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Denial of Cert in "Junk Science" Case Leaves Lawyers Reeling
Reprinted with permission.
A mystery of American jurisprudence is the denial of certiorari. This is when the U.S. Supreme
Court declines to hear an appeal – known as a petition for certiorari. The mystery is that the
court provides no explanation for its denial. And, as the court itself has said, its denial
"imports no expression of opinion upon the merits of the case." In other words, denial of certiorari
is neither an endorsement nor a rejection of the lower court's ruling.
It is precisely
that problem – the problem of not knowing what the Supreme Court thinks – that has many defense
lawyers reeling after the court denied certiorari in U.S. Steel Corp. v. Milward on Jan. 9.
The petition was an appeal from Milward v. Acuity Specialty Prods. Grp., Inc., 639 F.3d 11 (1st
Cir. 2011), a 1st U.S. Circuit Court of Appeals opinion that was widely hailed by plaintiffs'
lawyers and widely condemned by defense lawyers as condoning "junk science."
The controversy over Milward stems from expert testimony presented by plaintiffs on "general
causation." Plaintiff Brian Milward alleged that his routine workplace exposure to benzene-containing
products caused him to develop a rare type of leukemia, Acute Promyelocytic Leukemia (APL).
Robert J. Ambrogi is a Massachusetts lawyer who represents clients at the intersection
of law, media and technology. A news media veteran, he is the only person ever to hold the
top editorial positions at the two leading national U.S. legal newspapers, the National
Law Journal and Lawyers Weekly USA. He is also internationally known for his writing
and blogging about the Internet and technology.
The problem with proving this, his expert readily admitted, is that there is no direct scientific
evidence showing that benzene exposure causes APL. Instead, plaintiff's expert said that based
on the "weight of the evidence" of what is known about APL, it is appropriate to make the inference
that benzene exposure could cause it.
At the trial level, U.S. District Judge George
A. O'Toole Jr. conducted a four-day hearing on whether to admit the expert's testimony. He concluded
that the testimony was inadmissible under Federal Rule of Evidence 702. "[The expert's] proffered
testimony that exposure to benzene can cause APL lacks sufficient demonstrated scientific reliability
to warrant its admission under Rule 702," he wrote.
‘Scientifically Sound' Methodology
On appeal, the 1st Circuit reversed and ruled that the expert's general causation testimony
was admissible. "We stress that it is up to the jury to decide whether to accept his opinion
that exposure to benzene can cause APL – a proposition that plaintiffs must prove by a preponderance
of the evidence," the three-judge panel held in an opinion written by circuit Chief Judge Sandra
The 1st Circuit rejected defense arguments that the "weight of the evidence"
approach to making causal determinations is inherently unreliable under Rule 702 and Daubert.
"The fact that the role of judgment in the weight of the evidence approach is more readily apparent
than it is in other methodologies does not mean that the approach is any less scientific," the
Having found no inherent unreliability in this approach, the court went on
to conclude that the expert's application of it in this case was sound. "[The expert] explained
that taking into account all of the evidence …, he reached the opinion that the weight of the
evidence supports the conclusion that benzene exposure is capable of causing APL. [His] opinion
rests on a scientifically sound and methodologically reliable foundation, as is required by
Sharply Divided Reactions
The 1st Circuit's ruling
has drawn sharply divided reactions. Plaintiffs' advocates praise it for opening the courthouse
doors to a broader range of injury claims. Defense advocates say it is a distortion of Daubert
and undermines Rule 702.
Among those who praised the decision was Carl Cranor, a professor
of philosophy at the University of California, Riverside. Cranor testified in Milward as an
expert in scientific methodology. After the 1st Circuit issued its opinion, he praised its outcome
in a piece he wrote for the
Blog of the Center for Progressive Reform.
"Milward represents a new and much better
day for legitimate science to be practiced in the courtroom as it is in the lab," Cranor concluded.
"It permits more wronged individuals or parties with legitimate scientific claims for injuries
to go to juries. Scientists, lawyers and injured parties have good reason to applaud the decision."
On the other side of the coin is the U.S. Chamber of Commerce. It
filed a brief in the Supreme Court as amicus curiae supporting the petition for certiorari.
"Unfortunately, in the years since Daubert and Joiner, those cases have come under often
withering attacks by plaintiffs' counsel, their experts, and like-minded academicians, who dispute
the very premise of trial courts acting as gatekeepers against junk science," the Chamber's
"In reversing the district court's discretionary exercise of its gatekeeping
function and ordering the admission of expert testimony based upon inchoate science and ipse
dixit assertions about the ‘weight of the evidence,' the First Circuit sided with arguments
put forth by these critics and significantly degraded the Daubert standard," the brief continued.
"The First Circuit's reasoning would return the law to the pre-Daubert era in which experts
were not held to the scientific method, and, in so doing, it would subject defendants to liability
based on speculative hypotheses rather than scientific knowledge."
With the Supreme Court's
denial of certiorari, Milward remains good law, at least within the 1st Circuit. Courts in some
other federal circuits have rejected the "weight of the evidence" approach. The issue is far
from settled and could someday make its way to the Supreme Court. For now, however, plaintiffs'
and defense counsel are left to wrangle among themselves over the meaning of Milward and the
Supreme Court's decision not to hear it.
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