United States District Court, E.D. Louisiana
YOLANDE BURST, individually and as the legal representative of BERNARD ERNEST BURST, JR
SHELL OIL COMPANY, ET AL., SECTION: R
ORDER AND REASONS
SARAH S. VANCE, District Judge.
Defendants Shell Oil Company, Chevron U.S.A. Inc., and Texaco, Inc. move to exclude the testimony of plaintiff's expert epidemiologist, Dr. Peter Infante. The Court has reviewed the parties' submissions and has conducted a Daubert hearing on the admissibility of Dr. Infante's general causation opinion. The Court grants defendants' motion because it finds that Dr. Infante's general causation opinion is based on an unreliable methodology.
Plaintiff Yolande Burst filed this products liability action against defendants Shell, Chevron (as successor to Gulf Oil Corporation), and Texaco. She alleges that her late husband, 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. Specifically, she alleges that he regularly came into contact with gasoline containing benzene.
On June 20, 2013, physicians diagnosed Mr. Burst with acute myeloid leukemia (AML). He was 71 years old. He passed away as a result of the leukemia on December 21, 2013.
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. 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. She also alleges strict products liability.
To demonstrate that gasoline containing benzene can cause AML and that, in this case, it caused Mr. Burst's AML, plaintiff offers the testimony of epidemiologist Dr. Peter Infante. In his report, Dr. Infante seeks to answer whether "occupational exposure to benzene is a cause of myelodysplastic syndrome (MDS) and acute myelogenous leukemia (AML)." Dr. Infante concludes that low-level benzene exposure from gasoline can cause AML and that Mr. Burst's exposure to gasoline containing benzene caused his AML. Defendants now move to exclude Dr. Infante's opinions arguing that they are unreliable and irrelevant.
II. LEGAL STANDARD
This is a toxic torts case where plaintiff alleges that gasoline containing benzene caused her husband's AML. Accordingly, plaintiff must show general causation-that gasoline containing benzene can cause AML-and specific causation-that defendants' products 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.") (citation omitted). 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 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 Pharms., 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. 579, 589 (1993); 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 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: (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 Dow Pharms., Inc., 43 F.3d 1311, 1317 (9th Cir. 1995). They have examined whether the expert has adequately accounted for obvious alternative explanations. See Claar v. Burlington N.R.R., 29 F.3d 499, 502 (9th Cir. 1994). They have also asked 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" and that, generally, "questions relating to the bases and sources of an expert's opinion affect the weight to be assigned that opinion rather than its admissibility." 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, " and "[t]he 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). If 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 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.Appx. 94, 98 (5th Cir. 2010).
The Court next considers 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.
In fulfilling its role as a gatekeeper, the Court recognizes that "the courtroom is not the place for scientific guesswork, even of the inspired sort." Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 319 (7th Cir. 1996). Rather, "[l]aw lags science; it does not lead it." Id. The Court is mindful of the Supreme Court's guidance that
there are important differences between the quest for truth in the courtroom and the quest for truth in the laboratory. Scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly. The scientific project is advanced by broad and wide-ranging consideration of a multitude of hypotheses, for those that are incorrect will eventually be shown to be so, and that in itself is an advance. Conjectures that are probably wrong are of little use, however, in the project of reaching a quick, final, and binding legal judgment-often of great consequence-about a particular set of events in the past. We recognize that, in practice, a gatekeeping role for the judge, no matter how flexible, inevitably on occasion will prevent the jury from learning of authentic insights and innovations. That, nevertheless, is the balance that is struck by Rules of Evidence designed not for the exhaustive search for cosmic understanding but for the particularized resolution of legal disputes.
Daubert, 509 U.S. at 596-97.
Defendants contend that there is no scientific basis for concluding that gasoline containing benzene causes AML. While benzene is a known human carcinogen, defendants assert that the scientific literature does not demonstrate that gasoline can cause AML.
As the record indicates, gasoline is a mixture of many substances including benzene. While the benzene content of gasoline varies depending on a number of factors, the record indicates that the benzene concentration of gasoline may have ranged from under 1% to as high as 4% or 5% between 1958 and 1971 when Mr. Burst worked as a service station attendant and mechanic.
To prove that gasoline containing benzene can cause AML, plaintiff offers the testimony of epidemiologist Dr. Infante. As to general causation, Dr. Infante concludes: "[I]t is my opinion that exposure to very low level benzene from gasoline can cause damage to the DNA of bone marrow cells as well as AML.... The data related to gasoline exposure and risk of AML are consistent with ...