Adams et al., v. Cooper Industries, Inc., et al.

Filing 1261

MEMORANDUM OPINION & ORDER: Aneti Saunders's 1256 Rule 59(e) motion to alter or amend the judgment is DENIED. Signed by Judge Jennifer B Coffman on December 28, 2012. (AWD) cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LEXINGTON
LEAD CIVIL ACTION NO. 03-476-JBC
CHARLES W. ADAMS, JR., et al.,
V.

PLAINTIFFS,

MEMORANDUM OPINION & ORDER

COOPER INDUSTRIES, INC. and
MCGRAW EDISON COMPANY,

DEFENDANTS.

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Pending before the court is the plaintiff Aneti Saunders’s Rule 59 (e) motion
to alter or amend the judgment, R.1256. For the following reasons, the court will
deny the motion.
Saunders moves the court to vacate its June 19, 2012, order which granted
summary judgment to the defendants in this case involving an alleged toxic tort
resulting from chemicals at a plant that supposedly caused the cancer which led to
Saunders’s husband’s death. The court found in that order that Saunders had not
established specific causation sufficient to support her case of negligence against
the defendants, and thus, that she had failed to establish an essential element of
her case. Saunders now argues that the court should reconsider its finding and
vacate the summary judgment because she has presented reliable expert testimony
and undisputed facts from which a jury may conclude that her deceased husband’s
cancer was caused by his exposure to NEC plant chemicals.

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Rule 59 (e) permits a court to alter or amend a judgment only upon a
showing of clear error of law, newly discovered evidence, an intervening change of
law, or to prevent manifest injustice. GenCorp, Inc. v. Am. Int’l Underwriters, 178
F.3d 804, 834 (6th Cir. 1999). Saunders has made none of those showings.
While she acknowledges that in order to establish causation she must prove that an
individual or combination of toxic substances from the NEC plant was capable of
causing her husband’s cancer and that such substances in fact caused the injury,
see R.1256, p.2 (citing Pluck v. BP Oil Pipeline Co., 640 F.3d 671, 676-77 (6th
Cir. 2011)), she does not demonstrate that the court committed error or entered an
unjust ruling when it found that Saunders had not proved those elements.
Saunders argues that, contrary to the court’s opinion, the testimony of
expert Dr. Finkelstein satisfied the required showing for specific causation because
he analyzed Mr. Saunders’s cancer tissue and concluded that the cancer displays
certain characteristics that are distinctive of cancer caused by exposure to NEC
plant chemicals. She states that Dr. Finkelstein used a method other than the
dose-response method to prove specific causation and to reach these findings. But
even if the process proposed by Saunders – which included testing the cancer
tissue, analyzing it, and considering the results within the context of the expert’s
prior experience and research – were considered a method for proving specific
causation, she still has not shown that Dr. Finkelstein’s testimony establishes
specific causation, including that “the individual [was] exposed to a sufficient
amount of the substance in question to elicit the health effect,” and that “the
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chronological relationship between exposure and effect [is] biologically plausible;”
as well as that the expert considered the likelihood that the chemical caused the
disease or injury in the context of other known causes. R.1254, p.3 (citing R.959
at 5 (internal citations omitted)).
Saunders also argues that there is no evidence or expert opinion suggesting
some other possible exposure source for Mr. Saunders’s cancer and that the
defendants’ theory on smoking as a potential cause of the cancer is not reliable.
But these arguments miss the mark. Saunders has the burden of establishing
causation, and it is the duty of Dr. Finkelstein, Saunders’s expert, not of the
defendants, to rule out other potential sources of exposure. See Tamraz v. Lincoln
Elec. Co., 620 F.3d 665, 674 (6th Cir. 2010). Accordingly,
IT IS ORDERED that Aneti Saunders’s Rule 59 (e) motion to alter or amend
the judgment, R.1256, is DENIED.

Signed on December 28, 2012

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