2nd Circuit orders trial of bladder-cancer suit against DuPont

(Reuters) - A federal appeals court on Wednesday said DuPont must face trial in a “toxic tort” lawsuit by a man who developed bladder cancer more than 40 years after a short-term job at a tire plant exposed him to the chemical ortho-toluidine.

The 2nd U.S. Circuit Court of Appeals said a federal judge in Buffalo relied on the wrong standard of evidence last year to exclude testimony from plaintiff James Sarkees’ expert witness, Dr. L. Christine Oliver, and had wrongly handed a win to DuPont and its First Chemical Corp unit in the lawsuit as a result.

The 2nd Circuit ruled that Oliver’s testimony was admissible under the applicable Federal Rule of Evidence as interpreted by the U.S. Supreme Court, known as the Daubert standard, and sent the case back to the lower court for trial.

“Of course, (Oliver’s testimony) will be subject to cross-examination and challenge by opposing evidence, and ultimately the weight and persuasive force of her evidence will be for the jury,” Circuit Judge Jon Newman wrote for the unanimous three-judge panel.

DuPont and its attorneys at Phillips Lytle did not immediately respond to requests for comment on Wednesday. Justin Kloss of Kloss Stenger & Gormley, who represented First Chemical, said they were reviewing the opinion but otherwise declined to comment.

Sarkees’ lead lawyer, Steven Wodka, has long represented plaintiffs who developed bladder cancer after exposure to ortho-toluidine.

The case was “the first Daubert ruling on experts in an ortho-toluidine case, even though the litigation has been proceeding since 1985,” Wodka said in an email Wednesday. “An expert who relies upon the published studies and who renders opinions on causation consistent with those studies will be held to be admissible under Daubert and Federal Rule of Evidence 702. That’s what Dr. Oliver did and we are pleased that the Second Circuit agreed.”

According to the opinion, Sarkees was 19 when he worked at a Goodyear Tire and Rubber Co plant in Niagara Falls, New York, for seven months in 1974. He said he was regularly assigned to high-risk and dirty jobs, including cleaning out the “sparkler filters” where ortho-toluidine was processed into Nailax, an antioxidant used to extend the life of tires.

Ortho-toluidine was later shown to substantially increase the likelihood of urinary bladder cancer. By 1980, Goodyear was tracking workers’ levels of exposure and requiring them to use personal protective equipment around it.

Sarkees was diagnosed with bladder cancer in 2016. He sued DuPont and First Chemical the following year. After discovery, the defendants moved to exclude Oliver’s report, saying she had failed to provide any “quantifiable range of (Sarkees’) actual exposure” to OT.

U.S. District Judge John Sinatra Jr agreed in August 2020, saying that New York tort law required Sarkees to show that his exposure was high enough to cause bladder cancer.

But, in a federal court, the Federal Rules of Evidence apply, and under those rules, “precise quantification is often not available and not required,” Newman wrote. He was joined by Circuit Judges Jose Cabranes and Barrington Parker. “Assessing Dr. Oliver’s report and testimony solely under Rule 702 and Daubert, we conclude that her evidence is admissible.”

The case is Sarkees v. E.I. DuPont de Nemours and Co, 2nd U.S. Circuit Court of Appeals No. 20-3170.

For Sarkees: Steven Wodka; and John Lipsitz of Lipsitz, Ponterio & Comerford

For DuPont: Joshua Glasgow of Phillips Lytle; and Justin Kloss of Kloss Stenger & Gormley