7th Circuit reverses judgment in leukemia case

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A plaintiff’s expert had a sufficiently reliable scientific basis to render the opinion that benzene in paints was a substantial cause of a form of leukemia that claimed a painter’s life, the 7th U.S. Circuit Court of Appeals has ruled in reversing judgment.

The plaintiff’s husband worked as a painter in the automotive industry during the 1980s. In 2006, the man died from acute myeloid leukemia. The plaintiff sued three companies that allegedly produced or distributed the paints that her husband used in his work, claiming that benzene in those products caused his AML. In support of her claim, the plaintiff submitted the testimony of an oncologist who opined that benzene in paints was a substantial cause of the husband’s form of leukemia, given evidence that he was exposed on the job to a total of 24 parts-per-million years of the chemical.

The district court concluded that the oncologist lacked a reliable scientific foundation to render an opinion linking the husband’s disease to the defendants’ paints. With the plaintiff’s causation expert excluded, the defendants were granted summary judgment.

But the 7th Circuit decided that the expert had a sufficiently reliable scientific basis to testify that, even after a 15-year latency period, a person exposed to 11 ppm-years of benzene or more would be at an eight-times greater risk of developing AML. In addition, the court ruled that the expert had a sufficient foundation to testify that, with carcinogens like benzene, it is theoretically possible that any amount of exposure could damage the DNA in a human cell.

Finally, the court rejected the notion that, under applicable Wisconsin law, the oncologist’s testimony was unreliable because he failed to rule out other potential causes of the husband’s AML, including the painter’s weight and smoking history.

“In Wisconsin, a strict products liability action requires a plaintiff to show that the product ‘was a cause (a substantial factor) of the plaintiff’s injuries or damages.’ In order to show that a toxin is ‘a cause’ or ‘a substantial factor,’ [the plaintiff in this case] was not required to demonstrate that benzene exposure was the sole cause of [her husband’s] disease, so long as [she] showed that benzene contributed substantially to the disease’s development or significantly increased his risk of developing AML,” the court said.