused by chronic exposure to vinyl chloride, while Morris was exposed to vinyl chloride only once and for a short period of time. Dr. Weed opined that the specific kind of liver cancer caused by vinyl chloride exposure only results from prolonged exposure to higher levels of of the chemical than Morris experienced.

Dr. Weed complained that Dr. Osinubi’s report failed to reveal that Dr. Osinubi reviewed scientific literature and failed to explain what criteria, if any, she relied upon in rendering her opinion. Dr. Weed faulted Dr. Osinubi’s methodology as “devoid of reliability” and contended that her opinions amounted to personal subjective views rather than reliable scientific evidence.

Appellate Opinion

The Court of Appeals rejected Morris’ argument that the trial court departed from its gatekeeping role when it declared its intention to make sure that the toxic chemical exposure caused Morris’ injuries. The Court of Appeals concluded that Morris took that comment out of the context provided by the entirety of the trial judge’s remarks during the Daubert hearing.

The trial judge stated that he was not attacking Dr. Osinubi’s opinions but was asking whether she used a recognized method to arrive at those opinions. The trial court based its decision on the absence of any study linking short-term exposure to vinyl chloride to an increased risk of liver cancer. In her deposition, Dr. Osinubi admitted that no such studies existed.

The Court of Appeals thought it was significant that Dr. Osinubi failed to consider more than forty studies that Dr. Weed brought to the court’s attention. The downside to not having Dr. Osinubi present during the hearing was that Morris had no way to explain whether Dr. Osinubi made a reasonable and considered decision not to rely upon those studies. Morris’ counsel could only tell the court that Dr. Osinubi was never asked about the studies during her deposition — a response that failed to explain whether the studies were, in fact, relevant to the legitimacy of Morris’ fear of cancer.

Since Dr. Osinubi had no scientific evidence that Morris’ short-term exposure to vinyl chloride elevated his cancer risk, the trial court concluded that there was no basis for Dr. Osinubi’s belief that Morris required medical monitoring in the future. And since New Jersey law requires expert evidence to establish that a fear of enhanced risk of contracting a future disease is reasonable, there was no basis for Morris’ claim that he suffered emotional distress based on a fear of future injury.

Judgment Affirmed

Of course, victims of chemical exposures who are not doctors or environmental scientists might reasonably fear the future onset of cancer after reading on a government website that vinyl chloride causes cancer. The fact that studies show a correlation between chronic exposures and an elevated risk does not rule out the possibility that a short-term exposure might also cause cancer. That possibility might produce a legitimate fear that leads to emotional distress. Without any serious discussion of the issue, the appellate court apparently assumed that a fear of a future health consequence is not reasonable unless studies establish that the health consequence is likely to occur.

In the absence of a reliable methodology to establish that the exposure caused Morris any harm, the trial court affirmed the exclusion of Dr. Osinubi’s testimony. The court also affirmed the judgment, rejecting Consolidated’s argument that Morris was not entitled to a trial in the absence of expert evidence. Stipulated facts allowed the jury to conclude that any exposure to vinyl chloride can irritate eyes, affect respiration, and cause other short-term symptoms. A government report established that many people exposed to the toxic cloud had difficulty breathing after the train derailment.

Coupled with Morris’ own testimony about eye irritation, headaches, dizziness, vomiting, and a burning sensation on his skin immediately following exposure to the cloud of vinyl chloride, the jury had objective evidence upon which to base a finding that the vinyl chloride caused pain and suffering to Morris. Since objective evidence supported that finding, New Jersey law did not require expert testimony to establish causation of effects that immediately followed the exposure.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.