In a dissenting opinion, the third panelist, Judge Stephen Dwyer, said he believed the trial court had gotten it right in allowing the methodologies, writing Monsanto has merely argued that Coghlan misapplied generally accepted science. Judge Dwyer noted Coghlan’s carpet back-calculations were rooted in a recognized scientific theory to gauge the migration of PCBs from one source to other building materials and based on a formula from a peer-reviewed EPA study.
The appeals court said Coghlan could still directly compare the pre-remediation levels measured at the New York schools to Sky Valley as representative of a possible historic range.
The plaintiffs have emphasized that the appellate court rejected Monsanto’s other arguments that the trial court had wrongly allowed certain inadmissible evidence and declined to give two specific jury instructions.
Punitive Damages in Question
Monsanto also argues that a Court of Appeals’ finding in Erickson threatens $425 million in punitive damages awarded in the seventh and ninth trials. The plaintiffs, however, say the jury identified other reasons for those punitive damages aside from the specific cause of action ruled out by the appeals court.
