Malcom LeBlanc, et al v. Chevron USA, Inc., et al

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UNPUBLISHED OPINION FILED. [09-31149 Affirmed] Judge: EBC , Judge: LHS , Judge: CH. Mandate pull date is 10/14/2010 [09-31149]

Malcom LeBlanc, et al v. Chevron USA, Inc., et al

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
September 23, 2010 N o . 09-31149 Lyle W. Cayce Clerk

V I C T O R I A RICHAUX LEBLANC, as Executrix of the Estate of Malcom Louis L e B la n c , deceased; TIMOTHY L. LEBLANC; HEIDI M. LEBLANC, P la in t iffs - Appellants v. C H E V R O N USA, INC., formerly known as Gulf Oil Corporation; EXXON M O B IL CORPORATION, formerly known as Exxon Corp.; MOBIL C O R P O R A T I O N ; MURPHY OIL USA, INC.; SHELL OIL COMPANY; EL P A S O ENERGY, E.S.T. COMPANY, as Trustee for EPEC Oil Company L iq u id a t in g Trust, EPEC Oil Company, D e fe n d a n t s - Appellees

A p p e a l from the United States District Court for the Eastern District of Louisiana U S D C No. 2:05-CV-5485

B e fo r e CLEMENT, SOUTHWICK, and HAYNES, Circuit Judges. P E R CURIAM:* V ic t o r ia Richaux LeBlanc, the representative of the estate of Malcolm L eB la n c ; Timothy LeBlanc; and Heidi LeBlanc (the "LeBlanc family") appeal the d istrict court's exclusion of their proffered expert witness testimony on causation

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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No. 09-31149 a n d consequent grant of summary judgment in their toxic tort case against s e v e r a l oil and energy companies. Malcolm LeBlanc, a tanker truck driver, and h is family sued Chevron USA, Inc.; Exxon Mobil Corp.; Mobil Corp.; Murphy Oil U S A , Inc.; Shell Oil Co.; and El Paso Energy and its successor entities (c o lle c t iv e ly , the "Energy Companies"), seeking damages for his myelofibrosis w it h myeloid metaplasia. Mr. LeBlanc1 alleged that he contracted the disease b e c a u s e of his exposure to benzene while loading and unloading pure benzene a s well as gasoline, jet fuel, and diesel fuel--all of which contain benzene--at r e fin e r ie s owned or operated by the Energy Companies. The LeBlanc family o ffe r e d Dr. Frank Gardner as an expert medical causation witness to show a link b e tw e e n benzene exposure and Mr. LeBlanc's disease, as well as Professor T u m u le s h Solanky as a statistical expert witness to support Dr. Gardner's c o n c lu s io n . After an extended series of proceedings before the district court and t h is court, the district court ultimately granted the Energy Companies' motion t o exclude Dr. Gardner's and Prof. Solanky's testimony. Without Dr. Gardner's t e s t im o n y as to causation, the district court found--and the LeBlanc family a c k n o w le d g e s -- t h a t summary judgment for the Energy Companies was r e q u ir e d . The LeBlanc family timely appealed the dispositive exclusion of Dr. G a r d n e r 's and Prof. Solanky's respective testimony. W e AFFIRM. I. Facts & Procedural History F r o m 1961 to 1991, Malcolm LeBlanc drove tanker trucks for Younger B r o t h e r s , Inc., and Matlack Tank Lines, Inc. As a tanker truck driver, he r e g u la r ly loaded and unloaded pure benzene and benzene-containing fuel at s e v e r a l refineries owned or operated by the Energy Companies. In November o f 2004, Mr. LeBlanc was diagnosed with myelofibrosis with myeloid metaplasia
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Mr. LeBlanc died during the pendency of this appeal, and his executrix was substituted in his place.

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No. 09-31149 (" M M M " ), a very rare terminal disease of the bone marrow. On February 8, 2 0 1 0 , Mr. LeBlanc died. P r io r to Mr. LeBlanc's death, the LeBlanc family filed this suit as a d iv e r s it y action, seeking compensatory and exemplary damages for personal in ju r y and for loss of consortium and society on theories of negligence, products lia b ilit y , misrepresentation, and unjust enrichment.2 Prior to the first appeal of t h is case, the Energy Companies moved to exclude the reports and testimony of D r . Gardner and Prof. Solanky. The district court excluded the two experts and g r a n t e d summary judgment in favor of the Energy Companies. LeBlanc v. C h e v r o n USA, Inc. (LeBlanc I), 513 F. Supp. 2d 641, 644 (E.D. La. 2007). In the fir s t appeal, we vacated the district court's order and remanded for

r e c o n s id e r a tio n in light of a report by the Federal Agency for Toxic Substances a n d Disease Registry ("ATSDR") finalized between the time of the district court's o r d e r and appellate oral argument. LeBlanc v. Chevron USA Inc. (LeBlanc II), 2 7 5 F. App'x 319, 321­22 (2008) (unpublished). That report suggested a link b e tw e e n benzene and aplastic anemia, and then linked aplastic anemia to m y e lo fib r o s is . Id. at 321 ("[I]n the report, the ATSDR concluded that `[b]enzene a ls o causes a life-threatening disorder called aplastic anemia in humans and a n im a ls .' The report also states that myelofibrosis (the disease with which A p p e lla n t has been diagnosed) is a form of aplastic anemia."). O n remand, the district court excluded Dr. Gardner's testimony and again g r a n t e d summary judgment in favor of the Energy Companies, concluding that t h e scientific evidence did not support Dr. Gardner's conclusions. LeBlanc v. C h e v r o n USA Inc. (LeBlanc III), Civ. No. 05-5485, 2009 U.S. Dist. LEXIS

The precise list of defendants has evolved since the original complaint; the Energy Companies are the defendants named in the final judgment.

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No. 09-31149 1 0 6 3 3 9 , at *4­10 (E.D. La. Nov. 13, 2009).3 Again, without Dr. Gardner, the L e B la n c family had no causation evidence. The court entered judgment for the E n e r g y Companies, and the LeBlanc family appealed. I I . Standard of Review " W e review the district court's determination of admissibility of expert e v id e n c e . . . for abuse of discretion." Knight v. Kirby Inland Marine Inc., 482 F .3 d 347, 351 (5th Cir. 2007). In this context, as in others, "`[a] trial court a b u s e s its discretion when its ruling is based on an erroneous view of the law or a clearly erroneous assessment of the evidence.'" See id. (quoting Bocanegra v. V ic m a r Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003)). The admissibility of expert witness testimony is governed by Federal Rule o f Evidence 702. Under that Rule, [i]f scientific, technical, or other specialized knowledge will assist t h e trier of fact to understand the evidence or to determine a fact in is s u e , a witness qualified as an expert by knowledge, skill, e x p e r ie n c e , training, or education, may testify thereto in the form o f an opinion or otherwise, if (1) the testimony is based upon s u ffic ie n t facts or data, (2) the testimony is the product of reliable p r in c i p l e s and methods, and (3) the witness has applied the p r in c ip le s and methods reliably to the facts of the case. F ED. R. EVID. 702. The Supreme Court has explained that this Rule "imposes a s p e c ia l obligation upon a trial judge to `ensure that any and all scientific t e s t im o n y . . . is not only relevant, but reliable.'" Kumho Tire Co. v. Carmichael, 5 2 6 U.S. 137, 147 (1999) (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 5 7 9 , 589 (1993)). Summarizing Daubert, we have previously explained the m e a n in g of "reliable" and "relevant" in this context in these terms: "Reliability is determined by assessing `whether the reasoning or methodology underlying

The court also excluded Prof. Solanky's testimony because his work simply established the statistical significance of studies underlying Dr. Gardner's conclusions that the court rejected as unreliable and irrelevant. Id. at *10­12.

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No. 09-31149 t h e testimony is scientifically valid.' Relevance depends upon `whether [that] r e a s o n in g or methodology properly can be applied to the facts in issue.'" Knight, 4 8 2 F.3d at 352 (quoting Daubert, 509 U.S. at 592­93) (alteration in original) (in t e r n a l citations omitted).4 I I I . Analysis T h e district court excluded Dr. Gardner's and Prof. Solanky's testimony p u r s u a n t to Federal Rule of Evidence 702. We discuss each expert in turn. A. D r . Gardner T h e LeBlanc family's theory of the Energy Companies' liability depended o n the premise that benzene exposure caused Mr. LeBlanc's MMM. The LeBlanc fa m ily was therefore obligated to prove both a "general" and a "specific" causal lin k between the benzene exposure and the onset of Mr. LeBlanc's MMM--that is , that benzene is capable of causing MMM in the general population and that b e n z e n e specifically caused Mr. LeBlanc's MMM in this case. See Knight, 482 F .3 d at 351.5 The LeBlanc family proffered Dr. Gardner as an expert witness on b o th causation questions. The district court excluded Dr. Gardner's general c a u s a t io n testimony and therefore did not reach the question of specific

We reject the LeBlanc family's invitation to apply a different standard of review that they have apparently devised by selectively quoting Kumho Tire. The LeBlanc family argues that the relevant and reliable standard requires reversal of the district court's decision to exclude evidence if the testimony that the expert intends to give falls within "the range where experts might reasonably differ," 526 U.S. at 153, even if the evidence underlying the expert's testimony is "shaky." Read properly in context, the language cited by the LeBlanc family stands for the unremarkable proposition that it is not an abuse of discretion for a district court to exclude an expert witness whose methods were sufficiently unreliable that they "fell outside the range where experts might reasonably differ." Id. Our opinion in Knight succinctly describes the proof of causation required in toxic tort cases: "`General causation is whether a substance is capable of causing a particular injury in the general population, while specific causation is whether a substance caused a particular individual's injury or condition.'" 482 F.3d at 351 (quoting Merrell Dow Pharms. v. Havner, 953 S.W.2d 706, 714 (Tex. 1997)).
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No. 09-31149 c a u s a t io n . See id. ("Evidence concerning specific causation in toxic tort cases is a d m is s ib le only as a follow-up to admissible general causation evidence."). On the question of general causation, Dr. Gardner, whom the Energy C o m p a n ie s concede is a highly-qualified hematologist, intended to testify that it was his expert opinion that benzene can cause MMM. Dr. Gardner purported t o base this conclusion on his evaluation of several studies. The Energy

C o m p a n ie s argued to the district court and argue on appeal that none of these s t u d ie s are relevant or reliable under Daubert and that Dr. Gardner's m e t h o d o lo g y in reaching his conclusion is therefore invalid. In both the final o r d e r that preceded the LeBlanc family's first appeal and the final order a p p e a le d in this case, the district court agreed with the Energy Companies. W h e r e , as here, the dispute between the parties concerns solely the p rop r ie t y of the district court's exclusion of expert witness testimony because the u n d e r ly in g studies cannot support the witness's conclusion, the Supreme Court's d e c is io n in General Electric Co. v. Joiner, 522 U.S. 136 (1997), governs. In J o in e r , a toxic tort case in which the plaintiff sought to admit expert general c a u s a t io n testimony, the Court found no abuse of discretion where "[t]he District C o u r t . . . concluded that the . . . epidemiological studies upon which [the p la in t iff] relied were not a sufficient basis for the experts' opinions." Id. at 145. The Court explained that, while [t]rained experts commonly extrapolate from existing data[,] n o th in g in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to e x is t i n g data only by the ipse dixit of the expert. A court may c o n c lu d e that there is simply too great an analytical gap between t h e data and the opinion proffered. I d . at 146; see also Knight, 482 F.3d at 355 ("District courts must carefully a n a ly z e the studies upon which experts rely for their opinions before admitting t h e ir testimony."). Applying Knight to the evidence before it, the district court

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No. 09-31149 h e r e found that the gap between the data and Dr. Gardner's opinion was indeed t o o great. LeBlanc I, 513 F. Supp. 2d at 664; see also LeBlanc III, 2009 U.S. Dist. L E X I S 106339, at *10­11 (adopting the findings made in LeBlanc I as to the r e lia b ilit y of the studies considered there and rejecting the newly-proffered s tu d ie s ). A fte r our remand in LeBlanc II, there were two related avenues open to t h e LeBlanc family to prove general causation: (1) to show that the disease from w h ic h Mr. LeBlanc suffered was a form of aplastic anemia and that benzene c a u s e s aplastic anemia, or (2) to otherwise convince the district court that b e n z e n e causes MMM. See 275 F. App'x at 321 (citing U.S. DEP'T OF HEALTH & H UMAN SERVS., PUB. HEALTH SERV., AGENCY FOR TOXIC SUBSTANCES & DISEASE R EGISTRY, TOXICOLOGICAL PROFILE FOR BENZENE ("ATSDR REPORT") 12, 13 (2 0 0 7 )). Dr. Gardner's disputed testimony in the district court--along with the t e s t im o n y of other witnesses--attempted to show general causation through both a v e n u e s . On appeal, the LeBlanc family only expressly addresses whether b e n z e n e causes MMM, and we accordingly limit our review.6 Dr. Gardner

p u r p o r t e d to rely on both epidemiological studies and his "clinical experience" in his expert opinion. The district court ruled that neither provided a sufficient b a s is for his opinion. 1. E p id e m io lo g ic a l Studies

S im p l y put, the several studies and reports on which Dr. Gardner p u r p o r t e d to rely suffer from common deficiencies that this court in Knight and t h e Supreme Court in Joiner have explained support a district court's exclusion o f expert testimony.
To the extent that the LeBlanc family appeals the district court's rejection of their argument that Mr. LeBlanc suffered from a form of aplastic anemia, we find no abuse of discretion; the evidence in the record--other than the conclusory testimony of witnesses excluded in an unappealed order--was uniformly to the contrary.
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No. 09-31149 First, some of the studies do not represent statistically significant results. Joiner, 522 U.S. at 145 (holding that a study showing a statistically insignificant in c r e a s e in disease incidence following exposure to the alleged causal chemical c a n properly be rejected by the district court as a foundation for the expert's o p i n io n ); see also David H. Kaye & David A. Freedman, Reference Guide on S ta tis tic s , in REFERENCE MANUAL ON SCIENTIFIC EVIDENCE 83, 124 (Fed. Judicial C t r . ed., 2d ed. 2000) ("[S]ignificant differences are evidence that something b e s id e s random error is at work . . . ."). The Hanis study, Nancy M. Hanis, et al., E p id e m i o lo g ic Study of Refinery and Chemical Plant Workers, 24 J. O CCUPATIONAL MEDICINE 203 (1982); Kaplan study, Samuel Kaplan, Update of a Mortality Study of Workers in Petroleum Refineries, 28 J. OCCUPATIONAL MED. 5 1 4 (1986); and Tondel report, Martin Tondel, Bodil Persson, & John C a r s t e n s e n , Myelofibrosis & Benzene Exposure, 45 OCCUPATIONAL MED. 51 (1 9 9 5 ), fall into this category. S e c o n d , some of the studies do not assess the relationship between b e n z e n e exposure and myelofibrosis but rather only provide an arguable in fe r e n t i a l starting point for doing so. The district court may permissibly

c o n c lu d e that such studies do not support an expert's conclusion. Knight, 482 F .3 d at 353. Similarly, some of the studies note that the subjects were exposed t o a range of substances and then nonspecifically note increases in disease in c id e n c e . Such studies also are not the type that compel a district court to a c c e p t the expert's reliance upon them. Joiner, 522 U.S. at 146. The Hanis s t u d y ; the Honda/Delzell studies, Yashushi Honda, Elizabeth Delzell, & Philip C o le , An Updated Study of Mortality Among Workers at a Petroleum M a n u fa c tu r in g Plant, 37 J. OCCUPATIONAL & ENVT'L MED. 194 (1995), and E liz a b e t h Delzell, Philip Cole, & Yashushi Honda, A Follow-Up Study of M o r t a lit y and Cancer Incidence Among Workers at the Wood River M a n u fa c t u r in g Complex (1992) (unpublished); the Zoloth study, Stephen R. 8

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No. 09-31149 Z o lo t h , et al., Patterns of Mortality Among Commercial Pressmen, 76 J. NAT'L C ANCER INST. 1047 (1986); and the Rushton study, L.R. Rushton & M.R. A ld erson , Epidemiological Survey of Oil Distribution Centres in Britain, 40 BRIT. J . INDUS. MED. 330 (1983), fall into this category. T h ir d , some of the studies expressly disclaim the causal connection b e tw e e n benzene and myelofibrosis that Dr. Gardner seeks to infer from the s t u d ie s . In Joiner, the Supreme Court found no abuse of discretion in the d is t r i c t court's refusal to consider probative a study whose authors "were u n w illin g to say that . . . exposure [to the chemical at issue] had caused [the p la in t iff's disease] among the workers they examined." Id. at 145. The district c o u r t properly rejected the studies as supporting causation because the authors o f the studies concluded that there was no proof of causation. The Kaplan study a n d to some extent the Rushton study--whose authors later contradicted the fin d in g relied upon by Dr. Garder in a follow-up study with the same cohort--fall in t o this category. F in a lly , some of the materials relied upon by Dr. Gardner are simply not s c ie n t ific evidence; that is, they are merely secondary literature that purports t o rely on scientific studies either not cited or that the district court properly r e je c t e d on their own. They therefore cannot meet the reliability requirement o f Daubert. Cf. Moore v. Ashland Chem. Inc., 151 F.3d 269, 278 (5th Cir. 1998) (e n banc) (approving district court's rejection of secondary material supporting e x p e r t causation testimony where expert "admitted that he did not know what t e s t s [the secondary author] had conducted in generating the [secondary m a t e r ia l]" and reaching the conclusion proffered). The ATSDR Report and Shell in t e r n a l reports and correspondence fall into this category.7
The study and book chapter cited in the LeBlanc family's Federal Rule of Appellate Procedure 28(j) letter submission to the court, Brady L. Stein & Alison R. Moliterno, Primary Myelofibrosis and the Myeloproliferative Neoplasms: The Role of Individual Variation, 303 J. AM . MED. ASS'N 2513 (2010), and J. Thiele et al., Primary Myelofibrosis, in WHO
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No. 09-31149 N o n e of the scientific evidence upon which Dr. Gardner purported to rely w a s therefore sufficiently reliable as to render the district court's exclusion of his t e s t im o n y an abuse of discretion. 2. C lin ic a l Experience

F in a lly , Dr. Gardner sought to testify on causation based upon his clinical e x p e r ie n c e as a practitioner. The LeBlanc family correctly notes that the

S u p r e m e Court in both Kumho Tire, 526 U.S. at 148­49, and Daubert, 509 U.S. a t 592, endorsed expert witness testimony based on personal observation and e x p e r ie n c e . But personal observation is still subject to the relevancy and

r e lia b ilit y requirements of Daubert. Kumho Tire, 526 U.S. at 148­49. Even when an expert is extrapolating from personal experience as a p r a c t it io n e r rather than from reviewing research undertaken by others, "nothing in either Daubert or the Federal Rules of Evidence requires a district court to a d m it opinion evidence which is connected to existing data only by the ipse dixit o f the expert." Joiner, 522 U.S. at 146. In other words, even Dr. Gardner's c lin ic a l opinion that benzene causes myelofibrosis must have some demonstrable a n d reliable basis in underlying facts. Here, the district court concluded that Dr. Gardner had no such basis, and t h e LeBlanc family makes no argument on appeal that there was a factual basis fo r Dr. Gardner's opinion. Rather, they point only to his years of experience and t h e fact that he worked with myelofibrosis patients. Merely having observed m y e lo fib r o s is patients, without more, gives no basis for an expert opinion as to t h e general causal connection between myelofibrosis and benzene--it is not a

CL A S S I F I C A T I O N OF TUMOURS OF HAEMATOPOIETIC AND LYMPHOID TISSUES 44 (Steven H. Swerdlow et al., World Health Org., Int'l Agency for Research on Cancer, eds., 4th ed. 2008), also suffer from this deficiency. Neither offers any primary scientific support for the proposition that benzene causes myelofibrosis but merely recite the results found in other studies or secondary literature. Moreover, we note that the appellants do not argue that Dr. Gardner actually relied on these texts in generating his opinion.

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No. 09-31149 q u e s t io n as to which clinical experience is likely to provide insight. The Sixth C ir c u it explained the proper realm of "clinical experience" testimony thus: [I ]f one wanted to explain to a jury how a bumblebee is able to fly, a n aeronautical engineer might be a helpful witness. Since flight p r in c ip le s have some universality, the expert could apply general p r in c ip le s to the case of the bumblebee. Conceivably, even if he had n e v e r seen a bumblebee, he still would be qualified to testify, as long a s he was familiar with its component parts. O n the other hand, if one wanted to prove that bumblebees a lw a y s take off into the wind, a beekeeper with no scientific training a t all would be an acceptable expert witness if a proper foundation w e r e laid for his conclusions. The foundation would not relate to his fo r m a l training, but to his firsthand observations. In other words, t h e beekeeper does not know any more about flight principles than t h e jurors, but he has seen a lot more bumblebees than they have. B e r r y v. City of Detroit, 25 F.3d 1342, 1349­50 (6th Cir. 1994). The inquiry b e fo r e Dr. Gardner here--whether benzene causes myelofibrosis--requires an e p id e m io lo g ic a l, scientific basis and is more akin to the mechanisms underlying a bumblebee's ability to fly than to the fact that bumblebees take off into the w in d . It is not a question as to which a clinician's firsthand observation of p a t ie n t s offers much insight. The district court did not abuse its discretion in d e c lin in g to allow Dr. Gardner's conclusion that benzene causes myelofibrosis b a s e d on his clinical experience. * * *

E v e n considering all of the possible sources that Dr. Gardner cites t o g e t h e r , there is simply insufficient support for the proposition that benzene c a u s e s myelofibrosis. The district court therefore did not abuse its discretion in r e fu s in g to allow Dr. Gardner to testify that benzene causes myelofibrosis. B. P r o f. Solanky T h e district court excluded Prof. Solanky's testimony because its a d m is s ib ilit y was derivative of the admissibility of Dr. Gardner's testimony. The s o le function of Prof. Solanky's expert testimony was to conduct statistical 11

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No. 09-31149 a n a ly s e s of several of the studies underlying Dr. Gardner's causation opinion so a s to assess the statistical significance of those studies' results when not r e p o r t e d in the studies themselves. Because we conclude that Dr. Gardner's t e s t im o n y was properly excluded, Prof. Solanky's testimony was irrelevant and w a s also properly excluded under Daubert. See 509 U.S. at 591­92 ("Rule 702's `h e lp fu ln e s s ' standard requires a valid scientific connection to the pertinent in q u ir y as a precondition to admissibility."). I V . Conclusion F o r the reasons stated above, we hold that there was no abuse of discretion in the district court's exclusion of Dr. Gardner's and Prof. Solanky's testimony. The ruling of the district court and its consequent grant of summary judgment t o the Energy Companies are therefore AFFIRMED.

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