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Pluck v. BP Oil Pipeline Co.

ELR Citation: 41 ELR 20184
Nos. No. 09-4572, (6th Cir., 05/12/2011)

The Sixth Circuit affirmed a lower court decision excluding expert witness testimony in homeowners' toxic tort case against an oil company for benzene exposure. The homeowners alleged claims of strict liability for hazardous activity, negligence, and loss of consortium. To support their claims, the homeowners retained an expert on causation to demonstrate that benzene is generally capable of causing Non-Hodgkins lymphoma (NHL) and specifically caused one of the homeowners to suffer from NHL. The court dismissed the case, rejecting the testimony as unreliable underDaubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), stating that it suffered "significant methodological flaws" and was based on "speculation and conjecture rather than evidence and data." The lower court did not abuse its discretion in concluding that the expert did not perform a reliable differential diagnosis because he failed to rule out alternative causes of the homeowner's NHL. Nor did the lower court abuse its discretion in striking the expert's untimely supplemental declaration, in which he attempted to bolster his deficient opinion by employing a new causation methodology. The expert also failed to provide a specific causation opinion satisfying the requirements of Federal Rule of Evidence 702, which governs the admission of expert testimony. The lower court, therefore, did not err in granting summary judgment on behalf of the oil company.