Are Three Doctors’ Opinions that Firefighting Can Cause Cancer “
Albert George worked for the Burlington Fire Department for 36 years. He died of non-Hodgkin’s lymphoma (NHL). His estate brought a worker’s compensation claim, insisting that the NHL was caused by being exposed to carcinogens while fighting fires. No evidence was introduced as to the number or types of fires George was involved in. Commercial fires are more likely to be toxic. Instead, George’s heirs offered evidence by three doctors, who testified it was more likely than not that George’s NHL was caused by fighting fires. Their opinion was based on epidemiological studies (studies that identify harmful agents which increase risk of disease in certain populations), and “meta analysis” (studies that analyze many studies and pools the results into one conclusion.) Neither method can establish that a specific cause affected a particular individual, but only assess the risk. Since George was obligated to prove it was more likely than not that firefighting caused his NHL, the studies required proof that firefighting was twice as likely to cause NHL as distinguished from the general population. (Risk greater than 2.0)
A jury trial was held in Superior Court. Before a jury can hear expert evidence the trial judge must find that evidence is helpful to the jury. Evidence rules require the opinion must be based on sufficient facts and data, produced by reliable principles and methods, which are correctly applied by the expert. The Superior Court ruled that George’s offered evidence failed to meet this standard, could not be heard by the jury. The Court denied compensation. George appealed.
Justices Skoglund, Burgess, and Dooley filed an 18 page opinion agreeing with the trial court. The evidence rule is designed to exclude “junk science” from consideration by a court. These justices argued that only two of the eight epidemiological studies found a risk of 2.0. The other six found little or no association between firefighting and NHL, As to the meta-analysis, they found that of the 32 studies considered, only 8 dealt with NHL and none of the Doctors could say that firefighting actually caused George to contract NHL. The Doctors, they ruled, did not establish a scientific basis for their opinions that George had twice the NHL risk as the general population. Their opinions were subjective not scientific so the jury couldn’t hear them.
Chief Justice Reiber and Justice Johnson filed a 25 page dissent. They argued that the issue was whether the jury could hear the evidence at all, not whether George was entitled to prevail. Exclusion of the doctors’ evidence was proper only if there was too great an analytical gap between the data and the doctor’s opinion. The trial court should have held a hearing to explore that issue before excluding the evidence. Two epidemiological studies met the 2.0 standard. Moreover, the doctors were pre-eminent in their field and they relied on sound methodology. So, they should have testified and allowed the jury to determine whether their conclusions were correct. Juries, not judges, should decide who prevails.
The constitution favors jury trials. Judges are political appointees. The majority justices in this complex case fear juries will respond emotionally to “junk science” and help a fallen firefighter. The dissenters would require the trial judge to be more rigorous in his thinking before taking the case from a jury. Estate of Albert George v. Vermont League of Cities and Towns 2010 VT 1.
