By Pamela C. Maloney, J.D.
Testimony proffered by two experts in a benzene exposure case was legally insufficient to establish a causal link between a professional painter’s exposure to benzene through his use of DuPont’s paint products and his diagnosis of acute myeloid leukemia (AML), a Texas court of appeals ruled, reversing a trial court’s final award of more than $6.9 million in damages to the painter and his wife and rendering a take-nothing verdict in favor of DuPont (E.I. DuPont de Nemours and Co. v. Hood, May 8, 2018, Bridges, D.).
Between 1973 and 1996, the painter had handled, on a daily basis, paints and paint thinners manufactured by E.I. DuPont de Nemours and Co. among other manufacturers while working for Timpte Trailers, a manufacturer of semi-trailers located in Colorado. He also worked for Continental Airlines as a painter beginning in July 1984 until his retirement 30 years later. After a routine physical examination in 2012, the painter was diagnosed with myelodysplastic syndromes (MDS)/acute myeloid leukemia (AML) for which he received chemotherapy treatments and a bone marrow transplant. The painter filed a products lability lawsuit against numerous companies including DuPont, Sherwin-Williams Co., and PPG Industries, Inc., in which he asserted that his exposure to benzene-containing solvents, primers, paints, lacquers, enamels, oils, petroleum products, and fuel designed, manufactured, sold, and distributed by these companies caused him to develop AML. A jury found DuPont liable for defective design and manufacturing and for gross negligence, awarding the painter more than $7 million in damages, which included $1.5 million in punitive damages and $1 million in future medical expenses [see Products Liability Law Daily’s October 23, 2015 analysis]. The trial court granted DuPont’s motion for judgment notwithstanding the verdict (JNOV) on the jury’s gross negligence finding and disregarded the $1.5 million punitive damages award. The trial court also disregarded the jury’s $60,000 award for past and future loss of household services, reducing the amount of the final judgment to $6,985,535.25.
DuPont appealed, arguing that the expert testimony presented at trial failed to establish causation and, therefore, was not sufficient to support the verdict. DuPont also argued that the trial court failed to submit to the jury the issue of design defect liability and that the evidence was insufficient to support the jury’s award of future medical expenses. The painter cross-appealed, challenging the trial court’s order granting DuPont’s JNOV and asking for reinstatement of the punitive damages award.
Reliability of experts and proof of causation. Throughout the trial proceedings, including during pre-trial, DuPont had challenged the admissibility of testimony proffered by the painter’s two experts—Dr. James Stewart, an industrial hygienist, and Dr. Sheila Butler, an occupational medicine specialist. Specifically, DuPont argued that the computer model called ART (advance reach tool), which Dr. Stewart used to calculate the painter’s lifetime benzene exposure, was generally unreliable as a scientific tool and that Stewart had incorrectly inputted the following data into ART in order to compute the painter’s lifetime benzene: (1) the painter’s respirator use; (2) the amount of benzene in DuPont products; (3) the painter’s benzene exposure when he was not painting; and (4) the size of the vehicles being painted. DuPont challenged Dr. Butler’s findings as unreliable because she had used the unreliable dose data provided by Stewart in comparing the painter’s dosage levels against a number of epidemiological studies to supply the causal link between the painter’s lifetime cumulative benzene exposure and his AML diagnosis.
Turning first to the testimony proffered by Dr. Stewart, the court of appeals focused on whether Stewart’s calculation of the painter’s lifetime benzene exposure dose was unreliable based on the specific data inputted in ART for the challenged categories. Reviewing the data Stewart inputted into ART, the court concluded that although he had identified the factual basis he had relied on to calculate the painter’s exposure, he failed to connect the data he used in formulating his conclusions to reliable, undisputed facts. Instead, he relied on assumptions made regarding: (1) the actual amount of benzene in DuPont’s paint products; (2) the painter’s actual use of respirators and the effectiveness of those respirators; (3) adjustments to length and time of exposure to reflect non-painting jobs and absenteeism; and (4) the size of the vehicles being painted. Although Stewart was not required to calculate a dose with mathematical precision, picking the median of a sweeping range of possibilities that were plagued by assumptions was not scientifically reliable for the purposes of establishing causation. Having determined that Stewart’s opinion was unreliable, the court assumed, without deciding, that ART was accepted in the scientific community as a tool for calculating lifetime benzene exposure.
The court went on to explain that because Stewart had provided an unreliable dose, Butler’s conclusion that the painter’s benzene exposure was a substantial factor in causing him to develop AML, which had relied on Stewart’s calculation, also failed to provide evidence of specific causation. However, even if Stewart’s dose calculation had been reliable and had been based on sound methodology, Butler’s causation opinion, which was based on a number of epidemiological studies that were referred to as the "painter studies," failed to provide evidence of causation.
In order to establish causation through epidemiological studies, the painter was required to show that the conditions of the studies were substantially similar to his circumstances, including proof that (1) he was exposed to the same substance; (2) the exposure or dose levels were comparable or greater than those in the studies; (3) the exposure occurred before the onset of injury; and (4) the timing of the onset of injury was consistent with that experienced by those in the study. After a thorough review of Dr. Butler’s interpretation of the painter studies and after conducting its own review of those studies, the appellate court concluded that the painter failed to demonstrate the reliability of the scientific evidence relied upon by Butler for two reasons: the studies either did not reflect circumstances that were substantially similar to the painter’s circumstances or they failed to quantify the benzene exposure that would provide a basis for Butler’s comparison to the painter’s exposure dose (again assuming the reliability of Stewart’s dose calculation).
Having found that the expert testimony relied upon by the painter to establish causation was unreliable, the evidence on causation was legally insufficient to support the verdict in this case, and, therefore, the appellate court reversed the trial court’s judgment and rendered a take-nothing verdict in favor of DuPont.
The case is No. 05-16-00609-CV.
Attorneys: Larry E. Cotten (Cotten Schmidt & Abbott, LLP) and Mike Hatchell (Haynes and Boone, LLP) for E. I. Du Pont De Nemours and Co. Kay Gunderson Reeves (Waters Kraus & Paul and Waters & Kraus, LLP) for Virgil Hood.
Companies: E. I. Du Pont De Nemours and Co.
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