As Nobel laureate Richard Feynman once observed, “[w]isdom is knowing when to ask the right questions.” A related proposition is that wise jurists know how to identify and focus on the right questions. Motion practice can turn not only on the facts and the law, but on how the court frames the question to be answered. It is rarely a good sign for a party when the court articulates the issue differently than the party framed it. A recent decision by the Fifth Circuit provides not one, but two prime examples of how correctly framing the inquiry can dictate the results of a motion.
In Whalen v. Monsanto Company, 2024 WL 4524170 (5th Cir. Oct. 18, 2024), the plaintiffs alleged that the decedent had developed squamous cell carcinoma as a result of exposure to the defendant’s herbicide. The decedent was a doctor who had treated employees at a plant where the herbicide’s active ingredient was manufactured and was also an avid gardener who regularly used the herbicide. Initially, the plaintiffs alleged that the herbicide’s active ingredient was itself carcinogenic. However, they ultimately argued instead that the herbicide contained arsenic, which they claimed had caused the decedent’s cancer. The defendant moved for summary judgment, first as to selected claims on a statute of limitations argument, and later as to the remaining claims on the ground that the plaintiffs’ sole causation expert had not offered an admissible opinion, and the trial court granted both motions.
On appeal, the Fifth Circuit affirmed the statute of limitations holding as to the plaintiffs’ redhibition and survival claims, both of which had to be filed within one year after the decedent discovered his causes of action. But the decedent’s widow had testified at deposition that he was aware of a potential link between the herbicide and cancer as early as 2015 — four years before the plaintiffs filed suit in 2019. Indeed, he was aware of lawsuits surrounding the herbicide but declined to file a suit himself because he believed “the science wasn’t there.” The plaintiffs argued that the clock only started in 2018 because that was when it became “known” that the herbicide potentially contained arsenic. But, as both the trial court and the Fifth Circuit noted, the complaint — which alleged only that the herbicide was carcinogenic, without mentioning arsenic — controlled. The decedent’s awareness of an alleged link between the herbicide and cancer thus rendered the redhibition and survival claims untimely.
Next, the Fifth Circuit affirmed the exclusion of the plaintiffs’ causation expert. To establish general causation, the expert argued that arsenic is known to cause squamous cell carcinoma. But, because the question was whether the herbicide causes cancer rather than whether arsenic causes cancer, the expert also needed to prove that the herbicide contains significant amounts of arsenic. The expert attempted to do so by citing a single study in which nine bottles of the herbicide were tested. But traceable levels of arsenic were found in only five of the bottles, and only two bottles contained levels above the threshold at which the expert claimed arsenic causes cancer. Thus, the study failed to show that any given bottle of the herbicide — or even most bottles of the herbicide — contained relevant levels of arsenic. Because the expert could not point to any evidence to quantify the arsenic that he alleged was in the product, he could not reliably opine that the herbicide is capable of causing cancer.
The same issue also doomed the expert’s specific causation opinion. He cited the same study on nine bottles of the product, but it did not enable him to say to how much arsenic — if any — the decedent was exposed. The Fifth Circuit agreed with the trial court that the expert’s “mere guesswork” was inadmissible. And, because the expert’s exclusion left the plaintiffs without expert testimony to establish causation, the Fifth Circuit affirmed summary judgment.
Whalen is a testament to the power of framing the questions correctly. The plaintiffs wanted to focus the statute of limitation inquiry on when arsenic was allegedly discovered in the herbicide, but the right question — drawn directly from the complaint — was when the decedent knew or should have known of an alleged link between the herbicide and cancer. And the expert admissibility holding harkens back to the Zantac MDL court’s still-recent order excluding the plaintiffs’ experts (discussed here), in which the plaintiffs’ experts likewise attempted to prove that the product at issue was carcinogenic by arguing that an alleged contaminant was carcinogenic. But in both cases, the courts correctly noted that the question is whether the product — not the alleged contaminant — is carcinogenic. And in both cases, the experts failed to show that the product contained sufficient levels of the contaminant to cause cancer. In law, as elsewhere, it pays to ask the right questions.
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