ATLANTA (CN) - An attorney for more than 60 people who say they developed cancer and other diseases after defense contractor Lockheed Martin exposed them to toxic chemicals asked the 11th Circuit on Thursday to reevaluate a Florida federal judge's rejection of their experts' reports in two lawsuits.

Breast cancer, thyroid cancer, leukemia, multiple sclerosis and Parkinson's disease are just a few of the injuries people who worked or lived near Lockheed Martin's Orlando weapons manufacturing facility say they developed thanks to the "environmental nightmare" created by the company.

The two negligence and strict liability lawsuits in front of the 11th Circuit claim Lockheed Martin dumped contaminants - many of them powerful carcinogens - into the soil, air and groundwater around the facility. The plaintiffs say these toxins "damage virtually every human bodily system."

A Florida federal judge tossed many of the claims out of court in a series of rulings in 2023 and 2024. Senior U.S. District Judge Roy B. Dalton Jr. rejected the opinions of three experts - even accusing one expert of plagiarism - and left the plaintiffs unable to show the chemicals caused their injuries. The plaintiffs have asked the appellate court to overturn those rulings and give them another shot in court.

An attorney for the plaintiffs told the Atlanta-based panel on Thursday that Dalton made mistakes in analyzing the scientific literature offered by a neurologist and a cancer researcher.

Attorney Josh Autry of Morgan & Morgan said Dalton failed to look at the "totality of the evidence" in excluding a report from Dr. Daniel Kantor, a neurologist who found that solvents including tetrachloroethylene (PCE), trichloroethylene (TCE) and styrene can cause multiple sclerosis and Parkinson's disease.

Dalton ruled Kantor's approach "unsound," adding that his report is "missing virtually any hallmarks of reliability."

Attorney Ryan Hopper of Greenberg Traurig, who represents Lockheed Martin, asked the panel to uphold the lower court's rulings, arguing there was an "unreliable chemical analogy at the heart of Dr. Kantor's general causation opinions."

"It is undisputed that Dr. Kantor ... was unable to identify a single association reported in any epidemiological study between PCE, TCE and styrene specifically and the development of [the plaintiffs' conditions]," Hopper said.

U.S. Circuit Judge Robert Luck appeared convinced by Dalton's analysis. The Donald Trump appointee repeatedly said Kantor failed to include negative information in his report discussing whether there was a connection between the plaintiffs' illnesses and the chemicals.

Autry also argued Dalton made an improper "credibility determination" in excluding a report from cancer researcher Dr. Dipak Panigrahy. The attorney reminded the panel that it previously found juries have "exclusive province over credibility."

Panigrahy found that seven substances can cause eight types of cancer affecting 22 plaintiffs.

Dalton called Panigrahy's report "a mess." The judge excluded it for failing to use quotation marks and plagiarizing from the International Agency for Research on Cancer's monograph publications.

Luck said he believed Panigrahy's methodology "in cutting and pasting over 100 pages of his report" affected the reliability of his evidence-gathering.

"You gather all this stuff, you see if there's association evidence, you identify the negatives and then you plug that in ... to see if the [analysis] spits out causation," Luck said. "If you put garbage in, you get garbage out."

Autry waved aside Dalton's problems with Panigrahy's report as simple "drafting" issues.

"To ignore the eight types of cancer at issue and ignore all the literature out there and just say we don't have to look at it because the expert didn't use quotation marks is something that his court has never condoned and no court has ever condoned," Autry said.

U.S. Circuit Judge Andrew Brasher had a different interpretation than Luck, expressing concern that lower court judges are focusing too much on experts' reports in analyzing reliability instead of holding evidentiary hearings.

Brasher, also a Trump appointee, said Kantor had merely conceded during a deposition that studies contrary to his conclusions "could" be out there. The judge questioned whether that warranted Kantor's exclusion from the case and suggested Dalton could have imposed a discovery sanction on the plaintiffs instead.

"That seems crazy to me. Just because the expert says yeah, there are some other things out there that - I'm the expert, you're not the expert, I didn't consider those things. Why would we say we're excluding that instead of saying okay, if you can find those studies and bring those to the attention of the jury, then have it?" Brasher asked.

The judge indicated questions about the reliability of studies might be better left for a jury.

"If he's pointing to statistically significant studies, why isn't it, well, okay, there could be a confounding factor or the study could be designed poorly - why isn't that a question for cross-examination and not excluding the expert entirely?" Brasher asked.

Lockheed Martin attorney Hopper said, "It's not a question for cross-examination because it goes to whether the expert reliably applied the epidemiological methodologies that parse chance from real causality."

Brasher and Luck were joined on the panel by U.S. Circuit Judge Jill Pryor, a Barack Obama appointee. The panel did not indicate when they will issue a decision in the appeal.

Source: Courthouse News Service