Experts fail to show causal connection between firefighting, cancer

To be admissible in Vermont, scientific, technical, or other specialized evidence needs to be both relevant and reliable.

Case name: Estate of George v. Vermont League of Cities and Towns, No. 2008-374 (Vt. 01/15/10).

Ruling: The Vermont Supreme Court ruled that a firefighter's estate failed to prove a causal connection between his career and his non-Hodgkin's lymphoma. One justice concurred. Two justices, including the chief justice, dissented.

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What it means: To be admissible in Vermont, scientific, technical, or other specialized evidence needs to be both relevant and reliable. To assist in understanding the evidence or determining a fact in question, an expert witness may testify if: 1) the testimony is based on sufficient facts or dates; 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.

Summary: A firefighter worked for a fire department for 36 years. In 2003, he died of non-Hodgkin's lymphoma. His estate brought a workers' compensation action against the department and carrier. The estate sought to use expert testimony to prove that his firefighting caused the disease. The carrier sought to exclude the evidence. The Vermont Supreme Court determined that the testimony of the estate's three experts did not meet Vermont's evidentiary requirements and was therefore inadmissible. The court reasoned that the experts' reliance on epidemiological studies (studies that focus on general causation rather than whether a specific agent caused a disease in a particular individual) and general pooled-data (meta-analysis) studies failed to establish causation. The court recognized that the use of epidemiological evidence to show specific causation reflects a compromise, as the studies cannot indicate the actual cause of a given individual's disease. It affirmed summary judgment for the carrier. It held that there was no presumption of causation and concluded the trial court acted in its discretion in excluding the expert testimony.

The court noted the trial court has a "gatekeeping" role and must examine the expert's conclusions to determine whether they could reliably flow from the facts known to the expert and the methodology used. It noted that only two of the eight epidemiological studies reflected a significant risk of association between firefighting and lymphomas. The remaining six showed "little or no association." One of the estate's experts nevertheless testified that firefighting was in fact the cause of the decedent's lymphoma. The court noted the expert did not specify the precise weight he gave each study or how he reached his conclusions.

The court noted that Vermont law now provides that a firefighter who suffers disability or death from certain types of cancer is presumed to have suffered the cancer as a result of exposure to conditions in the line of duty.

The dissent argued that the trial court exceeded its proper gatekeeping role in evaluating the offered evidence to determine whether the estate should prevail on the merits of the case.

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February 25, 2010

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