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Expert unable to opine on causation or class-wide damages in toxic radiation case.

October 1, 2017
McMunn v. Babcock & Wilcox Power Gen. Group, Inc., Nos. 15-3506, et seq., ___ F.3d ___, 2017 U.S. App. LEXIS 16103 (3d Cir. Aug. 23, 2017)

This suit, on behalf of a class suffering from different kinds of cancer, asserted that the defendants’ facilities permitted harmful radiation to be emitted to the surrounding environment where the class members lived. The Third Circuit affirmed summary judgment entered in favor of the defendants on several bases. With respect to the plaintiffs’ expert, the court held first that necessary opinion testimony on the issue of causation was wanting. Applying Pennsylvania law, the court rejected the expert’s opinion as insufficient to create a fact question on causation, “[b]ecause it is nothing more than a radiation version of the impermissible ‘any breath’ theory in Gregg v. V-J Auto Parts [, 943 A.2d 216 (Pa. 2007)] (the case in which that court first adopted the frequency, regularity, and proximity test in mesothelioma cases).” The expert opined that every person who lived in the area of the defendants’ facilities had a “substantial” exposure to radiation. However, he was unable to quantify it as required by Pennsylvania law. Second, the court noted the expert’s inability to offer causation testimony on a class-wide basis, because an individualized assessment was necessary, and the expert did not even attempt to account for various class members’ history of smoking and other possible causes of the many different forms of cancer they suffered.

 

Case Law Alerts, 4th Quarter, October 2017 Case Law Alerts is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2017 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.

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