Washington, D.C. Court decides expert may testify in paint fumes trial

By Pat Murphy

The Daily Record Newswire

BOSTON -- The Supreme Court of Washington decided Thursday that an expert could testify that a mother's exposure to paint fumes in the workplace caused developmental abnormalities in her son.

In reaching its decision, the court clarified that the state's formulation of the Frye test does not require a showing that there is general acceptance in the scientific community that a particular type of in utero toxic exposure can cause a particular type of birth defect.

The court's ruling came in the negligence case brought by Julie Anderson against Akzo Nobel Coatings. Anderson worked for Akzo from 1998 until she was fired in 2004.

Anderson's work at Akzo regularly involved her mixing paint, even after she received a promotion to safety coordinator. Although workplace safety rules required employees to wear respirators when mixing paint, Anderson claimed that the rule was never rigorously enforced by management and regularly flouted by employees.

Moreover, Anderson alleged that company management actively undermined the safety rule by telling her and others that there was no need to wear a respirator when mixing toxic paint because air monitoring at the plant showed that there was no health threat.

In January 2000, Anderson gave birth to a son, Dalton. It later became apparent that Dalton suffered developmental problems and, in 2003, he was diagnosed with a neuronal migration defect, congenital hemiplegia, microcephalus, and a multicystic dysplastic kidney. Dalton's developmental problems ran the gamut, affecting motor, communicative, cognitive, and adaptive behavior.

After being fired for allegedly taking paint for personal use, Anderson sued Akzo for negligence, alleging that Dalton's birth injuries were caused by her exposure to toxic chemicals in the paint mixing process.

Anderson presented evidence showing that it is generally accepted by the scientific community that toxic solvents like the ones to which she was exposed are fat soluble, pass easily through the placenta, dissolve into the amniotic fluid inside the uterus, and may damage the developing brain of a fetus.

What Anderson needed to show to clinch her case was that Dalton's particular condition was caused by in utero organic solvent exposure.

To that end, Anderson sought to introduce the testimony of Dr. Sohail Khattak. Doctor Khattak published a paper on the correlation between exposure to organic solvents in utero and birth defects while he was a fellow at the Motherisk Program, a division of Clinical Pharmacology and Toxicology at the University of Toronto.

In a study published in the Journal of the American Medical Association, Khattak, reported birth abnormalities in 10 percent of 125 women who were exposed to organic solvents at their work places, much greater than the 1 to 3 percent expected rate and the incidence of birth defects in a control group of 125 mothers.

The trial court concluded that Khattak's testimony was inadmissible under the state's version of the Frye test because his ultimate conclusions had not gained general acceptance in the scientific community.

Overturning a grant of summary judgment in Akzo's favor, the Washington Supreme Court decided that the trial judge had improperly excluded the expert.

"This court has consistently found that if the science and methods are widely accepted in the relevant scientific community, the evidence is admissible under Frye, without separately requiring widespread acceptance of the plaintiff's theory of causation. ...

"If we were to accept Akzo's argument and require 'general acceptance' of each discrete and evermore specific part of an expert opinion, virtually all opinions based upon scientific data could be argued to be within some part of the scientific twilight zone," the court said.

In giving Anderson a second chance to get her case and expert before a jury, the court held that "the Frye test is not implicated if the theory and the methodology relied upon and used by the expert to reach an opinion on causation is generally accepted by the relevant scientific community."

Published: Fri, Sep 16, 2011