Otto v. Newfield Exploration Company et al

Filing 75

OPINION AND ORDER DENYING 35 Motion to Strike Plaintiff's Liability Expert Witnesses Edward R. Zeigler and Dr. Tee L. Guidotti. Signed by Judge Susan P. Watters on 12/21/2016. (AMC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONT ANA
BILLINGS DIVISION

BRADLEY T. OTTO, as personal
representative of the estate of Blaine P.
Otto, deceased,

CV 15-66-BLG-SPW

OPINION AND ORDER

Plaintiff,
vs.
NEWFIELD EXPLORATION
COMP ANY, and NEWFIELD
PRODUCTION COMP ANY, and
NEWFIELD EXPLORATION MIDCONTINENT, INC.,
Defendant.

Before the Court is a Motion to Strike filed by Defendants Newfield
Exploration Company, Newfield Product Company, and Newfield Exploration
Mid-Continent, Inc., (Newfield). (Doc. 35). Newfield asks the Court to strike
Plaintiff Estate of Blain P. Otto's liability expert witnesses Edward R. Ziegler
(Ziegler) and Dr. Tee L. Guidotti (Dr. Guidotti) under Federal Rule of Evidence
702. For the reasons discussed below, the Court DENIES Newfield's Motion to
Strike.
I.

Background.

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Blaine Otto (Otto) was employed by a company that provided tank
inspection services, among other things, to Newfield on a contract basis at various
well sites in the Bakken Shale Oil Field. (Doc. 1). On July 18, 2013, Otto was
found dead on the catwalk of an oil storage tank. (Doc. 1). Otto's estate filed suit,
alleging Otto died of exposure to deadly vapors due to intentional, reckless, and/or
negligent conduct by Newfield. (Doc. 1). Newfield disputes the cause of Otto's
death and denies its conduct was intentional, reckless, or negligent. (Doc. 6).
Otto's estate retained Dr. Guidotti and Ziegler as liability experts.
Dr. Guidotti is a physician, qualified as a board-certified specialist in
internal medicine, pulmonary medicine, and occupational medicine. (Doc. 36-1 at
1). He is also a retired professor of Occupational and Environmental Medicine at
the George Washington University Medical Center, where he was Chair of the
Department of Environmental and Occupational Health of the School of Public
Health and Health Services and Director of the Division of Occupational Medicine
and Toxicology, Department of Medicine, School of Medicine and Health
Services. (Doc. 36-1 at 1). He has worked with the oil and gas industry for over
35 years and is currently an international consultant. (Doc. 36-1 at 1).
Dr. Guidotti's opinion is that Otto's death was caused by exposure to deadly
vapors. (Doc. 36-1 at 8). Dr. Guidotti formulated his opinion after review of
numerous documents and items of evidence, including the autopsy report, the

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OSHA fatality report, and information disclosed during discovery. (Doc. 36-1 at
1-2). Based on the evidence, Dr. Guidotti listed four possible causes of Otto's
death: (1) inhalation of hydrocarbon vapors; (2) depleted oxygen levels due to
displacement by hydrocarbon vapors; (3) inhalation of hydrogen sulfide; and (4)
natural causes. (Doc. 36-1 at 3-4). Dr. Guidotti then proceeded to eliminate each
cause based on its likelihood, concluding inhalation of hydrocarbon vapors was the
most likely cause of Otto's death. (Doc. 36 at 3-8).
Ziegler is a petroleum and natural gas engineer, a registered Professional
Engineer, and a Certified Safety Professional. (Doc. 36-4 at 4). He is also trained
as an OSHA 500 Program Instructor. (Doc. 36-4 at 4). Ziegler has worked in the
oil and gas business for over 35 years. (Doc. 36-4 at 4).
Ziegler's opinion is that Newfield's conduct was grossly below any industry
standard. (Doc. 36-4 at 19). Ziegler formulated his opinion after review of
numerous documents and pieces of evidence, including safety regulations, the
OSHA file, and information disclosed during discovery. (Doc. 36-4 at 3).

II.

Law.
Federal Rule of Evidence 702 governs the admissibility of expert testimony.

It provides that a "witness qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise" if:

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(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 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. The Ninth Circuit has interpreted Rule 702 to require that
expert testimony be both relevant and reliable. Ollier v. Sweetwater Union High

School Dist., 768 F.3d 843, 860 (9th Cir. 2014). The relevance inquiry asks
whether the expert's testimony logically advances a material aspect of the party's
case. Estate ofBarabin v. AstenJohnson, Inc., 740 F.3d 457, 463 (9th Cir. 2014).
The reliability inquiry asks whether the expert's testimony has a reliable
basis in the knowledge and experience of the discipline. AstenJohnson, 740 F.3d
at 463. The concern is with the soundness of the expert's methodology, not the
expert's conclusions. AstenJohnson, 740 F.3d at 463. Accordingly, the Supreme
Court has suggested several factors to help determine reliability: (1) whether a
theory or technique can be tested; (2) whether it has been subjected to peer review
and publication; (3) the known or potential error rate of the theory or technique;
and (4) whether the theory or technique enjoys general acceptance within the
relevant scientific community. AstenJohnson, 740 F.3d at 463 (citing Daubert v.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-94 (1993)). The Daubert
factors are not definitive; district courts have broad discretion to test and determine
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an expert's reliability. Pyramid Technologies, Inc. v. Hartford Cas. Ins. Co., 752
F.3d 807, 814 (9th Cir. 2014).

III.

Discussion.
Newfield does not contest the qualifications of either Dr. Guidotti or Ziegler.

Instead, Newfield argues the opinions of Dr. Guidotti and Ziegler are irrelevant
and unreliable.
The Court holds the opinions of Dr. Guidotti and Ziegler are relevant.
"Expert opinion testimony is relevant ifthe knowledge underlying it has a valid
connection to the pertinent inquiry." Pyramid, 752 F.3d at 813. The cause of
Otto's death is a disputed fact. Dr. Guidotti' s opinion is that Otto died of exposure
to deadly vapors, not of natural causes. Dr. Guidotti' s opinion is therefore relevant
to a material disputed fact. Whether Newfield violated safety standards is also a
disputed fact. Zeigler's opinion is that Newfield violated numerous safety
regulations and industry standards. Zeigler's opinion is therefore relevant to a
material disputed fact.
The Court addresses the reliability of each expert in turn.

A.

Dr. Guidotti

Dr. Guidotti's opinion is based on a methodology known as a differential
diagnosis. Differential diagnosis is a "standard scientific technique of identifying
the cause of a medical problem by eliminating the likely causes until the most
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probable one is isolated." Clausen v. MIV New Carissa, 339 FJd 1049, 1057 (9th
Cir. 2003) (citing Westberry v. Gislaved Gummi AB, 178 F.3d 257, 262 (4th Cir.
1999)). "[F]ederal courts, generally speaking, have recognized that a properly
conducted differential diagnosis is admissible under Daubert." Clausen, 339 F.3d
at 1057.
The first step in a differential diagnosis is to compile a comprehensive list of
causes that are capable of causing the person's symptoms or mortality. Clausen,
339 F.3d at 1057-58. An expert that rules in a cause not capable of producing the
result may be unreliable. Clausen, 339 F.3d at 1058. An expert that neglects to
consider a cause that may have produced the result may also be unreliable.

Clausen, 339 F.3d at 1058. The next step in a differential diagnosis is to engage in
a process of elimination on the basis of the evidence so as to reach a conclusion as
to the most likely cause. Clausen, 339 F.3d at 1058.
Here, Dr. Guidotti compiled a list of four possible "mechanisms" that could
have caused Otto's death. Dr. Guidotti then determined, based on the evidence
before him, which of the mechanisms was the most likely cause. Newfield argues
Dr. Guidotti's differential diagnosis is unreliable because Dr. Guidotti neglected to
consider Otto's physical condition as a possible cause. Newfield also argues Dr.
Guidotti's differential diagnosis is unreliable because Dr. Guidotti ruled in a cause,
exposure to deadly vapors, that is unsupported by the evidence. Newfield contends
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there is no evidence Otto was exposed to deadly vapors in the manner Dr. Guidotti
considers.
Dr. Guidotti's report expressly considers Otto's physical condition. The
fourth mechanism Dr. Guiddoti considered as a possible cause of Otto's death was
"[i]mmediate incapacitation followed by death from natural causes." (Doc. 36-1 at
4). Dr. Guidotti's analysis of the fourth mechanism considered both heart attack
and stroke, and included a discussion about Otto's morbid obesity, fatty liver, and
enlarged heart. (Doc. 36-1 at 6-7). The Court holds Dr. Guidotti did not fail to
consider Otto's physical condition in his differential diagnosis.
Dr. Guidotti appropriately ruled in exposure to deadly vapors as a possible
cause of Otto's death. Due to the collective failure of Newfield and others to test
the concentration levels at the site at the time of Otto's death, Newfield is correct
that there is no direct evidence Otto was exposed to deadly vapors in the manner
Dr. Guidotti considers. However, the lack of direct evidence is not fatal to Dr.
Guidotti's opinion. First, the oil's Material Safety Data Sheet, produced by
Newfield during discovery, establishes the oil produces deadly vapors. (Doc. 537). Second, there is ample evidence that workers who manually gauge oil tanks
can be exposed to the deadly vapors when they open the tank's hatch. Otto's
supplemental expert disclosure included a NIOSH-OSHA (National Institute for
Occupational Safety and Health and Occupational Safety and Health
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Administration) hazard report that discussed in detail the hazards faced by workers
who manually gauge oil tanks. (Doc. 36-5). The introduction to the report states:
Workers at oil and gas extraction sites could be exposed to
hydrocarbon gases and vapors, oxygen-deficient atmospheres, and
fires and explosions when they open tank hatches to manually gauge
or collect fluid samples on production, flowback, or other tanks (e.g.,
drip pots) that contain process fluids. Opening tank hatches, often
referred to as "thief hatches," can result in the release of high
concentrations of hydrocarbon gases and vapors. These exposures can
have immediate health effects, including loss of consciousness and
death.
(Doc. 36-5 at 5). Given that Otto was a worker who manually gauged tanks and
that he was found dead near an open hatch, Dr. Guidotti's opinion would be
unreliable if it did not include exposure to deadly vapors as a possible cause. The
Court holds Dr. Guidotti properly ruled in exposure to deadly vapors as a possible
cause of Otto's death.
Dr. Guidotti's opinion is reliable because he properly conducted a
differential diagnosis to determine the cause of Otto's death. Clausen, 339 F.3d at
1057.

B.

Ziegler

Newfield argues Ziegler's opinion is unreliable because it failed to identify
the industry standards Newfield violated and also failed to identify what safety
measures Newfield should have taken.

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Newfield's arguments are not well taken. Ziegler's opinion contains
numerous references to safety standards, including 43 C.F.R. 3162 et seq., 29
U.S.C. § 654(a), and Newfield's own safety guidelines. (Doc. 36-4 at 9-14).
Ziegler's opinion also contains numerous measures Newfield should have taken,
including developing a safety program with monitoring and audits, effectively
communicating with workers, implementing effective warning signs, utilizing
remote measuring equipment, and requiring necessary safety gear such as
respirators and other personal protective equipment. (Doc. 36-4 at 9-14, 18). The
Court holds Ziegler's opinion is reliable because Ziegler appropriately applied the
facts of this case to his knowledge of the industry standards and safety regulations.
IV.

Conclusion.
The opinions of Dr. Guidotti and Ziegler are relevant and reliable.

Newfield's challenges go to the weight of the opinions, not the admissibility, and
are therefore more appropriate for cross-examination. See Fed. R. Evid. 705;
Alaska Rent-A-Car, Inc. v. Avis Budget Group, Inc., 738 F.3d 960, 969 (9th Cir.

2013). Newfield's Motion to Strike (Doc. 35) is DENIED.
s~

DATED this t2}day of December, 2016.

kf'.rd~
SUSANi.WATTERS
United States District Judge

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