PLAC Files Brief in Milward v. Acuity Specialty Prod, Cert. Petition to the United States Supreme Court

Brief Writers: Mary A. Wells and L. Michael Brooks, Jr. of Wells, Anderson & Race, LLC

The plaintiff worked for 34 years with refrigeration products that involved exposure to benzene. He developed a rare form of cancer called acute promyelocyticleukemia, or APL. Plaintiffs’ theory of causation depends on the opinion of a toxicologist regarding a causal connection between benzene exposure and APL. The plaintiff’s expert acknowledged that science has not determined what causes APL, but opined that, based on his own “judgment,” the “weight of the evidence” supported a conclusion that APL could be caused by benzene exposure. Following a four-day Daubert hearing, the trial judge sustained the defense objection to the expert’s testimony under FRE 702. On appeal the First Circuit reversed and remanded (639 F.3d 11 (2011)). The appeals acknowledged that “there is not yet a scientific consensus as to the causes” of APL. Nonetheless, the court held that the expert’s opinion that benzene exposure could cause APL was admissible because it was based on a “‘weight of the evidence’ approach to making causal determinations” in which a scientist considers the available evidence and “integrate[s] the evidence using professional judgment to come to a conclusion about the best explanation.” The court likened the expert’s this methodology to the medical treatment technique of differential diagnosis. The appeals court later denied rehearing and the defendants are seeking a writ of certiorari before the U.S. Supreme Court. They are proposing the following question for review: “Whether a district court abuses its discretion in excluding as unreliable expert testimony that purports to resolve open scientific questions in favor of one party simply by asserting an exercise of “judgment” about the “best” explanation of the available evidence.”