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Pa. Justices Will Hear Suit Alleging Cancer-Pesticide Link

Friday, March 15, 2019  
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Law360


Pa. Justices Will Hear Suit Alleging Cancer-Pesticide Link

The Supreme Court of Pennsylvania will hear a wrongful-death suit against multiple pesticide manufacturers including BASF Corp. and Monsanto and weigh whether a lower court improperly tossed experts’ testimony.

Pennsylvania’s highest court announced Tuesday that it would review the case, which seeks to link late golf course groundskeeper Thomas J. Walsh’s 40 years of work with pesticides to his terminal illness, centered on the question of whether lower courts properly handled testimony from the plaintiff’s experts.

The Allegheny County Court of Common Pleas had struck the experts’ testimony as unsupported under the Frye Standard, which requires that experts giving novel scientific testimony show that they followed methods generally accepted by the scientific community. But the Superior Court had reversed that in May, saying the trial court’s Frye inquiry went beyond examining the methods and improperly considered whether the studies supported the witnesses’ conclusions.

One of the three questions the justices will consider, then, will be: “Did the Superior Court majority commit reversible error in concluding that, when evaluating scientific evidence under the Frye standard, trial courts are not permitted to act as ‘gatekeepers’ to ensure the relevance and reliability of scientific studies offered by experts to support their opinions by scrutinizing whether those studies actually support their opinions?”

The Superior Court’s decision was appealed by BASF, Monsanto, Bayer Corp., Dow Agrosciences LLC, John Deere Landscaping Inc. and Syngenta Crop Protection Inc. The Supreme Court also allowed the Product Liability Advisory Council Inc., Croplife America and the Pennsylvania Chamber of Business & Industry to file amicus briefs in the case.

The appellants said the Superior Court had erred in saying the experts could link the cancer risks of a “broad class” of pesticide products to Walsh’s specific illness, and were also asking the justices to consider whether that decision was “thereby eliminating plaintiff’s burden to show product-specific causation of plaintiff’s specific injury.”

At issue in the underlying lawsuit was whether Walsh’s 40 years of exposure to the various defendants’ insecticides and fungicides, some of which contained known carcinogens, was a significant contributor to his 2009 death from acute myelogenous leukemia.

Walsh’s wrongful-death lawsuit was trimmed in 2012 to exclude the makers or distributors of 25 products for lack of expert testimony linking them to his cancer. When the trial court excluded the expert testimony of epidemiologist April Zambelli-Weiner Ph.D. and physician Dr. Nachman Brautbar regarding the remaining 15 products in 2016, Walsh had no more evidence of causation and so all the parties stipulated to summary judgment in the defendants’ favor, pending appeal of the Frye issue, according to court records.

Attorneys for the parties did not respond to requests for comment Wednesday.

Richard Walsh, Thomas Walsh’s son and executor of his estate, is represented by Michael J. D’Amico and Anthony J. D’Amico of D’Amico Law Offices LLC.

BASF is represented by Christopher D. Stofko of Dickie McCamey & Chilcote PC.

Bayer is represented by Michael R. Borasky and Casey A. Coyle of Eckert Seamans Cherin & Mellott LLC

Dow Agrosciences is represented by Kimberly A. Brown of Jones Day.

Syngenta is represented by Mark K. Dausch and Mark D. Shepard of Babst Calland Clements & Zomnir PC and Stanley B. Green and Dawn T. Mistretta of Strauch Green & Mistretta PC.

John Deere is represented by Sandra L. Alven and William J. Witte of Riley Hewitt Witte & Romano PC.

Monsanto is represented by Michael W. Burns, Edwin B. Palmer and Ira B. Podheiser of Burns White LLC.

The case is Walsh v. BASF et al., case number 18 WAP 2019, in the Supreme Court of Pennsylvania.

Additional reporting by John Petrick. Editing by Janice Carter Brown.


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