Counsel for plaintiffs in the Tamraz v. Lincoln Electric Company (pdf) has filed a petition for en banc review of the Court’s recent reversal of his $20.5 million verdict.  In their petition, the plaintiffs claim that the majority (1) did not properly apply an abuse of discretion standard to the trial judge’s decision to admit the expert testimony at issue, (2) imposed overly-stringent standards given the expert’s role as a treating physician, and (3) improperly applied the Court’s harmless error doctrine by assuming that the evidence affected the outcome. 

As we reported earlier, by a 2-1 vote, the Sixth Circuit reversed the trial court’s admission of the plaintiffs’ expert on the grounds that his opinion did not survive Daubert scrutiny.  Whether the Court accepts the case for en banc review could have a significant impact not only on the welding-fume cases but also on other toxic tort cases.