In closely watched and widely publicized toxic-tort litigation that has percolated through the courts for more than a decade, federal appeals judges this week underscored the strict standard that expert witnesses are held to when plaintiffs argue that pollution causes cancer.
Florida toxicologist Lawrence Wylie had testified in Pinares et al vs. Raytheon Technologies that chemicals were found in groundwater near a Raytheon manufacturing site in south Florida, and had caused kidney cancer in residents.
“But Dr. Wylie skipped the first step of a reliable dose-response assessment: He never ‘demonstrated … the level of exposure to the allegedly harmful chemical that is hazardous to a human being,’” a panel of the U.S. 11th Circuit Court of Appeals wrote.
And because two other expert witnesses relied partly on Wylie’s toxicology study, their conclusions did not meet the standards outlined in Federal Rules of Evidence and in the Daubert standard, established by a 1993 appeals court decision in Daubert vs. Merrell Dow Pharmaceuticals. In the Pinares case, the 11th Circuit this week upheld a ruling by the district court in south Florida, which had granted summary judgment to Raytheon.
“Dose is the single most important factor to consider in evaluating whether an alleged exposure caused a specific adverse effect,” the court said, citing its 2005 decision in McClain vs. Metabolife. The lower courts must act as gatekeepers to ensure that speculative and unreliable opinions do not reach the jury, the judges noted.
The opinion is a major blow to the Pinares suit and could affect multiple other lawsuits filed against Raytheon and its subsidiaries, Pratt & Whitney and United Technologies Corp., which owned the site at the time of the alleged contamination. Several of the lawsuits from sickened residents were consolidated into this case. Other cases, now pending in lower courts and appeals courts, contend that the aircraft-engine pollutants caused brain cancer or had diminished their property values.
Raytheon, one of the largest U.S. aerospace companies, is largely self-insured in liability issues like this, according to reports. But other companies and insurers may take heart from the ruling since it reinforces the longstanding hurdle that experts in federal court must clear, even if the evidence can otherwise appear compelling.
“The district court and the 11th Circuit came to the right conclusion—because the plaintiffs’ experts were not reliable, their testimony had to be excluded,” said Robert Jarvis, law professor at Nova Southeastern University’s Shepard Broad College of Law. “And with no expert testimony, the plaintiffs failed to make out a prima facie case, leaving the district court with no choice but to grant summary judgment in Raytheon’s favor.”
Jarvis’ colleague, professor Eric Hull, and a New York insurance defense attorney agreed that the decision is not a major departure from federal court precedent. The Daubert standard is a high bar that experts must reach.
“That’s what Daubert was meant to protect against — junk science,” said Long Island attorney Richard Fogel, who has handled a number of toxic-tort claims.
State courts in several states, including Florida, rely on a lower standard, known as Frye, which generally requires experts to have only a “general acceptance” in the scientific community. That’s why many corporate defendants in toxic torts elect to move the suits to federal courts, Fogel said.
The Pinares case began in 2006, when Magaly Pinares and two of her neighbors were diagnosed with kidney cancer. The Pinares and the other victims lived in The Acreage, an upscale residential community near West Palm Beach, about eight miles from the Raytheon facility, the court explained.
Raytheon had opened the site at the height of the Cold War, in 1958, to build and test jet engines. In 2008, the U.S. Environmental Protection Agency found 24 contaminants in the soil and water on the Raytheon property. A year later, the Florida Department of Health concluded that residents of The Acreage had experienced higher rates of brain cancer for the past 12 years.
The Pinareses tested their well water and found three chemicals that are considered human carcinogens. The family filed suit against Raytheon in 2010. Magaly, known as “Maggie,” died in 2018. The litigation has been reported by south Florida newspapers.
Wylie, the toxicologist, testified that the chemicals were found in the groundwater in sufficient concentrations to cause illness, and that Magaly Pinares was subjected to more than 8 micrograms of the contaminants per day – sufficient exposure to induce her kidney cancer but within Florida’s drinking water standards.
He also said that no level of exposure to the carcinogens could be considered safe. The Pinareses’ attorney argued that Wylie and the other experts used widely accepted methodologies to reach their conclusions.
But the district court and the appeals court panel said that Wylie had failed to show what level of the chemicals is considered hazardous to humans, or “how much is too much.” He did not appear to provide epidemiological evidence showing that exposure to chemicals can cause injury, Hull, the law professor, pointed out.
Wylie “provided no reliable baseline against which the district court could evaluate his conclusions as to Mrs. Pinares’s estimated exposure,” the appeals panel wrote.
The two appeals judges on the panel – one appointed by President Obama and one named by President Trump – noted that other cases have shown that low-dose exposure to some chemicals, even over many years, often have no consequences on human health, because the human body can detoxify itself.
In toxic tort cases, the court conducts a two-part Daubert analysis that covers the expert’s methodology for the plaintiff-specific questions about individual causation, “but also the general question of whether the drug or chemical can cause the harm plaintiff alleges,” the panel wrote.
The court concluded that “the district court didn’t abuse its discretion in excluding the causation experts’ testimony,” Judge Robert Luck wrote in the opinion. “Without that testimony, the Pinareses could not establish that Raytheon caused Mrs. Pinares’s cancer. Raytheon was thus entitled to summary judgment” declaring the expert testimony inadmissible.
Attorneys in the case could not be reached for comment Wednesday.
Photo: Pratt & Whitney, a subsidiary of Raytheon Technologies, makes the engines for the F-35 fighter jet. (AP Photo/Aijaz Rahi)