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Knight v. Kirby Inland Marine, Inc., 2007 WL 795676 (5th Cir. 2007)
Allyson L. Vaughn, 3L, University of Mississippi School of Law
This case involves a toxic tort suit brought by two tankermen who developed cancer after being exposed to benzene and other toxic chemicals while employed by the defendant. The U.S. District Court for the Northern District of Mississippi ruled for the defendants and denied the testimony of the plaintiff’s expert witness. The plaintiff appealed this decision to the U.S. Court of Appeals for the Fifth Circuit.
Plaintiff’s Exposure to Benzene
Benzene is a colorless and flammable liquid used primarily as an industrial solvent. Long-term exposure to benzene can damage bone marrow, lead to anemia, and cause leukemia.
Heath Knight worked as a tankerman for Kirby Inland Marine (Kirby) from 1993 until 1994. In 1998 he was diagnosed with Hodgkin’s lymphoma. He underwent chemotherapy and made a full recovery. Thomas Ingerman began working for Hollywood Marine, Kirby’s predecessor-in-interest, in 1987. From 1987 until 1995 Ingerman was employed as a tankerman and was exposed to benzene in addition to other hazardous chemicals. During this period, Ingerman underwent numerous benzene physicals, none of which ever indicated an increased level or buildup of benzene. In 1999, Ingerman was diagnosed with bladder cancer.
The Lawsuit in District Court
Pursuant to the Jones Act, Knight and Ingerman filed a lawsuit in federal district court in Mississippi. The plaintiffs hired Dr. Barry Levy, an epidemiologist and physician, to testify as their expert witness. The court then conducted a “Daubert hearing” to determine whether or not Dr. Levy’s testimony was admissible on the issue of causation.
In Daubert v. Merrell Dow Pharmaceuticals, Inc. the U.S. Supreme Court set forth a list of factors to assist courts in determining the admissibility of an expert’s testimony.1 The Court suggested that a trial judge should consider, among other criteria: (1) whether the theory or technique employed by the expert is generally accepted, (2) whether the theory has been subject to peer review and is published, (3) whether the theory can be tested, (4) whether the known or potential rate of error is acceptable, and (5) whether there are controlling standards for the operation of the technique.
The district court found Dr. Levy’s testimony inadmissible based on Federal Rule of Evidence 702. The court based this finding on discrepancies in the scientific studies Dr. Levy relied upon to testify that the benzene the plaintiffs were exposed to at work was the cause of the cancer they later developed.
The second issue in the case involved Federal Rule of Civil Procedure 26(b)(4)(C), which provides that “if a court allows the deposition of an expert who will testify at trail, the court must order the discovering party to compensate the expert for his time, unless ‘manifest injustice would result.’”2 The court also has the authority to order the party seeking discovery to pay the other party a “fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.”3 The district court reduced Dr. Levy’s billing rate by one hundred dollars, limited the billed preparation time to twelve hours, and subtracted lunch and recess time from Dr. Levy’s billed deposition time. The plaintiffs appealed the outcome of these two issues to the Fifth Circuit.
The Fifth Circuit Court of Appeals Decision
The appeals court determined that the lower court did not abuse its discretion in either issue on appeal and affirmed its holding. The issues in this case revolved around the question of whether benzene caused injury to the general population or to the plaintiffs.
The district court must find both general and specific causation. General causation analysis examines the effect of a substance on the general population, while specific causation analysis questions whether the substance caused the alleged injury to a particular individual. In toxic tort cases, the court applies a two-step process in which it first determines whether there is general causation evidence and then determines whether there is admissible specific causation evidence. While Dr. Levy was hired to testify on both issues, the district court found that his testimony regarding general causation lacked the necessary foundation to satisfy Daubert scrutiny, thus making an examination of his testimony on specific causation unnecessary.
The Fifth Circuit agreed with the lower court that the testimony was inadmissible because the case-control studies Dr. Levy relied upon failed to reliably establish a link between benzene and cancer not only in the general public but also in tankermen. The district court did not abuse its discretion in finding the analytical gap between the studies and his conclusions too wide and Dr. Levy’s testimony unreliable. The court went further to hold that the testimony failed to satisfy vital Daubert criteria: Dr. Levy’s methodology is not generally accepted, and has not been published or subjected to peer review or tested. Therefore, Dr. Levy’s expert testimony on causation was inadmissible.
On the issue of discovery costs the appellate court again held that the lower court did not abuse its discretion in making deductions to the amount of reimbursed costs. The court affirmed the denial of the plaintiff’s request for Kirby to pay the expenses incurred during the Daubert hearing. The court held that a Daubert hearing is not a discovery hearing but is actually an evidentiary hearing designed to screen expert testimony. The Fifth Circuit refused to extend Federal Rule of Civil Procedure 26 to any other hearing outside the discovery context.
Endnotes
1. 509 U.S. 579, 593 (1993).
2. Knight v. Kirby Inland Marine, Inc., 2007 WL 795676 at *7 (5th Cir. 2007) (citing Fed. R. Civ. P. 26(b)(4)(C)).
3. Id. |