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Iowa Supreme Court Strikes “Exposure Estimate” Testimony in Pesticide Suit

Striking a blow to toxic tort plaintiffs who rely on estimates, as opposed to actual data, the Iowa Court of Appeals found that expert testimony relying on such “exposure estimates” was insufficient to prove causation of birth injuries associated with use of a pesticide. See Junk v. Obrecht, No. 3-454 (Iowa Ct. App. Sept. 5, 2013), available at www.bdlaw.com/assets/attachments/junkvobrecht.pdf.

Plaintiffs, Rene Junk and her husband, hired Terminex International Company to treat their home for the presence of spiders while Ms. Junk was pregnant. Junk, slip op. at 2. Over a period of three years, Terminex employees sprayed the inside of Junk’s home with the pesticide Dursban. Id. In 1992, the Junks’ son, Tyler, was born with physical, neurological, and psychological impairments.Id. In 2005, Plaintiffs sued Terminex, two Terminex employees, Dow Chemical Company, and Dow AgroSciences alleging that exposure to chloropyrifos, a chemical in Dursban, caused their son’s defects. Id.

Plaintiffs’ key expert, Dr. Richard Fenske, used an “exposure estimates” methodology to substantiate his conclusion that while it was unknown how much chlorpyrifos the Junks’ son had been exposed to, exposure levels likely exceeded recommended EPA levels. Id. The other experts had relied on Dr. Fenske’s “exposure estimates” to form their own conclusions. Id.

Arguing that the “exposure estimates” were unreliable, Defendants moved to exclude the testimony in the federal court. Id. Using the analysis set out in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 591-95 (1993) to determine whether scientific testimony is admissible, the court determined that Dr. Fenske had not applied a scientifically reliable methodology in estimating exposure levels and granted Defendants’ subsequent motion for summary judgment. Id. at 3-4. The Eighth Circuit affirmed this ruling, finding that Dr. Fenske’s conclusions were based on “unfounded assumptions.” Id. However, the court remanded the action to state court for proceedings against the Terminex employees. Id. at 5.

Both Dr. Fenske and another expert filed new affidavits while the case was on remand, stating that they agreed with Fenske’s first affidavit. Id. Defendants again moved for summary judgment on the basis that the expert testimony should be excluded, and the Iowa lower court granted the motion. Id.The Iowa Court of Appeals affirmed the court’s decision, finding, like the Eighth Circuit, that Dr. Fenske’s opinion failed to meet the scientific reliability standard set out in Daubert and that the opinions of the other experts, which relied on Dr. Fenske’s report, were likewise unreliable. Id. at 6-12.

© 2020 Beveridge & Diamond PC National Law Review, Volume III, Number 301

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About this Author

Daniel M. Krainin Environmental Litigation Attorney Beveridge & Diamond New York, NY
Principal

Dan deploys more than two decades of environmental litigation experience to resolve clients’ legal and business challenges.

Primarily focused on environmental and toxic tort litigation, Dan helps clients successfully resolve groundwater contamination, hazardous waste site remediation, natural resource damages, permit defense and product-related matters. He enjoys using his skills as a litigator to help clients solve environmental problems.

Among his many wins, Dan successfully led a team that defeated an emergency challenge to a permit that Dan’s client needed to continue its...

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Mackenzie S. Schoonmaker Environmental Litigation Attorney Beveridge & Diamond New York, NY
Principal

Mackenzie’s practice includes both litigation and regulatory matters arising under FIFRA, the Clean Water Act, and related environmental laws.

She is passionate about conserving air, water, wildlife, and land for future generations, and enjoys helping clients navigate and enforce the detailed framework of environmental law because she believes compliance is key to preventing adverse impacts to the environment.

Mackenzie is a co-chair of Beveridge & Diamond’s Industrial Hemp & Cannabis industry team. She advises clients, and regularly writes and presents, on federal and state environmental regulations impacting this thriving industry. 

Under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), Mackenzie represents pesticide companies in data compensation arbitrations, focusing on defending the rights of data owners against follow-on registrants of pesticides. She has also worked extensively with task forces comprised of national and multinational companies of all sizes that operate as joint ventures or limited liability companies to generate data and other information to meet government requirements under FIFRA.

Among the wide range of issues under the Clean Water Act that Mackenzie has handled are assisting companies with responses to Clean Water Act Section 308 information requests and Clean Water Act Section 404 compensatory mitigation requirements.

Mackenzie also defends public utilities against toxic tort claims. She was part of the team that obtained a defense judgment after a three-week trial regarding claims alleging that the client supplied corrosive water to apartment buildings. The case, Cormier v. D.C. WASA, 2011 D.C. Super. Lexis 7, 84 A.3d 492 (2013), was successfully upheld on appeal.

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