The Seventh Circuit Court of Appeals held in a benzene case that the minimum exposure time to benzene in paint to be a cause of leukemia was a question of fact for the jury rather than for the court in deciding a Daubert motion.
In Schultz v. Akzo Nobel Paints, LLC, 2013 WL 3214941, the plaintiff decedent was a painter in defendants’ plant between 1981 and 1989. He was diagnosed with leukemia in 2005 and died in 2006. The Appellate Court held that the district court erred in granting defendant’s motion for summary judgment after finding that plaintiff’s expert’s opinion that benzene at certain exposure levels was generally known to cause leukemia and was a substantial factor in the development of the decedent’s disease, was unreliable. Plaintiff’s expert used identical methodology as plaintiff’s expert, and the fact that plaintiff’s expert came up with a different conclusion regarding minimum exposure level of benzene that was necessary to cause leukemia, is a matter for resolution by the jury as opposed to the District Court Judge. Moreover, the fact that plaintiff’s expert did not rule out the plaintiff’s weight or smoking history as a cause for leukemia did not render such opinion unreliable because under Wisconsin law plaintiff was not required to demonstrate that benzene exposure was the sole cause of his disease so long as he showed that benzene either contributed substantially to the disease’s development or significantly increase plaintiff’s risk of developing leukemia.