Last time I promised I would tell you about the case that I recently won, where the First Circuit Court of Appeals looked beyond the typical veil of manufactured doubt cast by the corporate defendants. So, here you go. Unfortunately, like most lawyers, I tend to write too much. As a result, what I thought would be a two-part blog entry has now turned into three lengthy blog entries. I hope I can keep your attention anyway. The punch line ultimately has a dramatic impact on whether all of us will continue to be poisoned with impunity by chemical companies.
Brian Milward’s Story
At the age of 47, Brian Milward developed a blood cancer known as Acute Myelogenous Leukemia (AML) in 2004, after having worked about 30 years as a refrigeration technician, repairing industrial refrigeration units. In the course of his work, he constantly used various solvent products. Although neither Mr. Milward nor his employers were aware of it, many of those solvents contained benzene, a chemical that has long been known to cause AML. The companies that made the various benzene-containing solvents failed to identify benzene as an ingredient on their label, and those companies never warned anyone that their products contain a known cancer-causing chemical. During Mr. Milward’s work, he would breathe benzene-containing vapors from these solvents for hours on a daily basis. He would also get the solvents on his skin, where more benzene could penetrate the skin and get into his bloodstream.
In 2007, my law firm filed a lawsuit on behalf of Mr. Milward and his wife Linda. The Milwards claim that the companies that made the benzene-containing solvent products to which he was exposed in his work were negligent because they failed to warn that benzene was in their products, and that use of those products could cause cancer if adequate precautions were not taken to avoid exposures. The Milwards claim that Brian’s exposures to benzene caused him to develop AML.
Since at least the 1960s, scientists around the world have all agreed that benzene exposure can cause AML, the type of leukemia suffered by Brian Milward. Despite this, the very first defense raised by the companies sued in Mr. Milward’s case was that his particular case of AML could not have been caused by benzene exposure.
In fact, the companies took an even more extreme position. They claimed that the jury should not even be allowed to hear the testimony of the Milwards’ expert witness on causation. According to the chemical companies, that causation testimony was nothing more than “junk science” that the judge should strike because it could mislead the jury. So who was this supposed “junk scientist”? This is where this story may begin to strike you as bizarre, even though it gets played out time and time again in courtrooms throughout the country.
Dr. Martyn Smith – One of the World’s Top Benzene Scientists
You see, this expert was not some fly-by-night quasi-scientist who makes his living in courtrooms rather than a laboratory. Not at all. In this case, my law firm had hired a world-renowned expert toxicologist – Dr. Martyn Smith of the University of California at Berkeley — to provide his opinion that benzene caused Mr. Milward’s cancer. Dr. Smith has published dozens of peer reviewed articles in scientific journals, describing his research into how benzene causes disease, including AML. Dr. Smith has been appointed to many expert government and scientific panels that have examined the toxic effects of benzene, and he is the author of many chapters in medical and toxicology textbooks on the subject. The work on benzene toxicology done by Dr. Smith’s laboratory is often referenced by scientists and government public health agencies all over the world. In fact, one of the defendants’ own experts had edited a textbook and had requested that Dr. Smith write the chapter in that book about benzene and leukemia. By all accounts, Dr. Smith is one of the world’s leading experts in the toxic effects of benzene exposure.
Nonetheless, according to the defendants in Mr. Milward’s case, Dr. Smith’s expert testimony reflected “junk science” that should be thrown out by the judge. So, let’s recap: 1) virtually every scientist in the world has agreed since the 1960s that benzene can cause AML; 2) Brian Milward was occupationally exposed to benzene for 30 years, then he developed AML; 3) the expert offered by the Milwards to support the link between his exposure to benzene and his AML is a world-famous benzene toxicologist; and 4) the defendants asked the trial judge to throw out that expert’s testimony as “junk science.”
At this point, you might expect that I am about to tell you how the trial judge scoffed at the chemical companies’ argument. Sadly, that’s not how this tale goes. In fact, the trial judge granted the defendants’ request, and threw out Dr. Smith’s testimony as unreliable “junk science.”
But how? Why?
From the Corporate Bag of Tricks – It’s Not the Right KIND of AML
The answer is that the Defendants managed to convince the judge that, even though benzene is known to cause AML generally, no one can show that benzene is capable of causing the particular sub-type of AML that Brian Milward has. Although AML is the specific type of leukemia that has been most closely linked with benzene, over the last few decades scientists have managed to classify AML itself into additional subgroups. The specific subtype of AML that Mr. Milward has is called “Acute Promyelogenous Leukemia,” also known as “APL.”
This is a standard style of argument that is an important part of the corporate toolbox for manufacturing doubt. To the extent that a plaintiff can point to scientific studies showing that a chemical exposure causes a disease, companies will then shift the battleground by seeking ever greater levels of specificity. “Well, sure, cigarette smoking causes cancer in SMOKERS, but there’s NO EVIDENCE to show that SECONDHAND smoke causes cancer.” Another version: “Even though SOME kinds of asbestos can cause mesothelioma, the kind of asbestos that was in OUR product does not.” And so on.
According to the chemical companies, APL is a very different disease from the other kinds of AML, which are known to be caused by benzene. This argument has some facial appeal. On one level, the defendants are correct. There are important differences between the different kinds of AML. The sub-types look different under a microscope, they involve different kinds of cellular and genetic damage, they can have different course and symptoms, and they may be treated different clinically. But the important question in Mr. Milward’s case is whether, if benzene causes the other kinds of AML (and everyone acknowledges that it does), does it make scientific sense that benzene can also cause APL? Dr. Smith’s answer to that question is an emphatic “Yes,” and he has some very good evidence to support that view. But he can’t prove to a certainty that he’s right.
APL is such a rare disease that there are very few studies that have tried to assess whether benzene exposure can cause that particular sub-type of AML. There just are not enough cases of APL diagnosed to generate the statistical power necessary to show a relationship between that specific subtype and benzene. Those few studies that have looked at the issue don’t provide a definitive answer either way. Nonetheless, in the Milward case Dr. Smith provided the trial judge with several different lines of data that, when assessed as a whole, convinced him that the weight of the available evidence shows that benzene probably does cause APL. This included explaining in great detail: 1) how AMLs of all type develop from a common ancestor cell; 2) how benzene acts on the body very similarly to certain types of chemotherapy drugs that are known to cause APL specifically; and 3) how the epidemiology studies that have examined the relationship between benzene and APL specifically are consistent with Dr. Smith’s conclusion, albeit not conclusive on their own.
The trial judge rejected Dr. Smith’s testimony on the basis that Dr. Smith had merely shown that he “might be right,” but he might not. In other words, the trial court determined that because Dr. Smith had failed to CONCLUSIVELY PROVE to a CERTAINTY that benzene can cause APL specifically, his testimony must be thrown out as junk science.
The Milwards appealed to the United States Court of Appeals for the First Circuit. In December, I had the opportunity to argue the case to a panel of three First Circuit judges, including Chief Judge Sandra Lynch.
In March, the First Circuit released a wonderful, unanimous opinion written by Chief Judge Lynch, reversing the trial judge’s decision to strike Dr. Smith’s testimony. Next time I will finish this blog trilogy (I promise…) by giving you the low-down about Judge Lynch’s opinion and its importance.