McMunn v. BABCOCK & WILCOX POWER GENERATION GROUP, INC – ordered on the 27th Feb 2014
The claim was that radiation leaks had caused cancer in the community. There was evidence that the plant in question had emitted 3 kg of highly enriched uranium. If so, permissible lung doses would probably have been exceeded by a considerable margin in some members of the community.
Daubert was appealed to on the subject of admissibility of expert testimony. It was concluded that so long as a justifiable method had been adopted then expert evidence is admissible. Alleged flaws in the methodology go to the weight of the expert’s opinion, not its admissibility.
“There is a difference between what is unreliable support and what a trier of fact may conclude is insufficient support for an expert’s conclusion.Moreover, because reasonable scientific minds can differ on the methodologies discussed, the motion to exclude the opinion of [expert X] will be denied. “
The generic causation expert in this case had chosen the following reasoning – radiation can cause cancer, there could have been leaks of radioactive material into the surrounding community, some members of that community had cancer, so radiation leak can cause cancer. He had evidence on each point, whether this supports his conclusion or not, is a matter for the jury.
The specific causation expert had offered that given the causal effect of radiation leak and there being no obvious competing cause, the radiation leaks must have been the cause of each of many different kinds of cancer observed.
The standard of law on the competing cause issue is that:
Heller v. Shaw Industries, Inc.,167 F.3d 146, 156 (3d Cir. 1999) (an expert is “not required to rule out all alternative possible causes”). http://scholar.google.com/scholar_case?case=9279988607299998088&hl=en&as_sdt=2006
Law is also available as to the need for quantitative estimates of risk – no need – Bonner v. ISP Techs., Inc., 259 F.3d 924 (8th Cir. 2001),
In all cases where the harm is not distinguished by cause, the aim is to show the most likely substantial cause or where injury mechanism works that way joint substantial causes . Cancer is very rarely (if ever) differentiated by cause – cancer is cancer. So the argument centres on evidence of precedent and probability. Exactly how hard did the specific causation expert try to find alternative causes? Exactly how much radioactive material was leaked, when, in what form, has that form ever caused any harm, what would be the appropriate minimum latency, how did the exposure occur to each individual, how would the radioactive material get to and affect the relevant tissues…. If the jury decides it needs positive evidence of these factual matters then the claim will fail, as none was offered. If the jury decides that ‘could be’ and ‘could have’ are sufficient, then the claim could succeed.
In the latter, the less that is known with any certainty, the more room there is for invention and the higher the probability of a successful unmeritorious claim.
It follows that the more the Plaintiff expert says is not known with certainty, the more chance he has of providing the prevailing view in an unmeritorious case. So exactly who is an expert? The person with the least knowledge has the greater room for invention. What’s more, provided he can show how he logically and reliably came to such a state of ignorance, he is allowed to tell his story.
It seems from the cases cited in aide of the Plaintiff’s experts, that this is acceptable in the USA. So long as the expert has a credible reason not to use evidence then his non use of evidence is acceptable. The jury decides if they are persuaded or not.
In cancer, any exposure above background is supposed by medical experts to be evidence of increased risk. In law the question is worded slightly differently: was the factual risk probably different from and higher than the background risk? There is a simple and reliable objective test of this, but it is never used by medical experts. Perhaps defendant experts could take the initiative?
Commenting on the apparent methods of expert testimony adopted in the USA, David Oliver from Vorys said”
“If it worked we could hire the appropriate scientific authorities to come up with a cure for cancer. They would ponder the matter, render their opinions as to the cure and testify as to why their “qualitative analysis” which points to the cure is obviously the correct one. The jury would pick the best treatment among those on offer and the court would enter a judgment whereby cancer was ordered to yield to the cure. That’s not how it works and it wasn’t how it worked in the early 1600s when the sun refused to revolve about the earth, heedless of the pronouncements of scientific authorities and courts of the day.”