Academic journal article Defense Counsel Journal

Manning the Daubert Gate: A Defense Primer in Response to Milward V. Acuity Specialty Products

Academic journal article Defense Counsel Journal

Manning the Daubert Gate: A Defense Primer in Response to Milward V. Acuity Specialty Products

Article excerpt

ON JANUARY 9, 2012, the United States Supreme Court denied certiorari in Milward v. Acuity Specialty Prods. Group, Inc. (1) and, in so doing, let stand a First Circuit holding that a plaintiff expert's medical causation opinion resting solely on a self-proclaimed "weight of the evidence" analysis satisfied the Daubert requirements of scientific reliability and relevance. Even prior to the Supreme Court's certiorari decision, the plaintiff bar and its allies heralded Milward as holding out the "promise of reshaping toxic tort causation law," (2) and the newly-issued Restatement (Third) of Torts had labeled Milward "[o]ne of the most significant toxic tort causation cases in recent memory." (3) With Milward now final, defendants in toxic tort, pharmaceutical, and other science-based litigation can anticipate confronting Milward in response to any future Daubert challenge to plaintiff causation experts.

In the author's opinion, Milward was wrongly decided and flies in the face of the Supreme Court's holdings in Daubert v. Merrell Dow Pharms., Inc. (4) and General Elec. Co. v. Joiner. (5) However, any discussion of the Milward opinion also cannot be divorced from the factual pattern from which it arose. In Milward, the plaintiffs' expert was opining on causation with respect to a very rare form of cancer, and each side acknowledged there currently was--and perhaps could only ever be--limited scientific evidence on causation. While Daubert clearly cautions that "[l]aw lags science" (6) and that "the balance ... struck by the Rules of Evidence" requires exclusion even of potentially "authentic insights and innovations," (7) Daubert decisions involving such potentially unprovable scientific issues have repeatedly proved the adage that "bad facts make bad law." The Milward should be properly understood in this limiting context.

Defendants must, of course, continue to hold courts to their proper gate-keeping responsibilities under Daubert even in cases involving novel causation issues. By definition, however, the type of claimed-unprovable causation question at issue in Milward is more the exception than the rule. In most cases, including those involving an FDA- or EPA-regulated product, plaintiff experts will be offering causation opinions regarding relatively more common diseases and potential exposures as to which there is an established body of scientific evidence. Milward has little to say about these cases. Indeed, based upon the author's experience in prior litigation handled by his firm, Milward may not be predictive even of how the First Circuit will address expert causation testimony in future cases.

This article will provide a defense primer on how to respond to plaintiffs' use of Milward, both in cases involving novel causation issues and in the more common situation in which the plaintiff's expert is faced with an existing body of scientific knowledge. Section I reviews the Milward opinion, both at the district court and the First Circuit. Section II focuses on the numerous legal flaws in Milward, which should limit its applicability in other federal circuits that properly apply the Daubert gatekeeping standards. Section III addresses the narrow factual setting in which Milward arose, which also should limit its applicability in future cases, even within the First Circuit. Finally, Section IV recounts how the author's law firm addressed and negated a similarly flawed Daubert ruling from the Eighth Circuit Court of Appeals in successfully defending a Daubert victory in a pharmaceutical products liability action in the same Court less than a year later.

I. The Flawed Milward Ruling

Milward is a products liability case in which the plaintiff alleges that workplace exposures to benzene-containing products caused a rare type of acute myeloid leukemia (AML) called acute promyelocytic leukemia (APL). As the defendants' own experts acknowledged before the district court, there is no dispute that scientific and medical evidence supports a causal link between benzene and the development of AML. …

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