Defense Verdict in Chemical Case Affirmed

The Eleventh Circuit last week affirmed a jury verdict for chemical defendant E. I. DuPont de Nemours & Co. in a personal injury claim arising out of the use of the agricultural product Benlate. Ramirez v. E.I. DuPont de Nemours & Co., No. 11-10035 (11th Cir. 12/13/11).
 
The plaintiff/appellant alleged in his complaint that he used Benlate in conjunction with his farming
operations. Ramirez asserted that Benlate was a defective product because it contained an allegedly known carcinogen, atrazine. He also contended that the use of Benlate caused him to contract cancer. The case was tried to a jury which returned a verdict favorable to DuPont.  Specifically, although the jury found that Benlate was a defective product, it did not find that the Benlate was the cause of Ramirez’s cancer.
 
On appeal, Ramirez argued that the verdict in the case was inconsistent because the jury determined that the product was defective, but was not the cause of Ramirez’s injuries. The court agreed with DuPont's argument that defect and causation are separate elements of the strict liability cause of action, and a jury is free to go different directions on each.
 
The record showed that the jury was presented with numerous plausible reasons for determining that Benlate did not cause Ramirez’s cancer. For example, the jury heard that when Ramirez sprayed his crops, he rode inside an enclosed tractor cab, wore protective clothing, including goggles, a mask, a jumpsuit, gloves and boots, and thus had minimal exposure.  The jury also heard evidence demonstrating that Ramirez had numerous risk factors for cancer, including a family history of cancer and a history of smoking cigarettes.
 
Finally, plaintiff attacked DuPont’s expert, Dr. Cohen, contending that the testimony of Dr. Cohen should have been stricken pursuant to Daubert.  The court of appeals disagreed, finding Cohen was one of the world’s leading experts in cancer and chemical causation; clearly, he considered the type of scientific and factual information that experts in his field would reasonably rely upon in opining on causation.
 

NTP Proposes Changes to Process for Next Report on Carcinogens

The National Toxicology Program is accepting comments on a revised process for reviewing substances that may be added to its widely cited "Report on Carcinogens." NTP is accepting comments up to Nov. 30th.

The Report is required by Congress to be published every two years, and is designed to provide
information on substances that may pose a hazard to human health by virtue of their  carcinogenicity.  Substances are listed in the report as either known or reasonably anticipated human carcinogens. The 12th Report was published in June, 2011. But now, the NTP is proposing changes to the review process for listing substances in the 13th Report.

The NTP will hold a listening session on November 29, 2011, from 1–5 p.m. (EST), as well, to receive oral comments on the proposed review process.

Under the proposed process, NTP says it would make its substance review process more flexible, and more descriptive of the  reasoning it used to develop a proposed classification of an agent, and  thus would summarize the relevant science and also the agency's reasoning about how the agent should be classified.

Toxic tort practitioners among our readers may want to take a look (and have their experts do so).