One-in-a-Million Risk Can't Support Medical Monitoring Claim
If I had any competency at all with computers, I would have some background music for this post: the 1980 hit "One in a Million You" by Larry Graham (former bassist for Sly and the Family Stone and the father of the slap bass style of playing).
Featured today is the Sixth Circuit's recent decision in Hirsch v. CSX Transportation, Inc., No. 09-4548 (6th Cir. Sept. 8, 2011), in which some residents of Painesville, Ohio brought a class action against a railroad for damages allegedly resulting from a train derailment and three-day fire during which 1,300 people were evacuated from homes within a half-mile radius of the crash. The class brought claims for nuisance, strict liability, trespass, negligence and medical monitoring. The trial court granted a motion to dismiss the first three claims, but allowed discovery to go forward on the negligence claim and medical monitoring remedy.
CSX had stipulated to a breach of duty when the train derailed, so the only remaining elements of a negligence claim were proximate cause and injury. The defendant moved for summary judgment, which the trial court granted. Plaintiffs had at least four experts to advance their theory that class members had been exposed to dioxin from the fire at levels above the EPA's threshold of acceptability, thereby increasing their cancer risk by one in a million.
The Sixth Circuit affirmed the grant of summary judgment. It began by noting the procedural posture of the case. The defendants had not challenged the admissibility of plaintiffs' expert testimony under Daubert. Rather, the district court had granted summary judgment based on the defendant's challenge to the sufficiency of the expert evidence. As the court noted, "[e]ven where an expert's evidence is ruled admissible under the Daubert standards, a district court remains free to decide that the evidence amounts to no more than a mere scintilla." Slip op. at 4-5.
Plaintiff's expert opined that although the class members had not sustained any physical injury to date, their relative risk of developing cancer had been increased by one chance in a million. The Sixth Circuit held that this slight increase in cancer risk was not enough for a reasonable physician to order a medical surveillance program.
Even the "one-in-a-million" opinion was based on speculation about the amount of exposure to dioxin, as well as its source. (Dioxin occurs naturally and exists in the environment at background levels.) The court explained:
[W]e are left with a report speculating (based on speculation) that the Plaintiffs might have been exposed to quantities of dioxin somewhere in the ballpark of 43.9 ppt, and that their risk therefore might (or might not) be somewhere around 50% of a one in a million additional risk of developing cancer. . . .
. . . If something has a one-in-a-million chance of causing cancer, then it will not cause cancer in 999,999. For some perspective, the National Safety Council estimates a person's lifetime risk of dying in a motor vehicle accident as 1 in 88. The lifetime risk of dying in "air and space transport accidents" is roughly 1 in 7,000. The risk of being killed by lightning is roughly 1 in 84,000, while the risk of being killed in a "fireworks discharge" stands at around 1 in 386,000. These risks--of death, not disease--are all much smaller than what the plaintiffs allege in this case: lifetime odds of developing cancer at 50% of 1 in 1,000,000. To even approach that number, we can look at the average person's risk of dying from bathtub drowning in any given year (1 in 840,000).
Slip op. at 6-7 (citations omitted).
The Sixth Circuit concluded that "the Plaintiffs have alleged only a risk that borders on legal insignificance, have failed to produce evidence establishing even this hypothetical risk with any degree of certainty, and have demanded a jury trial based upon their expert's review of this evidence and conclusory statement of the relevant legal standard." Slip op. at 8. Accordingly, it affirmed the summary judgment for the defendant.
The Hirsch opinion provides a couple of excellent resources for risk information. One is the National Safety Council's "Injury Facts," and the other is the Harvard Center for Risk Analysis.
