Tuesday, March 20, 2007

5th Circuit Upholds Exclusion of Testimony Linking Benzene to Hodgkins

Now finally finished with our all-consuming brief-writing campaign, we return to the blogosphere just in time to note that the Fifth Circuit issued a published opinion yesterday, upholding the exclusion of testimony from a physician/epidemiologist who linked benzene exposures to Hodgkins lymphoma. After what looks to have been unusually searching scrutiny of the epidemiological studies on which the expert relied, the district court found them jointly and severally insufficient to support generic causation. The Fifth Circuit panel upheld that ruling and appears (abuse-of-discretion standard or no) to have agreed with it. This opinion will likely come to enjoy a prominent place in the the defense bar's string cites, especially in benzene cases. See Knight v. Kirby Inland Marine, Inc., No. 06-60134 (5th Cir. Mar. 19, 2007) (Davis, Stewart, & Crone, JJ.).



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Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.