Bogus Benzene Exposure Case Sunk by Spoliation and Bad Experts

One of those experts was plaintiff himself—an emergency room doctor with a law degree.  We all know what they say about lawyers who represent themselves.  And that applies equally to doctors who try to act as their own causation experts.  Add to that destructive testing after telling defendant no product existed and four more unreliable experts, and you’ve got all you need for summary judgment.

This case is about certain of defendant’s aerosol sunscreens that were recalled, “out of an abundance of caution,” due to testing revealing “low levels of benzene” in sampled product.  Plaintiff claims he used defendant’s sunscreens every week for ten years and at least some of what he used was subject to the recall.  De Los Santos v. Johnson & Johnson, 2024 WL 3700205, *1 (N.D. Ala. Aug. 7, 2024).  The lawsuit blames this alleged benzene exposure for plaintiff’s lupus, Crohn’s disease, low blood cell counts, atrial fibrillation, bone marrow dysplasia, dysmegakaryopoiesis, and potentially hyperparathyroidism. 

In discovery, defendant requested that plaintiff identify the sunscreen he used, describe any tests conducted on the products at issue, and to produce all sunscreen containers still in his possession “whether or not [any such] containers contain any residual” sunscreen.  Id. at *2.   In verified interrogatory responses, plaintiff stated that he had “six empty containers.”  He did not produce them to defendant and he did not supplement his discovery responses.  Five months later, plaintiff retained an expert to perform destructive testing on the residual contents of those containers to determine the presence of benzene.  Id. at *3.  A month later, during a court teleconference, defendant learned for the first time that the “empty” containers had in fact not been “completely empty” and that the contents had undergone destructive testing.  Defendant sent three separate letters to plaintiff requesting the sunscreen containers.  When they were ultimately produced, defendant’s own experts determined there was not enough residual content to perform their own testing.  Id. 

Against this background, the court conducted a thorough spoliation analysis and concluded plaintiff acted in bad faith when he destroyed critical evidence through destructive testing, substantially prejudicing defendant and requiring sanctions.  Id. at *7-9.  While bad faith requires more than mere negligence, the conduct does not need to be malicious.  Here, not only did plaintiff have a duty to preserve the evidence, but defendant had requested it six months earlier.   Plaintiff served “incomplete or misleading discovery responses” and offered no excuse for failing to correct or supplement his responses—an obligation that was triggered at the latest when plaintiff became aware that there was enough residual sunscreen to allow testing to be done.  Far from a case of inadvertently lost evidence, “plaintiff ignored defendants’ requests to produce key evidence and allowed that evidence to be destroyed.”  Id. at *7-9.  Plaintiff used the testing he conducted to support his expert testimony, but defendant was precluded from conducting confirmatory tests.  “Such one-sided conduct fails to promote confidence that the process has uncovered the truth.”  Id. at *10 (citation omitted).

In deciding between the minimal sanction of excluding the test results and the most severe sanction of dismissal, the court found the choice “illusory.” 

Plaintiff’s claims require expert causation testimony, and his experts’ causation opinions all rely on the results of the [destructive] testing; thus, excluding the test results and the expert opinions relying on them results in the dismissal of Plaintiff’s claims.

Id. at *11.  While the court concluded that plaintiff’s behavior warranted dismissal, it went on to explain how plaintiff’s case failed even if it imposed the lesser sanction of preventing plaintiff from using the ill-gotten evidence. 

In a chemical exposure case, plaintiff must prove:  the chemical is capable of causing the alleged injuries (general causation); plaintiff was exposed to the chemical; he was exposed to enough to cause his injuries (toxic dose); and his exposure in fact caused his alleged injuries (specific causation).  Id. at *5.  So, the first fatal defect in plaintiff’s case is that with the exclusion of the test results, plaintiff had no evidence that he was exposed to any benzene from defendant’s sunscreen.  Id. at *12. 

But each of plaintiff’s experts had his/her own additional deficiencies.  For example, while plaintiff claimed to be an expert in “every area of medicine,”

he became an expert in benzene exposure after filing suit, despite having already concluded that benzene caused his medical issues upon [defendant’s] recall announcement—before filing suit.

Id. at *13.  This sort of “conclusion-oriented process” is not a reliable scientific methodology admissible under Rule 702.  Moreover, the only methodology he claimed to use was a differential diagnosis, but plaintiff started his differential diagnosis with an unsupported assumption that benzene exposure is capable of causing his alleged injuries and jumped from there to claiming benzene must be the cause for all his conditions because “coincidences” in medicine are rare.  Id. at *16.  Notably missing from plaintiff’s differential diagnosis is the core element of ruling out other possible causes, including idiopathic causes.  Id.  at *16. 

None of plaintiff’s other experts were any better.  Plaintiff proffered a radiation oncologist to testify that his conditions were not caused by radiation treatment, but then she over-reached by also opining that benzene was the likely cause.  Nor did this expert apply any reliable methodology, basing her opinions on the temporality of the diagnosis and alleged exposure.  Id. at *17.  Plaintiff also offered the opinion of his treating oncologist on causation.  This expert admitted that whether benzene is toxic is a “dose-dependent.” But he did not know the dose required to cause plaintiff’s injuries, the dose plaintiff was exposed to, and he did not perform a exposure analysis which he conceded he was unqualified to do.  Id. at *18.  This expert also tried to bolster his opinion by claiming that plaintiff absorbed benzene levels from defendant’s sunscreen at levels “exceeding federal limits.”  Even if the expert knew plaintiff’s exposure, which he does not, “regulatory agencies conduct risk-utility analyses involving a much lower standard than that which is demanded by a court of law.”  Id. at *19 (citations omitted).  In other words, exceeding regulatory limits has no bearing on the causal relationship between the chemical and the alleged injuries.

Plaintiff’s third additional expert was qualified to conduct exposure modeling to determine plaintiff’s total cumulative dose of benzene exposure—but he did not do so because he was not asked to.  Id. at *21.  That is not where this expert’s honesty ended.  At his deposition he conceded that on the “thin record” he had and without any evidence of dose response, “he could not opine that plaintiff’s alleged benzene exposure cause any disease.”  That left only the expert who conducted the destructive testing whose testimony was excluded as a spoliation sanction. 

Because plaintiff had no admissible expert evidence on general or specific causation or the toxic dose, plaintiff could not meet his burden and defendant was granted summary judgment.    

Congratulations to Robyn Maguire (Barnes & Thornburg) and the team of Nadine Kohane, Sarah Brown and Kaleb Gorman for this great win and excellent decision.