Burst v. Shell Oil Company et al

Filing 154

ORDER AND REASONS - granting MOTION 128 by Defendants for summary judgment on plaintiff's claims. Signed by Chief Judge Sarah S. Vance on 6/29/15.(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

claims.1

for

summary

judgment

on

plaintiff

Yolande

Burst’s

Because plaintiff cannot prove causation, the Court

grants defendants’ motion.

I. BACKGROUND
Between 1958 and 1971, Mr. Burst worked as a gasoline station
attendant at various Shell Oil, Texaco, and Gulf Oil gasoline
stations in the New Orleans area.

Mr. Burst refueled automobiles

and performed mechanic work during which he sustained exposure to
gasoline.

In 2013, some forty years later, physicians diagnosed

Mr. Burst, at the age of 71, with acute myeloid leukemia (AML), a
disease that claimed his life the same year.

Plaintiff, Yolande

Burst, Mr. Burst’s wife, sued Shell Oil, Chevron (as successor to
Gulf Oil Corporation), and Texaco, alleging that these companies

1

R. Doc. 128.

manufactured, supplied, and distributed the gasoline Mr. Burst used
and that benzene from the gasoline caused his AML.
To

show

general

causation--that

gasoline

can

cause

AML,

plaintiff offered the opinions of two experts: an epidemiologist
and

a

physician.

The

Court

excluded

causation opinions as unreliable.2

both

experts’

general

Defendants move for summary

judgment, in part, on the basis that plaintiff’s claims must fail
because she cannot prove general or specific causation without this
expert testimony.

II. LEGAL STANDARD
Summary judgment is warranted when "the movant shows that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law."

Fed. R. Civ. P.

56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
When assessing whether a dispute as to any material fact exists,
the Court considers "all of the evidence in the record but refrains
from making credibility determinations or weighing the evidence."
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d
395, 398-399 (5th Cir. 2008).

The Court must draw reasonable

inferences in favor of the nonmoving party, but "unsupported
allegations or affidavits setting forth 'ultimate or conclusory
2

R. Docs. 130 & 141.
2

facts and conclusions of law' are insufficient to either support or
defeat a motion for summary judgment."

Galindo v. Precision Am.

Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting 10B Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedure:
Civil § 2738 (2d ed. 1983)).
If the dispositive issue is one on which the moving party will
bear the burden of proof at trial, the moving party "must come
forward with evidence that would entitle it to a directed verdict
if the evidence went uncontroverted at trial."

Int'l Shortstop,

Inc. v. Rally's, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991)
(quotation marks removed). The nonmoving party can then defeat the
motion by either countering with sufficient evidence of its own, or
"showing that the moving party's evidence is so sheer that it may
not persuade the reasonable fact-finder to return a verdict in
favor of the moving party."

Id. at 1265.

If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in the
record is insufficient with respect to an essential element of the
nonmoving party's claim.

See Celotex, 477 U.S. at 325. The burden

then shifts to the nonmoving party, who must, by submitting or
referring to evidence, set out specific facts showing that a
genuine issue exists.

See id. at 324.

The nonmovant may not rest upon the pleadings but must

3

identify specific facts that establish a genuine issue for trial.
Id.; see also Little, 37 F.3d at 1075 ("Rule 56 'mandates the entry
of summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party's
case, and on which that party will bear the burden of proof at
trial.'") (quoting Celotex, 477 U.S. at 322).

III. DISCUSSION
In a toxic tort suit, the plaintiff must present admissible
expert

testimony

causation.3

to

establish

general

causation

and

specific

Knight v. Kirby Inland Marine, Inc., 482 F.3d 247, 351

(5th Cir. 2007) (quoting Merrell Dow. Pharm., Inc. v. Havner, 953
S.W. 2d 706, 714 (Tex. 1997)); see also Seaman v. Seacor Marine
LLC, 326 F. App’x 721, 723 (5th Cir. 2009) (per curiam) (In a toxic
tort

suit,

the

plaintiff

“cannot

expect

lay

fact-finders

to

understand medical causation; expert testimony is thus required to
established

causation.”).

Evidence

of

specific

causation

is

admissible only if there is evidence of general causation. Knight,
482 F.3d at 351.
Here,

the

Court

excluded

3

plaintiff’s

experts’

general

“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.” Knight, 482 F.3d at
351.
4

causation
Because

opinions

plaintiff

because

it

found

them

proffers

no

admissible

to

be

evidence

unreliable.4
on

general

causation, she may not present evidence on specific causation. Id.
Thus, plaintiff cannot make the requisite showing on causation.
Accordingly,

the

Court

grants

defendants’

motion

for

summary

judgment.

IV. CONCLUSION
For the foregoing reasons, the Court GRANTS defendants’ motion
for summary judgment.
New Orleans, Louisiana, this 29th day of June, 2015.
___

____________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

4

R. Docs. 130, 141.
5