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Milward v. Acuity Specialty Prods. Group, Inc.

United States District Court, D. Massachusetts

September 6, 2013


Page 102

For Brian K Milward, Linda J Milward, Plaintiffs: Allen Stewart, James D. Piel, Scott R. Frieling, Stephanie N. Brooks, Steve Baughman Jensen, LEAD ATTORNEYS, Allen Stewart P.C., Dallas, TX; Ian N. McCallister, Kreindler & Kreindler LLP, Boston, MA.

For Rust-O-Leum Corporation, Defendant: Francis M. Lynch, Certulo LLP, Boston, MA.

For Sherwin Williams Company, Defendant: Christopher D. Stofko, James R. Miller, Katherine S. Gallagher, LEAD ATTORNEYS, PRO HAC VICE, Dickie, McCamey & Chilcote, P.C., Pittsburgh, PA; Lawrence G. Cetrulo, Rory J. Fitzpatrick, Cetrulo & Capone LLP, Boston, MA; Christopher M. Tauro, Lewis Brisbois Bisgaard & Smith LLP, Boston, MA; Kyle E. Bjornlund, Cetrulo LLP, Boston, MA.

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Plaintiffs Brian Milward and his wife Linda brought this negligence action against makers of products containing benzene, exposure to which allegedly caused Brian Milward to develop Acute Promyelocytic Leukemia (" APL" ), a rare subtype of Acute Myeloid Leukemia (" AML" ), a disease rare in itself. Only the claims against Rust-Oleum Corporation (" Rust-Oleum" ) remain before me. Rust-Oleum has moved for summary judgment on grounds that Milward lacks the reliable expert testimony necessary to prove that benzene exposure caused his leukemia, that his claim is preempted by the Occupational Health and Safety Act (" OSHA" ), 29 U.S.C. § 651 et seq. , and that there is no genuine issue of fact as to whether Rust-Oleum's failure to warn about benzene in its products proximately caused Milward's injury.


Brian Milward (" Milward" ) was diagnosed with APL in 2004. The cancer is characterized by a deficiency of mature blood cells in the " myeloid" cell line and an excess of immature cells called promyelocytes. APL is known to be caused in part by a genetic translocation on chromosome 17 but, despite extensive research, there is no scientific consensus as to the causes of the translocation. Milward v. Acuity Specialty Products Group, Inc., 639 F.3d 11, 16 (1st Cir. 2011).

Toxicologist Martyn Smith has offered his opinion that exposure to benzene can cause APL. Although Judge O'Toole, who was previously assigned to this matter, excluded Smith's testimony as unreliable, Milward v. Acuity Specialty Products Group, Inc., 664 F.Supp.2d 137 (D. Mass. 2009), the First Circuit reversed, finding Smith's testimony as to " general causation" admissible under Fed.R.Evid. 702. Milward, 639 F.3d at 14. The case was then transferred to my docket.

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Primarily at issue now is the question of " specific causation" : whether Milward's workplace exposures to benzene caused his leukemia, and whether benzene exposure attributable to Rust-Oleum paint products was a " substantial contributing factor" to the injury. See generally In re Neurontin Mktg. & Sales Practices & Products Litig., No. 04-10981-PBS, 2010 WL 3169485, at *2 (D. Mass. Aug. 10, 2010) (applying Massachusetts law); Matsuyama v. Birnbaum, 452 Mass. 1, 890 N.E.2d 819, 842 & n.47 (Mass. 2008); Morin v. AutoZone Ne., Inc., 79 Mass.App.Ct. 39, 943 N.E.2d 495, 499 (Mass.App. Ct. 2011); see also infra note 5.

Milward alleges he was exposed to benzene from Rust-Oleum paint in the course of various jobs he held as a pipefitter and refrigerator technician from 1973 until his APL diagnosis in 2004. Most of his work involved installing pipe, repairing equipment and the like. In the early part of his career, however, Milward spent 10 to 15 percent of his workday painting steel beams and pipe. In the 1980s, the amount of time Milward spent painting decreased, and continued to decrease as he became more experienced and took on more supervisory responsibility. For one year, in 1996, Milward worked an office job and spent no time " in the field" painting. Although Milward primarily used brush paint, he used spray paint between 1 to 5 percent of the time, typically for smaller touch-up jobs. For both brush and spray paint jobs, Milward used " two main" brands of paint over the course of his career--Rust-Oleum and Sherwin-Williams.

Milward presents the testimony of James Stewart, an industrial hygienist, to quantify his exposure to benzene from Rust-Oleum paint and other products. Occupational medicine physician Sheila Butler then opines, based primarily on Stewart's exposure assessment, that there is a reasonable medical probability that exposure to benzene was a cause-in-fact of Milward's APL.

Rust-Oleum seeks to exclude the testimony of both experts. Contending that Milward cannot prove specific causation without the expert testimony, Kerlinsky v. Sandoz Inc., 783 F.Supp.2d 236, 242-43 (D. Mass. 2011) (applying Massachusetts law), Rust-Oleum anticipatorily styles its motion as a motion for summary judgment. I address these contentions in Section III. Rust-Oleum also makes arguments based on OSHA preemption and lack of proximate cause, which involve independent sets of issues that I discuss separately in Section IV.


Fed.R.Civ.P. 56 " mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The question is whether, viewing the facts in the light most favorable to the nonmoving party, there is a " genuine dispute as to any material fact." Fed.R.Civ.P. 56(a); Casas Office Machines, Inc. v. Mita Copystar Am., Inc., 42 F.3d 668, 684 (1st Cir. 1994).


A. Legal Framework

I must determine whether the expert testimony proffered by Milward is sufficiently reliable to be admitted under Fed.R.Evid. 702, which provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of

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an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

The Supreme Court offered guidance in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and subsequent elaborations, Gen. Elec. Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) ; Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Daubert suggests that judges measure the admissibility of expert testimony by such considerations as:

(1) whether the theory or technique can be and has been tested; (2) whether the technique has been subject to peer review and publication; (3) the technique's known or potential rate of error; and (4) the level of the theory or technique's acceptance within the relevant discipline.

United States v. Mooney, 315 F.3d 54, 62 (1st Cir. 2002) (citing Daubert, 509 U.S. at 593-94). These considerations make clear that I must focus on the " principles and methodology" employed by an expert. Daubert 509 U.S. at 595. That said, " conclusions and methodology are not entirely distinct from one another," and I may exclude opinion evidence when " there is simply too great an analytical gap between the data and the opinion proffered." Joiner, 522 U.S. at 146.

While a 2000 amendment to Fed.R.Evid. 702 codified a rigorous reliability test, the Daubert line of cases has been read by the First Circuit as " demand[ing] only that the proponent of the evidence show that the expert's conclusion has been arrived at in a scientifically sound and methodologically reliable fashion. " Ruiz-Troche v. Pepsi Cola of Puerto Rico Bottling Co., 161 F.3d 77, 85 (1st Cir. 1998). " So long as an expert's scientific testimony rests upon good grounds based on what is known, it should be tested by the adversarial process, rather than excluded for fear that jurors will not be able to handle the scientific complexities." Milward, 639 F.3d at 15 (internal quotation and citation omitted).

B. Dr. James Stewart

The plaintiffs offer the testimony of Dr. James Stewart to quantify Milward's exposure to benzene. I find Stewart's opinion admissible.

I. Stewart's Opinion

Stewart is a certified safety professional and industrial hygienist with over 35 years of experience in environmental and health safety. He holds a doctorate in environmental health and toxicology, a master's degree in chemistry, and a bachelor's degree in public health. Stewart teaches courses in industrial hygiene and occupational safety at the Harvard School of Public Health.

Stewart modeled Milward's exposure to benzene using the Advanced REACH Tool (" ART" ), which was developed by European government agencies and research institutions to measure compliance with European Union chemical-exposure regulations. The tool is designed to utilize modeled predictions about inhaled benzene exposure, and to update them using actual exposure data when available--what is known as a Bayesian approach. The ART accounts for " specific input parameters such as ventilation rate, room size, orientation of spray operations, and secondary sources of exposure." Elizabeth

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Hofstetter, et al., Evaluation of Recommended REACH Exposure Modeling Tools and Near-Field, Far-Field Model in Assessing Occupational Exposure to Toluene from Spray Paint, Ann. Occup. Hyg., at 3 (2012). Stewart used the ART to estimate Milward's cumulative benzene exposure concentration, measured in parts of benzene per million parts of air (" ppm" ) multiplied by the length of exposure in years (" ppm-years" ).

Stewart estimated Milward's average painting activity from 1973 through 2004 at 48 minutes per day--45 minutes of brush paint and 3 minutes of aerosol paint--using 90% Rust-Oleum brand paint. Stewart also estimated the benzene concentration of various solvents in Rust-Oleum paints--most notably " mineral spirits," a common organic solvent. Based on various studies of mineral spirits and the paint products of other manufacturers, Stewart set the benzene concentration of mineral spirits in Rust-Oleum paints at 1% before 1978, at .1% from 1979-1992, and at .001% from 1993-2004. Stewart also included in his calculations what he considered an unduly high ventilation rate--given co- worker complaints about feeling ill and excessive heat in work spaces--which he predicted would produce " conservatively low" exposure estimates.

Using those inputs, Stewart averaged the median and 95th percentile exposure estimates generated by the ART, which produced an estimate of benzene exposure attributable to Rust-Oleum paints of 6.57 ppm-years. Stewart also provided an assessment of other possible exposures. [1] For example, Milward frequently used a product called Liquid Wrench to clean rusted nuts and bolts; Stewart estimated Milward's benzene exposure attributable to Liquid Wrench at 7.71 ppm-years. ...

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