By Ellen Bardash  |  New York Law Journal  |  June 23, 2021

Second Circuit Weighs Level of Data Needed for Reliable Expert

Lawyers and judges traded views over whether an expert delivered an “unreliable” opinion with contradictions or whether she was being “remarkably candid.”

The Second Circuit has been tasked with determining whether a doctor provided adequate evidence as an expert witness for a man to continue with his case against DuPont.

Counsel for plaintiff James Sarkees, who was diagnosed with bladder cancer at the age of 61 and claims it’s a result of exposure to the chemical orthotoluidine, or OT, during the seven months he worked at Goodyear in 1974, says testimony from Dr. L. Christine Oliver met all court standards and Sarkees’ Western District of New York case should not have ended in summary judgment.

“In Parker (v. Mobil Oil Corp.) and in every New York appellate department case and Court of Appeals case decided since Parker on this issue, the issue has been the existence of objective evidence of injurious exposure. If such evidence existed in the record, then New York courts denied summary judgment,” argued Steven H. Wodka for Sarkees on Tuesday. “Dr. Oliver cited 1990 quantitative data provided by NYOSH on orthotoluidine exposure for the exact same job assignments Jim Sarkees performed in 1974.”

Phillips Lytle attorney Joshua S. Glasgow asked the court to uphold the district court’s decision, arguing the evidence cited by Oliver wasn’t enough to meet the Parker standard.

Glasgow said the issue was that not all the numbers in a study Oliver cited lined up with the facts of Sarkees’ cases in a way that could prove causation: while data has supported the claim Sarkees was exposed to a high intensity of OT, Oliver’s opinion didn’t take into account whether his seven months of exposure had as much of an impact as exposure over a longer period.

“You have to explain how their total exposure compares to the individuals involved in the studies. Dr. Oliver never does that,” Glasgow said. “She says that the intensity of exposure was higher and she acknowledges that his duration of exposure was lower but then never brings it together to make a scientific expression of a reasonable apples-to-apples comparison.”

Glasgow said that when Oliver said she didn’t have information on the effect of high-intensity exposure over a short duration but went on to comment on that combination, her opinion was unreliable. But the court pushed back on whether it instead made her “remarkably candid” and didn’t affect her reliability, though it may have affected whether her opinion met the legal standard.

Wodka responded by saying the study Oliver cited identified those who were exposed to OT for longer than 90 days as the group at increased risk of developing cancer, and Sarkees’ seven months of employment at Goodyear put him in that group.

He also took issue with the district court saying Oliver provided no quantitative evidence at all, rather than not providing a sufficient amount, saying that’s an important distinction where the court was simply wrong and where a magistrate judge found Oliver made the cut.

“Many of the arguments that my adversary is bringing up go into the weight of the evidence. Those are things for cross-examination. Those don’t affect her methodology,” Wodka said. “Her methodology is absolutely solid. If she doesn’t go any further than what a published, peer-reviewed study says, that’s what we look for for reliability.”