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Brian K. Milward and Linda J. Milward v. Acuity Specialty Products Group, Inc., et al

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Before Lynch, Chief Judge, Lipez and Howard, Circuit Judges.

LYNCH, Chief Judge. Brian and Linda Milward brought negligence claims against defendant chemical companies alleging that the rare type of leukemia that Brian Milward suffers, Acute Promyelocytic Leukemia (APL), was caused by his routine workplace exposure to benzene-containing products that had been manufactured or supplied by defendants. Milward worked as a refrigeration technician and asserted that he was exposed to benzene from 1973 until the time he filed this complaint and jury demand in October 2007. He had been diagnosed with APL in October 2004.

At defendants’ request, the district court bifurcated the suit into two phases. The first phase concerned whether the expert opinion offered by plaintiffs on “general causation” was admissible under Federal Rule of Evidence 702. “‘General causation’ exists when a substance is capable of causing a disease.” Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 28 cmt. c(3) (2010) (“Restatement”). If plaintiffs’ expert evidence had been ruled admissible, the second phase would have considered all other issues, including negligence, exposure, and the “specific causation” of Milward’s leukemia. “‘Specific causation’ exists when exposure to an agent caused a particular plaintiff’s disease.” Id. § 28 cmt. c(4).

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