Curtis v. M&S Petroleum, Inc.

• Decision Date: 13 May 1999
• Docket Number: No. 97-60685,97-60685
• Citation: 174 F.3d 661
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: Mike CURTIS, et al., Plaintiffs, Michael Craft; Troy Luster; Bob Harris; Terry Nevels; Larry Oakes, Plaintiffs-Counter Defendants-Appellants, Cynthia Craft; Jeanette Luster; Shari Nevels, Plaintiffs-Appellants, v. M&S PETROLEUM, INC.; Donald Mullins, Defendants-Counter Claimants-Appellees, Barrett Refining Corporation; E.I. DuPont De Nemours and Company, doing business as DuPont Speciality Chemicals, Defendants-Appellees.

Page 661

174 F.3d 661

Mike CURTIS, et al., Plaintiffs,

Michael Craft; Troy Luster; Bob Harris; Terry Nevels;

Larry Oakes, Plaintiffs-Counter Defendants-Appellants, Cynthia Craft; Jeanette Luster; Shari Nevels, Plaintiffs-Appellants, v. M&S PETROLEUM, INC.; Donald Mullins, Defendants-Counter

Claimants-Appellees,

Barrett Refining Corporation; E.I. DuPont De Nemours and

Company, doing business as DuPont Speciality

Chemicals, Defendants-Appellees.

No. 97-60685.

United States Court of Appeals,

Fifth Circuit.

May 13, 1999.

Landman R. Teller, Jr., B. Blake Teller, Frank Campbell, Teller, Chaney, Hassell & Hopson, Vicksburg, MS, for Plaintiffs-Counter Defendants-Appellants and Plaintiffs-Appellants.

Ernest G. Taylor, Jr., Jackson, MS, for Mullins and M&S Petroleum, Inc.

Silas Wood McCharen, Jackson, MS, for Barrett Refining Corporation.

Raymond Michael Ripple, Donna L. Goodman, Wilmington, DE, Terrence K. Knister, New Orleans, LA, for E.I. DuPont De Nemours and Company Incorporated.

Appeal from the United States District Court for the Southern District of Mississippi.

Before DAVIS, SMITH and WIENER, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

In this toxic tort case, Plaintiffs, a number of refinery workers and their wives, allege that they were exposed to excessive amounts of benzene due to the intentional and negligent actions of Defendants and that this exposure caused numerous health problems. The district court excluded the testimony of Plaintiffs' expert witness that was proffered to establish the causal link between Plaintiffs' health problems and exposure to excessive amounts of benzene. The court ruled that this testimony did not meet the requirements of Daubert. ¹ The district court then granted judgment as a matter of law in favor of Defendants primarily because Plaintiffs failed to establish the necessary causal link between their exposure to benzene and their illnesses.

In this appeal, Plaintiffs challenge: (1) the district court's exclusion of Plaintiffs' expert witness on the issue of medical causation; (2) the district court's exclusion of the proffered testimony of Mississippi Department of Environmental Quality personnel; and (3) the district court's refusal to allow Plaintiffs to introduce evidence that Defendant Barrett Refining Corporation's corporate representative invoked his Fifth Amendment privilege at his deposition.

For the following reasons, we vacate the district court's dismissal of the refinery workers' suits and remand for trial. We affirm the dismissal of the suits of the refinery workers' wives.

I. Background

Defendant Barrett Refining Corporation ("BRC") owns a refinery located in Vicksburg, Mississippi. Plaintiffs Michael Craft, Troy Luster, Bob Harris, and Larry Oakes (the "refinery workers") were employed by BRC as workers at the refinery. The refinery had been built in 1978 by Vicksburg Refinery, Inc. for the purpose of processing light sweet crude oil into naptha (a light distillate used for gasoline manufacturing), diesel (a fuel oil for machinery), and residual oil products. BRC purchased the refinery in 1991 and, after making several structural changes to the refinery, began to process light sweet crude oil into jet fuel. BRC was successful in its operations but eventually had to shut down the refinery in the fall of 1994.

In April 1995, BRC entered into a three-year operating lease agreement with Defendants M&S Petroleum, Inc. ("M&S") and Donald Mullins, one of M&S's owners, under which M&S would lease and operate the refinery. Rather than continuing to process light sweet crude oil, however, M&S planned to process Heavy Aromatic Distillate ("HAD"), a product manufactured by Defendant E.I. DuPont De Nemours and Company ("DuPont"). M&S proposed to produce a gasoline blend stock and a marine diesel oil blend stock from HAD.

HAD, a co-product of DuPont's ethylene process, is composed of a number of toxic and hazardous chemicals, the most prevalent being benzene, which makes up 25-35 percent of HAD. Because of HAD's toxicity, particularly the benzene component, DuPont informed M&S by letter of May 1, 1995, that it would be "providing product stewardship support" before DuPont made any shipments of HAD to M&S. Attached to this letter was a summary of the OSHA benzene standard, 29 C.F.R. § 1910.1028, providing that the permissible level of exposure to benzene is one part of benzene per million parts of air (1 ppm) as an 8-hour time-weighted average. The summary also provided instructions for exposure monitoring, employee notification, methods of compliance, respiratory protection, medical surveillance, and communications.

In compliance with this letter, DuPont dispatched Brad Kulesza, a Senior Technical Service Engineer, to the Vicksburg refinery on May 3, 1995. The purpose of the visit was to explain how to handle HAD safely, to review the OSHA benzene standard, to perform a quick walk-through of the HAD barge unloading and storage areas, and to answer any questions concerning HAD.

After his visit, Mr. Kulesza promptly wrote a letter to M&S reiterating the dangers of benzene and identifying six safety items that M&S would have to complete before DuPont would deliver HAD to the refinery. These items included providing benzene awareness training to the operators and mechanics responsible for unloading and processing HAD; developing procedures for unloading and processing HAD; providing safety showers and eyewash facilities at the barge unloading area; making available and using proper protective equipment; providing employee benzene exposure monitoring; and providing temporary or permanent benzene warning signs. Mr. Kulesza also stated in this letter that he would visit the refinery again in the future and follow up on his recommendations.

Mr. Kulesza did not indicate to M&S the proper permits it needed to process HAD nor did he inquire whether BRC or M&S had obtained these permits. At trial, however, Mr. Kulesza testified that during his visit to the refinery, he mentioned the need to obtain the proper permits.

DuPont also wrote a letter dated May 23, 1995, to Mr. Mullins, providing safe handling literature for HAD, specifically DuPont's Material Safety Data Sheet ("MSDS") on HAD. The MSDS provided the components of HAD and the potential health effects due to exposure to HAD. It warned that skin contact with HAD could cause skin irritation with discomfort or rash and that inhalation could cause nausea, headache, weakness, loss of appetite, or temporary nervous system depression. ² Mr. Mullins acknowledged in writing that he had received the safe handling literature and that he agreed to instruct his employees and any others who might handle HAD in the safe handling procedures. Upon receipt of Mr. Mullins' acknowledgment, and without further inspection of the refinery, DuPont began shipping HAD to the refinery.

M&S began processing HAD at the refinery in mid-June 1995 and immediately encountered serious problems. HAD caused the pump strainers to become clogged daily and caused leaks in the heat exchangers and in the fin fan. When the refinery workers attempted to fix these mechanical problems, they became soaked in HAD. Additionally, due to the clogging of the strainers and the leaks in the heat exchangers and the fin fan, HAD would collect in the American Petroleum Institute open air separator system, or oily water separator, the refinery's recovery system. Because HAD is lighter than water, HAD would sit on top of the water in the separator. On a daily basis, the refinery workers had to transfer HAD from the separator into a recovery tank. This process would take approximately one hour to complete, during which time the refinery workers were continuously exposed to HAD fumes that had a very distinct and strong odor.

Contemporaneously with the attempts to process HAD, the refinery workers began to experience headaches, nausea, dizziness, diarrhea, and a lack of energy. Plaintiffs Cynthia Craft and Jeanette Luster, the wives of Michael Craft and Troy Luster, respectively, also began to experience these same symptoms when exposed to their husbands' skin and clothes.

On July 4, 1995, Larry Oakes, one of the refinery workers, called BRC headquarters in Oklahoma and informed BRC Vice-President Paul Nicholson that the refinery workers were becoming ill and that HAD was destroying the refinery. Mr. Nicholson instructed Mr. Oakes to shut down the refinery and to send him a sample of HAD for analysis. However, John Barrett, the president of BRC, telephoned Mr. Oakes a week later and advised him to restart the refinery.

At the beginning of August 1995, M&S hired Plaintiff Terry Nevels ³ to manage quality control and to act as safety manager at the refinery. Soon after beginning his employment at the refinery, Mr. Nevels began to experience diarrhea, disorientation, dizziness, and a lack of energy, the same symptoms as those of the other refinery workers. Plaintiff Shari Nevels, Mr. Nevels' wife, also began to experience these symptoms when exposed to her husband's skin and work clothes. Mr. Nevels became concerned and consulted the MSDS provided by DuPont. Alarmed by the components of HAD, specifically benzene, Mr. Nevels began to conduct research on benzene and obtained the Code of Federal Regulations on the OSHA benzene standard, 29 C.F.R. § 1910.1028. He found that the symptoms he and the other refinery workers were experiencing were consistent with those of overexposure to benzene. ⁴ Although Mr. Nevels showed the Code of Federal Regulations to Mr. Mullins, Mr. Mullins informed Mr. Nevels that the Code did not pertain to the refinery. In response to Mr. Nevels' concern over his and the others' symptoms, Mr. Mullins began purchasing milk, which he encouraged everyone at the refinery to drink in order to relieve their symptoms.

Mr. Nevels remained concerned about the symptoms that he and the other refinery workers were experiencing. Through his...