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O'Neill v. Sherwin-Williams Co.

September 9, 2009


The opinion of the court was delivered by: Stephen G. Larson United States District Judge


On several occasions between 1997 and 2002, Michael O'Neill used epoxy paint and reducer manufactured by The Sherwin-Williams Company ("Sherwin-Williams") to paint and then repaint the floor in a restaurant where he worked as a handy-man.

According to O'Neill each time he painted the floor he did so by applying three coats of paint over a three day period. Although he attempted to ventilate the area by opening all the doors and using the air conditioning system in the restaurant, he would nonetheless frequently become overwhelmed by the strong odors/fumes from the paint and reducer, forcing him to exit the premises to get some fresh air.

It is further alleged that O'Neill was not advised by the local Sherwin-Williams store where he got the epoxy paint to wear a protective mask or gloves while using the product.

There is conflicting evidence about how often O'Neill repainted the floor. O'Neill testified that he repainted the floor approximately once every three months for a total of forty times, and that each time he applied one or two coats of paint. The owner of the restaurant, however, testified that the floor was repainted only once a year, although he admitted that O'Neill may have occasionally "touched up" areas of the floor at other times.

O'Neill was later diagnosed with bladder cancer in 2006. He has since filed suit against Sherwin-Williams on claims of strict liability and negligence, contending that his cancer was caused by inhalation and dermal (i.e., skin) exposure to the "paint," in general, or alternatively, to either trace levels of benzene or to some aromatic amine compound contained in the epoxy product. To that end, O'Neill has proffered a toxicological/epidemiological expert - James Clark, Ph.D - and a medical expert - Dr. Malin Dollinger - to substantiate his theory of causation. Sherwin-Williams has since filed a motion to exclude the expert testimony, and, if granted, to have judgment entered in its favor as a matter of law.*fn1

A. Standard for Determining the Admission of Expert Testimony

Rule 702 of the Federal Rules of Evidence provides that "[i]f scientific, technical, or other specialized knowledge will assist a trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert . . . may testify thereto in the form of an opinion . . ., if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness had applied the principles and methods reliably to the facts of the case." As the Supreme Court explained, Rule 702 tasks trial courts with acting as a gatekeeper "to ensure that any and all scientific testimony . . . is not only relevant, but reliable." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 588 (1993). To that end, Daubert articulated a two-prong test trial courts must apply in deciding the admissibility of expert testimony: (1) Whether the proffered expert testimony is based on "principles and methodology" that are "scientific" and, therefore, reliable, and (2) whether the expert's testimony is relevant by being "sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute."*fn2 Id. at 591, 595.

In a toxic tort case such as this one, expert testimony on causation "is typically discussed in terms of general and specific causation." In re Hanford Nuclear Reservation Litig., 292 F.3d 1124, 1133 (9th Cir. 2002). General causation refers to "whether the substance at issue had the capacity to cause the harm alleged," that is, could the substance at issue cause the type of harm complained about. Id. (emphasis added). Specific causation, on the other hand, concerns "whether a particular individual suffers from a particular ailment [because] of exposure to a substance," that is, did the substance actually cause the harm complained about. Id. (citing In re "Agent Orange" Prod. Liab. Litig. MDL No. 381, 818 F.2d 145, 165 (2nd Cir. 1987) ("the relevant question . . . is not whether Agent Orange has the capacity to cause harm, the [general] causation issue, but whether it did cause the harm and to whom")).

B. Dr. Clark's General Causation Opinions

Dr. Clark was retained by O'Neill to identify the "substance at issue" that it is alleged caused his bladder cancer. In so doing, Dr. Clark identified three items in his initial expert report, subsequent deposition, and rebuttal report: (a) Benzene in the paint; (b) aromatic amines in the paint; or (c) the general chemicals found in paint. As explained during his deposition: "In this case the substantial factor - it is my belief that the chemicals in the paint and most likely the aromatic amines which are associated with the harden - the resin hardening which are the source of that aromatic amine which are likely possible. The benzene would contribute by damaging the immune system, so it would take less to have an effect for an individual."

1. Benzene

Given that Dr. Clark ultimately ascribed benzene's role in this case to simply a contributing cause (juxtaposed to what he stated in his initial expert report), rather than a substantial contributing factor in O'Neill's development of bladder cancer, O'Neill's counsel (both during oral argument and in his opposition papers) has now disavowed consideration of that chemical as a causative agent for O'Neill's cancer and, just as importantly, as a basis upon which to admit his expert witnesses' testimony on causation. (Opp. at 10 n.10 ("the focus of Plaintiff's expert . . . testimony and this Opposition will be the [general] chemicals in the paint and the aromatic amines which are associated with the resin hardening two part epoxy paint system sold by . . . Sherwin-Williams and used by . . . O'Neill")). Accordingly, the Court finds that any ...

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