Burst v. Shell Oil Company et al

Filing 63

ORDER AND REASONS granting in part and denying in part 28 Motion for Partial Summary Judgment. The Court finds, on summary judgment, that before the late 1970s Defendants did not warn users that their gasoline products contained benzene or that benzene can cause leukemia. The Court DENIES summary judgment on all other issues raised in Plaintiff's motion. Signed by Chief Judge Sarah S. Vance on 8/8/14. (jjs)

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

CIVIL ACTION

VERSUS

NO: 14-109

SHELL OIL COMPANY, et al.

SECTION: R(2)

ORDER AND REASONS
Plaintiff Yolande Burst moves for partial summary judgment
on three issues: (1) whether, as a matter of general causation,
benzene exposure can cause acute myeloid leukemia ("AML") in
humans; (2) whether, before 1958, Defendants knew that benzene
exposure could cause leukemia in humans; and (3) whether, before
the late 1970s, Defendants failed to warn users that their
products contained benzene and that benzene exposure could cause
leukemia.1 For the following reasons, the Court DENIES
Plaintiff's motion in part and GRANTS it in part.

I.

Background
Plaintiff filed this products liability action against

defendants Shell Oil Company, Chevron U.S.A. Inc. (as successor
to Gulf Oil Corporation), and Texaco, Inc., invoking federal
diversity jurisdiction.2 She alleges that her late husband,

1

R. Doc. 28.

2

R. Doc. 1.

Bernard Burst, Jr., worked at various gas stations from 1958
through 1971, during which time he regularly used products
"manufactured, supplied, distributed and sold" by Defendants.3
Specifically, she alleges that "he would regularly use or come
into contact with pure benzene or benzene-containing products
including gasoline, diesel and other solvents."4
On June 20, 2013, Bernard Burst was diagnosed with AML.5 He
passed away as a result of the leukemia on December 21, 2013.6
Plaintiff alleges that her husband's regular exposure to
benzene during the years he worked as a gas station attendant and
mechanic caused his leukemia.7 She claims that Defendants
negligently manufactured and sold products containing benzene and
that they negligently failed to warn foreseeable users of the
health hazards associated with these products.8 She additionally
alleges strict products liability.9

3

Id. at 3.

4

Id.

5

R. Doc. 28-5 at 18.

6

R. Doc. 28-6.

7

R. Doc. 1 at 5.

8

Id. at 9.

9

Id. at 10.
2

Plaintiff has submitted an affidavit from one of her
husband's former co-workers.10 The affidavit indicates that, as a
gas station attendant and mechanic, Bernard Burst was regularly
and frequently exposed to gasoline. At oral argument, Plaintiff's
counsel clarified that Plaintiff is alleging that her husband was
exposed to gasoline containing benzene, not to pure benzene.

II.

Summary Judgment 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 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)
10

R. Doc. 28-4.
3

(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
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

4

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
A.

Plaintiff Fails to Offer Necessary Expert Opinion Evidence
on the Issue of General Causation.
Plaintiff moves for partial summary judgment on three

issues. First, she seeks summary judgment on the issue of general
causation. 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)). Under Louisiana law, "expert medical testimony is
required when the conclusion regarding medical causation is one
that is not within common knowledge." Chavers v. Travis, 902 So.
2d 389, 395 (La. Ct. App. 2005); see Lasha v. Olin Corp., 625 So.
2d 1002, 1005 (La. 1993). Here, the question of whether exposure
to gasoline and/or benzene can cause leukemia is not within
common knowledge. Thus, expert medical testimony is required to
resolve the issue of general causation.

5

Plaintiff frames the general causation question as whether
benzene exposure can cause AML in humans.11 Although she offers
no expert opinion evidence on this issue, she points to a limited
stipulation offered by Defendants that "very high levels of
exposure to benzene over a long duration [a]re capable of causing
some sub-types of acute myeloid leukemia."12 She argues that, in
light of this stipulation, the Court should grant summary
judgment on the issue of general causation even in the absence of
expert opinion evidence.13
Defendants, meanwhile, argue that the proper general
causation question is whether exposure to gasoline, not benzene,
can cause leukemia, because Plaintiff's husband "was exposed to
gasoline manufactured, sold or supplied by Defendants."14 While
they concede that benzene exposure can, in certain circumstances,
cause leukemia, they maintain that there is no established causal
connection between exposure to gasoline, which contains a small
amount of benzene, and development of leukemia.15 Moreover, they
assert that "[s]tudies have shown that concurrent exposure to
gasoline actually reduces benzene toxicity. Thus, even if one

11

R. Doc. 28-1 at 1, 4, 5.

12

R. Doc. 44 at 6.

13

R. Doc. 51 at 2, 4.

14

R. Doc. 44 at 2 (emphasis in original).

15

Id. at 8.
6

considers that there is a very small percentage of benzene in
gasoline, it is not correct to simply assume that the benzene's
effects are merely diluted."16 They argue that Plaintiff's
failure to offer any expert opinion evidence addressing a causal
connection between exposure to gasoline and development of
leukemia precludes summary judgment on the issue of general
causation.17
The Court concludes that the proper general causation
question in this case is whether exposure to gasoline containing
benzene can cause leukemia, not whether exposure simply to
benzene can cause leukemia. "[T]he burden with respect to general
causation is to show that 'the substance at issue' is capable of
causing the kind of harm alleged." Watson v. Dillon Cos., Inc.,
797 F. Supp. 2d 1138, 1152 (D. Co. 2011). Here, the substance to
which Bernard Burst was allegedly exposed is gasoline, not pure
benzene. See Henricksen v. ConocoPhillips Co., 605 F. Supp. 2d
1142, 1156 (E.D. Wa. 2009) ("This is a product's liability action
and Defendant's product is gasoline."). Defendants have submitted
an affidavit from Dr. David Pyatt, a toxicologist with 22 years'
experience, who states that toxicological studies have indicated
that "exposure to gasoline . . . results in a reduction of

16

Id. at 12 (emphasis in original); see R. Doc. 44-2 at 8
(affidavit of Dr. David Pyatt).
17

R. Doc. 44 at 3-5.
7

benzene toxicity" and that "exposures to benzene in a complex
mixture such as gasoline are not necessarily comparable to those
occurring as a result of using 'pure' or concentrated benzene."18
Defendants have additionally submitted an affidavit from Dr.
Ethan Natelson, a hematologist with 44 years' experience, who
describes a "2013 review and meta-analysis with almost 100
citations of the most pertinent prior studies," which found no
"strong and consistent association between occupational exposure
to gasoline and lymphatic/hematopoietic cancers."19 In light of
this evidence, the Court cannot presume, on summary judgment,
"that the qualitative toxic and carcinogenic effects of benzene
from any source are the same." Id. (emphasis in original); see
McClain v. Metabolife Int'l, Inc., 401 F.3d 1233, 1246 (11th Cir.
2005) (quoting Rider v. Sandoz Pharm. Corp., 295 F.3d 1194, 1201
(11th Cir. 2002)) (quotation marks removed) ("[E]ven minor
deviations in chemical structure can radically change a
particular substance's properties and propensities.").
The Court finds that the relevant general causation question
is "whether exposure to the benzene-component of gasoline is
capable of causing AML." Henricksen, 605 F. Supp. 2d at 1156;
accord Castellow v. Chevron USA, 97 F. Supp. 2d 780, 796 (S.D.
Tex. 2000); cf. Knight, 482 F.3d at 352 (5th Cir. 2007) (emphasis

18

R. Doc. 44-2 at 8.

19

R. Doc. 44-3 at 3.
8

added) ("[T]he fundamental [general causation] question . . . is
whether the chemicals [the plaintiffs] were exposed to and the
type of exposures they experienced cause Hodgkin's lymphoma and
bladder cancer."); Watson, 797 F. Supp. 2d at 1152 (In toxic tort
case involving respiratory problems plaintiff allegedly
contracted from exposure to microwave popcorn containing the
chemical diacetyl, the court found that the "substance at issue"
for purposes of general causation was "vapors from butter
flavoring containing diacetyl.").
Defendants have offered no stipulation regarding the
toxicity of gasoline or the toxicity of benzene as a component of
gasoline. Accordingly, Plaintiff is required, on summary
judgment, to submit expert opinion evidence on the issue of
general causation. See Seaman v. Seacor Marine LLC, 326 Fed.
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 establish
causation."). This she has not done. Accordingly, her motion for
partial summary judgment on the issue of general causation
fails.20

20

Although she has not submitted any expert opinion
evidence, Plaintiff submits various government and industry
publications and scientific studies in support of her motion. R.
Doc. 28-1 at 5-18; R. Doc. 51 at 4-5. Defendants object to the
admissibility of these exhibits on various grounds. R. Doc. 44-5
at 2-15. Because Plaintiff's summary judgment argument regarding
general causation fails regardless of whether her exhibits are
9

B.

Plaintiff Fails to Show That There Is No Genuine Dispute on
the Issue of Defendants' Knowledge.
The second issue on which Plaintiff seeks summary judgment

is whether, before 1958, Defendants knew that benzene exposure
could cause leukemia in humans. Putting aside the issue of
whether Plaintiff has framed this question properly,21 the Court
finds that there is a genuine factual dispute on this issue and
that, accordingly, summary judgment is inappropriate.
In support of her argument, Plaintiff presents a handful of
documents pre-dating 1958.22 These documents comprise letters and
reports directed to and from Defendants, as well an institutional
report on benzene of which Defendants were likely aware.23 They

admissible, the Court need not, and does not, rule on their
admissibility at this time.
21

See R. Doc. 44 at 12 ("[T]he question should be: What was
known about the carcinogenicity of gasoline?") (emphasis added).
22

See R. Doc. 28-7 (1948 American Petroleum Institute
Toxicological Review of benzene); 28-23 (1943 report to Shell
from M.H. Soley of the University of California Medical School);
R. Doc. 28-24 (1943 memorandum from a Shell employee,
transmitting Soley's report); R. Doc. 28-25 (1950 memorandum from
C.H. Hine, a Shell consulting toxicologist); R. Doc. 28-27 (1953
letter from W.E. Kuhn, a Texaco employee); R. Doc. 28-28 (1954
letter from Allan Dooley, another Texaco employee, responding to
Kuhn's letter). Plaintiff also offers two later documents: a 1964
publication by the U.S. Department of Health, Education, and
Welfare; and a 1973 memorandum from Shell's medical director. R.
Docs. 28-9; 28-26; see R. Doc. 28-1 at 20, 21. Because these
documents post-date 1958 by six and fifteen years, respectively,
they do not support Plaintiffs' argument that Defendants knew, by
1958, that benzene could cause leukemia.
23

The record establishes that Texaco, at least, was aware
of this report. See R. Doc. 28-28 at 2.
10

include conclusory statements and/or anecdotal evidence
concerning benzene toxicity.24 The Court finds that the documents
indicate that Shell and Texaco, at least, were aware, before
1958, that benzene exposure was associated with development of
leukemia. The documents fail to establish, however, that
Defendants knew of a causal relationship between benzene exposure
and leukemia, or that the scientific community reached a
consensus on this issue before 1958. In his affidavit, Dr. Pyatt
states that there was "not a single quantitative epidemiology
study that demonstrated an increased risk of AML among benzeneexposed workers published by 1958."25 He further states that,
[e]ven in the 1960s, it was not understood nor fully
recognized how high-dose benzene exposure, something that
kills bone marrow cells, could result in a proliferating
population of these same cells as in AML. While there
were certainly case-reports published by this time, the
hypothesis that benzene exposure could cause AML was not
widely accepted. This was compounded by the complete
absence
of
quantitative
epidemiological
evidence
regarding benzene and AML in the literature and by the
absence of a reliable animal model of benzene-induced
leukemia in experimental animals.26
According to Dr. Pyatt, "quantitative epidemiology studies
regarding leukemia risk associated with benzene exposure" began

24

See R. Doc. 28-7 at 4; R. Doc. 28-23 at 4; R. Doc. 28-25
at 4; R. Doc. 28-27 at 2.
25

R. Doc. 44-2 at 2.

26

Id. at 10-11.
11

to appear in the scientific literature "[b]y the mid to late
1970s."27
The Court finds that Dr. Pyatt's affidavit creates a genuine
issue of fact as to whether, before 1958, Defendants actually
knew that benzene exposure could cause leukemia. The affidavit
indicates that, as late as the 1960s or even the early 1970s,
there was no consensus in the scientific community that benzene
exposure could cause AML. Thus, while the documents Plaintiff
proffers indicate that Defendants were aware of an association
between benzene exposure and AML before 1958, there remains a
genuine question of fact whether they actually knew at that time
that benzene exposure could cause AML. The Court finds that
summary judgment on the issue of Defendants' knowledge is not
warranted.

C.

Plaintiff Satisfies Her Burden on the Limited Factual Issue
of Whether Defendants Failed to Warn of the Dangers of
Benzene Before the Late 1970s.
The third issue on which Plaintiff seeks summary judgment is

whether, before the late 1970s, Defendants failed to warn users
that their products contained benzene and that benzene exposure
could cause leukemia. This is a pure factual question. As the
Court understands Plaintiff's motion, she does not seek summary
judgment on the question of whether Defendants had a duty to warn

27

Id. at 11.
12

users that their products contained benzene or that benzene
exposure could cause leukemia. Rather, she asks the Court to
grant summary judgment on the limited issue of whether Defendants
in fact provided such warnings before the late 1970s.
The Court finds that Plaintiff is entitled to summary
judgment on this limited factual issue. Plaintiff has produced
evidence indicating that, in the 1970s and early 1980s,
Defendants issued generalized warnings against exposure to vapor
from their benzene-containing products but did not specifically
warn users that those products contained benzene or that benzene
could cause leukemia.28 At oral argument, Defendants conceded
that benzene warnings were not federally mandated until the 1980s
and that they began including warnings regarding benzene toxicity
on Material Safety Data Sheets for gasoline at that time.
Defendants have not shown, or argued, that before the late 1970s
they issued warnings that gasoline contains benzene and that
benzene exposure may cause leukemia. Accordingly, the Court finds
that, before the late 1970s, Defendants did not warn users that
their gasoline products contained benzene or that benzene

28

See R. Doc. 28-30 at 2 (1971 Shell Material Data Safety
Sheet for Super Shell Gasoline; warns against "breathing of
vapor"); R. Doc. 28-37 at 2 (1983 Gulf Oil Material Safety Data
Sheet for Good Gulf Leaded Gasoline; warns against "prolonged or
repeated contact with the skin or breathing or vapors, mists or
fumes"); R. Doc. 28-39 at 9-10 (1975 Texaco document detailing
precautionary labels for its products; gasoline labels warn
against "repeated or prolonged contact with skin or breathing of
vapors").
13

exposure could cause leukemia. The Court emphasizes, however,
that at this time Plaintiff has not shown that Defendants had a
duty to issue such warnings during the years Bernard Burst worked
as a gas station attendant.

IV. Conclusion
For the foregoing reasons, Plaintiff's motion for partial
summary judgment is DENIED IN PART and GRANTED IN PART. The Court
finds, on summary judgment, that before the late 1970s Defendants
did not warn users that their gasoline products contained benzene
or that benzene can cause leukemia. The Court DENIES summary
judgment on all other issues raised in Plaintiff's motion.

8th
New Orleans, Louisiana, this _____ day of August, 2014.
____________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

14