© 2018 The Texas Lawbook.
By Natalie Posgate
(April 18) – It’s rare in the toxic tort world for a federal appeals court to take the time to affirm a trial court’s decision to exclude certain expert opinions when considering a summary judgment motion. But that recently happened in Denver in favor of Phillips 66.
Since 2014, the Houston energy company and its pre-spinoff affiliate, ConocoPhillips, have been in litigation with a 29-year-old woman who claims she developed leukemia due to prolonged exposure of benzene emissions that came from a Phillips 66 refinery near her childhood home in Ponca City, Oklahoma.
Last March, a district court in Oklahoma granted a summary judgment request filed by the defendants’ lead counsel, Norton Rose Fulbright partner Brett Young, after granting another request by Young to exclude expert testimony Hall presented.
The court concluded that in absence of that expert testimony, Hall had not presented sufficient evidence linking her cancer to benzene exposure.
Hall appealed the district court’s summary judgment and exclusion of expert testimony to the U.S. Court of Appeals for the 10th Circuit, alleging the Chief District Judge Joe Heaton abused his discretion. The 10th Circuit rejected this argument last week.
Young said this case is one of the five that has been brought against Phillips 66 and by his courtroom opponents, a group of Oklahoma-based plaintiffs’ lawyers, on claims that the defendant’s refineries caused some form of cancer to nearby residents. He said it’s also the third case in a row to be dismissed on summary judgment and later affirmed in the 10th Circuit. Out of the remaining two cases, one was just filed and the other was stayed pending the outcome in last week’s opinion, he said.
Young and his Houston-based team, which also includes partners Katherine Mackillop and Joy Soloway, as well as associate Devin Wagner, have represented Phillips 66 in all of the cases.
In a 20-page opinion, the appellate court determined April 10 that Judge Heaton ruled correctly when he found the testimony of Dr. David Mitchell and Dr. Steven Gore unreliable, and oftentimes, contradicting.
Dr. Mitchell, an air modeler, provided his expert opinion on the estimation of benzene concentrations near Hall’s childhood home, the opinion says. Based on Dr. Mitchell’s estimates, Dr. Gore calculated Hall’s cumulative exposure to benzene and used the calculation to argue that benzene exposure was the cause of Hall’s leukemia. A third expert, an epidemiologist named Mary Calvey, provided an opinion similar to Dr. Gore’s.
The 10th Circuit focused on the inconsistencies between the first two doctor’s opinions. For example, Dr. Mitchell provided an estimate with the highest hourly average concentration of benzene Hall could have been exposed to while living near the refinery. Dr. Mitchell instructed Dr. Gore to use this figure for his own calculation.
“But Dr. Mitchell admitted that he was not qualified to decide which figure to use in assessing the impact of benzene emissions on human health… selection of the concentration level was best left to an oncologist like Dr. Gore,” the opinion said.
In turn, the opinion says, Dr. Gore admitted that he did not independently choose which figure to use and relied on Dr. Mitchell’s expertise to select the correct figure.
“Without an adequate safeguard of reliability, the district court could reasonably conclude that neither Dr. Gore nor Dr. Mitchell could defend the use of the highest hourly average-emission level,” the 10th circuit writes. “Both expert witnesses had seemingly disclaimed any responsibility for picking this figure: Dr. Mitchell had regarded Dr. Gore as the expert and Dr. Gore had regarded Dr. Mitchell as the expert, leaving no one qualified to choose which concentration level to use.”
Young said the 10th Circuit’s ruling is important because it validates how the court had ruled in a famous 1999 case Mitchell v. Gencorp and it “amalgamates these core principles about how to offer a reliable specific causation opinion for plaintiffs.”
He said the Hall case is the first time since Mitchell v. Gencorp that the 10th Circuit has taken the time to rule on this issue over expert testimony exclusion with regard to unreliable evidence about dosage.
Young said the 10th Circuit’s opinion from last week is making a statement: “We meant what we said in Mitchell that this will never get to a jury.”
The Hall opinion also “provides a roadmap” for what kind of elements experts in toxic tort cases need to put together in order to arrive at a reliable opinion, Young added.
“We’re proud to be able to get that,” he said.
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