A Philadelphia judge excluded the testimony of a physician expert in support of a plaintiff’s claim that her husband’s fatal brain cancer was caused by exposure to chemicals in an industrial setting because no scientific or other specialized knowledge was used in formulating the doctor’s opinion.
Excluding Dr. Thomas H. Milby’s testimony led to Philadelphia Court of Common Pleas Judge Gary F. DiVito granting summary judgment to Rohm and Haas Co. and Rohm and Haas’ successor, Dow Chemical Co., against plaintiff Anne Snizavich.
Snizavich’s husband, Joseph Snizavich, died September 19, 2008, as a result of glioblastoma multiforme brain cancer, according to the opinion. Anne Snizavich argued that her husband’s cancer was caused by chemicals he was exposed to while working as a heating, ventilation and air-conditioning contractor for over 13 years at the defendants’ Spring House, Montgomery County, facility.
While Milby stated that the chemicals produced by Rohm and Haas caused the brain cancer, that the brain cancer Joseph Snizavich died from accounts for approximately 2.4 percent of the deaths from cancer in the United States, and a University of Minnesota School of Public Health report showed a higher-than-average incidence of deaths from brain cancer among employees at the Spring House facility, the judge said that Milby’s report did not discuss any of the chemicals to which Snizavich was allegedly exposed to and the University of Minnesota report did not draw a clear link between the chemicals used at the facility and the higher incidence of brain cancer.
“Despite using the ‘magic words’ regarding medical certainty, his entire conclusion is based on the premise that he has no evidence of what chemicals the decedent was exposed to or what effect they have on the human body, but that some chemical must have caused the glioblastoma multiforme cancer,” the judge wrote. “The entire conclusion of the Milby report is nothing more than a logical post hoc ergo propter hoc fallacy — decedent worked at Spring House, then decedent died of brain cancer, therefore working at Spring House caused the decedent to die of cancer.”
Milby’s report was little “more than an unscientific lay opinion given by someone who happens to be a medical doctor,” the judge opined.
The University of Minnesota report did find a statistically higher occurrence of brain cancer among individuals who worked at the Spring House plant, but the report’s authors said a “‘possibility exists for this finding to represent random clustering of this rare disease or be related to confounding [or a mixing up] by additional nonoccupational risk factors,’” according to the opinion.
“Milby somehow comes to the exact opposite conclusion as that of the University of Minnesota report,” the judge said. “Milby, after glossing over the study’s conclusions, finds ‘notwithstanding this exposure characterizing problem, I believe that it can be said with reasonable medical certainty that these exposures did indeed cause the observed excess of brain cancer.’”
DiVito said he expected that Milby would state his own methodology for coming to that conclusion in the face of the only scientific study that he consulted when that study had no such certainty. Nor did Milby challenge the methodology of the University of Minnesota study, the judge said.
A deposition from a chemist who worked at the facility, and which was reviewed by Milby, stated that organic chemicals were in the air at the plant, but Milby failed to identify a single one of the chemicals and what effect the chemicals could have on the development of glioblastoma multiforme cancer, the judge said.
The judge said that it was not necessary to conduct a full Frye analysis — which requires that novel scientific evidence, before it is admitted, be based on a methodology that has general acceptance in the scientific community — because Milby’s testimony, he said, did not even meet Pennsylvania Rule of Evidence 702′s requirements.
There was no other expert testimony or other evidence linking Snizavich’s death to the defendants, so it was appropriate to grant summary judgment, DiVito said.
Anne Snizavich’s attorney, Aaron J. Freiwald of Layser & Freiwald, declined comment. One of Dow’s attorneys, Carl A. Solano of Schnader Harrison Segal & Lewis, did not respond to a request for comment.
DiVito’s opinion in Snizavich v. Dow Chemical was issued November 19. The case is on appeal to the Superior Court.
(Copies of the 10-page opinion in Snizavich v. Dow Chemical, PICS No. 12-2326, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •