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Parties Argue Causation in Toxic Landfill Case

Dr. Neugebauer opined that the rate of childhood ALL in Band 1 was more than fourfold higher and statistically significantly greater, with an SMR of 4.05, than the rate among persons in Band 4. The rate of childhood ALL among persons in Band 2 was similarly substantially and statistically significantly elevated, with an SMR of 5.2, as compared to persons in Band 4. Dr. Neugebauer noted that the probability that this pattern of increases in rates with increasing proximity to the landfill arose from random error was 1 in 10,000. Dr. Bernard similarly opined that the strength of association was clearly demonstrated by comparisons between Band 1 and Band 2 versus Band 4, showing a very significant relationship between the incidence of childhood ALL and proximity to the landfill.

Plaintiff’s evidence of causation is sufficient under Parker, to establish an increased incidence of ALL as a result of substances emanating from the landfill.

The City contends that it is impossible to establish specific causation because plaintiffs cannot quantify their exposure to any specific toxin. The City insists that in the absence of a specific dose-response analysis, plaintiffs cannot establish that their current ailments were caused by toxins emanating from the landfill. We disagree. In Parker v. Mobil Oil Corp., supra, the Court of Appeals rejected this very argument. The Court recognized that in toxic tort cases it is generally difficult or impossible to quantify a plaintiff’s exposure to a toxin, stating, It is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship, provided that whatever methods an expert uses to establish causation are generally accepted in the scientific community. The Court of Appeals noted that in lieu of establishing causation through a dose-response analysis, an expert might, for example, rely on mathematical modeling that would take into account relevant factors in estimating exposure to a toxin, or compare the plaintiff’s exposure to the exposure levels of subjects in other medical malpractice studies.

Thus, so long as plaintiffs’ experts have provided a “scientific expression” of plaintiff’s exposure levels, they will have laid an adequate foundation for their opinions on specific causation. For example, in Jackson, the court found that the plaintiffs’ expert had laid a sufficient foundation for his opinion on causation where, inter alia, the expert was directly involved in the investigation of the potential health consequences of the underlying incident; co-authored a report based on the investigation and research that had been published in a peer-reviewed medical journal, comparing the facts of the incident to those recorded in other studies; and opined that the manner in which DEAE had been fed into the steam system prior to the leak caused concentrated levels of the toxin to be released and that plaintiffs’ symptoms were caused by DEAE exposure in a building.

Here, Dr. Bernard opined that the strength of the association was consistent with a cause-and-effect relationship between the landfill and childhood ALL and that the data demonstrated a direct dose-response relationship between exposure and the disease. He further opined that the available evidence concerning “biological plausibility” supported a causal relationship between childhood ALL and exposure to a wide variety of substances, including ionizing radiation, pesticides, and organic solvents, such as benzene, found to have emanated from the landfill. Dr. Bernard noted that etiologies believed to be associated with the induction of leukemias, including childhood leukemias, have as their common mechanism mutagenic effects on chromosomal tissue.

Given that the City relied on the proximity analyses contained in DOH’s 1988 and 1994 studies of the landfill, it must concede that proximity analysis is a recognized substitute for a dose-response analysis. Dr. Neugebauer explained that the purpose of his study was to test the hypothesis of DOH’s scientific advisory committee that if an epidemiological study of the landfill were extended into the 1990s and specifically looked at ALL, it might show an increased risk of ALL with increasing personal injury proximity to the landfill.

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