Valentine v. Conrad

Pfeifer, J.,

dissenting.

{¶ 24} I concur in Justice Lundberg Stratton’s thorough dissent, in which she sets forth the qualifications and testimony of the experts at issue. The expert testimony offered was of a quality that easily surpasses the standard for summary judgment, and the trial judge abused his discretion in finding otherwise. This case should have been decided by a jury weighing the competing testimony of qualified experts.

{¶ 25} This is a workers’ compensation case, not a products-liability case. Therefore, Valentine need not prove that one specific chemical caused her *47husband’s disease. She need not identify a specific product or manufacturer. Nor is this an intentional-tort case against PPG Industries, Inc. Valentine does not claim that PPG Industries knew of and ignored the dangers of the chemicals her husband worked with. She makes no claim that PPG Industries was negligent. She claims only that her husband became ill because of his job. A neurosurgeon, a neuro-oncologist, and an industrial hygienist testified that workplace exposure did cause Valentine’s husband’s cancer.

{¶ 26} Their testimony should have been enough to establish at least a genuine issue of material fact as to whether the decedent’s cancer was caused by his exposure to cancer-causing substances in his workplace. It is true that Valentine’s experts did not prove that one specific chemical caused his brain tumor. The trial judge’s criticism of their methodology would be appropriate if the doctors had been required to prove such a link. Instead, they were charged with looking at the whole of Valentine’s workplace environment and whether that environment contributed to cause his cancer.

{¶ 27} The death of Mr. Valentine’s co-worker, McConnaughey, of the same rare disease at virtually the same time is the key element in the experts’ conclusion that there was a connection between Mr. Valentine’s workplace exposure to chemicals and his cancer. At the heart of their methodology are statistics — cold, hard numbers. It is enormously unlikely statistically that, simply by chance, two men who worked at the same job at the same location would die within a week of each other of the same rare brain cancer that causes only one in roughly every 14,000 deaths in the United States. Only 17 people worked with the same chemicals over the same duration of time at PPG Industries as Valentine and his colleague. The odds that two people from that same group of 17 workers would randomly contract this cancer are one in 1,442,206.

{¶ 28} Beyond the statistically extreme improbability that Mr. Valentine’s and McConnaughey’s cancers occurred as a result of chance, the experts identified compelling risk factors. Mr. Valentine and McConnaughey worked with benzene, a known human carcinogen. They worked with acrylonitrile and ethylene oxide, which cause brain tumors in rats. They worked in an environment with deficient personal protective equipment and ventilation. Lab workers no longer use benzene because of its potential danger and have adopted safety procedures worlds away from those employed in the early years by Mr. Valentine and McConnaughey. Mr. Valentine used cancer-causing agents in a dangerous manner over a long period of time. McConnaughey did the same. They ended up with the same disease by chance?

{¶ 29} There is less than one chance in a million, quite literally, that the well-qualified doctors who testified on behalf of Valentine were wrong about the cause *48of her husband’s death. The trial* court seized upon that fraction of a speck of a chance to deny death benefits in this workers’ compensation case, without ever giving a jury a chance to consider the testimony of the parties’ experts. If three or four or five co-workers had died of the same brain cancer, would the court have allowed Valentine’s experts to testify without a proven link between a particular chemical and glioblastoma multiforme? Applying the trial court’s reasoning, the answer would have to be no. Statistics are irrelevant in the trial court’s analysis.

{¶ 30} Statistics aided the experts’ differential diagnosis, which is a reliable method for determining causation. “[T]he overwhelming majority of the courts of appeals that have addressed the issue have held that a medical opinion on causation based upon a reliable differential diagnosis is sufficiently valid to satisfy the first prong of the Rule 702 inquiry.” Westberry v. Gislaved Gummi AB (C.A.4, 1999), 178 F.3d 257, 262. The Sixth Circuit is among the courts of appeals that have found differential diagnosis to be an “appropriate method for making a determination of causation for an individual instance of disease.” Hardyman v. Norfolk & W. Ry. Co. (C.A.6, 2001), 243 F.3d 255, 260. Hardyman describes the method:

{¶ 31} “ ‘A reliable differential diagnosis typically, though not invariably, is performed after “physical examinations, the taking of medical histories, and the review of clinical tests, including laboratory tests,” and generally is accomplished by determining the possible causes for the patient’s symptoms and then eliminating each of these potential causes until reaching one that cannot be ruled out or determining which of those that cannot be excluded is the most likely.’ ” Hardyman, 243 F.3d at 260-261, quoting Westberry, 178 F.3d at 262, quoting Kannankeril v. Terminix Internatl., Inc. (C.A.3, 1997), 128 F.3d 802, 807.

{¶ 32} The differential diagnoses done by the doctors in this case were reliable and met the requirements of Evid.R. 702. A jury should have considered their testimony.

{¶ 33} Instead, the trial judge essentially tried the case on the merits at the summary judgment stage. It may be that the trial court found Valentine’s experts unconvincing, but that is a far cry from their being unqualified to testify. A trial court’s use of the magical word “methodology” can transform testimony that the trial judge does not agree with into testimony that is “unqualified.” Does this court really believe that Evid.R. 702 was designed to keep experts in their field like Drs. Miner and Newton from testifying in a case like this? Or are we to believe that the real cancer experts are not at James Cancer Hospital but at the courthouse in Chillicothe?

Resnicic and Lundberg Stratton, JJ., concur in the foregoing opinion.