“And while you all I’m sure thought punitive damages and the statute of repose were the big issues, frankly, I did not,” Judge Rogers said. “It really came down to the experts and whether they’re going to admit them because that influences the issue of prejudice, among other issues, that need to be addressed in the consolidation or management of any trials.”
In its Erickson appeal, Monsanto urged the state appellate court to ax an array of testimony from three experts related to PCB exposure levels and causation of the plaintiffs’ alleged brain injuries. While the appeals panel based its reversal of Erickson on the statute of repose issue, it delivered mixed findings on the evidentiary issues and other questions “likely to recur in a new trial.”
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.
