Dallas Court of Appeals, No. 05-16-00609-CV (May 8, 2018)
Justices Bridges (Opinion linked here), Myers, and Schenck
Virgil Hood worked for many years as an industrial painter, first for a tractor-trailer manufacturer and later for an airline. He was diagnosed with acute myelogenous leukemia (AML) in 2012, and filed a product liability lawsuit against several companies, including DuPont, alleging his exposure to benzene contained in products distributed by the defendants caused him to develop AML. After a jury trial, Hood was awarded just under $7 million.
The dispositive issue on appeal was whether the testimony of Hood’s experts was legally sufficient evidence to support the judgment. The Court followed the Texas Supreme Court’s direction in Havner to “undertake an almost de novo-like review and ... look beyond the expert’s bare testimony to determine the reliability of the theory underlying it.” Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 710 (Tex. 1997). As in Havner and many other cases, the plaintiff’s primary obstacle was to move beyond general causation—“benzene exposure is associated with AML”—and prove exposure to benzene (or other toxic substance) was the specific cause of his particular injury or disease.
Hood offered the testimony of industrial hygienist James Stewart, who “calculated Hood’s dose of lifetime benzene exposure,” and Dr. Sheila Butler, who used Stewart’s calculation and compared several epidemiological studies “to supply the alleged causal link between Hood’s lifetime cumulative benzene dose and his development of AML.” In excruciating detail, the Court analyzed the data, assumptions, methodology, and studies underlying the experts’ opinions, and found fatal flaws rendering them unreliable. Concluding the expert opinions were “no evidence of causation,” the Court reversed and rendered a take-nothing judgment.
