Monsanto Leverages Washington Court Victory to Challenge $1.1B in PCB Verdicts
America ı By Rochdi Rais
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The company successfully convinced the panel's two-judge majority that one of the plaintiffs' experts, industrial hygienist Kevin Coghlan, should not have been permitted to share with jurors his back-calculations of historic levels of PCBs at the school site based on carpet samples and data from New York schools. The two appeals judges found those calculations relied on novel methods that weren't recognized by the scientific community, as well as portions of testimony relying on those calculations by a toxicologist witness for the plaintiffs.
In the wake of the opinion, Monsanto has maintained that "Coghlan's junk science on PCB exposure was central to the seven other adverse verdicts in this litigation," and said the company "will seek their reversal based on the well-reasoned conclusion by the Erickson appellate court that it was error to admit Coghlan's made-for-litigation calculations."
"Rather than use available data on PCB exposure, that showed no exceedances of EPA health-protective levels, Mr. Coghlan contrived a calculation that produced higher PCB exposure estimates," the company spokesperson said. "Moreover, the Erickson court also found that any causation testimony relying on Coghlan's unreliable exposure methodologies should not have been admitted — another error that was repeated in all seven other cases."
Jones, however, said the plaintiffs have construed this portion of the appellate court's ruling more narrowly. The ruling still lets the expert testify students and staff were exposed to high levels of PCBs, he said, noting the inadmissable statements are just a small sliver of Coghlan's roughly two days of testimony.
"Most importantly, the Court of Appeals did not find this to be reversible error, so it should have no impact on the verdicts," the plaintiffs' attorney added.
Because the plaintiffs do not have PCB testing data from the time the plaintiffs worked at the site, and the light fixtures containing the chemicals have since been removed, the plaintiffs relied on Coghlan to illustrate "exposure range" reflecting the possible airborne PCB concentrations during those timeframes. The company, meanwhile, has pointed to testing done at the site after remediation was completed showing no elevated levels.
The appellate panel's majority, Judges Janet Chung and Linda Coburn, ruled out two of Coghlan's three approaches for coming up with the range, finding them novel and not generally accepted by the scientific community: back-calculating potential air levels based on carpet samples that had been stored in plastic bags by the teachers and later tested for PCBs; and extrapolating historic levels based on data collected in a study of five New York schools before and after remediation.
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