Publications

Expert Witness Testimony Must Establish Scientific Link Between Work Hazard and Injury or Illness

2004-1619. Valentine v. Conrad, 2006-Ohio-3561
Pickaway App. No. 03CA17, 158 Ohio App.3d 615, 2004-Ohio-452. Judgment affirmed.
Moyer, C.J., O'Connor, O'Donnell and Lanzinger, JJ., concur.
Resnick, Pfeifer and Lundberg Stratton, JJ., dissent.
The complete opinion is listed here.

In a 4-3 decision announced today, the Supreme Court of Ohio held that Ohio rules of evidence require an expert witness to establish a scientifically valid connection between research studies cited and the opinion that an injury or illness was work-related. Chief Justice Thomas J. Moyer authored the majority opinion

The case involved a claim by Linda Valentine for widow's benefits under the state workers' compensation act. The Ohio Industrial Commission denied Mrs. Valentine's claim that the death of her husband, David, at age 51 from a rare form of brain cancer was caused by David's prolonged exposure to dangerous chemicals in the course of his 28 years working in a chemical testing laboratory at a PPG paint manufacturing plant in Circleville. PPG opposed the claim, arguing that no scientific study had established a causal relationship between any of the specific chemicals to which David was exposed in the workplace and the type of cancer that caused his death.

Mrs. Valentine exercised her right to appeal the administrative denial of her claim to the Pickaway County Common Pleas Court. In support of that appeal, she submitted expert testimony from a neurosurgeon and a neuro-oncology specialist who treated David at the OSU James Cancer Clinic and from an industrial hygienist. The witnesses reviewed David's workplace exposure to toxic chemicals over a long time period and cited several studies including epidemiological studies identifying chemistry laboratories and petrochemical plants as work environments linked to high incidence of cancer. The experts acknowledged that medical science had not identified any specific chemical(s) to which David was exposed at work as proven causes of the rare brain cancer (glioblastoma multiforme) that he contracted. The neurosurgeon and neuro-oncology specialist both stated the opinion that, based on their professional experience and the cited research, there was a “reasonable medical probability” that David's workplace exposure to toxic chemicals was the cause of his cancer.

The industrial hygienist stated that David's exposure to chemicals while working at PPG placed him at a heightened risk of developing brain cancer.

PPG also introduced testimony of a medical expert, who stated that no reliable scientific studies had conclusively linked any chemical to which David was exposed at PPG to brain cancer in humans. In July 2003, the trial court granted a pretrial motion by PPG for summary judgment in the case, dismissing Mrs. Valentine's claim without a trial. The judge held that, because the research cited by Valentine's experts did not establish a cause-and-effect relationship, their opinion testimony asserting a “probability” that workplace chemicals caused his cancer was scientifically unreliable and therefore inadmissible under Ohio rules of evidence.

On review, the 4th District Court of Appeals affirmed the trial court's award of summary judgment, but certified that its holding was in conflict with a 1997 decision, Olinger v. Pretty Products, in which the 5th District recognized a less-demanding standard of scientific proof to overcome a summary judgment motion in a workers' compensation case. The Supreme Court accepted jurisdiction and heard arguments in the case to resolve the conflict between appellate districts.

Writing for the majority in today's decision, Chief Justice Moyer agreed with the holdings of the trial court and 4th District that Mrs. Valentine's experts did not establish a scientific link between her husband's cancer and his work environment sufficient to establish the reliability of their opinions.

“None of the experts' opinions cited any studies showing a causal connection between chemical exposure and glioblastoma multiforme. The epidemiological studies did not involve persons in the same industry in which Valentine worked and did not identify a particular chemical or group of chemicals that cause glioblastoma multiforme,” wrote the Chief Justice. “Similarly, the animal studies cited did not indicate that brain tumors develop across species. Moreover, the fact that a number of the chemicals to which Mr. Valentine was exposed have been classified as carcinogens does not establish that they are capable, individually or collectively, of causing glioblastoma multiforme. To arrive at their opinions, the experts were required to extrapolate from the conclusions of the underlying materials. The trial court did not abuse its discretion in finding that the experts did not adequately explain the scientific basis for doing so.”

The majority opinion was joined by Justices Maureen O'Connor, Terrence O'Donnell and Judith Ann Lanzinger.

Justices Paul E. Pfeifer and Evelyn Lundberg Stratton entered separate dissenting opinions, both of which were joined by Justice Alice Robie Resnick. Justice Pfeifer and Justice Stratton also joined one another's opinions.

In his dissent, Justice Pfeifer noted that Mrs. Valentine's suit was neither a product liability claim against PPG nor an intentional tort action claiming that the company knew about but ignored the dangers of the chemicals her husband worked with. “She makes no claim that PPG was negligent. She claims only that her husband became ill because of his job. A neurosurgeon, a neuro-oncologist and an industrial hygienist testified that his workplace exposure did cause Valentine's husband's cancer,” wrote Justice Pfeifer.

Justice Pfeifer pointed to testimony that a long-time co-worker of Valentine's husband, Harold McConnaughey Jr., also had developed glioblastoma multiforme and died within two weeks of Mr. Valentine. Noting that this rare form of cancer causes only one in roughly 14,000 deaths in the U.S., and that David Valentine and McConnaughey were among a group of only 17 PPG employees who worked with the same chemicals over the same time period, Justice Pfeifer wrote that “(t)he odds that two people from that same group of 17 workers would randomly contract this cancer are one in 1,442,206.” In light of that extremely low probability, Justice Pfeifer said that the testimony of Mrs. Valentine's expert witnesses “should have been enough to establish at least a genuine issue of material fact as to whether the decedent's cancer was caused by cancer-causing substances in his workplace.”

Justice Stratton agreed that trial courts should apply rigorous standards of scientific reliability rather than uncritically admitting testimony by “hired gun” expert witnesses. Pointing to the distinguished credentials of Valentine's medical experts in this case, however, Justice Stratton wrote that, “in our zealousness to curb abuse, we cannot permit a court to unreasonably and arbitrarily exclude expert evidence. … Three highly qualified expert witnesses proffered opinions based upon information, experience, and science that cumulatively supported their conclusions … These witnesses were not ‘hired guns.' They did not use unscientific principles and methodology. … I believe that the opinions of (Valentine's) experts were sufficiently reliable for admission, and that the trial court abused its discretion when it excluded their testimony.”

For More Information

Please contact Timothy J. Coughlin or Karen E. Rubin or any member of our Business Litigation or Product Liability Litigation practice groups for more information.

Disclosure

This advisory may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgement of its source and copyright. This publication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in it without professional counsel. This document may be considered attorney advertising in some jurisdictions. Some of the design images and photographs in this document may be of actors depicting fictional scenes.