Ohio Court & "Expert" Opinions

In July of 2006, the Ohio Supreme Court affirmed lower court rulings that held that rules of evidence governing "expert witnesses" precludes testimony about an alleged cancer resulting from chemical exposures where no studies are cited to demonstrate a causal effect between the exposure and the cancer.

At trial in county court, testimony was presented from doctors and an industrial hygienist suggesting some undefined relationship between the employee's work and the rare brain cancer that he developed. However, the county court rejected the testimony as not meeting the standards for expert witnesses - and issued a summary judgment in favor of the company (PPG).

The written majority opinion of the Court included the following: "Expert opinion based on unscientific principles and methodology is unhelpful to the trier of fact, and has no place in the courts of law." It was apparent that none of the so-called expert witnesses cited any scientific studies that provided evidence of a causal connection between the employee's work and his brain cancer.

PPG is to be commended for its substantial effort to defend the principle of good science in the courtroom.

Expert Witness Court Test in Ohio

The Ohio Supreme Court recently issued a 4-3 decision that affirmed lower court rulings that held that rules of evidence governing "expert witnesses" can preclude testimony about an alleged cancer resulting from chemical exposures where no studies are cited to demonstrate a causal effect between the exposure and the cancer.

In the case at hand, the family of an employee at PPG Industries alleged that workplace exposure to chemicals for some 30 years was responsible for a very rare form of brain cancer. At trial in county court, the family's attorney presented testimony from doctors and an industrial hygienist. That testimony suggested some undefined relationship between the employee's work and the cancer he developed. However, the county court rejected the testimony as not meeting the standards for expert witnesses - and issued a summary judgment in favor of PPG.

A majority court  opinion stated that "Expert opinion based on unscientific principles and methodology is unhelpful to the trier of fact and has no place in courts of law," and that none of the so-called expert witnesses in the case at hand cited any scientific studies that provided evidence of a causal connection between the employee's work at PPG and the brain cancer.

This decision was cited as support for the principle that "expert" testimony must meet standards of scientific validity and quality, and that PPG was to be commended for defending the principle of good science in the courtroom.

Perchlorate Book from Legal Group

A new book on Perchlorate issues is available from the Lawyers and Judges Publishing Co. (Tucson, AZ,  520-323-1500;  [email protected]) -  Perchlorate: A Scientific, Legal, and Economical Assessment, by Earl L. Hagstrom. The book is designed to educate and inform environmental, business, legal, and academic readers about the history and development issues surrounding perchlorate.  It should afford much needed practical advice and guidance to anyone involved with litigation and remediation issues.  Part of the impact of this book  comes from the fact that the process of establishing a federal drinking water standard for perchlorate has been fraught with complications, not the least of which is the fact that perchlorate is a naturally occurring species.  This book is also intended as a primer on how to address common issues  with any pollutant, ranging from estimating damages to remediation to insurance coverage.   [ISBN 1-930056-84-2]  480 pages, $99.   More review comments follow.

Chapter headings include the following   [with review comments and/or citations ] :

Sources of Perchlorate Releases to the Environment

Current Issues in Perchlorate Analysis   [An interesting sub-section (2.5.E) has the title: "Stretching the limits of perchlorate measurement." It differentiates between a "reporting limit"  - generally considered to be 5-10 times the instrument background noise - and "detection limit" - a statistically determined value typically 2-3 times the background noise. The section continues: "According to the EPA, values that are above the detection limit and below the reporting limit are supposed to be flagged 'estimated.' Unlike detection limits, which have a rigid statistical basis, laboratories have some latitude in defining reporting limits. In practice, there is often pressure to report values that are on the "ragged edge" of the analytical method's true reporting limit. This has been particularly true in recent history for perchlorate (emphasis added), where the reporting limits available with current analytical technology have sometimes lagged behind (or in some cases, established) action levels. This not only compromises the accuracy of the reported result, but in the case of method 314.0, also increases the likelihood of reporting a false positive."  The text provides an actual chromatogram from a Superfund site, showing a very small peak reported to represent 4.9 parts per billion perchlorate. Visual examination of the plot allows the conclusion that the accuracy of the result was suspect; however, the analytical laboratory did not flag the datum as 'estimated.' Since the perchlorate action level at this site was 4 ppb, the reported value would result in an action level exceedance. Later, refinements in both the analytical protocol and the cleanup of the sample matrix for the site showed that perchlorate was not present at levels above 4 ppb.]

The Toxicology of Potential Human Health Effects Associated with Perchlorate in Drinking Water

Historical Overview of Perchlorate Regulation

Common Law Torts in Environmental Contamination Cases  [The 'nub' of the matter is described as follows: "Can a plaintiff establish the damages aspect of his or her nuisance claim if the presence of the contaminant in the water is lower than the government mandated MCL (maximum contamination level) and there are no other obvious problems with the water ? Does the mere addition of a chemical that wasn't there before suffice for injury ? ...... Using perchlorate as an example makes clear the difficulties in assessing what damages may have been incurred in a case where there is no taste, color, or odor impact, and where the toxicological data indicate negligible health risks."]

Environmental Class Actions

Some Practical Observations on the Selection and Management of Experts After Daubert

Fate, Transport, and Modeling of Perchlorate in Groundwater

State of the Art of Perchlorate Remediation

Estimating Toxic Tort and Environmental Damages

Insurance:  An Overview

Judges and Science

The February 27, 2006 issue of the Chemical & Engineering News [ www.pubs.acs.org/cen/ ] offers a timely and thorough treatment of the topic of bringing good science into the courtroom. This includes exploring the consequences of having judges be the gatekeepers of the use of  scientific evidence  in courtrooms by virtue of their position to decide in pre-trial hearings what is suitable for presentation to a jury.

The Supreme Court weighed in on this issue in 1993, developing a set of factors to consider in determining scientific reliability of expert testimony.  These factors include whether a theory has been tested and subject to peer review and publication, the known or potential rate of error, whether standards or controls exist and are maintained, and the general degree of acceptance of the methodology in the scientific community. These considerations have been said to have slowed down the growing trend of "junk science" coming into court, especially with regard to civil cases.

A number of resources have been made available to try to maintain fairness and balance in these deliberations. The Federal Judicial Center provides continuing education for judges, including a reference manual on scientific evidence that is currently being updated in collaboration with the National Academy of Sciences. The National Clearinghouse for Science, Technology, & the Law (Stetson Univ) has extended its services to an online resource for providing comprehensive scientific, technical, and legal information aimed to promote justice based on sound science.

Issues pertaining to water rights and groundwater contamination in the western region of the U.S. have led to the organization of an information-sharing group of judges designed to improve the management and outcome of cases involving scientific issues in complex water litigation.  As the degree of uncertainty increases in the determination of probability of risk in ultra-trace (part per billion) groundwater comtamination scenarios, any movement to enhance communication and scientific understanding in connection with these issues is a step toward much needed public benefit in a world of limited resources.

Medical Monitoring Claims

The August 9-15, 2004 issue of the Chemical Market Reporter published a report of court action in Michigan pertaining to speculative medical monitoring claims.  At issue is the present liability to be associated with the potential development of a medical condition, and medical monitoring related thereto.

The American Chemistry Council (ACC) is urging the Michigan Supreme Court to reject claims for ongoing medical monitoring by plaintiffs who are not injured.

In a brief filed last week, the ACC urged the court to overturn a lower court's order allowing medical monitoring in the case of Henry v. Dow Chemical Company.  The brief argues that the lower court order, if allowed to stand, would have a significant adverse effect on plaintiffs who have suffered an injury, the state court system, and the business community.

The issue presented in this case is whether the State of Michigan permits individuals who have been exposed to a potentially hazardous substance, but who are not actually injured, to bring a lawsuit for "medical monitoring."

Unlike traditional lawsuits, such claims would not require any showing of a present, physical injury. Instead, plaintiffs could obtain monetary awards based on a speculative potential of the plaintiff developing a medical condition in the future.

Despite two separate decisions by the Supreme Court of Michigan in 1993 and 1998 rejecting such claims, lower courts have at times wither ignored those decisions or taken advantage of perceived ambiguity in the language to allow medical monitoring claims to move forward.

The brief notes that in the few jurisdictions that permit medical monitoring claims, such as West Virginia, entrepreneurial plaintiffs' lawyers have brought lawsuits on behalf of thousands of healthy individuals. It says one West Virginia Supreme Court Justice has stated that the practical effect "is to make almost every [resident] a potential plaintiff in medical monitoring cause of action."

If the Supreme Court of Michigan does not take action, the brief cautions, "Michigan courts could become clogged with speculative medical monitoring claims." As a result, "access to justice for those with present, serious, physical injuries may be delayed or denied."

Ohio Legislature Given Bill to Ban Products "Containing Mercury"

In a 2004 action reminiscent of the infamous Delaney Clause, a senator in the Ohio state legislature introduced bill SB 274 which in effect would ban the sale of any products in Ohio that contain mercury – unless the producer could obtain an exemption from the Ohio Environmental Protection Agency. In its first incarnation, the bill appears to be based on a threshold of one milligram of mercury content as a guideline for defining a product “containing mercury.” The bill also would implement the ban in two phases: first, all producers of mercury-containing products would have to register their products with the state; second, in 2007 all such products would have to be granted an exemption by the Ohio EPA.

In addition, the legislation creates labeling requirements for all products containing mercury. Moreover, it enables a provision allowing county prosecutors and the state attorney general to initiate actions against producer of mercury-containing products who do not have proper exemptions.