Marsh v WR Grace & Co.

2003 WL 22718177 (4th Cir. 11/19/03)

When an expert’s report cannot be relied upon

Facts

An American case in which four plaintiffs sued the manufacturer of Grace’s Gold Dollar fertiliser, which was subsequently found to contain the herbicide, picloram, to which the plaintiffs had all been exposed and later contracted cancers. The plaintiffs relied on the report of their expert, Dr Levin. The defendant applied for summary judgment and the district court granted it, ruling the report of Dr Levin was to be excluded.

Issues

Whether the court should rely on Dr Levin’s report; whether it satisfied the relevant test, laid down in the Daubert decision, and whether it had been properly excluded.

Decision

The 4th Circuit upheld the decision below. Dr Levin’s Report was not sufficiently reliable to be relied upon as expert evidence. He had not explained why his opinion that the exposure to picloram had caused the plaintiff’s cancers was valid even in the light of, for example, one plaintiff’s 50 years as a smoker (the plaintiff having died of lung cancer). His conclusions were not supported by enough verification from other laboratory tests. His theory had not been subject to peer review or approval. His methods were not generally accepted by the medical community at large.

Comment

The US courts appear to be even more rigorous in considering the nature of the expert evidence than the courts in England and Wales and seem to deal with such cases on the basis of admissibility – whereas many English courts would probably admit the evidence and then address it on the basis of ‘weight’.