Toxic Tort – Exclusion of Expert Testimony

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Civil

7th Circuit Court of Appeals

Officials: KANNE and SYKES, Circuit Judges, and Ellis, District Judge

Toxic Tort – Exclusion of Expert Testimony

No.14-3448 C.W. & E.W. v. Textron, Inc.

Appellant expert’s reliance on attenuated data not sufficient to pass Daubert test.

“The appellants misread the district court’s decision. The district court imposed no such requirement. Instead, it faulted the appellants’ experts for failing to adequately extrapolate from the studies they had. To be sure, the district court also rejected some of the studies as too attenuated from the appellants’ case. But its rejection of these studies is not tantamount to a requirement of absolute precision. Instead, its rejection is a recognition of an analytical gap too wide to be bridged. Take, for example, the rejected study that analyzed the carcinogenic effect of vinyl chloride on lab rats.7 Cesare Maltoni, et al., Carcinogenity Bioassays of Vinyl Chloride Monomer: A Model of Risk Assessment on an Experimental Basis, 41 Envtl. Health Persp. 3 (1981). This study found no statistically significant increase in the number of tumors developed by rats that were fed 0.03 milligrams of vinyl chloride per kilogram of bodyweight, (0.03 mg/kg), of vinyl chloride per day (4 to 5 days per week, for 59 weeks), over the control group of rats that were fed only olive oil. Id. at 16, 21. Remarkably, 0.03 mg/kg is ten times higher than the amount the appellants allegedly ingested—Dr. Ryer-Powder estimates they ingested 0.003 mg/kg. And the rats ingested it over a period of time much longer, at least in rat years, than the children’s exposure here. Given these facts, Dr. Ryer-Powder’s conclusion that this study shows that C.W. and E.W. are now at an increased risk of developing cancer was an inferential leap that the district court was rightly unwilling to make.”

Affirmed

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.