The U.S. Supreme Court in Shute v. Carnival Cruise Lines, 499 U.S. 585 (1991) held the Shutes, who were injured on a Carnival Cruise ship in waters off Mexico, must file suit in Florida pursuant to the forum selection provision printed on the back of their ticket.   The Shutes filed suit in their home state of Washington.  The cruise ship departed from California.  Shute is still one of the most far reaching holdings enforcing adhesion-like forum selection provisions.  The Shutes also had a strong argument that they lacked notice of the forum selection/choice of law provisions.  

Law.com has an interesting blog post about a recent defense tactic in the case of an alleged “mouse in a can of soda,” you can find the article here. Basically, the defendant is taking a scientific stand regarding the presence of a mouse allegedly sealed in a can of soda. Essentially, they are saying that a whole mouse would not be present in a sealed can, because the acid in the drink would have turned it to jelly. The beverage giant  may need to start competing with jelly and jam companies.  The position may be technically viable but it appears be a public relations nightmare. Do you think this is an effective stance? Does it do more harm than good? Let us know your thoughts.

Jobby is an associate in the Oklahoma City firm of Hiltgen & Brewer, P.C.  

Jamie Oliver, a chef and a child advocate focused on ensuring kids receive proper nutrition through their school lunch programs as well as at home, has a television show, Jamie Oliver’s Food Revolution, showing how he changes eating habits in school districts (this season he is in Los Angeles).  In each episode, he creates a visual showing the terrible foods kids are putting in their bodies.  It’s one thing to tell kids (or their parents) that fast food and processed food is bad for them, it is quite another to create a visual showing how bad it is, and creating such a powerful visual that it convinces those kids, their parents and the audience watching the show (including myself) how bad those foods are.  In a recent episode, he filled a family’s house with all the fast food they consume in a year.  Every square inch of furniture and floor was covered.  In another episode, he filled a school bus with sugar to show how much sugar the school board permitted in the kids lunch meals over a year.  It was powerful images like those that made folks change their minds and change their behavior.

When preparing for trial, we can take a page out of Jamie’s book, and think about what visuals (whether a photograph, a diagram, an animation, or some other representation) that encapsulates our theme and does so in such a powerful manner that the image we create carries through the trial, into the deliberation room and turns the jurors’ hearts and minds toward our view-point and toward our position.  Keep a file folder in your office drawer where you include pictures, images and ideas you clip from magazines and newspapers.  These images may later serve you at trial.

Being that it is Monday, my partner Craig Salner has his weekly tip for young lawyers.  This week he discusses the importance of getting involved with social networking.  You can find his post at http://csalner.wordpress.com/.

Assume everything you write or e-mail an expert will be discoverable.  Even if you can somehow keep it from being discovered, you will probably spend your time and the client’s money to keep it confidential.  With that in mind, before you send anything to an expert ask yourself whether you would have a problem with the other side seeing it.  If so, think long and hard before sending it.  Also, folks have become too casual in what they include in e-mails, and I’ve found this true with experts, particularly their staff.  So try to avoid e-mailing experts and their offices whenever possible, sticking to phone calls and faxes when possible.  And ask them not to e-mail you.  Yes, it is less convenient, but it will help ensure that the experts don’t make errant comments that become part of their permanent file (which at some point will likely have to be produced to the other side).

(originally posted on www.masstortsstateoftheart.com on October 4, 2011)

These days, many depositions are videotaped.  If a deposition is being videotaped, is there still a need for a court reporter?  Is a stenographic (“hard copy”) transcript necessary?  This issue is currently the subject of debate in Texas and across the country, with interest groups taking positions on both sides.

 On one hand, hard copy transcripts have practical advantages over video depositions.  First, hard copies allow attorneys to take part in their favorite pastime – copious amounts of highlighting and tabbing.  Additionally, most cases require careful attention to the facts, and hard copy transcripts make it easier to cite to the record.  In short, whether it is due to personal preference or the manner in which people learn, some people will probably always prefer working with hard copies.

At the same time, video depositions have unique advantages over hard copy transcripts.  In the era of C.S.I., jurors expect attorneys to use technology.  And video evidence is often more compelling and entertaining than a transcript.  Video depositions capture mannerisms, body language, and attitudes that would otherwise go unnoticed.  Because of this, adverse witnesses and opposing counsel are more likely to mind their manners when being videotaped.  Of course, there are exceptions to every rule, and video footage of a witness losing control can be pure gold.  For example, when the witness in the infamous Texas Style Deposition told the examining attorney that he had “a case of incipient verbal diarrhea,” a paper transcript would never have done it justice. 

As other commentators have noted, both video depositions and traditional hard copy transcripts have their place.  When used correctly, each form of “transcript” compliments the other.  Because of the limitations of videotape-only depositions, however, traditional hard copies (and court reporters) are here to stay . . .  for now.

Editor's note: Previously posted at Jim Beck's blogsite, http://druganddevicelaw.blogspot.com.

New Amendment To Rule 26 Concerning Expert Disclosures

If you're involved in drug and device (or any) product liability litigation, you're dealing with expert witnesses.  And if you're dealing with experts, you'll want to think about the proposed amendments to Fed. R. Civ. P. 26 that (if all goes smoothly) could go into effect on December 1, 2010.

They deal essentially with two things:  (1) what expert witness productions and privileges, and (2) what to do about independent witnesses qualified to offer expert opinions.

Both are very interesting.

As to expert witnesses, we've blogged before (all right, not us, but a guest post) about some of the gamesmanship that goes on with respect to the production of material that an expert "considered" - including drafts of expert opinions - under the current draft of Fed. R. Civ. P. 26(a)(2)(B), which mandates broad disclosure and contains a comment that most courts have interpreted as overriding work-product and even attorney-client privileges with respect to anything that's shown to an expert, even if the expert does not rely.

That language, and how courts interpreted it, led to a log of unintended consequences.  There's the litany of questions at expert depositions about every meeting the expert has had with counsel, what notes were taken, and what drafts exist.  There's the engagement of two parallel sets of experts, with one set designated as "consulting" (that is, non-discoverable), so that attorneys can interact with at least one set of experts in peace - and then, when everything's done, the "testifying" expert adopts the product of all that as his/her pristine report.  There's so much gamesmanship that, in a lot of cases, the parties agree to stipulate out of this language.  Why is all this done?  Because every now and then, some lawyer screws up and the other side gets really valuable.  See, e.g., Synthes Spine Co., L.P. v. Walden, 232 F.R.D. 460 (E.D. Pa. 2005), for a cautionary tale.

Anyway, after 12/1/10, a lot of this (although probably not all) should be a thing of the past.  The rules committee has amended Rule 26(a)(2)(B) to limit expert disclosures to "facts or data" (not the broader term "information") that the witness considered.  The new draft specifically recognizes work product privilege for drafts and attorney communications with experts with a couple of exceptions in an entirely new section, Rule 26(b)(4)(B-C).  Here's the new language in toto:
(B) Trial-Preparation Protection for Draft Reports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.

(C) Trial-Preparation Protection for Communications Between a Party’s Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party’s attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:
(i) relate to compensation for the expert’s study or testimony;
(ii) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or
(iii) identify assumptions that the party’s attorney provided and that the expert relied upon in forming the opinions to be expressed.

Thus the only exceptions to the scope of the privilege are compensation (including compensation over the entire course of related litigation), what the attorney gave the witness to consider (so we'll still be able to establish if the attorney did the expert's research for him/her), and what assumptions the attorney told the expert to make (so we'll still be able to establish if the attorney did the expert's thinking for him/her).
All the other stuff - draft reports, notes, oral conversations, etc. - are now explicitly protected from discovery by the work product doctrine and the usual requirements of that doctrine.  That means that attorneys on both sides can talk to their experts unimpeded, let them take notes, let them prepare drafts, edit those drafts, etc., free from fear of inadvertent disclosure, gotcha games and all the rest the current version of Rule 26 has engendered.   In short, it will no longer be necessary to treat experts as if they were radioactive.

It also marks the final recognition by the Rules Committee of the role that expert witnesses play in modern litigation - that they're a part and parcel of a party's case and not part of some sort of independent search for the truth.  For those seeking utopia, there's still the option of a court appointed expert under Rule 706, but experts are now essentially no different than co-counsel, legal assistants, and the like as far as work product is concerned.

A few other things to think about with this new rule.  First, it's not retroactive, and the earliest it could go into effect would be December 1, 2010.  Increasingly, as we get closer to this deadline, we'll have to keep it in mind when considering discovery scheduling.  We're on our own until then.  Second, there doesn't seem to be any intent to affect substantive Daubert decision-making.  The stuff necessary to establish that an expert has abdicated his research or reasoning to the attorney is still discoverable.  Third, since some parts of expert notes might be discoverable under the exceptions in new Rule 26(b)(4)(C), it's probably a good idea to have the expert designate specifically when any notes are of conversations with retaining counsel.  It's still a good idea to take that sort of rudimentary precaution to make assertion of privileged status easier.

That's one part of the amendment to Rule 26.  The other has to do with designation of experts who are not retained by parties.  In our neck of the woods that usually means treating physicians and other health care providers.  There's a new section, Rule 26(a) (2) (C) that provides that non-retained experts don't have to provide reports to be entitled to give opinions.  The attorney designating such a witness simply has to describe the anticipated testimony:

(C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a written report, this disclosure must state:
(i) the subject matter on which the witness expected to present evidence under Federal Rule of Evidence 702. 703. or 705 and
(ii) a summary of the facts and opinions to which the witness is expected to testify.
This rule is intended to make it easier to get opinion, as well as fact, testimony from persons such as treating physicians (but also employees of corporate parties) who aren't being paid for their testimony and thus can't be expected to jump through the hoops erected for retained experts.  It's expected to put a halt to the "you can ask facts but not opinions" fights that currently crop up at depositions of this sort of witness.

The new Rule 26(a)(2)(C) draws no distinctions between the sides.  Thus, defendants are as free to designate and describe the opinion testimony of plaintiffs' treating physicians as plaintiffs are.  The amendment commentary states:
A witness who is not required to provide a report under Rule 26(a)(2)(B) may both testify as a fact witness and also provide expert testimony under Evidence Rule 702, 703, or 705.  Frequent examples include physicians or other health care professionals and employees of a party who do not regularly provide expert testimony.  Parties must identify such witnesses under Rule 26(a)(2)(A) and provide the disclosure required under Rule 26(a)(2)(C). The (a)(2)(C) disclosure obligation does not include facts unrelated to the expert opinions the witness will present.
Rules Appendix at C-29.

That's got us thinking.  Well, if we can freely designate treaters as expert witnesses, then it follows that we can talk to them, doesn't it?  With the federal rules now explicitly recognizing both sides' equal rights to call treaters as experts for the first time, this amendment should lend additional force to what's already the majority rule:  that state-law procedurally restrictions on defendants talking to treaters - other than privileges (which are usually waived by a plaintiff's filing suit) - are inapplicable in federal court.  We've discussed that rule before here.  And, as we've also discussed before, HIPAA expressly exempts the "lawful process" of "judicial proceedings" from its scope

We offer no predictions on the ultimate result, but we've now got another arrow in our quiver in our search for equal rights to informal interviews of treating physicians.

This is a toxic tort case wherein Plaintiff’s experts were excluded under Daubert principles and Defendant’s summary judgment motions for general and specific causation were granted.  The opinion by Hon. Justin Quackenbush (Senior Judge) is an extremely thorough and scholarly analysis that contributes significantly to the body of Daubert case law.

The plaintiff, a tanker truck driver, sued ConocoPhillips and others, claiming that his occupational exposure to gasoline caused a form of cancer, acute myelogenous leukemia (AML).  While the medical and scientific evidence supports the proposition that AML can be caused by exposure to the chemical benzene, the science is more equivocal when it comes to gasoline, which contains benzene as a minor component.  Defendant attacked the scientific methodology employed by plaintiffs’ experts, arguing that the case was a gasoline and not a benzene case, despite the presence of benzene in gasoline.

This case represents a significant victory for the gasoline refining and marketing industry, involving its number one product.  An adverse result would have sent shock waves, and potentially opened the door to a new mass tort wave.  The potential number of persons exposed to gasoline vapors in the workplace and at the pump is huge.  Discouraging those who would seek to connect such exposure to cancer is of major importance to the industry.

Introduction

Plaintiff Neil Henricksen was employed as a tanker truck driver.  His job duties required him to load and unload cargo (typically gasoline and diesel fuel) several times per day over a period of many years.  Defendant operated a petroleum product terminal in Spokane, Washington where Plaintiff loaded his truck.  Plaintiff’s alleged exposure to benzene in gasoline was the basis for his lawsuit against Defendant.  Plaintiff alleged that his acute myelogenous leukemia (AML) was caused by exposure to benzene while loading gasoline at Defendant’s terminal.

Daubert Challenges

To support his case, Plaintiff designated experts from the fields of industrial hygiene, warnings, hematology, epidemiology, and toxicology.  Plaintiff’s causation experts included hematologists (John Caton, Frank Gardner), a toxicologist (William Sawyer), and an epidemiologist (Peter Infante).  Plaintiff’s dose calculation experts included a professional engineer (Marco Kaltofen) and a toxicologist (William Sawyer).  Defendant successfully challenged the methodologies of Plaintiff’s expert witnesses and all five were excluded by the Court.  Henricksen v. ConocoPhillips Co., 605 F.Supp2d 1142 (E.D. Wash., February 11, 2009).

Frank Gardner, MD

The causation opinion of Plaintiff’s expert in hematology (“Gardner”) was excluded for three methodological reasons.  First, Gardner’s general causation opinion (gasoline exposure causes AML) was excluded because he could not “point to any source which reliably supports his conclusion.”  Id. at 1161.  As the Court noted, this methodological flaw “renders his opinion merely [a] personal opinion.”  Id.

Second, Gardner’s specific causation opinion was excluded because he neither attempted to calculate his own dose assessment for Plaintiff nor relied on the dose assessment of any other expert.  Id. at 1162.  In short, while agreeing that benzene-induced AML is a dose-dependent phenomenon, Gardner opined on specific causation without a dose.  Id.  As the Court explained, “this renders his opinion on specific causation inherently unreliable.”  Id.

Finally, Gardner’s specific causation opinion was excluded because he did not “reliably rule out reasonable alternative causes of [the alleged harm] or idiopathic causes.”  Id. (citing Soldo v. Sandoz Pharmaceuticals Corp., 244 F.Supp.2d 434, 567 (W.D. Pa. 2003)).  As the Court made clear, “the presence of a known risk factor is not a sufficient basis for ruling out idiopathic origin in a particular case, particularly where most cases of the disease have no known cause.”  Id.  The Court paid careful attention to the presentation of Plaintiff’s disease and described ways in which Plaintiff’s presentation could have been compared to individuals with and without benzene-induced AML.  Id. at 1162-63.  Garder performed no such analysis.

John Caton, MD

John Caton, one of Plaintiff’s treating physicians, opined that Plaintiff’s occupational exposure to gasoline caused his AML.  Although the Court struck Caton on procedural grounds, it noted that Caton’s opinions would have not have withstood Daubert scrutiny.  Id. at 1160.  Caton’s main methodological flaw was that he failed to consult the relevant literature before offering an opinion on causation.  Id.

William Sawyer, PhD

Dr. William Sawyer provided both causation opinions and a retrospective dose calculation for Plaintiff.  Neither opinion survived Daubert scrutiny because, as the Court noted, “At each step of his analysis, Sawyer bases his analysis upon speculation and/or erroneous data, and without adequate explanation, these steps render his methodology unreliable and misleading, and his opinions are therefore inadmissible.”  Id. at 1163.

Dr. Saywer’s causation opinion was rejected for one principal reason: he embraced the “no safe level” model for carcinogenicity.  Citing to numerous district court and appellate court opinions, as well as to the Federal Judicial Center Reference Manual on Scientific Evidence (2d ed. 2000), the Court recognized that the “no safe level” theory is: (1) a hypothesis that cannot be tested, verified, or falsified, (2) has been rejected by a majority of the scientific community, and (3) has no known potential rate of error.  Id. at 1166.  About Sawyer’s theory, the Court wrote:

“Sawyer's theory that any amount of exposure more than negligible should be considered substantial risk factor for AML flies in the face of the scientific literature reviewed and other expert testimony in this case that there is a threshold or dose below which you do not see a statistically significant risk of developing AML. Even though benzene has been shown to cause AML, it is too difficult a leap to allow testimony that says any amount of exposure (above the short term exposure limits) to this toxin can cause AML and caused AML in Henricksen.

Because Sawyer's dose calculation is unreliable and his belief that low-dose exposure to benzene as a component of gasoline is capable of causing AML a hypothesis rather than science sufficiently reliable for causation purposes, it is fails the Daubert factors.”

Id. at 1166.

Sawyer’s dose calculation did not survive for three reasons: (1) he cherry-picked a non-representative study from which to base his overall calculation, (2) he cherry-picked an exposure value (and the less reliable value) from within that study, and (3) his calculation was full of factual errors.  Id. at 1164-65.

If Dr. Sawyer had relied on published industrial hygiene data describing the exposure of U.S. tanker-truck drivers (like Plaintiff), the remainder of his errors may have gone unreported.  Instead, Sawyer relied on a small and obscure Japanese study with an unknown work environment, and without explaining the scientific reason for doing so.  Id. at 1164.  As the Court noted: “While Rule 702 does not require an expert to find a study linking the exact facts, it does require the expert [to] demonstrate a scientifically valid basis for projecting the findings of a study to the proffered casual theory. Sawyer has not provided an adequate basis for reliably linking the values derived from the circumstances of [the Japanese study] to the circumstances of Henricksen's case.”  Id. at 1164-65

Marco Kaltofen, PE

Marco Kaltofen also attempted to perform a retrospective benzene dose calculation.  Had Mr. Kaltofen relied on the reported data describing exposure among U.S. tanker truck drivers, his methodology may have survived.  Instead, Kaltofen relied on a Swedish study, made an assumption from that study which the authors never reported, and then applied his assumption to Plaintiff’s work environment without any support in the literature for doing so.  Id. at 1167.  The Court noted that Kaltofen’s assumption (“the five times multiplier”) had never been tested, recognized by an expert in the field, or reported in the literature.  Id.  Other factors weighing against admissibility were that Kaltofen’s methodology was crafted for purposes of rendering an opinion in this case, and that it was subject to a wide rate of error.  Id. at 1168.  The Court concluded:

“Kaltofen's methodology in arriving at the multiplier of 5 shows a lack of scientific rigor in that he expands the application of [the Swedish study] beyond good science, drawing conclusions the authors of the study did not make from limited data. It is this kind of scientifically unsupported “leap of faith” which is condemned by Daubert.”

Id. at 1168.

Peter Infante, PhD

Dr. Infante’s general causation opinion (gasoline exposure causes AML in humans) and specific causation opinion (low-dose benzene exposure from gasoline caused Plaintiff’s AML) were excluded because the studies advanced for those propositions did not support them.  In both instances the Court noted that there was simply “too great an analytical gap between the data and the opinion proferred.”  Id. at 1168, 1170.  Infante’s specific causation opinion was also struck because he relied on Marco Kaltofen’s unreliable dose assessment.  Id. at 1176.

Summary Judgment

Defendant moved for summary judgment on the grounds of general causation and specific causation.  Having excluded Plaintiff’s causation experts because the literature they relied upon did not support their opinions, Plaintiff could not meet his summary judgment burden:

None of the studies relied upon have concluded that gasoline has the same toxic effect as benzene, and none have concluded that the benzene component of gasoline is capable of causing AML. The studies relied upon by Plaintiffs make clear that the connection between gasoline or the benzene component of gasoline and AML is at this point in time only a hypothesis in need of further investigation. Based upon the court's review of these studies Plaintiffs' experts can only reliably attest to gasoline exposure as a theoretical or possible cause, not a probable cause of Henricksen's AML

Id. at 1176.

Without reliable evidence of general causation, Plaintiffs' experts can not analyze specific causation while comporting with the scientific method. However, even if the court were to admit the testimony that gasoline is generally capable of causing AML, these studies do not support the conclusion that exposure at 8 ppm-years is capable of causing AML.

Id. at 1176.

Conclusion

Henricksen v. ConocoPhillips Co. is an important opinion for two reasons.  First, it is a landmark opinion concerning the non-carcinogenicity of gasoline.  The scientific “evidence” put forward by Plaintiff to support his claim, and the experts hired to advocate for Plaintiff’s position, were scientifically and legally inadequate to survive a summary judgment challenge.  Second, the opinion provides practitioners with thorough and well-reasoned application of Daubert principles to a variety of expert methodologies.

July 2009

Brett J. Young
Senior Associate
Fulbright & Jaworski L.L.P.
1301 McKinney Suite 5100
Houston, Texas 77010-3095
(713) 651-5200 direct
(713) 651-5246 facsimile
byoung@fulbright.com

How experts misuse scientific literature:

A critical element of Daubert, specifically stated, is that scientific literature used by experts to support their opinions must be relevant (or, fit) the situation extant in the case. Frequently, experts provide such “support” with long bibliographic lists or stacks of authoritative-seeming articles from scientific journals. This sheer mass of material ostensibly supports your opponent’s opinion. The list may be impressive and daunting. When we do relevance checks, however, we commonly find that many of those citations are irrelevant because they fail to support either general or specific causation in the case at hand. Some of the reasons they fail include:

• Conclusions drawn from animal, not human, studies;
• The quantitative doses or exposure levels in the literature are not comparable to the levels in the case;
• The literature cites the wrong disease;
• The published regulatory data are not applicable to a specific individual;
• The latency period in the literature is inconsistent with the matter;
• The clinical course of treatment in the matter is different; and
• There are many other possibilities as well.

Here’s a simple, non-scientific, example. Assume a man died after being hit by a truck. The operator of the truck was accused of contributing to the death. Plenty of research could be produced to support the proposition that trucks can kill. But wait! This was a child playing with a toy Tonka truck. Clearly, his toy truck could not have been responsible. Thus, all of the vast evidence that trucks can kill is irrelevant in this case. It is often equally irrelevant in cases involving allegations of chemically-induced injuries. However, in these latter cases, the lack of relevance is less apparent to the non-scientist.

Don’t be intimidated by a long reference list or a box of literature.

In a case currently pending before a State Supreme Court, the claimant’s attorney, attempting to salvage her disqualified expert, argued that her expert used a “ weight of evidence approach”. In that matter, she intended “weight” to mean “fully considered” What it actually meant was numbers of pounds. The hundreds of articles weighed a great deal, but they were, in totality or individually, inadequate to support the claim. Most were irrelevant.

On almost any medical or scientific subject, it is possible for an expert to produce dozens, if not hundreds, of articles which are offered to support his/her position. Some may be right on point. Often, many are extraneous or irrelevant, even when they have the name of the chemical, or of the disease, in the title itself. They are simply provided to bolster a poorly-supported position. Attorneys may do the same thing when they compare the facts of their case to a prior precedent, but there are differences. First, the number of legal citations offered is generally less. Second, because they are being used by lawyers to bolster legal arguments against other lawyers’ positions, a critical analysis and response is anticipated. Thus, while the citations may not be directly on point, they either come close, or are readily disputed by opposing counsel. By contrast, attorneys and the Court are in no position, without help, to dissect the hundreds of impressive scientific papers when assessing their relevance. Because of these circumstances, medical and scientific experts are better positioned to mislead.

Case Example

Under Daubert, supporting literature must be “relevant” or “fit” the circumstances at issue, but there are many reasons why imposing stacks of articles may fail the relevancy test. For example:

In certain situations the chemical is known to cause the disease at issue as is the case with Benzene and Leukemia.

Certain relatively high levels of occupational exposures to benzene are clearly connected to a specific form of leukemia: AML (acute myelogenous leukemia). AML is not a terribly rare disease and can arise with no known cause. In fact, most do. It is common for patients who develop leukemia to be asked about “chemical exposures” Some may have worked with or around some chemicals that contain either benzene or other chemicals that contain the name “benzene.” This finding alone may then generate either a workers’ compensation claim, or a liability claim alleging that “benzene” in the workplace caused the leukemia.

A voluminous stack of articles dealing with all aspects of benzene and leukemia accompanied by MSDS’s (the manufacturer’s material safety data sheets--the product information sheets) of chemicals at the workplace containing the word “benzene” will be put forth to support the claim. A closer look at those information sheets, a relevance check, commonly finds them to be irrelevant. Why? Many chemicals which are not benzene contain the name benzene, for example, ethyl benzene, methyl benzene, dichlorobenzene, and many others. These do not cause leukemia. Also, all chemicals derived from petroleum, including paints, paint thinners, and even furniture polish, contain low levels of residual benzene (0.1 % or less). Certain levels, albeit very low, require them to have “benzene” on the label. Exposures to these products containing small amounts of benzene are not connected to leukemias. Again, these MSDS’s may appear persuasive, but they are irrelevant.

Performing a relevancy check

When your experts perform a relevancy check of opposing experts’ literature, they must examine a number of critical questions:

1. Are the studies sufficiently robust and replicated to support a general causation argument?
2. Do the studies establish the potential for the types of clinical effects alleged in the claim? Or, for example, do they investigate subtle biochemical changes which, at present, have no direct clinical applicability?
3. How much effect do the studies show? For example, if a risk is increased by 5%, it is rarely possible to use such studies to allege specific causation in an individual.
4. Were the studies performed in human beings under circumstances similar to those at issue in the case? Agents injected into a mouse’s abdomen are not the same as lower-level materials inhaled by people.
5. What doses were used or observed in those studies? Occupational exposures to a chemical are rarely equivalent or directly applicable to low-level consumer product exposures.

These are just a few of the numerous types of relevancy issues with which we deal daily in our causation analyses. The simple take away message is that daunting lists or piles of scientific and medical articles may be worrisome to attorneys, but they are meaningless to a claim, if they are irrelevant to the specific facts of the case.

Ronald E. Gots, M.D., Ph.D.
International Center for Toxinology and Medicine
Member of the NMAS group
www.ictm.com