Judge Quashes Beryllium Toxic Tort V. Alcoa, Others

September 17, 2010 – Media Coverage

Law360, New York (September 17, 2010, 6:34 PM EDT) -- A federal judge on Friday threw out a consolidated toxic tort suit brought against Alcoa Inc. and others by employees of Lockheed Martin Corp. who claimed they were exposed to beryllium from parts used in the manufacture of fighter jets and transport airplanes. 

Judge Richard W. Story of the U.S. District Court for the Northern District of Georgia granted summary judgment for Alcoa and the other remaining defendants, saying that the employees couldn't show that their injuries were caused by exposure to any of the companies' products because the plaintiffs' only expert witness was unreliable. 

Andrew M. Thompson of Smith Gambrell & Russell LLP, counsel for Alcoa, said other courts hearing toxic tort cases around the country were likely to rely on the judge's decision, particularly as it related to the “sophisticated user analysis” and the Daubert standard for the admissibility of an expert witness' testimony. 

He called Judge Story's decision “extremely well-reasoned and thorough.” 

Attorneys for the plaintiffs did not immediately respond to requests for comment Friday. 

Two separate cases — one with four plaintiffs, another with eight — were consolidated for pretrial discovery but contained similar claims, according to the order. 

The plaintiffs all worked at Lockheed's Marietta, Ga., facility, where they say they were exposed to the beryllium while working on the company's C-130 Hercules and C-5 Galaxy transport planes and F/A-22 Raptor stealth fighters. 

The hazardous substance was allegedly contained in various parts made by the defendants. The employees claimed they were exposed to it in dust and fumes and carried it home on their clothes, exposing their families as well. 

Chronic beryllium disease can cause acute lung and respiratory problems and other symptoms, according to the complaint. 

But in his decision, Judge Story agreed with the parts manufacturers that the opinion of the plaintiffs' sole expert, Dr. John Martyny, was “purely hypothetical” and had not been tested. 

“Even accepting for argument's sake that defendants' products were actually used by plaintiffs, Dr. Martyny produce no reliable scientific evidence that such use actually caused the plaintiffs' injuries,” the judge said. 

Martyny's technique “does not meet the reliability requirement of Daubert nor prove plaintiffs' actual exposure to defendants' products,” he said. 

Testing was not done on the defendants' products to show whether they even produced the kind of beryllium particle at issue in the case, Judge Story noted. 

What's more, Martyny's testimony would not end up helping the judge decide the case — an essential element of the Daubert test. Martyny's opinion “begs the question rather than offering scientific explanation,” Judge Story said. 

He also granted summary judgment to the defendants on the ground that Lockheed was a “sophisticated user” of beryllium alloys. 

Some of the original defendants — Lockheed, Axsys Technologies and Cobb Tool Inc. — had already dismissed from the case, while Brush Wellman Inc. settled the cases, the order said. 

That left Alcoa, Schmiede Machine & Tool Corp., ThyssenKrupp Materials NA Inc. and McCann Aerospace Machining Corp., which Friday's order let off the hook. 

The plaintiffs are represented by Golomb & Honik PC and Webb Wade Taylor & Thompson LLC. 

Alcoa is represented by Smith Gambrell & Russell LLP. Schmiede is represented by Neal & Harwell PLC. McCann is represented by Mozley Finlayson & Loggins LLP. ThyssenKrupp is represented by Hawkins Parnell & Young. 

The cases are Neal Parker et al. v. Brush Wellman Inc. et al., case number 04-cv-606, and Timothy Berube et al. v. Brush Wellman Inc. et al., case number 08-cv-2725, in the U.S. District Court for the Northern District of Georgia.