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Burst v. Shell Oil Co.

United States District Court, E.D. Louisiana

May 14, 2015

YOLANDE BURST, individually and as the legal representative of BERNARD ERNEST BURST, JR.

For Yolande Burst, Individually, and as the Legal Representative of Bernard Ernest Burst, Jr., Plaintiff: L. Eric Williams, Jr., LEAD ATTORNEY, Williams Law Office, LLC, Metairie, LA; Amber E. Cisney, Richard Julius Fernandez, Richard J. Fernandez, LLC, Metairie, LA; Keith E. Patton, PRO HAC VICE, Shrader & Associates, LLP, Houston, TX.

For Shell Oil Company, Defendant: Mary S. Johnson, LEAD ATTORNEY, Johnson, Gray, McNamara, LLC (Mandeville), Mandeville, LA; Charles Stanton Perry, Rebecca Z. Hammerbeck, Rhonda R Caviedes, PRO HAC VICE, Reed Smith LLP (Houston), Houston, TX; Ingrid Kemp Laurendine, Johnson Gray McNamara (Mandeville), Mandeville, LA; Nichole M. Gray, Johnson Gray McNamara (New Orleans), New Orleans, LA; S. Suzanne Mahoney, Johnson, Gray, McNamara, LLC (New Orleans), New Orleans, LA.

For Chevron U.S.A. Inc., Defendant: Tim Gray, LEAD ATTORNEY, Lea Ann Smith, Forman, Perry, Watkins, Krutz & Tardy, LLP (New Orleans), New Orleans, LA; Marquel S. Jordan, Robert Philip Scott, Jr., PRO HAC VICE, Blank Rome, LLP (Houston), Houston, TX.

For Texaco, Inc., Defendant: Tim Gray, LEAD ATTORNEY, Lea Ann Smith, Forman, Perry, Watkins, Krutz & Tardy, LLP (New Orleans), New Orleans, LA.



Defendants Shell Oil Company, Chevron U.S.A. Inc., and Texaco, Inc. move to exclude plaintiff's expert, Richard Miller.[1] Because the Court finds that Miller's methodology for calculating Mr. Burst's benzene exposure is unreliable, the Court GRANTS defendants' motion and excludes the testimony of Miller.


Plaintiff Yolande Burst filed this products liability action against defendants Shell, Chevron (as successor to Gulf Oil Corporation), and Texaco.[2] She alleges that her late husband, Bernard Burst, Jr., worked at various Shell Oil, Gulf Oil, and Texaco 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 come into contact 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] She claims that defendants negligently manufactured and sold products containing benzene and that they negligently failed to warn foreseeable users about the health hazards associated with these products.[7] She also alleges strict products liability.[8]

As evidence of Mr. Burst's exposure to benzene through his use of defendants' products, plaintiff relies on an expert report from Richard Miller, an industrial hygienist. In the report, Miller provides an estimate of Mr. Burst's cumulative exposure to benzene from gasoline while working at a Gulf Oil gas station over a one-year period between 1966 and 1968. Defendants now move to exclude Miller's opinions on the ground that they are unreliable and irrelevant.


A district court has considerable discretion to admit or exclude expert testimony under Federal Rule of Evidence 702. See General Elec. Co. v. Joiner, 522 U.S. 136, 138-39, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997); Seatrax, Inc. v. Sonbeck Int'l, Inc., 200 F.3d 358, 371 (5th Cir. 2000). Federal Rule of Evidence 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 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, 119 S.Ct. 1167, 143 L.Ed.2d 238 (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 the reasoning or methodology underlying the expert's testimony is valid. See Daubert, 509 U.S. at 592-93. 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. These factors include: (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 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. Id. at 593-95. The Supreme Court has emphasized, however, that these factors " do not constitute a 'definitive checklist or test.'" Kumho, 526 U.S. at 150 (quoting Daubert, 509 U.S. at 593). 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. 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 be reliable at each and every step or else it is inadmissible. 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 ...

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