Schultz v. Akzo Nobel Paints: Seventh Circuit Issues Thoughtful, Likely Influential Daubert Decision

The influential Seventh Circuit Court of Appeals has issued a decision concerning expert testimony that is likely to be influential in other jurisdictions faced with forging a fair and workable jurisprudence for the admission of expert opinion testimony. See Schultz v. Akzo Nobel Paints, LLC, No. 12-1902 (7th Cir. June 26, 2013) (slip opinion available here).

The Schultz decision arises from a survivor action, in which the wife of a now-deceased worker at American Motors (also deceased) alleged that benzene in defendant’s paint caused the plaintiff to develop acute myeloid leukemia (AML). In the opinion, written by Circuit Judge Diane Wood (perhaps the Seventh Circuit’s most prominent liberal voice and also frequently mentioned as a Supreme Court candidate), the Court of Appeals held that the district court had erred in granting the defendant’s motion for summary judgment substantially on the basis of the plaintiff’s expert’s opinion having been deemed unreliable and thereby having been excluded. See slip op. at 1-2.

The plaintiff’s expert used so-called “Monte Carlo Analysis” to make a probabilistic determination as to the likelihood of benzene exposure having substantially contributed to causing the plaintiff’s cancer. See slip op. at 3-5. Though the expert took the plaintiff’s history of smoking into consideration in his analysis, the defendant’s expert seized on this fact, and also determined a higher threshold for safe benzene exposure. See slip op. at 6-8. The plaintiff’s expert took issue with the threshold used by the defendant’s expert, contending it to be “way out of the mainstream,” and explained that, in his opinion, there is no threshold below which benzene exposure is safe. Id. In striking the plaintiff’s expert’s testimony, the district court gave considerable weight to his “no threshold” view, and assailed him, as well, for not taking due account of the plaintiff’s smoking. See slip op. at 8.

The Seventh Circuit undertook a de novo review to determine whether the district court properly followed the framework for determining the admissibility of expert testimony under Federal Rule 702, which has effectively codified the U.S. Supreme Court’s decision in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). See slip op. at 10-14. While acknowledging district courts’ roles as “gatekeepers” of expert testimony, the Seventh Circuit explained that “the key to the gate is not the ultimate correctness of the expert’s conclusions,” but rather, “the soundness and care with which the expert arrived at her opinion” that is the proper focus of a Daubert analysis, a focus that the Schultz trial court did not adhere to. Slip op. at 10.

Though received as a disappointment by some in the defendants’ bar, the plaintiff’s expert in fact used a methodology identical to the defendant’s expert. That the plaintiff’s expert merely arrived at a different conclusion regarding minimum level of benzene exposure that was necessary to cause AML is matter properly resolved by a jury. The district court’s tacit assumption that there is one single correct conclusion, to the exclusion of all others, was the essence of the district court’s erroneous, now-reversed, ruling. The purpose of this particular instance of expert testimony was not to determine whether or not benzene caused plaintiff’s cancer, with perfect epistemological certainty. Rather, the proper inquiry is whether the analysis, irrespective of its ultimate conclusion, is sound. Quite often, there will be two expert analyses, both exceeding the Daubert soundness threshold, but each reaching diametrically different conclusions. Thereafter, the established civil litigation procedures determine which conclusion is more likely to be accurate. This affirmation of the established division of labor between judge and jury is the upshot of the Seventh Circuit’s ruling in Schultz.

The grant of summary judgment was thus reversed, and the case was remanded to the district court for proceedings consistent with the Seventh Circuit’s opinion.