Applying Daubert at the summary judgment stage, a district court in Mississippi dismissed a worker’s claim for Chronic Beryllium Disease (CBD) on the basis that the diagnosis of granulomas by plaintiff’s expert was premised on a false assumption, and therefore unreliable. The court further determined that Beryllium Sensitization (BeS), which “precedes the formation of granulomas and clinical illness” is not a compensable “injury” under Mississippi law. “The Mississippi Supreme Court did not permit the Paz III plaintiffs to rely upon sub-cellular, cellular, or sub-clinical changes without more, or in and of themselves, to support their cause of action for medical monitoring.” While affirming, the U.S. Fifth Circuit’s opinion ended with a footnote explaining that the decision did not preclude employees from filing suit if they were ever to develop CBD. Paz v. Brush, 555 F.3d 383 (5th Cir. 2009).
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