Summary: Atlantic Legal’s commitment to ensuring that only sound science enters the courtroom remains as vigorous as ever. Our most recent defense of that fundamental principle takes the form of an amicus brief submitted to the California Court of Appeal as it prepares to hear arguments in Aguilar v. ExxonMobil Corporation , one of the ongoing lawsuits in the now infamous Lockheed litigation. Filed on behalf of a group of scientists who have studied the role science plays in public affairs, the brief may play a pivotal role in one of the most contentious and costly toxic tort actions in history.
The Lockheed litigation cases have their origin in the top-secret work done at Lockheed’s plants between the 1960s and 1980s. As part of their work building "stealth" aircraft, Lockheed workers were exposed to a variety of chemicals supplied by some of the country’s largest chemical manufacturers. A little more than a decade ago, more than 600 of these workers sued Lockheed and its chemical suppliers, alleging that exposure to chemicals at work had damaged their health. The "damage" cited ranged from rashes or headaches to cancer.
The workers’ claims were divided into groups and were heard as a series of back-to-back trials. Lockheed settled out of court, but judgments in excess of $760 million began piling up against the chemical companies named in the suit. Appeals were initially unsuccessful. Then a procedural error in trial groups four and five caused the judges to remand the cases for retrial.
The Lockheed cases are proving to be a landmark in toxic tort litigation. The spectacular initial judgments for the plaintiffs are now in the process of being just as spectacularly reversed. Where the courts originally found companies such as Exxonmobil, Ashland Chemical, Shell Oil, DuPont, and Unocal liable for the health problems experienced by Lockheed workers, they are now, on retrial, reaching different conclusions about whether it is reasonable to claim that exposure to these companies’ chemicals had any demonstrable effect on these workers’ health at all. In the retrial of groups four and five, for instance, the court refused to admit the "expert" testimony of one Dr. Daniel Teitelbaum, who could not offer solid scientific evidence to support his opinion that chemical exposure had harmed the plaintiffs’ health. Without that testimony, the plaintiffs’ case lacked credible evidence, and the defendants were vindicated.
The issue now on appeal is whether on retrial the trial court applied the correct standard in excluding Dr. Teiltelbaum’s testimony. While California state courts are not bound by Daubert and its progeny, in an earlier phase of the Lockheed litigation the California Court of Appeal applied a test for admissibility similar to that followed by federal courts applying Daubert.
As one might expect, the Lockheed plaintiffs are appealing the trial court’s ruling excluding their expert’s testimony. And, as one might also expect, Atlantic Legal is there to ensure that the appeals court understands the law surrounding expert medical evidence. The amici included a Nobel laureate in Chemistry and a number of other scientists who played prominent roles as amici in Daubert. Atlantic Legal’s brief commends the trial judge for throwing out the incompetent and ill conceived "proof of causation" offered by the plaintiffs, and it also clarifies the principles upon which that decision was based. We argue that both the Federal Rules of Evidence and the California Evidence Code make ‘reliability’ the touchstone for admissibility of expert opinion evidence, and that an assessment of ‘reliability’ must be based on whether the expert testimony is scientifically correct. We are confident that the appeals court will uphold the trial court’s ruling, and we are pleased to have the opportunity to ensure that this lengthy, messy, and costly case may finally come to its proper conclusion.