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Vol. 7, No. 3 Mealey's Emerging Toxic Torts 6
May 12, 1998
Expert Testimony
W.VA. JUDGE EXCLUDES INDUSTRIAL HYGIENIST'S TESTIMONY ON CUMULATIVE BENZENE EXPOSURE
Copyright 1998 Mealey Publications, Inc.
MOUNDSVILLE, W.Va. -- A defense industrial hygienist's methodology is flawed and his estimates of a decedent's cumulative benzene exposure
are "guesstimates" because they are based on air monitoring data that does not simulate the types of exposure experienced by the decedent, a state court judge has ruled in granting a plaintiff's motion to exclude the testimony under Daubert (Kathleen Lavender v. Bayer Corp., et al., No. 93-C-226K, W.Va. Cir., Marshall Co.).
(Text of Opinion in Section F. Mealey's Document #15-980512-1080)
Kathleen Lavender sued Bayer Corp. for the death of her husband, John, an employee of an independent electrical contractor. Lavender
alleged John died from acute monocytic leukemia resulting from benzene exposure at Bayer's job site in New Martinsville, W.Va.
Bayer, which contends that John Lavender was not exposed to benzene in an amount sufficient to have caused his leukemia, sought to offer
the testimony of John Spencer, an industrial hygienist.
Spencer examined Bayer's air monitoring data for its own workers at the New Martinsville facility and calculated the decedent's
cumulative exposure
to benzene at the plant by relying on that data, utilizing the mean concentration of benzene in particular areas and determining how much time John Lavender spent in those areas.
Kathleen Lavender moved in limine to exclude Spencer's testimony regarding her husband's cumulative benzene exposure pursuant to West
Virginia Rules of Evidence 702, 703 and 403.
In his March 23 findings of fact and conclusions of law, Marshall County Circuit Court
Judge Mark Karl said there is no personal air monitoring data for benzene on John Lavender. Furthermore, Spencer testified that personal
monitoring for the decedent's benzene exposure was unnecessary because both area samples and personal samples were performed on workers who were at the greatest risk of exposure to benzene on a regular
basis and this data indicated low exposure levels, according to the judge.
"The Court finds that the basis for Mr. Spencer's calculation of Mr. Lavender's exposure does not simulate the types of exposure Mr.
Lavender experienced at the Bayer facility, given the lack of any personal air monitoring data for Mr. Lavender" coupled with other flaws in Spencer's methodology, the judge said.
The judge said that at various times John Lavender worked near the Bayer plant's waste water trench system, in the iron oxide area and in
the MNB unit, but air monitoring data during those time periods in those areas does not exist, the judge said.
Exposure Zones
"Mr. Spencer's conclusion as to cumulative exposure is flawed because his methodology attempts to utilize benzene exposure data from
Bayer workers to establish exposure for Mr. Lavender without determining whether or not the Bayer workers and Mr. Lavender were in the same 'exposure zone' as defined by the industrial hygiene
literature," Judge Karl said. "In other words, the use of Bayer employee air monitoring data does not 'fit' and cannot be utilized to determine Mr. Lavender's cumulative benzene exposure."
The judge said air monitoring at Bayer's facility was performed on an ad hoc basis. The company did not attempt to determine work
similarity or environmental similarity among individuals at the site; contract employees were not monitored; and no exposure zones were established, the judge said. Additionally, the judge noted, Bayer
employees destroyed monitoring results that would have been factored into the exposure equation. Consequently, any attempt to use Bayer's air monitoring data to apply to John Lavender amounts to
"guess work," the judge said.
Furthermore, Spencer's opinion is based on incomplete data because Bayer failed to perform a follow-up investigation when monitoring
revealed elevated benzene levels and failed to maintain all of the samples taken by the industrial hygiene department to establish when additional monitoring was necessary, according to the judge.
"Contrary to the assertions in his affidavit, Mr. Spencer's estimates of Mr. Lavender's benzene exposure are scientifically inadequate
and based on sub- standard industrial hygiene principles," the judge said. "More importantly, Mr. Spencer's failure to utilize and consider exposure zones is not a valid scientific methodology.
His methodology has never been tested for accuracy, it has never been accepted or even set forth in the peer-reviewed scientific literature, nor have any standards been established for the application of
any such methodology, nor have any scientists determined the likely error rate inherent in application of any such methodology."
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Lavender is represented by R. Dean Hartley and James M. O'Brien of
Hartley O'Brien Parsons Thompson & Hill of Wheeling, W.Va., and Scott Segal of Charleston, W.Va.
Bayer is represented by Joe G. Hollingsworth of Spriggs &
Hollingsworth of Washington, D.C., and Larry Blalock of Jackson & Kelly of New Martinsville, W.Va.
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