Hazardous Material exposureA Senior Circuit Judge of the United States First Circuit Court of Appeals recently heard the appeal of some current and former employees of a defense contractor who brought a suit seeking relief for beryllium-related diseases. Although Beryllium is an important substance needed for manufacturing, even modest exposure can cause Chronic Beryllium Disease (CBD).

The plaintiffs alleged that the defendant Company endangered the health of the plaintiffs and a class similarly situated by negligently exposing them to beryllium used in the manufacturing process at its plant. Plaintiffs wanted the Company to establish a trust fund to finance appropriate medical monitoring for the plaintiffs. However, plaintiffs’ main expert witness, a medical doctor in Environmental and Occupational Health, could not confirm that any of the named plaintiffs have beryllium sensitization. Nor could he identify any particular member of the class known to have developed the disease.

The plaintiffs emphasized that their medical expert witness testified that all of the plaintiffs were now at a significantly increased risk for the development of the disease in relation to an unexposed population. The Court of Appeals said that the class members here shared no universal harm, and that the expert testimony in this case showed only that every plaintiff faced a “significantly increased risk” of harm. “Risk and harm are two materially different concepts,” the judge wrote, and the plaintiffs’ main expert disclaimed any ability to state that any named plaintiff or class member already had suffered harm. The circuit judge held that this gap in the proof was fatal to the plaintiffs’ principal theory of liability.

After that argument failed to work, the plaintiffs change the expert witness strategies and submit a supplemental expert witness declaration to the district court in support of their motion for class certification. The Company responded that this declaration had not been filed until some 13 months after the deadline for expert witness submissions. The district court granted the motion to strike the expert report.

The plaintiffs said that their reliance on this late declaration worked no prejudice. The judge wrote that, for good reason, the Civil Rules give considerable control over discovery to district courts, including setting deadlines for identifying experts and the disclosure of their opinions. “When a party flouts such a deadline, one customary remedy is preclusion,” the judge explained; however, preclusion is not automatic. A lapse may be excused if the court determines that a different remedy is more appropriate, based upon the circumstances.

“In conducting this tamisage” or sorting through theories, the judge said that the First Circuit considered the totality of the circumstances, including the overall history of the litigation, the importance of the precluded evidence, the justification (or lack of justification) for the delay, the nature and extent of prejudice to the other side, and the impact of the failure to comply with the discovery deadline on the district court’s docket. The plaintiffs focused with “laser-like intensity” only on a claimed lack of prejudice.

The judge wrote that the plaintiffs’ argument failed to speak to any of the other relevant factors and, most importantly, gave no explanation for the late submission. With these two arguments based on expert testimony and reports, the district court’s decision was affirmed.

By: Kurt Mattson, J.D., L.L.M.