Unobtrusively, in what, at first glance, seems like just another disease-causation case resting on its own bottom, with its own set of facts, upon further study, Parker yields up quite a few practical insights. Certainly, if you are an attorney fortunate enough to battle in the sophisticated toxic tort arena, Parker is of obvious relevance. Nevertheless, Parker can be instructive for all New York practitioners who rely upon retained experts whose scientific, technical or specialized knowledge opinions and methodologies may be questioned on reliability grounds. Indeed, Parker can be looked at on several levels. There is the straightforward story and holding on the facts of the case. Then, there are certain observations by the Court that exude significance beyond the case facts. And, finally, there are the gleanings one must pry out and extract as well as the need to recognize the questions left open. Given the excellent report on the Parker decision by fellow New York Law Journal columnists Roy L. Reardon and Mary Elizabeth McGarry in the Nov. 3 issue,2 this writer considered not revisiting the subject. Indeed, we had mentioned the Appellate Division's decision in Parker in our June column.3 However, because Parker can come at the reader not only frontally but also somewhat subliminally, it seems worth the extra ink. First the facts in a nutshell. Mr. Parker, a gas station attendant for some 17 years, developed a form of leukemia (AML) his experts attributed to benzene exposure through inhalation of gasoline fumes and through skin contact with gasoline. He sued Mobil Oil and other defendants for toxic consequences and failure to warn. Benzene, indisputably a known carcinogen above certain levels, is found in gasoline in low levels. The parties' experts disputed what the specific cause of Mr. Parker's leukemia was. The battle of the experts was essentially one on paper because neither side requested a Frye hearing. Instead, the Frye issue was triggered when, prior to completion of discovery and before the exchange of expert reports, defendants moved to preclude Mr. Parker's expert testimony on the issue of medical causation. Defendants contended the expert testimony regarding causation was scientifically unreliable under the Frye standard. Defendants also moved for summary judgment dismissing all claims because of the inappropriate causation evidence. Experts' Battle Defendants' motion was supported by opinions of two experts prepared for other litigations, an epidemiologist employed in a high position at Mobil and a toxicologist. Plaintiff countered the motion with reports from two experts, a board-certified physician in occupational medicine and a physician expert in toxicology and epidemiology. Both sides referred to studies allegedly supportive of their respective positions. The defense experts acknowledged benzene risks in large doses but concluded that low levels of benzene exposure were below the practical threshold for the dose needed to start the leukemia process. One cited various studies involving service station employees where the maximum concentrations of benzene in gasoline were low and no elevated risks were exhibited. The second expert emphasized the dose-response relationship as a cornerstone of pharmacology and toxicology. Here there was no reliable evidence to indicate a causal relationship existed at low exposure levels. Plaintiff's experts contended that Mr. Parker's exposure to benzene was considerable; that benzene was increasingly absorbed into the worker's bloodstream when he had cuts and abrasions on his hands; that several studies linked benzene exposure to leukemia; and that "no evidence was found for a threshold level below which no leukemia occurs." In other words, exposure even to low doses did not preclude disease causation. Neither of Mr. Parker's experts, however, quantified his exposure to benzene from gasoline. The trial court, identifying the issue as whether the causal relationship between benzene in gasoline and AML has general acceptance in the scientific community, denied defendants' motion, notwithstanding plaintiff's failure to quantify a threshold dose needed to cause AML and the amount of Mr. Parker's actual exposure. The Appellate Division reversed, however, finding the pivotal legal issue to be: "to what extent the plaintiff was required to establish the precise level of his exposure to benzene in order to establish that his AML was caused by it through a scientifically reliable methodology." Since Mr. Parker's experts did not quantify plaintiff's actual exposure nor the threshold required, they could not show that Mr. Parker's exposure exceeded the minimum disease-causing level. The causation opinions were therefore speculative. The appellate court observed that plaintiff's experts did not utilize the three-step causation methodology approved by the World Health Organization and the National Academy of Sciences. Dismissal was required. Proof Insufficient The Court of Appeals affirmed the result on the ground that plaintiff's experts, although highly qualified in their respective fields, "failed to demonstrate that exposure to benzene as a component of gasoline caused Parker's AML."4 Thus, an expert's "subjective and conclusory assertion" that Mr. Parker had more exposure than refinery workers in certain epidemiological studies was "plainly insufficient to establish causation" since it "neither states the level of the refinery worker's exposure, nor specifies how [Mr.] Parker's exposure exceeded it." Likewise, an expert's statements that plaintiff was "frequently" exposed to "excessive" amounts of gasoline and had "extensive exposure in both liquid and vapor form" cannot be categorized as a "scientific expression of [Mr.] Parker's exposure level." Moreover, the dispute was not whether there was an associational relationship between benzene exposure and the risk of developing AML. The key issue was the relationship, if any, between exposure to gasoline containing benzene as a component and the disease. As the Court concluded, the expert "fails to make this connection perhaps because, as defendants claim, no significant association has been found between gasoline exposure and AML. Plaintiff's experts were unable to identify a single epidemiological study finding an increased risk of AML as a result of exposure to gasoline . . . . Thus, the experts' opinions were properly excluded."5 Despite affirming the dismissal, the Court rejected the Appellate Division's approach on a need for precise quantification of the dose-response relationship. "Where we depart from the Appellate Division is that we find it is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship, provided that whatever methods an expert uses to establish causation are generally accepted in the scientific community."6 The Court referred to "several other ways an expert might demonstrate causation." Thus, for example, "intensity of exposure" to benzene may be more important than a cumulative dose. Or, perhaps, mathematical modeling taking into account a plaintiff's work history could be used to estimate exposure to a toxin. Possibly, "more qualitative means" could be used to express exposure. Thus, comparisons to exposure levels of subjects in other studies might be helpful "provided that the expert made a specific comparison sufficient to show how the plaintiff's exposure level related to those other subjects." Such methods, "along with others, could be potentially acceptable ways to demonstrate causation if they were found to be generally accepted as reliable in the scientific community."7 Apart from the specific toxic causation issue in this case, the Court in Parker gave bench and bar a number of juicy tidbits to devour. And, apart from Mr. Parker's individual loss in this litigation, both plaintiffs' and defendants' lawyers in the toxic tort arena can claim to be partial winners. Let's mine the Court's opinion for valuable nuggets that may impact litigants well beyond the Parker scenario. Reliability Standard First, readers should note that the Court explicitly identified a gigantic judicial screening or "gatekeeping" factor beyond the Frye standard itself. This is the "reliability" criterion for expert opinions and methodologies. In other words, there is a creature called "reliability," separate from the Frye inquiry, that judges must look for when expert opinions are appropriately challenged for unreliability concerns. Here is how the Parker Court elaborated it. The parties disputed whether the battle of the expert opinions should be analyzed under Frye. The Court explained that when "novel scientific evidence" is introduced, there must be a determination of its reliability. The Frye "general acceptance" test asks "whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally." However, said the Court, the Frye inquiry is "separate and distinct from the admissibility question applied to all evidence -- whether there is a proper foundation -- to determine whether the accepted methods were appropriately employed in a particular case."8 Thus, the focus moves "from the general reliability concerns of Frye to the specific reliability of the procedures followed to generate the evidence proffered and whether they establish a foundation for the reception of evidence at trial."9 In Parker, there was a question whether the methodologies used by plaintiff's experts "lead to a reliable result." Specifically, did they provide "a reliable causation opinion" without using a dose-response relationship and without quantifying Mr. Parker's exposure? Here there was no particular novel methodology at issue for which the Court needed to determine the question of general acceptance. Rather, "the inquiry here is more akin to whether there is an appropriate foundation for the experts' opinions, rather than whether the opinions are admissible under Frye."10 That's much more than a mouthful. That is putting the proverbial "elephant" in the courtroom. Reliability of expert methodologies and opinions is the elephant. It can't be ignored. And the reliability question is a threshold issue, clearly "separate and distinct" from Frye, "more akin to" the exercise of the judge's responsibility to determine "whether there is an appropriate foundation for the experts' opinions." The Court recognized "the danger in allowing unreliable or speculative information (or 'junk science') to go before the jury with the weight of an impressively credentialed expert behind it."11 Ponder the thunderous impact of this pronouncement! The Frye test has its place and is used to screen for a determination of reliability of novel scientific evidence. But beyond Frye's preliminary objective, the trial judge must screen experts' methodologies and opinions for reliability, a kind of foundational "gatekeeping" quest. Exactly how one determines that form of reliability is not spelled out in Parker. There is, of course, a robust reliability frame of reference in the federal Daubert gatekeeping standard. But the parties in Parker did not argue for it to apply acknowledging, instead, that Frye was the current New York standard.12 'Daubert' Is 'Instructive' Nevertheless, the Court of Appeals, when analyzing federal case law on how much precise exposure information a toxic tort plaintiff needs to prove, stated in footnote 4: "We recognize that these cases employ a Daubert analysis. However, they are instructive to the extent they address the reliability of an expert's methodology."13 In other words, the federal Daubert analysis is "instructive" for New York courts addressing reliability concerns about experts' methods and the opinions they spawn. This smidgen of a statement, tucked away in a brief, unobtrusive, seemingly informational footnote, delivers, like a stealth bomber, a truly powerful payload. Heretofore, although some New York courts found the federal Daubert reliability analysis helpful when gatekeeping expert opinions, many judges nevertheless took a rigid stance professing that New York was a Frye state and rejected Daubert's reliability criteria. Now, however, that position has to be re-evaluated in light of Parker's specification of a threshold reliability test "separate and distinct" from Frye and the Court's statement in footnote 4 that Daubert's criteria are "instructive" on the court's screening for reliability. What does this mean to lawyers employing experts in New York courts? Have things changed? Has Parker materially altered the litigation landscape? This writer believes the answer is "yes." Parker first suggests that the Frye test properly applies to novel scientific evidence. Then there is a separate and distinct reliability analysis that is needed. Here the federal Daubert reliability screening criteria may be "instructive." Further, in toxic exposure cases specifically, a rigid, slavish obedience to requiring precise dose-response and exposure information may be inappropriate as it may set an "insurmountable standard that would effectively deprive toxic tort plaintiffs of their day in court." Nevertheless, experts cannot introduce "junk science" or simply give an opinion unreliably or speculatively about general and specific causation issues. Thus, in toxic exposure cases, "it is necessary to find a balance between these two extremes." There may be alternate means to reliably demonstrate causation but these methods will first have to be found to be "generally accepted as reliable in the scientific community." Analysis Accordingly, Parker can be read to have ushered in a spirited, refreshing, new era of judicial gatekeeping for threshold reliability. Seemingly, this can apply to defect as well as causation opinions. The Court did not issue "bright line" rules that define what "reliability" is. Thus, a period of some uncertainty is to be expected. If Daubert's criteria are "instructive," however, that is one particularly robust, well-established frame of analytical reference. Frye, too, seems to have a refreshened face. Applicable to novel scientific evidence and methodologies, if plaintiffs in toxic exposure cases try to use less burdensome, alternative means to substitute for precise dose-response and exposure levels (such as mathematical models and comparisons to subjects in epidemiological studies), they will nevertheless have to pass the Frye test. This means more, not less, judicial screening. And, although Parker was decided only on motion papers, we should expect more in the way of pretrial in limine hearings both for traditional Frye screening and also regarding the new, separate gatekeeping search for experts' reliability. Parker is an important crossroads decision. Counsel need to read it carefully and choose the correct road. Michael Hoenig is a member of Herzfeld & Rubin. Endnotes: _________________________________________________________________________________________ [1]. 2006 NY Slip Op 07391 (NY Ct. App. Oct. 17, 2006), 2006 NY LEXIS 3188. [2]. "'Parker': Expert Opinion Evidence in Toxic Tort Case," in New York Court of Appeals Roundup, New York Law Journal, Nov. 3, 2006, p. 3. [3]. Hoenig, "Notable Recent Decisions," NYLJ, June 13, 2006, p. 3 (contrasting Parker, 16 AD 3d 648 (2d Dept.) with Nonnon v. City of New York, 2006 NY Slip Op 04373 (1st Dept. June 6, 2006), leave to appeal to the Court of Appeals granted by App. Div., Sept. 26, 2006). [4]. Parker, 2006 NY Slip Op 07391, at p. 9. [5]. Id. [6]. Parker, Id., Slip Op at p. 8. [7]. Id. [8]. Id., Slip Op, at p. 7. [9]. Id. [10]. Id. [11]. Id. [12]. Parker, Id., Slip Op, at p. 10, n.3. [13]. Id., n. 4. |
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