IN THE SUPREME COURT OF MISSISSIPPI
NO. 2006-CA-01128-SCT
MILTON CECIL WATTS
v.
RADIATOR SPECIALTY COMPANY AND
UNITED STATES STEEL CORPORATION
DATE OF JUDGMENT: 06/09/2006
TRIAL JUDGE: HON. ROBERT G. EVANS
COURT FROM WHICH APPEALED: SMITH COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: EUGENE COURSEY TULLOS
LOUIS H. WATSON, JR.
DARYL L. MOORE
LANCE H. LUBEL
J. ROBERT BLACK
ATTORNEYS FOR APPELLEES: S. LEANNA BANKESTER
JOE E. BASENBERG
GEORGE M. WALKER
RANCE N. ULMER
JAMES M. RILEY, JR.
STEPHEN L. THOMAS
MARY CLAY W. MORGAN
FRED KRUTZ
PHILLIP S. SYKES
JAMES WILLIAM MANUEL
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED - 06/12/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE WALLER, P.J., CARLSON AND LAMAR, JJ.
LAMAR, JUSTICE, FOR THE COURT:
¶1. This case comes before the Court on appeal from the Circuit Court of Smith County.
Following a trial in which the jury returned a verdict for the plaintiff, Circuit Judge Robert
G. Evans granted the defendants’ motion for judgment notwithstanding the verdict (JNOV)
after finding that the testimony of the plaintiff’s expert on the issue of causation should have
been excluded as scientifically unreliable. The trial court entered an order dismissing the
plaintiff’s case with prejudice, and the plaintiff appeals.
FACTS
¶2. Plaintiff Milton C. Watts was diagnosed with small-cell lymphocytic lymphoma, a
subtype of non-Hodgkin’s lymphoma in 1999.1 At the time of trial, Watts was 72 years old.
Beginning in 1947, and throughout much of his career, Watts used a product called Liquid
Wrench which was manufactured by Defendant Radiator Specialty Company.2 Liquid
Wrench was made with a solvent called raffinate which contained benzene. The benzene-
containing raffinate used by Radiator Specialty to manufacture Liquid Wrench was produced
by Defendant U.S. Steel Corporation.3
1
According to testimony, there are at least twenty-five different types of non-
Hodgkin’s lymphoma.
2
Liquid Wrench is a liquid solvent used for cleaning tools and engine parts and
loosening nuts and bolts. At the time Watts began using Liquid Wrench, it was one of the
only products of its kind on the market.
3
It is undisputed that Liquid Wrench contained raffinate produced by U.S. Steel from
1960 through 1978. Plaintiff alleges that Radiator Specialty used U.S. Steel raffinate as
early as 1941. However, it is Defendants’ contention that U.S. Steel’s raffinate was sold to
Radiator Specialty only from 1960 through 1978. It is the further contention of Radiator
Specialty that no one knows the formula used to produce Liquid Wrench in the 1940s and
2
¶3. Watts first used Liquid Wrench while in vocational school in 1947. Watts testified
that between 1953 and 1961, that he used Liquid Wrench one to five times per day while
working odd jobs as a mechanic. There were times, Watts testified, where he would have
to clean parts for hours at a time in a room with no ventilation. Watts began working on
locomotives for a company called Masonite in 1970, and he continued to work there until his
retirement in 1996. He used Liquid Wrench consistently while working on the locomotives.
¶4. It is Watts’s contention that his lymphoma was caused by his exposure to the benzene-
containing raffinate in Liquid Wrench. It is undisputed that benzene can cause serious health
problems in individuals who are exposed to it. However, the defendants contend that there
is no evidence of a link between benzene exposure and small-cell lymphocytic lymphoma.
The defendants claim that Dr. Barry Levy, Plaintiff’s medical expert on causation, “is the
only medical doctor who believes that a demonstrable causal association exists between
benzene exposure and [non-Hodgkin’s lymphoma].”
COURSE OF PROCEEDINGS
¶5. Watts filed his complaint against Radiator Specialty and U.S. Steel in the Circuit
Court of Smith County on October 11, 2002. The defendants each moved for summary
judgment, but it was denied by the trial court. The defendants also moved to have the
plaintiff’s medical expert, Dr. Barry Levy, disqualified. This motion was renewed at trial
1950s, nor is it known whether that formula included a benzene-containing agent. The
period from 1960-1978 is the only time when it is undisputed that Liquid Wrench did
contain benzene.
3
and was denied by the trial judge, who allowed Levy to be qualified as an expert in
epidemiology and occupational medicine.
¶6. The trial began on November 8, 2004, and the jury returned a verdict for Watts in the
amount of $2 million.4 Following entry of the judgement on March 9, 2005, defendants
made a motion for JNOV (or, in the alternative, a new trial) claiming, inter alia, that the trial
court had erred in admitting the testimony of Dr. Levy as to causation. After briefing and
argument on the motion, the trial court agreed that Dr. Levy’s causation testimony was
scientifically unreliable. In particular, the trial court found that “neither the cohort studies
nor the case control studies relied upon by Dr. Levy at trial supported his opinion that a
causal connection exists between benzene exposure and non-Hodgkin’s lymphoma.” The
court entered an order granting the defendants’ motion for JNOV and conditionally granting
the defendants a new trial should this Court reverse the grant of JNOV. The trial court
entered a judgment of dismissal with prejudice, and this appeal followed.
ANALYSIS
I. The trial court’s exclusion of Dr. Levy’s testimony
¶7. “When reviewing a trial court's decision to allow or disallow evidence, including
expert testimony, we apply an abuse of discretion standard.” Canadian Nat'l/Ill. Cent. R.R.
v. Hall, 953 So. 2d 1084, 1094 (Miss. 2007). Unless this Court concludes that a trial court’s
4
The jury found that Radiator Specialty was forty percent at fault and U.S. Steel was
forty-five percent at fault, with the remaining fifteen percent of fault attributed to Watts’s
former employers.
4
decision to admit or exclude evidence was arbitrary and clearly erroneous, that decision will
stand. Irby v. Travis, 935 So. 2d 884, 912 (Miss. 2006). Under Mississippi Rule of Evidence
702, trial courts are charged with being gatekeepers in evaluating the admissibility of expert
testimony. Id. “We are confident that our learned trial judges can and will properly assume
the role as gatekeeper on questions of admissibility of expert testimony.” Miss. Transp.
Comm'n v. McLemore, 863 So. 2d 31, 40 (Miss. 2003). Mississippi Rule of Evidence 702
provides:
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) their
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.
This rule makes it necessary for a trial court to apply a two-pronged inquiry when evaluating
the admissibility of expert testimony: (1) is the witness qualified, and (2) is the testimony
relevant and reliable? McLemore, 863 So. 2d at 35.5 There is no dispute that Dr. Levy was
properly qualified as an expert in epidemiology and occupational medicine. Thus, the
admissibility of Dr. Levy’s causation testimony turns on its reliability and its relevance.
5
In McLemore, this Court adopted the standard prescribed by the U.S. Supreme
Court in Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579, 113 S. Ct. 2786, 125
L. Ed. 2d 469 (1993).
5
¶8. Dr. Levy testified as to general causation (that benzene causes non-Hodgkin’s
lymphoma) and specific causation (that benzene-containing Liquid Wrench caused Mr.
Watts’s non-Hodgkin’s lymphoma). The methodology used in forming his opinion as to
general causation was the review of eighteen case studies done by different researchers
between 1979 and 2004.6 While the defendants do not challenge this methodology, they do
challenge the reliability and relevance of the case studies Dr. Levy relied upon.
¶9. While case-study review is certainly an accepted methodology, trial courts still must
be certain that the content of those case studies is relevant to the facts at hand. A review of
the case studies supports the trial court’s finding that Dr. Levy’s testimony as to the content
of the studies and their relevance to the facts of this case could easily have misled the jury.
This Court recently spoke to the danger of unreliable expert testimony and the effect that it
can have on the decision-making process of a juror.
Juries are often in awe of expert witnesses because, when the expert witness
is qualified by the court, they hear impressive lists of honors, education and
experience. An expert witness has more experience and knowledge in a certain
area than the average person. Therefore, juries usually place greater weight on
the testimony of an expert witness than that of a lay witness.
6
The case studies consisted of nine “cohort” studies and nine “case-control” studies.
Cohort studies identify and study a group of people exposed to a certain element as
compared to another group not exposed to the element to see if there is a higher incidence
of certain diseases in the group exposed to the element. Case-control studies identify and
study a group of people who have a certain disease as compared to a group of people who
do not have that disease to see if there is a higher incidence of exposure to a certain element
in the past in the group that has the disease. For example, a cohort study would study a
group of people who were exposed to benzene to see if they contracted non-Hodgkin’s
lymphoma, while a case-control study would study a group of people with non-Hodgkin’s
lymphoma to see if they had been exposed to benzene.
6
Edmonds v. State, 955 So. 2d 787, 792 (Miss. 2007). Being no exception, Dr. Levy’s
testimony about his education and experience covered five pages of transcript. This included
his testimony that he attended Tufts College in Boston and Cornell Medical School in New
York, and that he obtained a master’s degree in public health from the Harvard School of
Public Health. Because of the weight that is given to expert testimony, it is imperative that
trial judges remain steadfast in their role as gatekeepers under the Daubert standard.
¶10. In striking Dr. Levy’s causation testimony, the trial court specifically cited Radiator
Specialty’s brief supporting the motion for JNOV. In that brief, Radiator Specialty reviewed
each of the eighteen case studies and criticized Dr. Levy’s reliance upon them. 7 Of the
eighteen studies Dr. Levy cited, he testified that only half showed a statistically significant
increase in risk due to benzene exposure. None of the studies specifically looked at the
possible risks associated with use of Liquid Wrench. None specifically studied the risks of
development of non-Hodgkin’s lymphoma in mechanics, Watts’s profession. 8 One of the
studies suggested that the reported increase in risk of non-Hodgkin’s lymphoma was not
occupationally related. Another of the studies, which included a review of other studies,
reported no significant increase in risk of non-Hodgkin’s lymphoma due to benzene
7
Each of the studies was attached as an exhibit to Radiator Specialty’s motion. The
studies were not provided to the jury.
8
The studied occupations included oil refinery workers, gas station attendants,
general chemical workers, and seamen on tankers.
7
exposure. Several of the studies did not provide a dose-response ratio.9 Finally, not one
study concluded that there is a causal link between benzene exposure and non-Hodgkin’s
lymphoma. In fact, one of the authors of a study relied upon by Dr. Levy testified that there
was no legitimate basis to conclude that there is a link between benzene exposure, much less
Liquid Wrench, and non-Hodgkin’s lymphomas.10
¶11. These facts call into question the reliability and relevance of the studies upon which
Dr. Levy based his conclusion that Liquid Wrench caused Watts’s small-cell lymphocytic
lymphoma. None of these studies provide a basis for the conclusion that there is a causal
connection between benzene exposure and non-Hodgkin’s lymphoma, much less small-cell
lymphocytic lymphoma, the particular type from which Watts suffers.
¶12. Relevance, as defined by our standard for admitting expert testimony, depends upon
whether the reasoning or methodology employed by the expert witness may be properly
applied to the facts at hand. Daubert, 509 U. S. at 593. Dr. Levy’s testimony gave very little
detail, if any, as to the specific findings of each case study and glossed over many of the
findings. All that was provided to the jury were two pages which listed the author of each
study, the year of the study, a one-or-two word description of the test subjects, and a number
9
A dose-response ratio is needed to indicate the level of exposure to benzene of the
subjects of the study. This information is crucial under the case-study methodology to show
specific causation so that Watts’s level of exposure could be specifically compared to
subjects with similar exposure.
10
Dr. Philip Cole, co-author of the Delzell study, testified as the defendants’ expert
witness.
8
signifying the increased risk due to exposure. Based on this evidence and Dr. Levy’s
testimony, we cannot say that the trial court abused its discretion in excluding Dr. Levy’s
testimony.
¶13. The dissent disagrees with this conclusion, arguing that the trial court abused its
discretion in excluding Dr. Levy’s testimony. Specifically, the dissent takes issue with our
pointing out that none of the studies concludes that there is a link between benzene exposure
and non-Hodgkin’s lymphoma. In support of its argument, the dissent cites Knight v. Kirby
Inland Marine Inc., which stated, “in epidemiology hardly any study is ever conclusive, and
we do not suggest that an expert must back his or her opinion with published studies that
unequivocally support his or her conclusions.” 11 At no point do we suggest that experts must
rely on studies that explicitly support their testimony. The fact that not one of the studies
relied upon by Dr. Levy finds a conclusive link between benzene exposure and non-
Hodgkin’s lymphoma is just one of the many problems with the studies cited by the trial
court.
¶14. For example, the dissent specifically points readers to the Hayes study and its
assertion that benzene-exposed workers are four times more likely to develop non-Hodgkin’s
lymphoma.12 The Hayes study itself points out that its findings with regard to non-Hodgkin’s
11
482 F.3d 347, 354 (5th Cir. 2007). What the dissent fails to point out about the
Knight decision is that it actually affirmed a trial court’s decision to exclude expert testimony
based upon the weakness of the studies on which the expert relied. Id. at 355.
12
It should be noted that the Hayes study is the only study that found anything more
than a borderline association between benzene exposure and non-Hodgkin’s lymphoma.
9
lymphoma are not statistically significant. Richard B. Hayes, et al., Benzene and the Dose-
Related Incidence of Hematologic Neoplasms in China, J. Nat’l Cancer Inst., July 16, 1997,
1065-1071. Further, the article admits that the notably higher risk of non-Hodgkin’s
lymphoma was found among chemical workers who were exposed to a number of chemicals
other than benzene and that the “observed risks could be due to some other exposures.” Id.
at 1070.
¶15. Curiously, the dissent points to this quote from the Hayes study, which makes our
point even clearer:
As in most industrial settings, the workers in this investigation were likely
exposed to a number of chemicals other than benzene and the observed risks
could be due to some other exposures. However, the subjects in this study were
employed in a variety of occupations, and excesses of hematologic disease
were not restricted to a particular subset of benzene-related occupations, with
the possible exception of the notably higher risks for NHL among chemical
workers. This observation suggests that the effects are more likely due to the
common exposure to benzene than due to other exposures.
(Emphasis added by dissent). In this passage, the authors of the study are simply pointing
out that the increased risk for non-Hodgkin’s lymphoma was found among general chemical
workers while the other hematologic diseases analyzed in the study 13 were not restricted to
any particular occupation. The observation that the other blood disorders were not restricted
to any particular occupation suggests that the common exposure to benzene was the cause.
The quote specifically excludes non-Hodgkin’s lymphoma from this finding. This is a
13
Namely, these other hematologic diseases are acute non-lymphocytic leukemia,
myelodysplastic syndromes, and other leukemias.
10
common theme among the eighteen studies involved here. While the dissent claims that “all
eighteen of the studies found some correlation between benzene exposure and non-Hodgkin’s
lymphoma,” it must be noted that these studies involve exposures to solvents or chemicals
other than just benzene. In fact, the Massoudi study analyzes “chemical exposure” in
general, and never even refers to benzene exposure. Barbara L. Massoudi, et al., A Case-
Control Study of Hematopoietic and Lymphoid Neoplasms: The Role of Work in the
Chemical Industry, Am. J. Indus. Med., 1997, 31:21-27.
¶16. The United States Supreme Court has provided guidance for courts dealing with issues
like the one presently before this Court. In Joiner v. General Electric Co.,78 F.3d 524 (11th
Cir. 1996), the United States Court of Appeals for the Eleventh Circuit reversed a decision
of the District Court for the Northern District of Georgia to exclude an expert’s testimony
because the studies on which the expert relied were not sufficient to support the expert’s
testimony. General Electric, the defendant in the litigation, petitioned the Supreme Court for
writ of certiorari. The Supreme Court granted General Electric’s petition and adopted the
abuse-of-discretion standard for Daubert issues arising on appeal. General Electric Co. v.
Joiner, 522 U.S. 136; 118 S. Ct. 512; 139 L. Ed. 2d 508 (1997).
¶17. Arguing that the district court had abused its discretion, Joiner pointed the Supreme
Court to its own language in Daubert stating that the focus of trial courts during Daubert
analysis “must be solely on the principles and methodology, not on the conclusions that they
generate.” Id. at 146 (quoting Daubert, 509 U.S. at 595). The Court responded,
11
But conclusions and methodology are not entirely distinct from one another.
Trained experts commonly extrapolate from existing data. But nothing in
either Daubert or the Federal Rules of Evidence requires a district court to
admit opinion evidence which is connected to existing data only by the ipse
dixit of the expert. A court may conclude that there is simply too great an
analytical gap between the data and the opinion proffered.
Id. The Court reversed the Eleventh Circuit and reinstated the district court’s ruling, stating
that the district court had not abused its discretion in finding that the analytical gap between
the data in the studies and the opinion proffered by the expert was simply too great.
¶18. The dissent also makes the assertion that this Court’s decision will effectively
resurrect the Frye standard requiring an expert’s opinion to be generally accepted in the
scientific community. Frye v. United States, 54 App. D.C. 46, 47, 293 F. 1013, 1014 (1923).
Quite to the contrary, this case is a perfect example of how courts should apply Daubert and
its progeny. “The Daubert standard ensures that proffered evidence is both ‘reliable’ and
‘relevant.’” Knight, 482 F.3d at 352 (citing Daubert, 509 U.S. at 589). This Court has
recognized the reliability requirement under Daubert.
The Court in Daubert adopted a non-exhaustive, illustrative list of reliability
factors for determining the admissibility of expert witness testimony. The
focus of this analysis "must be solely on principles and methodology, not on
the conclusions they generate." These factors include whether the theory or
technique can be and has been tested; whether it has been subjected to peer
review and publication; whether, in respect to a particular technique, there is
a high known or potential rate of error; whether there are standards controlling
the technique's operation; and whether the theory or technique enjoys general
acceptance within a relevant scientific community. The applicability of these
factors depends on the nature of the issue, the expert's particular expertise, and
the subject of the testimony.
12
McLemore, 863 So. 2d at 36-37 (internal citations omitted) (emphasis added). While
certainly there is no requirement that an expert’s opinion be “generally accepted in the
scientific community” as under the Frye standard, it is a factor for trial courts to consider.
This factor was properly considered by the trial court. When this Court adopted the Daubert
standard, it did not “lower the bar” for admittance of expert testimony. We simply
recognized that our learned trial judges are in the best position to make the determination.
We made them the gatekeepers of expert testimony, not the doormen.
¶19. There can be no doubt that there does exist in this instance a gap such as the one of
which the Supreme Court spoke in Joiner. On one side of that gap is a collection of studies
which is, in the dissent’s own words, “to be sure, not particularly strong.” On the other side
is Dr. Levy’s assertion that “to a reasonable degree of medical certainty” Watts’s non-
Hodgkin’s lymphoma was caused by his exposure to Liquid Wrench. The leap across the
chasm from the data in the studies to Dr. Levy’s proffered opinion was more than the trial
court could allow, and this Court cannot say that the ruling amounted to an abuse of
discretion.
¶20. In addition to non-Hodgkin’s lymphoma, Watts also suffers from the blood disease
pancytopenia.14 At trial, Dr. Levy testified that pancytopenia can be caused by exposure to
benzene. Watts contends that if the exclusion of Dr. Levy’s testimony as to non-Hodgkin’s
lymphoma is upheld, Dr. Levy’s testimony that benzene causes pancytopenia should stand
14
Pancytopenia is a precursor to non-Hodgkin’s lymphoma.
13
to support the jury’s verdict. Watts’s argument is flawed. It was not just Dr. Levy’s non-
Hodgkin’s lymphoma testimony that was stricken. Dr. Levy’s testimony was stricken in its
entirety. Just as none of the studies relied upon by Dr. Levy supports his testimony that
benzene exposure causes non-Hodgkin’s lymphoma, none supports his testimony that
benzene exposure causes pancytopenia. Further, all of Watts’s evidence as to damages
regarded his non-Hodgkin’s lymphoma, and Watts did not even discuss his pancytopenia on
the stand. Watts’s argument regarding pancytopenia is without merit.
II. The trial court’s grant of JNOV
¶21. Our standard of review for a trial court’s grant of a motion for judgment
notwithstanding the verdict is de novo. White v. Stewman, 932 So. 2d 27, 32 (Miss. 2006).
“The motion for [JNOV] tests the legal sufficiency of the evidence supporting the verdict.
It asks the Court to hold, as a matter of law, that the verdict may not stand.” Jesco, Inc. v.
Whitehead, 451 So. 2d 706, 713 (Miss. 1984) (Robertson, J., specially concurring).
¶22. The trial court granted the defendants’ motion for JNOV upon striking Dr. Levy’s
testimony. In support of this ruling, the trial court stated:
Because the testimony of Dr. Levy should have been excluded, and since
Plaintiff did not offer any other evidence of either general or specific
causation, the Court is now obligated to grant Defendants’ motions for
judgment notwithstanding the verdict of the jury in this case.
¶23. We have held that it was not an abuse of discretion for the trial court to strike Dr.
Levy’s testimony. As that testimony was the only evidence Watts presented as to causation,
the trial court’s grant of JNOV was proper.
14
CONCLUSION
¶24. For the foregoing reasons, the judgment of the trial court is affirmed.
¶25. AFFIRMED.
SMITH, C.J., WALLER, P.J., CARLSON AND DICKINSON, JJ., CONCUR.
DIAZ, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
EASLEY AND GRAVES, JJ. RANDOLPH, J., NOT PARTICIPATING.
DIAZ, PRESIDING JUSTICE, DISSENTING:
¶26. I find that Dr. Levy’s testimony is clearly admissible under Mississippi Rule of
Evidence 702 and thus that the trial court abused its discretion in striking his testimony.
Based on that finding, I conclude that the trial court erred in granting the defendants’ motion
for judgment notwithstanding the verdict. Accordingly, I cannot join the majority opinion.
¶27. Regarding the admissibility of Dr. Levy’s testimony about general causation, the sole
issue is whether his testimony is reliable. 15 “Reliability . . . is part of an inquiry under Rule
702, which is unquestionably flexible.” Poole ex rel. Poole v. Avara, 908 So. 2d 716, 723
(Miss. 2005) (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 594, 113
S.Ct. 2786, 2797, 125 L.Ed.2d 469 (1993)). “‘[T]he requirement that an expert’s testimony
pertain to “scientific knowledge” establishes a standard of evidentiary reliability.’” Howard
v. State, 853 So. 2d 781, 804 (Miss. 2003) (quoting Daubert, 509 U.S. at 590, 113 S.Ct. at
15
Levy’s testimony is certainly relevant, since it pertained to the link between
exposure to benzene and non-Hodgkin’s lymphoma. See Poole ex rel. Poole v. Avara, 908
So. 2d 716, 723 (Miss. 2005) (“Relevance of expert testimony means it will, according to the
Rule, assist the trier of fact.”) (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, 591, 113 S.Ct. 2786, 2795, 125 L.Ed.2d 469 (1993)). Indeed, the defendants do
not dispute its relevance; they merely assert that the case studies do not support Levy’s
general causation testimony, and thus it is unreliable.
15
2795). “Scientific ‘implies a grounding in the methods and procedures of science.’” Id.
“Knowledge ‘connotes more than subjective belief or unsupported speculation.’” Id.
“‘Proposed testimony must be supported by appropriate validation - - i.e., “good grounds,”
based on what is known.’” Id. In other words, in order to be admissible, Dr. Levy’s
testimony about general causation must be “based on sufficient facts or data . . . .” M.R.E.
702. Accordingly, the question before this Court is whether the trial court abused its
discretion by ruling that the eighteen epidemiological case studies reviewed by Dr. Levy did
not provide adequate support for his opinion that there is a causal connection between
exposure to benzene and the development of non-Hodgkin’s lymphoma.
¶28. Of the eighteen epidemiological studies upon which Dr. Levy relied, nine concluded
that exposure to benzene was more likely than not the cause of the type of non-Hodgkin’s
lymphoma developed by the individuals studied.16 One of these nine studies, the Hayes study,
was conducted by the National Cancer Institute, which is part of the National Institutes of
Health. The Hayes study (a cohort study conducted in China) involved almost 75,000 workers
in many different occupations who had been exposed to benzene and a control group of more
than 30,000 people who had not been exposed to benzene. The study found that workers who
had been exposed to benzene for more than ten years were four times as likely to be afflicted
with some form of non-Hodgkin’s lymphoma than people who had not been exposed to
16
“The threshold for concluding that an agent was more likely than not the cause of
an individual’s disease is a relative risk greater than 2.0.” Federal Judicial Center, Reference
Manual on Scientific Evidence, p. 384 (2d ed. 2000). These nine studies found a relative risk
of more than 2.0 for non-Hodgkin’s lymphoma. Two other studies cited by Dr. Levy found
a relative risk of exactly 2.0.
16
benzene. The majority correctly notes that the authors of the Hayes study acknowledged that
the findings with respect to non-Hodgkin’s lymphoma were not “statistically significant.” But
the majority does not explain the meaning of “statistically significant.” A result is considered
to be statistically significant when there is only a five percent probability or less that it is
attributable to mere chance. E.g. Ottaviani v. State Univ. of N.Y., 875 F.2d 365, 371 (2nd
Cir. 1989) (“A finding of two standard deviations corresponds approximately to a one in
twenty, or five percent, chance that a disparity is merely a random deviation from the norm,
and most social scientists accept two standard deviations as a threshold level of statistical
significance.”) (internal quotation marks and citations omitted). I do not see how one can
conclude that the Hayes study provides no support for Dr. Levy’s testimony on the basis that
its authors were not ninety-five percent confident that the increased incidence of non-
Hodgkin’s lymphoma among workers exposed to benzene was not “a random deviation from
the norm.” The majority also argues that the Hayes study does not support Dr. Levy’s
testimony regarding general causation because the workers studied were exposed to chemicals
other than benzene. However, the majority fails to point out that, after noting this problem,
the authors of the study concluded that the exposure to benzene was the most likely cause of
the diseases developed by the subjects of the study:
As in most industrial settings, the workers in this investigation were likely
exposed to a number of chemicals other than benzene and the observed risks
could be due to some other exposures. However, the subjects in this study were
employed in a variety of occupations, and excesses of hematologic disease were
not restricted to a particular subset of benzene-related occupations, with the
possible exception of the notably higher risks for NHL among chemical
workers. This observation suggests that the effects are more likely due to the
common exposure to benzene than due to other exposures.
17
Richard B. Hayes, et al., Benzene and the Dose-Related Incidence of Hematologic Neoplasms
in China, J. Nat’l Cancer Inst., July 16, 1997, 1065-1071, p. 1070 (emphasis added).17
¶29. The majority misleadingly states that “not one study concluded that there is a causal
link between benzene exposure and non-Hodgkin’s lymphoma.” While it is true that none of
the studies found a direct causal connection between benzene exposure and non-Hodgkin’s
lymphoma, it is undisputed that all eighteen of the studies found some correlation between
benzene exposure and non-Hodgkin’s lymphoma. That none of the studies relied upon by Dr.
Levy concluded that benzene exposure was the cause of the type of non-Hodgkin’s lymphoma
developed by the subjects of the study does not render Levy’s testimony unreliable. See
Poole, 908 So. 2d at 723-24 (“Requiring that the subject of expert testimony be known to a
certainty is not necessary either, however, because, as the Daubert Court pointed out, ‘there
are no certainties in science.’”) (quoting Daubert, 509 U.S. at 590, 113 S.Ct. at 2795); Knight
v. Kirby Inland Marine, Inc., 482 F.3d 347, 351(5th Cir. 2007) (“[I]n epidemiology hardly
any study is ever conclusive, and we do not suggest that an expert must back his or her
opinion with published studies that unequivocally support his or her conclusions.”) (citations
omitted); Bonner v. ISP Technologies, Inc, 259 F.3d 924, 929 (8 th Cir. 2001) (“[T]here is no
requirement that published epidemiological studies supporting an expert's opinion exist in
order for the opinion to be admissible.”) (citation omitted). Moreover, Dr. Levy’s testimony
17
The majority’s assertion that this “quote specifically excludes non-Hodgkin’s
lymphoma from this finding” is incorrect. It excludes chemical workers who developed non-
Hodgkin’s lymphoma, but not workers in other fields who also developed non-Hodgkin’s
lymphoma. The study found an increased risk for non-Hodgkin’s lymphoma “among several
occupational groups,” not just chemical workers.
18
cannot be deemed unreliable based on the fact that none of the studies upon which he relied
looked at the risk of developing non-Hodgkin’s lymphoma associated with the use of Liquid
Wrench or the prevalence of non-Hodgkin’s lymphoma among mechanics – no such studies
have been conducted.
¶30. Accordingly, I conclude that the studies clearly provide “good grounds” for Dr. Levy’s
opinion and thus that the trial court abused its discretion by ruling that his testimony regarding
general causation is unreliable. See, e.g., In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 746
(3rd. Cir 1994) (holding that “[t]he judge should only exclude the evidence if the flaw is large
enough that the expert lacks good grounds for his or her conclusions”) (internal quotation
marks and citations omitted); Hose v. Chicago Nw. Transp. Co., 70 F.3d 968, 974 (8th Cir.
1995) (“Only if an expert's opinion is so fundamentally unsupported that it can offer no
assistance to the jury must such testimony be excluded.”) (internal citations and quotation
marks omitted). The support provided by these studies is, to be sure, not particularly strong;
however, the strength of that support goes to the weight, not the admissibility, of Dr. Levy’s
testimony. See, e.g., Poole, 908 So. 2d at 724 (“‘Vigorous cross-examination, presentation
of contrary evidence, and careful instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence.’”) (quoting Daubert, 509 U.S.
at 596, 113 S.Ct. at 2798); Hose, 70 F.3d at 974 (“As a general rule, the factual basis of an
expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the
opposing party to examine the factual basis for the opinion in cross-examination.”). The
defendants were given an opportunity to cross-examine Dr. Levy on the scientific basis for
19
his opinion that exposure to benzene can cause non-Hodgkin’s lymphoma; they were,
moreover, allowed to call their own expert to rebut Dr. Levy’s testimony.18 The question of
whether the epidemiological studies relied upon by Dr. Levy established a connection
between exposure to benzene and non-Hodgkin’s lymphoma was for the jury to answer.
Therefore, I find that the trial court abused its discretion by striking Dr. Levy’s testimony
regarding general causation.
¶31. The holding in today’s case that the trial court did not abuse its discretion by ruling that
Dr. Levy’s testimony is inadmissible, despite the fact that he cited eighteen scientific studies
supporting his opinion, effectively resurrects the Frye standard – which required that an
expert’s opinion or theory be “general accepted” – that this Court discarded several years ago
in favor of the Daubert standard. Miss. Transp. Comm’n v. McLemore, 863 So. 2d 31, 39-40
(Miss. 2003). The crux of the defendants’ argument about the unreliability of Dr. Levy’s
testimony regarding general causation is that the epidemiological studies he relied on did not
generally find that exposure to benzene significantly increases the risk of developing non-
Hodgkin’s lymphoma.19 It certainly is true that most of the studies cited by Dr. Levy did not
show a significant increase in the risk of developing non-Hodgkin’s lymphoma from exposure
18
The defendant’s expert, Dr. Philip Cole, admitted that benzene is a carcinogen and
that experimental studies have been conducted and have found it to cause lymphomas in mice
and rats. In fact, Cole acknowledged his involvement in a study commissioned by the Union
Oil Company that found an “elevated relative risk” of non-Hodgkin’s lymphoma among oil
and gas division workers.
19
Radiator Specialty asserts in its brief that “the studies relied upon by Dr. Levy
generally did not find a relative risk or odds ratio of 2.0, and/or were not statistically
significant.” (emphasis added).
20
to benzene. But several of them did show such an increase. If the support of several
epidemiological studies is insufficient to render an expert’s opinion admissible, then, in my
view, we are requiring that such an opinion be generally accepted in order for it to be
admissible.20 If such a standard is going to be applied, then many expert witnesses who must
rely on epidemiological studies will be prevented from testifying, even though their testimony
is based on scientifically valid evidence.
¶32. We have claimed that we are committed to “‘permitt[ing] [experts] wide latitude to
offer opinions, including those that are not based on firsthand knowledge or observation,’”
Miss. Dep’t of Mental Health v. Hall, 936 So. 2d 917, 928 (Miss. 2006) (quoting Daubert,
509 U.S. at 592, 113 S.Ct. at 2796). We have also frequently remarked upon the “liberal
thrust” of our rules of evidence. Poole, 908 So. 2d at 724. I do not see how one can reconcile
the striking of Dr. Levy’s testimony with those principles.
¶33. As for Dr. Levy’s testimony about specific causation, I find that it is also reliable. To
determine whether Watts’s exposure to Liquid Wrench specifically caused him to develop
small-cell lymphocytic lymphoma, Levy first reviewed the deposition of Frank Parker, who
estimated the level of Watts’s exposure to benzene. After reviewing Parker’s estimates, Levy
concluded that Watts’s exposure to benzene through his use of Liquid Wrench resulted in a
significant increase in his risk of developing some form of non-Hodgkin’s lymphoma.
Second, Levy considered other possible causes of Watts’s lymphoma: (1) immunosuppressant
20
In my view, one supporting study (provided that it is from a reputable source, of
course) ought to be considered sufficient to meet the admissibility standard.
21
drugs, (2) immunosuppressant disease, (3) smoking, (4) chemotherapy, and (5) genetics.
After reviewing Watts’s personal and medical history, Levy ruled out of all of these
alternative causes and concluded that it was his opinion that “to a reasonable degree of
medical and scientific probability benzene caused Mr. Watts’s non-Hodgkin’s lymphoma.”
Clearly, Levy’s testimony is supported by “sufficient facts and data.” M.R.E. 702. Further,
because he used a scientifically valid methodology known as “differential diagnosis,” 21 his
testimony is “the product of reliable principles and methods.” Id.; see, e.g., Kennedy v.
Collagen Corp., 161 F.3d 1226, 1228-30 (9th Cir. 1998) (holding that expert opinion on
causation based on reliable differential diagnosis passes Daubert muster). Finally, I find that
Levy “applied the principles and methods reliably to the facts of the case.” Id. Therefore, I
conclude that the trial court also abused its discretion by striking this portion of Levy’s
testimony.
¶34. The only ground on which the trial court granted judgment notwithstanding the verdict
was that Watts had presented no expert testimony regarding causation. If Levy’s testimony
is not stricken, “there is evidence of such quality and weight that reasonable and fairminded
jurors in the exercise of impartial judgment might reach different conclusions” regarding the
issue of causation. Ferguson v. Snell, 905 So. 2d 516, 520 (Miss. 2004) (citation omitted).
21
Differential diagnosis is “a process whereby medical doctors experienced in
diagnostic techniques provide testimony countering other possible causes . . . of the injuries
at issue.” Hines v. Consol. Rail Corp., 926 F.2d 262, 270 (3rd Cir. 1991) (citation omitted).
22
Therefore, I would hold that the trial court erred by granting the defendants’ motion for
judgment notwithstanding the verdict.22
¶35. For these reasons, I would reverse and render. I dissent.
EASLEY AND GRAVES, JJ., JOIN THIS OPINION.
22
The defendants’ alternative arguments about why their motion for judgment
notwithstanding the verdict was properly granted are, in my view, without merit. Moreover,
I do not consider whether Levy’s testimony on causation regarding Watts’s pancypotenia is
reliable because, as the majority points out, “all of Watts’s evidence as to damages regarded
his non-Hodgkin’s lymphoma . . . .” In other words, even if this testimony is inadmissible,
the jury verdict would still stand, since it is based on Watts’s lymphoma.
23