Burst v. Shell Oil Company et al

Filing 130

ORDER AND REASONS granting Defendants' Motion 90 to Exclude Dr. Harrison's general causation opinion.. Signed by Chief Judge Sarah S. Vance on 6/9/15. (jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
YOLANDE BURST, individually
and as the legal
representative of BERNARD
ERNEST BURST, JR.

CIVIL ACTION

VERSUS

NO: 14-109

SHELL OIL COMPANY, ET AL.

SECTION: R

ORDER AND REASONS
Defendants Shell Oil Company, Chevron U.S.A. Inc., and Texaco,
Inc. move to exclude the testimony of plaintiff's expert Dr. Robert
Harrison.1

Because the Court finds that Dr. Harrison's opinion on

general causation is unreliable, the Court excludes this testimony.

I. BACKGROUND
Plaintiff Yolande Burst filed this products liability action
against

defendants

Shell,

Chevron

Corporation), and Texaco.2

(as

successor

to

Gulf

Oil

She alleges that her late husband,

Bernard Burst, Jr., worked at various gas stations from 1958
through

1971,

manufactured,

during

which

supplied,

time

he

distributed,

regularly
and

sold

used
by

products

defendants.3

Specifically, she alleges that he would regularly come into contact

1

R. Doc. 90.

2

R. Doc. 1.

3

Id. at 3.

with gasoline containing benzene.
On June 20, 2013, physicians diagnosed Mr. Burst with acute
myeloid leukemia (AML).4

He was 71 years old.

He passed away as

a result of the leukemia on December 21, 2013.5
Plaintiff alleges that her husband's regular exposure to
gasoline containing benzene during the years he worked as a gas
station attendant and mechanic caused his leukemia.6
that

defendants

containing

negligently

benzene

and

that

manufactured
they

and

negligently

She claims

sold
failed

products
to

warn

foreseeable users about the health hazards associated with these
products.7

She also alleges strict products liability.8

To demonstrate that Mr. Burst's exposure to gasoline caused
his AML, plaintiff relies on an expert report from Dr. Robert
Harrison, a physician, in which he opines both that benzene can
cause AML and that Mr. Burst's exposure to benzene caused his AML.
Defendants move to exclude Dr. Harrison's general causation opinion
arguing that it is unreliable and irrelevant.

4

R. Doc. 28-5 at 18.

5

R. Doc. 28-6.

6

R. Doc. 1 at 5.

7

Id. at 9.

8

Id. at 10.
2

II. LEGAL STANDARD
This is a toxic torts case where plaintiff alleges that
gasoline with benzene caused her husband's AML.

Plaintiff must

show general causation--that benzene as a component of gasoline can
cause AML--and specific causation--that defendants' product caused
Mr. Burst's AML.

See Knight v. Kirby Inland Marine Inc., 482 F.3d

347, 351 (5th Cir. 2007) ("General causation is whether a substance
is capable of causing a particular injury or condition in the
general population, while specific causation is whether a substance
caused a particular individual's injury.") (quoting Merrell Dow
Pharm., Inc. v. Havner, 953 S.W. 2d 706, 714 (Tex. 1997)).

A court

may admit specific-causation evidence only after the plaintiff has
produced admissible evidence on general causation.

See id. ("[I]f

it concludes that there is admissible general-causation evidence,
the district court must determine whether there is admissible
specific causation evidence.").
A district court has considerable discretion to admit or
exclude expert testimony under Rule 702.

See Gen. Elec. Co. v.

Joiner, 522 U.S. 136, 138-39 (1997); Seatrax, Inc. v. Sonbeck
Int'l, Inc., 200 F.3d 358, 371 (5th Cir. 2000).

Rule 702, which

governs the admissibility of expert witness testimony, provides:
A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in
the form of an opinion or otherwise if: (a) the expert's
scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or
to determine a fact in issue; (b) the testimony is based
3

on sufficient facts or data; (c) the testimony is the
product of reliable principles and methods; and (d) the
expert has reliably applied the principles and methods to
the facts of the case.
Fed. R. Evid. 702.
In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme
Court held that Rule 702 requires the district court to act as a
gatekeeper to ensure that "any and all scientific testimony or
evidence admitted is not only relevant, but reliable." 509 U.S. at
589; see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147
(1999) (clarifying that the Daubert gatekeeping function applies to
all forms of expert testimony).

The Court's gatekeeping function

thus involves a two-part inquiry into reliability and relevance.
First, the Court must determine whether the proffered expert
testimony is reliable.

The party offering the testimony bears the

burden of establishing its reliability by a preponderance of the
evidence.

See Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th

Cir. 1998).

The reliability inquiry requires the Court to assess

whether

reasoning

the

testimony is valid.

or

methodology

underlying

the

See Daubert, 509 U.S. at 592-93.

expert's

The aim is

to exclude expert testimony based merely on subjective belief or
unsupported speculation.

See id. at 590.

The Court in Daubert

articulated a flexible, non-exhaustive, five-factor test to assess
the

reliability

of

an

expert's

methodology:

(1)

whether

the

expert's theory can be or has been tested; (2) whether the theory
has been subject to peer review and publication; (3) the known or
4

potential rate of error of a technique or theory when applied; (4)
the existence and maintenance of standards and controls; and (5)
the degree to which the technique or theory has been generally
accepted in the scientific community.
Court

has

emphasized,

however,

Id. at 593-95.

that

these

constitute a 'definitive checklist or test.'"
150 (quoting Daubert, 509 U.S. at 593).

The Supreme

factors

"do

not

Kumho, 526 U.S. at

Rather, district courts

"must have considerable leeway in deciding in a particular case how
to go about determining whether particular expert testimony is
reliable."

Id. at 152.

Courts have also considered whether

experts are "proposing to testify about matters growing naturally
and directly out of research they have conducted independent of the
litigation, or whether they have developed their opinions expressly
for purposes of testifying," Daubert v. Merrell Down Pharms., Inc.,
43

F.3d

1311,

1317

(9th

Cir.

1995),

whether

the

expert

has

adequately accounted for obvious alternative explanations, see
Claar v. Burlington N.R.R., 29 F.3d 499 (9th Cir. 1994), and
whether the expert "is being as careful as he would be in his
regular professional work outside his paid litigation consulting,"
Sheehan v. Daily Racing Form, Inc., 104 F.3d 940, 942 (7th Cir.
1997).
A district court's gatekeeper function does not replace the
traditional adversary system or the role of the jury within this
system.

See Daubert, 509 U.S. at 596.

5

As the Supreme Court noted

in Daubert: "Vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the
traditional and appropriate means of attacking shaky but admissible
evidence."

Id.

The Fifth Circuit has held that, in determining

the admissibility of expert testimony, district courts must accord
proper deference to "the jury's role as the proper arbiter of
disputes

between

conflicting

opinions.

As

a

general

rule,

questions relating to the bases and sources of an expert's opinion
affect the weight to be assigned that opinion rather than its
admissibility and should be left for the jury's consideration."
United States v. 14.38 Acres of Land, More or Less Situated in
Leflore Cnty., Miss., 80 F.3d 1074, 1077 (5th Cir. 1996) (quoting
Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987))
(internal quotation marks omitted).

Nonetheless, expert testimony

"must

every

be

reliable

inadmissible.

at

each

and

step

or

else

it

is

The reliability analysis applies to all aspects of

an expert's testimony: the methodology, the facts underlying the
expert's opinion, the link between the facts and the conclusion, et
alia." Knight, 482 F.3d at 355 (internal quotation marks omitted).
"Where the expert's opinion is based on insufficient information,
the analysis is unreliable."

Paz v. Brush Engineered Materials,

Inc., 555 F.3d 383, 388 (5th Cir. 2009).
In Joiner, the Supreme Court explained that "nothing in either
Daubert or the Federal Rules of Evidence requires a district court
6

to admit opinion evidence that is connected to existing data only
by the ipse dixit of the expert."

522 U.S. at 146.

Rather, "[a]

court may conclude that there is simply too great an analytical gap
between the data and the opinion proffered." Id.; see also LeBlanc
v. Chevron USA, Inc. 396 F. App'x 94, 98 (5th Cir. 2010).
Second,

the

Court

must

determine

whether

the

expert's

reasoning or methodology is relevant. The question here is whether
the reasoning or methodology "fits" the facts of the case and will
thereby assist the trier of fact to understand the evidence.

See

Daubert, 509 U.S. at 591.

III. DISCUSSION
A. Introduction
Dr. Harrison is a medical doctor certified in occupational
medicine and internal medicine. In his report, Dr. Harrison opines
as to general and specific causation. As to general causation, Dr.
Harrison concludes that "[t]he weight of the evidence supports a
causal relationship between occupational exposure to benzene and
benzene-containing organic solvents, including gasoline, in the
development of AML."9
In his report, Dr. Harrison purports to have followed a

9

Harrison Report at 11. The parties did not attach a
copy of Dr. Harrison's report to their briefing. The Court
therefore refers to Dr. Harrison's report as supplied by
plaintiff's counsel via e-mail.
7

generally accepted methodology for determining general causation:
(1) identify all relevant studies; (2) read and critically evaluate
all the relevant studies; (3) evaluate all the data based upon
recognized scientific factors (the Bradford Hill viewpoints) and
other factors relevant to the chemical and the disease; (4)
exercise best professional judgment in reaching a conclusion on the
issue of whether a particular chemical or class of chemicals can
cause a particular disease; and (5) explain the factual basis and
the reasoning supporting the conclusion.
The Bradford Hill criteria are: (1) temporal relationship, (2)
strength of the association, (3) dose-response relationship, (4)
replication of the findings, (5) biological plausibility, (6)
consideration

of

alternative

explanations,

(7)

cessation

of

exposure, (8) specificity of the association, and (9) consistency
with other knowledge.

See Federal Judicial Center, REFERENCE

MANUAL ON SCIENTIFIC EVIDENCE at 600 (3d ed. 2011).
The only specific scientific literature on general causation
that Dr. Harrison cites in his report relates to benzene: (1) an
International Agency for Research on Cancer (IARC) publication, A
Review

of

Human

Carcinogens:

Chemical

Agents

and

Related

Occupations, Vol. 100F; (2) Baan R., et al., A Review of Human
Carcinogens--Part F: Chemical Agents and Related Occupations, 10
LANCET ONCOL 1143 (2009); and (3) statements by the United States
Environmental Protection Agency (EPA), the National Institute for

8

Occupational Safety and Health (NIOSH), the National Toxicology
Program (NTP), the Occupational Safety and Health Administration
(OSHA), and the California Environmental Protection Agency.
Harrison

also

states

that

he

relied

on

his

review

of

Dr.
"the

epidemiological studies on benzene and human cancer," the studies
cited

by

the

IARC

review,

and

his

"own

experience

as

an

occupational and environmental specialist."10 Dr. Harrison does not
refer to or cite any scientific literature besides that generally
described.
Defendants move to exclude Dr. Harrison's opinion on general
causation.

Specifically, defendants contend that Dr. Harrison

largely ignores the general causation question at issue in this
case--whether

gasoline

can

cause

AML--and

instead

answers

a

question that is undisputed: whether exposure to benzene can cause
AML.
B. Analysis
After

reviewing

Dr.

Harrison’s

report,

his

deposition

testimony, and the materials upon which he relied, the Court finds
his report and opinion on general causation inadmissible because it
is unreliable.
Dr. Harrison opines that benzene, including benzene-containing
organic solvents, such as gasoline, can cause AML.11 He states that

10

Harrison Report at 13.

11

Id. at 11.
9

he has “reviewed the medical and scientific literature,” as well as
the

report

of

plaintiff’s

other

causation

expert,

Dr.

Peter

Infante, on benzene-induced cytogenetic damage in benzene-exposed
workers.12

In his report, however, he cites only benzene-specific

scientific literature.

See discussion supra Part III.A.

Shedding

light on why, Dr. Harrison testified: "It seems frankly a little
bit dancing on the head of a pin, if you don't mind me saying, to
parse out gasoline containing benzene from benzene and AML."13

In

other words, Dr. Harrison did not think it necessary to evaluate
studies pertaining to gasoline exposure, the relevant product in
this products liability case. But Dr. Harrison has made no attempt
to demonstrate why benzene-specific studies can reliably support
the conclusion that gasoline can cause AML.

See Henricksen v.

Conoco Phillips Co., 605 F. Supp. 2d 1142, 1156 (E.D. Wa. 2009)
(“If it is possible to extrapolate from studies of benzene or other
benzene-containing products conclusions regarding gasoline, then it
will be incumbent upon [plaintiff] to explain and demonstrate why
the

extrapolation

is

scientifically

proper.”).

The

simple

explanation that gasoline contains benzene, and benzene is a known
carcinogen cannot be the justification for such extrapolation.
Indeed, multiple agencies, including IARC and ATSDR, have concluded
that

benzene

is

carcinogenic

but

12

Id. at 10-11.

13

R. Doc. 90, Ex. A at 24.
10

have

not

reached

the

same

conclusion regarding gasoline, even though all gasoline contains
benzene.

See IARC, Monographs on the Evaluation of Carcinogenic

Risks to Humans, Vol. 45, Occupational Exposures in Petroleum
Refining; Crude Oil and Major Petroleum Fuels (1989) (“There is
inadequate

evidence

for

the

carcinogenicity

in

humans

of

gasoline.”); ATSDR, Toxicological Profile for Gasoline (1995)
(“[T]here is no conclusive evidence to support or refute the
carcinogenic potential of gasoline in humans or animals based on
the carcinogenicity of one of its components, benzene.”).
demonstrating
exposure,

how

Dr.

analytical

gap

the

benzene

Harrison’s
between

the

literature

methodology
data

and

applies

leaves
the

to

“too

opinion

Without
gasoline

great

an

proffered."

Joiner, 522 U.S. at 146.
Dr. Harrison makes the omnibus statement that he reviewed the
relevant medical and scientific literature, but he fails to cite
any gasoline-specific literature. When asked whether he could name
a single study showing a risk between workers occupationally
exposed to gasoline and hematologic malignancies, Dr. Harrison
could not:

"You know, again, I don't know.

I'd have to examine

the papers. I'm not prepared to answer your question here."14 When
asked whether he reviewed IARC's monograph on the carcinogenicity
of gasoline, Dr. Harrison responded: "I've not looked at that
monograph on gasoline. I didn't consider it particularly relevant.

14

Id. at 24.
11

I was focusing on benzene."15

Likewise, Dr. Harrison stated: “I

haven’t looked at the ATSDR monograph on gasoline or the general
gasoline

agency

monographs.”16

The

only

indication

that

Dr.

Harrison reviewed any gasoline literature is his own assurances
that he is “sure [he reviewed] papers on gasoline”17 and that he
reviewed those studies cited by Dr. Infante.

Dr. Harrison’s

failure to cite a gasoline-specific study in his report and his
inability to do so at his deposition is grounds to exclude his
opinion.

See Castellow v. Chevron USA, 97 F. Supp. 2d 780, 794-96

(S.D. Tex. 2000) (excluding expert's general causation opinion on
whether benzene, as a component of gasoline, can cause AML when the
expert did not cite and was unable to identify any studies showing
that gasoline can cause AML).
Even had Dr. Harrison cited gasoline-specific studies, his
report exhibits no application of the methodology he states he
applied, including the Bradford Hill criteria.

There is no

evidence that he considered, for example, strength of association,
replication of findings, specificity of the association, etc.
Without citation to any gasoline-specific studies and without any
application of his methodology to such studies, Dr. Harrison’s
opinion is wholly conclusory ipse dixit.

15

Id. at 27.

16

Id. at 31.

17

Id.
12

Finally, to the extent Dr. Harrison relies on Dr. Infante’s
report and the studies cited therein, his opinion is inadmissible
because it reflects no original analysis or any evaluation of Dr.
Infante’s methodology or the studies upon which he relies.

See

Mooring Capital Fund, LLC v. Phoenix Cent., Inc., No. CIV-06-0006HE, 2009 WL 4263359, at *5 (W.D. Okla. Feb. 12, 2009) (holding that
an expert may rely “on the opinions of other experts so long as it
does

not

involve

the

wholesale

adoption

of

another

expert’s

opinions without attempting to assess the validity of the opinions
relied on” (citing In re TMI Litig., 193 F.3d 613, 715-16 (3d Cir.
1999); TK-7 Corp. v. Estate of Barbouti, 993 F.2d 722, 732-33 (10th
Cir. 1993))).

Indeed, besides stating that he relied on Dr.

Infante’s report, Dr. Harrison analyzes

no studies cited in that

report and makes no assessment of the validity of Dr. Infante’s
conclusions.

Instead, Dr. Harrison adopts Dr. Infante’s opinions

“wholesale.”

Id.

Dr. Harrison’s mere “me too” to Dr. Infante’s

report does not provide a reliable basis for his opinion.
Accordingly, the Court grants defendants’ motion to exclude
Dr. Harrison’s general causation opinion because it is unreliable.

IV. CONCLUSION
For the foregoing reasons, the Court GRANTS defendants' motion
to exclude Dr. Harrison's general causation opinion.

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New Orleans, Louisiana, this 9th day of May, 2015.
___

__________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

14