Seventh Circuit Reverses Exclusion of Oncologist’s Testimony in Occupational Exposure Case – Schultz v. Glidden Co.

By July 5, 2013 July 23rd, 2019 Personal Injury, Product Liability

I’ve written here before, as a Missouri personal injury attorney, about the importance of expert testimony in making a strong personal injury case. In cases that require special medical or other technical expertise, the jury cannot be expected to have the knowledge to judge the case and requires help. That help usually comes from an expert witness for one or both sides, who will testify about the relationship between the events in the case and the science in which he or she is an expert. Thus, when the expert is excluded, there’s often no way for the plaintiff to make his or her case, and the case can be dismissed. That was the case in Schultz v. Glidden Co., in which the widow of a cancer patient sought to connect the cancer to her husband’s occupational exposure to paint fumes. The Seventh U.S. Circuit Court of Appeals reversed the exclusion of the expert testimony.
Joann Schultz lost her husband in September of 2006, a year after he was diagnosed with acute myeloid leukemia. Donald Schultz spent eight years working as a painter for American Motors Corp., which was acquired by Chrysler. Joann Schultz’s lawsuit alleged that the benzene in the paint caused his AML, and sought to hold paint manufacturers Akzo Nobel Paints, and Durako Paint and Color Co., liable. To support her theory, Schultz offered expert testimony from Stewart, an industrial hygenist, and Gore, an oncologist. Gore testified that benzene is generally known to cause AML, and also that it was a substantial factor causing Donald Schultz’s case. Akzo moved for summary judgment, arguing that Gore’s testimony was unreliable. The district court agreed, saying Gore’s deposition testimony, in which he said he felt there was no threshold below which benzene exposure was safe, was merely a hypothesis.
Joann Schultz appealed, and the Seventh Circuit reversed. It found that the district court was inappropriately focused on the “no threshold” statement. Gore’s testimony also unambiguously concluded that Schultz had been exposed to levels of benzene that scientific studies had shown were dangerously high, the Seventh said. The court also noted that Schultz’s exposure to benzene was so great that the low threshold didn’t matter in any case; Gore identified dangerous exposure levels that were well below Schulz’s exposure. Furthermore, the court said, the district court was wrong to fault Gore for diverging from a study cited by the defense; that study is contradicted by other studies, the court said, and both sides are free to present them for the jury to evaluate. Nor did Gore ignore other possible causes of the AML, the court said; he agreed that smoking could be another cause and agreed that cancer cases generally have more than one cause. Thus, the district court was reversed as to Akzo.
As a St. Louis workplace injury lawyer, I appreciate that this widow will get a chance to make her case. Well-funded companies facing this kind of lawsuit often challenge the admissibility of the expert testimony because it’s a good way to bring the case to a halt before it can begin. If the expert testimony on which the case is based is inadmissible, the case will almost certainly be dismissed. However, to poke holes in an expert’s testimony, defendants must find flaws, and the Seventh Circuit signaled here that it requires well-documented, serious flaws before it’s willing to exclude an expert. Whether an expert is believable is a fact for the jury to decide, the court noted; courts’ jobs are merely to make sure the testimony is not unreliable or misleading. As a southern Illinois injury attorney, I prefer this low-interference approach.


Carey, Danis & Lowe represents clients across southern Illinois and Missouri who have suffered serious injuries or lost a loved one because of someone else’s negligence. If you’d like to talk to us about your case and learn more about your rights, call us today at 1-877-678-3400 or send us a message through our website.
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