Miami, Fla. (November 15, 2023) – Miami Lewis Brisbois Partners Todd R. Ehrenreich, Troy P. Cunningham, and David L. Luck recently won a defense summary judgment in a toxic-tort action pending in the U.S. District Court for the Southern District of Florida. See Vandestreek v. Lockheed Martin Corp., No. 6:21-cv-1570-RBD-DCI, 2023 WL 6396087, 2023 U.S. Dist. LEXIS 177550 (M.D. Fla. Sept. 27, 2023).
In Vandestreek, the Court addressed and applied the Eleventh Circuit's two-part causation analysis for toxic-tort cases originally provided in McClain v. Metabolife Int'l, Inc., 401 F.3d 1233 (11th Cir. 2005). Vandestreek applied that analysis to the following constituents of concern —vinyl chloride, lead, and dichloromethane/methylene chloride (DCM).
The plaintiff contended that these constituents emerged from environmental remediation at an Orlando-area property owned by defendant Lockheed Martin Corporation, at which Lockheed previously manufactured military munitions. She further asserted that her decedent's exposure to these constituents caused his glioblastoma — a type of brain cancer that is recognized as coming only from two sources: (1) hereditary/idiopathic development; or (2) exposure to sufficient ionizing radiation (which was not present in this case). The plaintiff's decedent worked at a landscaping business across a multi-lane highway — between hundreds of yards to over a mile away from the areas of environmental remediation on Lockheed's land.
The plaintiff brought suit, inter alia, against Lockheed and its remediation specialist, HSW Engineering, Inc. Lewis Brisbois represented HSW.
To support claimed general and specific causation, the plaintiff relied on the expert testimony of Dr. Ronald J. Kendall, a toxicologist. General causation addresses a substance's ability to cause a particular disease in the general population. Specific causation, in contrast, addresses that substance's ability to have caused that disease for the plaintiff/decedent, specifically.
In Vandestreek, based on the analysis provided by defense counsel, including significant motion practice from Lewis Brisbois, the Court concluded that Dr. Kendall's general-causation opinions were methodologically unsound under a Daubert/F.R.E. 702 inquiry, that Dr. Kendall was the plaintiff's only general-causation expert, and, accordingly, that summary judgment was required in Lockheed's and HSW's favor. That general-causation analysis and holding meant that the Court was not required to reach the additional flaws present in the plaintiff's specific-causation contentions.
In particular, the Court recognized that Dr. Kendall did not rely on dose-response data and, instead, reviewed epidemiological studies in claimed support of his opinion that exposure to vinyl chloride, lead, and DCM can cause glioblastoma in the general population. As the Court concluded, that approach was flawed because: (1) the meta-analysis that Dr. Kendall claimed to have employed did not focus on glioblastoma (instead, he addressed other, irrelevant types of cancer); (2) Dr. Kendall relied on statistically insignificant so-called "trends" (rather than statistically significant data), which failed to "show association, let alone causation"; and (3) Dr. Kendall ignored "several authoritative bodies that concluded that exposures to the[se] substances ... were not associated with increased rates of brain cancer—[and] he [failed to] cite those studies in his report."
Vandestreek illustrates the importance of thoroughly challenging and rebutting the plaintiff's expert "causation" theories in toxic tort actions. Indeed, in many cases, a well-supported, combined Daubert and summary-judgment motion on causation can and should end the litigation in the defense's favor.
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