Conception & Rosario Acosta v. Shell W. Exploration & Prod., Inc.

• Decision Date: 03 March 2016
• Docket Number: No. S–1–SC–33884.,S–1–SC–33884.
• Citation: 370 P.3d 761
• Parties: CONCEPTION AND ROSARIO ACOSTA et al., Plaintiffs/Intervenors–Petitioners, v. SHELL WESTERN EXPLORATION AND PRODUCTION, INC., and Shell Oil Company, Defendants–Respondents.
• Court: New Mexico Supreme Court

370 P.3d 761

CONCEPTION AND ROSARIO ACOSTA et al., Plaintiffs/Intervenors–Petitioners,

v.SHELL WESTERN EXPLORATION AND PRODUCTION, INC., and Shell Oil Company, Defendants–Respondents.

No. S–1–SC–33884.

Supreme Court of New Mexico.

March 3, 2016.

Tucker Law Firm, P.C., Steven L. Tucker, Santa Fe, NM, Law Offices of Martin N. Buchanan, Martin N. Buchanan, San Diego, CA, for Petitioners.

Rodey, Dickason, Sloan, Akin & Robb, P.A., Edward R. Ricco, Jocelyn C. Drennan, Albuquerque, NM, for Respondents.

OPINION

DANIELS, Justice.

I. INTRODUCTION

{1} From the 1920s through 1993, Defendants Shell Western Exploration and Production, Inc. and Shell Oil Company (collectively, Shell) engaged in oil and gas operations in Hobbs, New Mexico. Environmental contamination from these operations was discovered years later, and over two hundred residents of the contaminated area brought this toxic tort action against Shell for personal injury damages that included systemic lupus erythematosis (lupus ) and other autoimmune disorders. Plaintiffs allege that toxic chemicals from crude oil caused their autoimmune disorders. They challenge the district court's exclusion of the scientific evidence and expert testimony they offered in support of this theory, and they challenge the resulting partial summary judgment in favor of Shell.

{2} We hold that the district court applied an incorrect standard of admissibility in its evidentiary rulings and that Plaintiffs' causation evidence should have been admitted. Because summary judgment as to Shell's culpability for the autoimmune disorders was granted to Shell as a result of this improper exclusion of evidence, we reverse the summary judgment and remand to the district court for further proceedings.

II. BACKGROUND

{3} Plaintiffs are residents of the Westgate subdivision in Hobbs. Westgate was built in the late 1970s on and near an unlined storage pit where, during its oil drilling operations, Shell had placed toxic hydrocarbons in direct contact with the earth from the 1940s until Shell covered the pit with "fill dirt" during the 1960s. Shell did not conduct any environmental risk assessment of the pit while it was in operation or after it was covered. Shell never reported releases or leaks of toxic chemicals to the New Mexico Oil Conservation Division and did not notify the Westgate subdivision builder that the hydrocarbon storage pit existed beneath Tasker Drive in the new subdivision.

{4} Shell had conducted oil and gas operations on the Grimes lease. The operations included storing crude oil in the Grimes tank battery, located just west of the Tasker pit. Shell decommissioned the Grimes tank battery in 1993 and turned the Grimes lease over to Altura Energy, Ltd. by 1997. Massive hydrocarbon contamination of the soil, extending sixty-five feet below ground level and into the aquifer, was discovered while dismantling the Grimes tank battery in 1997. Later that year, home builders in Westgate discovered a hard layer of hydrocarbon contaminants one to two feet below the ground surface that varied in thickness from several inches to several feet. Below that layer was oily soil saturated with toxic hydrocarbons. The contamination extended across properties on both sides of Tasker Drive. Parts of the area remained contaminated at the time of trial, despite years of attempted remediation involving removal of hundreds of truckloads of contaminated earth, massive tents, the closure of part of Tasker Drive, noise, foul smells, and dusty air.

{5} Plaintiffs asserted claims against Shell for negligence, strict liability, nuisance, and trespass and alleged that they had suffered injuries from their exposure to contamination from Shell's oil operations. The alleged injuries included lupus and other autoimmune disorders, neurological diseases, and respiratory diseases. Only the claims involving autoimmune disorders are at issue in this appeal.

{6} Plaintiffs sought to offer the expert testimony of Dr. James Dahlgren that Plaintiffs' lupus and other autoimmune disorders were caused or aggravated by long-term exposure to a mixture of benzene and other organic solvents, hydrocarbons such as pristane and phytane, and mercury (the agents), all of which are toxic chemicals found in crude oil. As support for this causation opinion, Dahlgren provided numerous animal and human studies that linked the agents to immune system disruption, autoimmune diseases, and lupus.

{7} Lupus is a complex and potentially fatal inflammatory disorder that can affect various parts of the body, including the joints, skin, kidneys, heart, lungs, blood vessels, and brain. Physicians diagnose lupus when a patient presents with at least four of the American College of Rheumatology's "Eleven Criteria of Lupus." These criteria include rashes, ulcers, arthritis, and immunological disorders.

{8} Humans and mice with lupus also demonstrate a deficit of natural killer cells (NKC) that play a critical role in the normal functioning of a healthy immune system. Dahlgren proffered his own published and peer-reviewed epidemiological study that quantified Plaintiffs' exposure to the agents, gathered Plaintiffs' medical histories, studied their medical conditions, compared these results with those of a control group in a nonexposed community, and discussed a number of toxicological studies on mice that associated autoimmune disorders with exposure to pristane (the animal studies).

{9} Dahlgren's study obtained medical records and questionnaire responses from all Plaintiffs, samples of blood from a volunteer subgroup of Plaintiffs, samples of house dust from some of their Westgate homes, and analysis results of the air monitored by Shell at multiple locations in the exposed Westgate neighborhood. The sample analysis results were used to measure the presence of the agents in the subjects' environment and in the volunteer subjects themselves. As compared to the analysis results of equivalent samples obtained from volunteers in the control community and from their surroundings, Dahlgren measured elevated levels of pristane and phytane in Plaintiffs' blood samples and elevated levels of mercury, pristane and phytane, benzene, and other hydrocarbons in Plaintiffs' home environments.

{10} Dahlgren also compiled the medical histories and physical examination results from a "volunteer sample of 90 adult[ ]" Plaintiffs of the Westgate subgroup and from members of the nonexposed control community to compare the occurrence of disease and symptoms in the two communities. He observed an "[i]ncreased prevalence[ ] of symptoms thought to be predictive of autoimmune disorder" in Plaintiffs' community. The NKC were significantly fewer in the Westgate residents than in residents of the control community while the presence of B-lymphocytes was significantly greater in the Westgate population. The deficit of NKC in combination with elevated B-lymphocytes indicated abnormalities in Plaintiffs' immune systems.

{11} Dahlgren's study of Plaintiffs "by questionnaire and medical record review" identified thirteen diagnosed cases of lupus on two blocks in the area of the Westgate neighborhood on or near the Tasker pit. In the Westgate community, diagnoses of lupus and rheumatic disease, another autoimmune disorder, were ten times those in the control community. Plaintiffs "got the diseases ... after moving into the neighborhood," and many of them reported a lessening or even a total remission of the symptoms after leaving the Westgate neighborhood. To explain the prevalence of these diseases in Westgate compared to the unexposed control community, Dahlgren concluded that the agents caused the statistically significant elevation in occurrences of autoimmune disorders.

{12} Dahlgren's study acknowledged that it could not point definitively to any human cases of pristane-induced lupus, but it referred to a number of other studies demonstrating that mercury is "conclusively known" to cause immune system disruption in animals and humans and that benzene adversely impacts the immune system in humans. Dahlgren also referred to at least thirteen animal studies establishing that pristane exposure in mice induces autoimmunity and lupus, one study stating that pristane could be involved in some cases of human lupus, and one study indicating that phytane would have a similar effect due to its comparable molecular structure and toxicity.

{13} In his affidavit, Dahlgren asserted that his study was conducted pursuant to the methodological standards set by the Federal Judicial Center's Reference Manual on Scientific Evidence (2d ed.2000). Dahlgren's study included (1) an analysis of Plaintiffs' medical conditions through patient history, medical records, physical examination, and diagnostic testing, (2) an analysis of exposure information and the temporal relationship between exposure and illness, (3) a review of the medical and scientific evidence to determine whether the exposure can cause the illness ("general causation"), and (4) an application of the general knowledge to the specific circumstances of the case to determine whether the exposure did cause the illness, including consideration of other possible causes ("specific causation").

{14} Dahlgren presented evidence that extrapolation of the results of the animal studies referenced in his study provided the scientifically valid basis for his causation opinion in this case. He determined that the dose of pristane Plaintiffs received from prolonged household exposure, adjusted for the weight of a human, was within the range of the potentially "harmful dose" determined in the animal studies. He discussed several other studies of oilfield outbreaks of autoimmune disease, one of which cited a rate of lupus that was well above the national rate but only one eighth the rate of lupus found in Westgate.

{15} Dahlgren also ruled out several possible alternative explanations for the elevated occurrence of autoimmune disorders in Westgate, such as genetic...