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Alder v. Bayer Corp.11/26/2002
Technicians' expert witness Dr. Lipsey was prepared to testify regarding exposure and to run calculations for the above hypotheticals if requested.
B. Legal Precedent
AGFA argues that Technicians' failure to prove exposure to toxic levels of chemicals is fatal to their case. The district court found that Technicians "inability" to prove such exposure defeated the essential element of causation in an action for negligence. Other courts disagree, however, on the preciseness of proof of exposure necessary for a chemical injury recovery. The split is particularly pronounced between the lower state and federal courts and the courts of appeal. Like the district court here, many of the lower courts in other jurisdictions have avoided examination of the sometimes difficult and technical issues in chemical injury actions by excluding expert testimony and dismissing the case. However, several courts of appeal have reversed and remanded such cases. In view of this, and of the fact that such lower court decisions are neither binding nor particularly persuasive to us, we restrict our review to the courts of appeal opinions and our own previous decisions.
AGFA relies on the Eighth Circuit Court's observation in Wright v. Willamette Industry, Inc., 91 F.3d 1105 (8th Cir. 1996), "that a plaintiff in a toxic tort case must prove levels of exposure that are hazardous to human beings generally as well as the plaintiff's actual level of exposure to the defendant's toxic substance before he or she may recover." Id. at 1106. On the following page, however, the court softened that statement by holding:
We do not require a mathematically precise table equating levels of exposure with levels of harm, but there must be evidence from which a reasonable person could conclude that a defendant's emission has probably caused a particular plaintiff the kind of harm of which he or she complains before there can be a recovery. Id. at 1107.
In cases such as the one before us, "reasonable person could conclude" translates to "reasonable medical certainty." Here Technicians' experts are prepared to testify to a reasonable medical certainty that exposure to toxic levels of x-ray processing chemicals caused Technicians' injuries. Furthermore, the Wright court's use of "probably caused" emphasizes that the burden of proof requires no more than a preponderance of the evidence.
AGFA further relies on Allen v. Pennsylvania Engineering Corp., 102 F.3d 194 (5th Cir. 1996), wherein the court stated that " cientific knowledge of the harmful level of exposure to a chemical, plus knowledge that the plaintiff was exposed to such quantities, are minimal facts necessary to sustain the plaintiffs' burden in a toxic tort case." Id. at 199. In that case, the plaintiff developed brain cancer many years after poorly documented and intermittent exposure to ethylene oxide (EtO), which had been classified as a carcinogen by public health agencies. Id. at 195-96, 199. The Allen court observed, that "although occupational exposure to EtO has been studied for many years, not a single scientific study has revealed a link between human brain cancer and EtO exposure." Id. at 197. Furthermore, " he experts actually knew more about Allen's exposure to EtO through his smoking a pack of cigarettes a day than they did about his occupational exposure to the chemical." Id. at 198.
In contrast, the case before us involves an allegation of daily exposure during the period in which symptoms developed to substances documented as causative agents for the specific harm alleged. The list of literature reviewed by the University of Utah panel includes, inter alia, articles and monographs on reaction
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