Hughes Hubbard & Reed scored a major pretrial victory for Chemical Specialties by convincing an Eastern District of Kentucky magistrate judge to recommend that the district court strike the testimony of the plaintiff's seven causation experts and grant a defense motion for summary judgment as to virtually the entire case. The district court adopted that recommendation.

These types of motions are rarely granted in this plaintiff-friendly jurisdiction, according to local counsel.
Plaintiff Lloyd McCarty sued Chemical Specialties and other defendants in a toxic tort case centered on Chromated Copper Arsenate (CCA), a liquid wood preservative. McCarty claimed his exposure to CCA in utility poles while an employee with Kentucky Electric Power led to his significant health problems, including surgical removal of his left lung.
McCarty's experts sought to link his exposure to the arsenic in CCA to his case of pulmonary Nodular Lymphoid Hyperplasia (PNLH), a rare disease with no known etiology but which has been studied extensively by a UCLA professor we retained as an expert. McCarty's seven experts included three doctors who treated or examined him, as well as four professors from various schools, including NYU and USC. The treating experts determined it was logical that arsenic exposure caused McCarty's PNLH. The non-treating experts reached the same conclusion. They argued that McCarty's exposure to arsenic affected his immune system and caused PNLH in his lung, which ultimately was resected.
On Feb. 26, however, U.S. Magistrate Judge Candace Smith embraced Chemical Specialties' argument that the experts' opinions were based on speculation instead of scientific methodology. The court, adopting our arguments, described how the experts' methods failed to meet the Daubert reliability criteria:

  • The link between arsenic and PNLH has not been tested--the court noted the glaring defect that the literature on which the experts relied shows no direct connection between arsenic exposure and the formation of PNLH
  • The theory linking arsenic to PNLH has not been submitted for peer review
  • Critically, the experts failed to rule out other potential causes of McCarty's PNLH, including the most expected cause-an idiopathic origin
  • Finally, there was no acceptance in the relevant scientific community about a link between arsenic and PNLH.

These concessions were all drawn from depositions of plaintiffs' experts.

Judge Smith ultimately recommended excluding the experts' testimony regarding McCarty's PNLH because their "opinions are based on speculation and are unreliable." Judge Smith, therefore, recommended defendants' motion for summary judgment be granted concerning the purported link between CCA and PNLH.
The ruling was a major blow to McCarty's case and paved the way for defendants to obtain summary judgment on his PNLH-related health problems. Although trial is still set for McCarty's non-PNLH health issues, those issues are extremely limited (e.g., plaintiff has a series of claims of fatigue and similar non-specific injuries) and the case is severely weakened.
Nick Swerdloff and Jeff Goldberg are representing Chemical Specialties. Former associate John Lyons also played a key role.