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

CourtCourt of Appeals of New Mexico
Citation293 P.3d 917
Docket NumberNo. 29,502.,29,502.
PartiesConcepcion and Rosario ACOSTA, et al., Plaintiffs/Intervenors–Appellants, v. SHELL WESTERN EXPLORATION AND PRODUCTION, INC. and Shell Oil Company, Defendants–Appellees.
Decision Date26 December 2012


Girardi & Keese, David R. Lira, Los Angeles, CA, Niddrie, Fish & Buchanan, Martin N. Buchanan, San Diego, CA, Tucker Law Firm, P.C., Steven L. Tucker, Santa Fe, NM, Heidel, Samberson, Newell, Cox & McMahon, Michael Newell, Lovington, NM, for Appellants.

Rodey, Dickason, Sloan, Akin & Robb, P.A., Edward R. Ricco, Jocelyn C. Drennan, Albuquerque, NM, Modrall, Sperling, Roehl, Harris & Sisk, P.A., Marte D. Lightstone, Albuquerque, NM, Hayes & Boone, L.L.P., Michael J. Mazzone, Houston, TX, for Appellees.


GARCIA, Judge.

{1} In this toxic tort case, the district court granted Defendants' motion to exclude the opinion testimony of Plaintiffs' expert witness as to causation for the Plaintiffs' lupus and autoimmune medical conditions. As a result, the district court granted partial summary judgment in favor of Defendants on Plaintiffs' claims relating to their lupus and other autoimmune disorders. Plaintiffs' remaining claims that relied upon other evidence and expert testimony survived summary judgment and were allowed to proceed to trial. After the jury returned a verdict in favor of Defendants on Plaintiffs' remaining claims, Plaintiffs filed a motion for new trial based on juror misconduct and juror bias. The district court denied the motion for a new trial and entered a final judgment in favor of Defendants. This appeal followed. We affirm.


{2} This is an action brought by over 200 individuals asserting either personal injury claims, property damage claims, or both, against Shell Western Exploration and Production, Inc. and Shell Oil Company, (collectively, Shell). Plaintiffs allege that Shell purposely or negligently deposited and left various toxic petrochemicals in the ground where the Westgate neighborhood (Westgate) is presently located in Hobbs, New Mexico. The nine named Plaintiffs in this case were selected for an initial trial. Plaintiffs asserted claims for negligence, strict liability, nuisance, and trespass.

{3} Plaintiffs resided in Westgate at varying times and for varying lengths of time over more than twenty years. Westgate is situated within an active oilfield. Oil and gas operations had been conducted in the area known as the Grimes lease since the 1920's, and development of the area for housing began in the 1970's. From 1946 to 1993, Shell maintained a tank battery on the Grimes lease and used the tank battery to store crude oil and saltwater produced from wells on the lease. Just east of the tank battery, Shell used an unlined storage pit (the Tasker pit) to dispose of oilfield waste. The Grimes battery was dismantled and removed after it was decommissioned. In 1997, the soil where the battery tanks previously stood was found to be contaminated with hydrocarbons. In addition to the soil contamination, hydrocarbon contamination was found in the water table.

{4} Not long after contamination was detected at the former Grimes battery site, a developer constructing new houses in Westgate discovered a layer of asphalt-like hydrocarbons beneath the ground. It extended across the properties on both sides of Tasker Road. Additional hydrocarbons were found beneath the asphaltic layer. An investigation revealed that the contaminated land, now known as Tasker Road and the adjacent properties, used to be the Tasker pit.


{5} This was a complex toxic tort case that involved an extraordinary volume of briefs, affidavits, expert witness reports, case studies, and scientific information. The scientific aspects of this case were critical to this litigation and were addressed at several stages during the pretrial process. This pretrial analysis required the district court to devote an extensive amount of time and attention to complex scientific evidence, including numerous research studies addressing potentially toxic chemicals. The district court did an admirable job controlling and managing the numerous scientific aspects of the case before trial was convened. These efforts resulted in several dispositive rulings prior to trial. In their first argument on appeal, Plaintiffs make two challenges: first to the district court's pretrial rulings excluding Dr. Dahlgren's causation opinions as well as his epidemiological study on lupus and other immune conditions, and second to the resulting grant of summary judgment on these claims. We begin with the first argument. We will also address Plaintiffs' second argument regarding alleged jury misconduct. The additional facts and procedural history pertinent to each argument will be included in the appropriate discussion below.

I. The Partial Grant of Summary Judgment

{6} The initial issue on appeal is whether Shell was entitled to partial summary judgment on Plaintiffs' claims relating to lupus and other autoimmune disorders. In deciding this question, we must determine whether the district court abused its discretion when it excluded Dr. Dahlgren's expert opinions under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and its New Mexico counterpart, State v. Alberico, 116 N.M. 156, 861 P.2d 192 (1993).

{7} Plaintiffs alleged that their exposure to contamination from the Tasker pit either caused or aggravated their lupus and other autoimmune medical conditions, as well as their respiratory, neurological, and psychiatric injuries. Plaintiffs sought to have Dr. Dahlgren testify as their expert witness regarding causation. Plaintiffs could not establish a prima facie case regarding claims that involved lupus and other autoimmune medical conditions without Dr. Dahlgren's testimony. Of particular import to Plaintiffs' appeal, Dr. Dahlgren was prepared to testify that, to a reasonable degree of medical probability, the various autoimmune conditions Plaintiffs suffered, including lupus, were caused by Plaintiffs' exposure to a mixture of three specific chemicals found in crude oil: pristane, benzene, and mercury. Dr. Dahlgren based his opinion, in part, on a cross-sectional epidemiologic study that he performed.

{8} In Dr. Dahlgren's study, he relied on blood pristane data taken from the plaintiff group and a review of their medical records. He compared the plaintiff group data with similar data he collected from an unexposed group of California residents. The district court excluded this blood pristane data as scientifically unreliable. The district court also excluded, as scientifically unreliable, Dr. Dahlgren's calculated “minimum risk” levels for hydrogen sulfide and benzene and related cumulative exposure estimates. These early rulings were important to the nature of Plaintiffs' chemical mixture theory for its lupus and other autoimmune disorder claims and laid the foundation for subsequent summary judgment rulings by the district court. On appeal, Plaintiffs do not challenge the early rulings regarding the blood pristane data and minimum risk level estimates related to cumulative exposure.

{9} Shortly before trial commenced, Shell filed numerous motions in limine and motions for summary judgment regarding all of Plaintiffs' injury claims against Shell. Shell challenged the Plaintiffs' expert witness testimonyon every claimed injury, including their claims for respiratory, neurological and psychiatric injuries. As a part of the motions in limine, Shell moved to exclude certain opinion testimony from Dr. Dahlgren as well as his epidemiologic study. Shell argued that Dr. Dahlgren's causation opinions relating to lupus and other autoimmune disorders were scientifically unreliable and lacked sufficient scientific support because his opinions relied solely upon his own epidemiologic study. Shell asserted that Plaintiffs had to prove both general and specific causation and that Dr. Dahlgren was their only general causation expert. Shell argued that the cross-sectional design of Dr. Dahlgren's own epidemiologic study made it non-probative of causation. Shell supported its motions with the affidavit of its own epidemiology expert and by referencing the Federal Judicial Center, Reference Manual on Scientific Evidence, Reference Guide on Medical Testimony (2d. ed. 2000) (the Federal Reference Manual). Shell further argued that the mice studies that Dr. Dahlgren relied upon did not support his human causation opinions because the requisite extrapolation analysis was not done. Dr. Dahlgren confirmed that there were no other epidemiologic studies showing that the exposure to the specific chemical mixture at issue in this case would cause lupus or other autoimmune disorders.

{10} The scientific studies relied upon by Plaintiffs to establish their claims for respiratory, neurological and psychiatric injuries did not include Dr. Dahlgren's own epidemiologic study. These injuries relied upon a plethora of other scientific evidence and studies involving exposure to petrochemicals generally, as well as exposure to specific chemicals and component elements found in crude oil. In its summary judgment pleadings, Shell argued that the district court should apply the stringent federal standard that has recently developed for determining whether expert testimony will be admitted to establish causation. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 149, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (extending Daubert's gatekeeping function beyond scientific evidence to encompass all expert testimony); Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142–43,146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (applying Daubert to expert reasoning, not just general methodology, and clarifying that the district judge's decision whether to admit particular scientific evidence was to be reviewed only for an abuse of discretion).

{11} Plaintiffs responded...

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    • United States
    • Court of Appeals of New Mexico
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    ...causation” (internal quotation marks and citation omitted)); Acosta v. Shell W. Exploration & Prod., Inc., 2013–NMCA–009, ¶¶ 9, 12, 26, 293 P.3d 917 (affirming the district court's grant of summary judgment owing to the plaintiff's failure to produce admissible scientific evidence showing g......
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