C6 Litigation Given Reprieve in California by the Ninth Circuit


The Ninth Circuit Court of Appeals recently reopened the door for “C6” plaintiffs in California when it overturned the summary judgment and evidentiary rulings of Northern District Judge Susan Illston.  As previously reported, the Northern District of California recently appeared to have concluded 16 years of toxic tort litigation arising from allegations of fugitive hexavalent chromium (C6) exposure by the Northern California city of Willits and its residents against various companies.  (See November 2012 TTEL article re the district court’s decision in Donna Avila, et al. v. Willits Environmental Remediation Trust, et al., No. 99-3941 N.D. Calif.; 2012 U.S. Dist. LEXIS 146904.)


In Avila, Judge Illston granted defendants’ motion for summary judgment as to the remaining C6 plaintiffs with her decision in October 2012, finding that the plaintiffs failed to meet their burden of establishing evidence of causation based upon competent expert testimony.  Her ruling resolving these remaining claims was issued while other C6 plaintiffs were challenging her decision on a prior similar summary judgment motion issued in July 2011 and appealed in August 2011.  (Harry Whitlock, et al. and Danielle Smith; Jo Ann Wakeland, v. Pepsi Americas, et al. (D.C. No. 3:08-cv-02742-SI.)  In that matter, Judge Illston determined that those plaintiffs failed to meet their burden of establishing evidence of exposure or causation as well.  Similarly to Avila, her decision was based in large part on her prior ruling on that the reports of plaintiffs’ three causation and exposure experts, Drs. O’Conner, Sawyer and Byer, were inadmissible.  The Ninth Circuit appellate panel affirmed Judge Illston’s opinion in part, confirming that plaintiffs’ experts’ opinions did not support plaintiffs’ claims of injury arising from post-1975 exposure.


However, in a unanimous decision, the appellate panel overturned Judge Illston’s ruling as to those plaintiffs’ pre-1975 exposure claims, finding that the plaintiffs’ reliance on the opinions of their experts was sufficient to meet their burden and create a disputed issue of fact regarding exposure and causation.  Specifically, the appellate panel concluded that Judge Illston abused her discretion and “exceeded [her] gatekeeping function” in excluding these opinions as to these claims. The appellate panel determined that Judge Illston’s stated grounds for excluding the reports of two of the plaintiffs’ experts, Dr. O’Conner and Dr. Sawyer, merely challenged the weight of their opinions and was not a reasonable basis for determining that they were inadmissible.  The appellate panel also determined that her ruling excluding the report of plaintiffs’ third expert, Dr. Byers, was an abuse of discretion as no explanation for her ruling was provided and no reason was apparent from the record. Thus, the appellate panel concluded that the district court erred in granting summary judgment and those plaintiffs are entitled to proceed to trial on their remaining pre-1975 claims.


It is unclear what impact the appellate court’s ruling will have on the district court’s judgment in the Avila matter.  In her ruling on the motion for summary judgment in Avila, Judge Illston specifically set forth a record of why the opinion of Dr. Byers, the plaintiffs’ sole causation expert, was inadmissible.  The decision should serve as a reminder though that it is imperative for parties moving for summary judgment to make sure that a record is established for all evidentiary challenges to the opinions of experts relied upon in opposition to their motion.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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