Experts in Lockheed Pollution Suit Used Unreliable Methods, Appeals Court Says

Lockheed Martin Corp. won a major legal victory in May when a Florida jury found that plaintiffs had failed to prove that the defense and aerospace giant had polluted groundwater around its Orlando manufacturing site and caused disease in nearby residents.

In one part of the multi-plaintiff, high-profile litigation against Lockheed, a federal judge in 2023 threw out testimony from two key plaintiffs’ experts. This week, the U.S. 11th Circuit Court of Appeals upheld that trial judge, agreeing that the expert witnesses had used unreliable methodology and failed to meet long-established court standards.

“Because the experts did not reliably apply their methodologies, and without those experts the plaintiffs lacked general causation evidence, the district court did not abuse its discretion in determining that their testimony was unreliable and granting summary judgment,” the panel of appellate judges wrote in the July 28 opinion.

The decision could have an impact on other liability lawsuits, including ones defended by insurance carriers, and it underscores the importance of challenging plaintiffs’ experts’ conclusions. Insurers and a few engineers in Florida have for years complained that some plaintiffs’ expert witnesses have regularly produced reports that support exaggerated insurance claims without evidence or scientific backing, and that those witnesses are not always excluded at trial.

A few plaintiffs’ engineers have disagreed, arguing that causation is often a matter of interpretation.

In the Lockheed case, the 11th Circuit panel explained that toxic tort suits require plaintiffs to prove general causation—that a pollutant can cause a given disease. Experts can establish general causation through three main methods: epidemiological evidence, dose-response relationship, and background risk of disease.

“Because it is difficult to conclusively prove causation in epidemiology, experts often use a methodology called the ‘weight of the evidence’ methodology, by which they infer the best explanation for an association,” the appeals court noted.

As part of the weight-of-evidence methodology or as part of a separate methodology, experts can also evaluate the strength of associations they find by using nine metrics called the Bradford Hill factors.

Lockheed’s attorneys, with the Greenberg Traurig law firm, argued that the plaintiffs’ experts, Dr. Daniel Kantor and Dr. Ronald Kendall, had failed to establish general causation. The lower court and the appeals court agreed that Kantor’s report was unreliable because he did not explain his criteria for reviewing previous studies, nor did he evaluate the Bradford Hill factors.

Kendall’s methodology was unreliable because his report largely adopted other experts’ opinions, the judges explained.

“We agree with Lockheed,” 11th Circuit Judge Andrew Brasher wrote in the opinion. “A background risk assessment must compare the risk of disease without exposure to the risk with exposure. But Kendall never conducted this comparison.”

The lawsuits against Lockheed were handled by the Morgan & Morgan law firm, which called the groundwater contamination “an environmental nightmare.” The opinion can be seen here.

Lockheed’s Sand Lake facility in Orlando makes a range of weapons systems and components, including tactical missiles. The company is partly self-insured for liability, according to filings with the U.S. Securities and Exchange Commission.

Topics Lawsuits Pollution