Toxic Tort Litigation

After Milward v. Acuity Products

The Center for Progressive Reform (CPR)

Wake Forest University School of Law

Wake Forest Journal of Law & Policy

Link to the Schedule

In Milward v. Acuity Products, 639 F.3d 11 (1st Cir. 2011), the First Circuit became the first court – either federal or state – to allow a “weight of the evidence” methodology for assessing causation in a toxic tort case. The plaintiff had alleged that exposure to defendant’s benzene-containing products caused his rare leukemia (Acute Promyelocytic Leukemia (“APL”)).  His expert witness, a leading toxicologist and expert on benzene, surveyed five lines of scientific evidence from the peer-reviewed literature, and concluded the available evidence, taken as a whole, supported the inference that benzene exposure can cause APL.  The lower court, following a common post-Daubert approach, excluded the testimony “because no one line of evidence supported a reliable inference of causation, [and] an inference of causation based on the totality of the evidence was unreliable.”  The First Circuit rejected this “atomistic” approach, noting that the district court did not have the authority to exclude evidence because reasonable experts may disagree about what it means.

This symposium will explore the implications of Milward for toxic tort litigation in the federal and state courts, including whether it correctly applies Daubert v. Merrell Dow Pharmaceuticals, Inc., 509, U.S. 579 (1993).  The Symposium is tentatively scheduled for Wednesday, May 16, Thursday, May 17 or Friday, May 18, in Washington, D.C.  Speakers are invited to comment on any aspect on Milwardthat they find interesting and important, including the following issues:

1. What role does the weight of the evidence methodology play in scientific risk assessment, and what are the implications of this role for tort litigation?
2. Should well-founded testimony based on a weight of the evidence methodology be admissible in toxic tort litigation?  Does the Restatement of Torts (Third) §28 cmt. c concerning the role of scientific judgment in adjudicating general causation support the admissibility of such testimony?
3. Does the reliance of regulatory agencies, such as EPA, on a weight of the evidence methodology for purposes of regulating toxic chemicals support the result in Milward?  Or are there differences in the legal and policy judgments being made by regulators and judges that distinguish regulatory agencies from courts?
4. What are the legal and policy implications of Milward for the future of toxic tort litigation?

The Wake Forest Journal of Law and Public Policy will publish the papers presented during the symposium in the Fall 2012.  Papers will be submitted for publication around September 1, 2012.   CPR thanks the Robert L. Habush Foundation for its support of the symposium.