Just weeks ago, on April 25, a U.S. Court of Appeals for the First Circuit panel split 2-1 on whether a claimant’s expert on specific causation in a toxic tort case offered opinions that were sufficiently reliable under Federal Evidence Rule 702 to withstand exclusion. The case is Milward v. Rust-Oleum,1 a claim by a pipefitter and refrigerator technician who, over 30 years, was exposed to varying levels of benzene from paints and other products made by the (sole remaining) defendant, Rust-Oleum. Brian Milward, the plaintiff, was diagnosed in 2004 with Acute Promyelocytic Leukemia (APL) and sued a number of defendants, contending that their negligence caused his disease.

In 2009, the district court excluded Milward’s general causation expert but that ruling was reversed on appeal,2 so the focus in the trial court on remand shifted to Rust-Oleum’s challenge regarding Milward’s specific causation expert, Dr. Sheila Butler, an occupational medicine physician. As many readers of this column know, in a toxic tort case the plaintiff must establish, through expert testimony, both general and specific causation. In this case, therefore, that meant a sufficiently reliable showing that exposure to benzene can cause APL (general causation) and that, in fact, benzene exposure was a substantial factor in the development of Milward’s APL (specific causation). The instant appellate ruling involved the district court’s rejection of Butler’s specific causation opinions.

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