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Hickman v. Exxon Mobil Corp.

Court of Appeals of Louisiana, First Circuit

July 18, 2018

RILEY HICKMAN
v.
EXXON MOBIL CORPORATION, EXXON MOBIL OIL CORPORATION, HUMBLE OIL & REFINING COMPANY, HUMBLE OIL & REFINING CORPORATION, CHEVRON USA, INC., BP CORPORATION NORTH AMERICA, INC., THE TEXAS COMPANY, DEVON ENERGY PRODUCTION COMPANY, LP., DYNAMIC EXPLORATION, INC., CONOCOPHILLIPS COMPANY, SHELL OIL COMPANY, MARATHON OIL COMPANY, SUNSET PETROLEUM, STONE OIL COMPANY OF BATON ROUGE AND AL CUNNINGHAM

          On Appeal from the Thirty-Second Judicial District Court In and for the Parish of Terrebonne State of Louisiana No. 168668 The Honorable Randall L. Bethancourt, Judge Presiding

          Timothy J. Falcon Jeremiah A. Sprague Jarrett S. Falcon Marrero, LA and Charles C. Bourque, Jr. Houma, LA and Frank M. Buck New Orleans, LA Attorneys for Plaintiffs/ Appellants Deborah Hickman, Belinda Hickman, Daniella Hickman, and Samantha Hickman

          Deborah D. Kuchler Janika D. Polk Michele Hale DeShazo Mark E. Best Skylar B. Rudin Etheldreda C. Smith Joshua J. Doguet New Orleans, LA Attorneys for Defendants/Appellees Shell Oil Company, Shell Offshore Inc. and SWEPI LP

          BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.

          HOLDRIDGE, J.

         This is a tort suit wherein the plaintiffs seek to recover damages for the decedent's lung cancer and death allegedly caused in total or in part by his exposure to radioactive dust from cleaning oilfield pipes. A motion for summary judgment was granted in favor of the defendants dismissing the plaintiffs' claims with prejudice due to a lack of proof of medical causation because of the fact that the decedent was a lifelong smoker. The plaintiffs appeal the granting of the motion for summary judgment. Because there are genuine issues of material fact, the judgment of the district court is reversed and the matter is remanded for further proceedings.

         FACTUAL AND PROCEDURAL HISTORY

         After Riley Hickman developed lung cancer, he sued numerous oil and gas companies, two oilfield pipe-cleaning contractors, and a supervisor alleging liability based on his exposure to "naturally occurring radioactive material" (NORM) from his work cleaning oilfield pipes.[1] According to the petition, NORM forms as mineral scale deposits inside pipes when they are used in oil and gas wells and the deposits must be cleaned out so the pipes can be reused. During the cleaning process, the NORM scale turns into radioactive dust, which Riley inhaled while working mainly at the French Jordan pipe facility during 1966, 1967, 1969, and 1987 through 1991. Riley was diagnosed with large cell neuroendocrine carcinoma on December 20, 2012, and filed suit on January 22, 2013. He died on August 28, 2013, during the pendency of his action. A supplemental and amending petition was filed, substituting and adding his surviving spouse, Deborah Hickman, and children, Belinda, Daniella, and Samantha Hickman, as plaintiffs. The oil company defendants involved in this appeal are Shell Offshore Inc., SWEPI LP, and Shell Oil Company (collectively "Shell").

         On October 21, 2015, Shell filed a motion for summary judgment regarding lack of proof of medical causation. Shell asserted that absent proof that it was more probable than not that Riley's lung cancer was caused by exposure to NORM based on medical evidence, the plaintiffs could not establish the requisite element of medical causation necessary to support a claim for damages. In its motion for summary judgment, Shell contended that Riley, a lifelong cigarette smoker, contracted lung cancer due to his smoking. It alleged that the testimony of Dr. Patricia M. Williams, a toxicologist, who determined that Riley's lung cancer was caused totally or partially by his exposure to the constituents of NORM pipe scale, could not provide medical causation. The motion for summary judgment was originally set for hearing on November 13, 2015.

         On October 27, 2015, Shell filed a motion to exclude or limit the testimony, opinions, and expert report of Dr. Williams. Shell alleged that her opinions were unsupported, her testimony and report were filled with factual and scientific errors, and her methodology was unreliable under La. C.E. art. 702 and the requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), Cheairs v. State ex rel. Dep't of Transp. & Dev, 2003-0680 (La. 12/3/03), 861 So.2d 536, 541, and State v. Foret, 628 So.2d 1116, 1121 (La. 1993). Shell argued that Dr. Williams was a toxicologist, not a medical doctor, such that her opinions as to specific medical causation as to Riley's very rare form of lung cancer should not be allowed, particularly since she disregarded the scientific literature and contrary opinions held by Riley's treating physicians. According to Shell, Dr. Williams' opinions on general and specific causation were based on flawed methodology because they were not based on peer-reviewed studies or tested premises, she ignored relevant scientific information, and she used an unsound method to compare smoking to radium exposure. Shell's motion was originally set for hearing on November 9 and 10, 2015, before the hearing on the motion for summary judgment.

         The district court conducted the hearing on Shell's motion for summary judgment on November 9, 2015, the same day that the motion to exclude or limit Dr. Williams' testimony was scheduled to be heard. Apparently, Shell's motion to exclude Dr. Williams' testimony was not heard since the record does not contain a transcript of a hearing on the motion to exclude or limit Dr. Williams' testimony, nor does it contain a minute entry referencing that motion.[2] The district court took the summary judgment motion under advisement and then signed a judgment on November 17, 2015 granting the motion for summary judgment and dismissing with prejudice the Hickmans' claims against Shell. The Hickmans filed a motion for new trial, which the district court denied. From the district court's dismissal of their action, the Hickmans appeal.

         On appeal, the Hickmans raise three assignments of error: that the district court erred by adding an additional requirement to causation to the actual damages under the duty/risk cause-in-fact element with proof of actual damages by medical evidence; that the district court erred because it inappropriately evaluated expert credibility and weighed expert opinion on a motion for summary judgment; and that the district court erred in disregarding the expert opinions of Dr. Williams without analyzing the reliability of her opinions in an evidentiary hearing.

         DISCUSSION

         We initially address the jurisdictional issues regarding this appeal. Due to the apparent untimeliness of the motion for new trial in this record, this court issued a rule to show cause regarding the timeliness of the appeal.[3] In response, the Hickmans filed an unopposed motion to supplement the record with a copy of the motion for new trial, which showed that it was submitted by fax transmission on December 4, 2015. The Hickmans followed up with the filing of the original copy of the motion for new trial on December 7, 2015 as required by La. R.S. ...


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