Baker v. Chevron USA. Inc

• Decision Date: 06 January 2010
• Docket Number: Case No. l:05-CV-227.
• Citation: 680 F.Supp.2d 865
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Carolyn BAKER, et al., Plaintiffs, v. CHEVRON USA, INC., et al., Defendants.

680 F.Supp.2d 865

Carolyn BAKER, et al., Plaintiffs,

v.CHEVRON USA, INC., et al., Defendants.

Case No. l:05-CV-227.

United States District Court,

S.D. Ohio,

Western Division.

Decided: Jan. 6, 2010.

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George Harold Vincent, Jon David Brittingham, Bryan E. Pacheco, Dinsmore &amp Shohl, Cincinnati, OH, Jason Levin, Jennifer Brenda Bonneville, Lawrence P. Riff Steptoe & Johnson LLP, Los Angeles, CA Jennifer Quinn-Barabanov, Jose GonzalezMagaz, Steptoe & Johnson, Washington DC, for Defendants.

Andre F. Ducote, Lundy & Davis, Ridgeland, MS, David P. Pavlik, Sandra Becher Sommers, Brent Cohen & Assocs., Linda Lagunzad, Cleveland, OH, Matthew E. Lundy, Rudie R. Soileau, Jr., Lundy, Lundy, Solieau & South, Lake Charles, LA, Hunter W. Lundy, Lundy & Davis, Lake Charles, LA, for Plaintiffs.

ORDER

SANDRA S. BECKWITH, Senior District Judge.

This matter is before the Court on Defendant Chevron USA, Inc., et al. 's Motion for Summary Judgment (Doc. No 197) and motion under Daubert to Exclude Expert Evidence from James Dahlgren, M.D. (Doc. No. 203), Plaintiffs' memorandum in opposition to Defendant's Daubert motion (Doc. No. 221), Defendants' Objections to Evidence Submitted by Plaintiffs in Opposition to Defendants' Motion for Summary Judgment and Motion to Exclude Expert Evidence from James Dahlgren and Nicholas Cheremisinoff (Doc. No. 236), Defendants' Reply Brief in Support of its Daubert Motion (Doc. No. 237), Plaintiffs' Response to Defendants' Objections (Doc. No. 240), Plaintiffs' Supplemental Response to Defendants' Objections (Doc. No. 246), Plaintiffs' Supplemental Brief Supporting Their Opposition to Defendants' Motion to Exclude the Opinions of James Dahlgren (Doc. No. 375), and Defendants' Response to Plaintiffs' Supplemental Brief (Doc. No. 376). For the reasons that follow, Defendants' motion to exclude the opinions of James Dahlgren is well-taken and is GRANTED. As a consequence of granting that motion, Defendants' motion for summary judgment is also well-taken and is GRANTED. I. Preliminary Background Information

As explained by the Court in earlier orders, Plaintiffs in this case are residents of the villages of Hooven, Ohio and Cleves, Ohio who assert claims for personal injury and property damage allegedly resulting from the Gulf Oil refinery, now owned by Defendant Chevron USA, Inc. ("Chevron").¹ For case management purposes, the matter was bifurcated between personal injury claimants and property damage claimants. The parties were permitted to select bellwether plaintiffs for each trial group. This aspect of the case concerns the claims of the bellwether personal injury claimants, Mary Etta Brown Greener, Michelle Schrader, Jean Runck, and Carol Lipscomb.

Hooven and Cleves are small towns located in the western part of Hamilton County, Ohio. Gulf Oil Company operated a gasoline refinery which was situated on the eastern edge of Hooven from 1930 to 1985. Gulf also refined diesel fuel, jet fuel, and fuel oil at the refinery and operated an asphalt plant at this location. Gulf and Chevron merged in 1985 and Chevron closed the refinery in 1986. Due mainly to spills and leaks, Gulfs operation of the refinery resulted in the release of millions of gallons of gasoline and diesel fuel into the groundwater. Contaminated groundwater has subsequently migrated from the refinery site under Hooven. These Plaintiffs, however, do not claim injuries resulting from groundwater contamination. Rather, Plaintiffs claim injuries allegedly caused by air emissions from the refinery and, in particular, the benzene contained in those emissions.

Benzene is a solvent commonly found in many household products, such a paint and glue. Benzene is also ubiquitous in the ambient air and is a component or constituent of vehicle exhaust and cigarette smoke. In the petroleum industry, benzene is a component of gasoline. See generally Industrial Union Dept., AFL-CIO v. American Petroleum Inst, 448 U.S. 607, 615-16, 100 S.Ct. 2844, 65 L.Ed.2d 1010 (1980); United States Environmental Protection Agency, Benzene TEACH Chemical Summary, Toxicity and Exposure Assessments for Children (2009) (Doc. No. 415-2). While Chevron disputes the accuracy of Plaintiffs' estimate, it may be assumed for purposes of the present motions that the benzene content of the gasoline refined at the Hooven facility was 2.1%. Doc. No. 198-2, at 13. Benzene is a known carcinogen in sufficient doses. The issue in this case is whether Plaintiffs' benzene exposure, due to emissions from the refinery, was sufficient to cause their illnesses.

In estimating their benzene exposure, Plaintiffs employed a three-step procedure. First, expert Dr. Nicholas Cheremisinoff calculated a gross amount of benzene released from the refinery through emissions.² Then, using Dr. Cheremisinoffs calculations, Dr. Paul Rosenfeld, Plaintiffs' second expert, used an air flow model to calculate the cumulative dose of benzene to which each Plaintiff was exposed, a number expressed in micrograms ("ug"). Dr. Garabrant, Chevron's expert, converted Dr. Rosenfeld's microgram figures into the more conventional expression of parts per million per years ("ppmyears").³ Finally, using Dr. Rosenfeld's dose estimates, Dr. Dahlgren has submitted opinions that each Plaintiffs dose of benzene was sufficient to cause her illness. A. Carol Lipscomb and Jean Runck

Carol Lipscomb was born in 1939. She lived in Hooven from 1939 to 1956; in Harrison, Ohio from 1956 to 1957 and 1990 to 2000; in Cleves from 1957 to 1958 and from 1959 to 1965; in Cincinnati from 1958 to 1959, 1966 to 1990, and from 2000 to the present. Doc. No. 375-8, at 2.

Jean Runck was born in Indiana in 1932. She lived in Hooven from the early 1930's up to 1936 and then again from 1937 to 1938. She lived in Addyston, Ohio from 1940 to 1943, North Bend, Ohio from 1944 to 1951 and 1966 to 1973, and Harrison, Ohio from 1961 to 1966. Otherwise, Ms. Runck has lived in Cleves and, in fact she has lived there since 1982. Doc. No. 3758, at 9.

In September 2001, Ms. Lipscomb was diagnosed with monoclonal gammopathy of unknown significance ("MGUS"). Doc. No. 203, Ex. 6. Ms. Runck was diagnosed with MGUS in 2003. Doc. No. 203, Ex. 7. A gammopathy is "[a]ny disease in which serum immunoglobulins are increased[.]" Taber's Cyclopedic Medical Dictionary (19th ed. 2001), at 810. MGUS is a disorder "marked by excessive levels of paraproteins in the blood." Id. MGUS is fairly common in elderly people. Doc. No. 252, at 31. MGUS is itself a benign condition although about 20% of the individuals with MGUS later develop multiple myeloma. Doc. No. 252-1, at 6. Multiple myeloma is a hematopoietic and malignant disease of the bone marrow "characterized by the infiltration of bone and bone marrow by neoplastic plasma cells." Taber's Cyclopedic Medical Dictionary (19th ed. 2001), at 1345. MGUS requires monitoring rather than treatment. Doc. No. 252 at 48.

B. Mary Etta Brown Greener

Mary Etta Brown Greener was born in 1952. She lived in Cleves from 1952 to 1953 and in Hooven from 1953 to 1971 and from 1975 to 1976. Otherwise, except for a brief period when she lived in Addyston, Ms. Greener has lived and continues to live in Cincinnati. Doc. No. 375-8, at 5.

Ms. Greener was diagnosed and treated for Hodgkin's disease in 1972. Hodgkin's disease is a "form of malignant lymphoma characterized by painless, progressive enlargement of the lymph nodes, spleen, and general lymphoid tissue[.]" Dorland's Illustrated Medical Dictionary (31st ed. 2007), at 542. Ms. Greener's treatment for Hodgkin's disease involved radiation therapy but not chemotherapy. Doc. No. 203, Ex. 9. Ms. Greener developed left breast cancer in 1999 and right breast cancer in 2000 and underwent radical mastectomies on both occasions. Plaintiffs theorize that emissions from the refinery caused Ms. Greener's Hodgkin's disease and that, in turn, the radiation therapy for Hodgkin's disease caused her breast cancers.

C. Michelle Schroder

Michelle Schrader was born in 1962. She has never lived in Hooven. Ms. Schrader lived in Cleves from 1962 to 1965, 1968, 1981, and 1991 to the present. She lived in North Bend from 1965 to 1966 and again from 1970 to 1980, in Sayler Park, Ohio in 1969, in Cheviot, Ohio in 1980, and in North College Hill, Ohio from 1982 to 1991.

Ms. Schrader was diagnosed with acute myelogenous leukemia ("AML") in 2000. Doc. No. 221-26. AML is "[a] group of hematological malignancies in which neoplastic cells develop from myeloid, monocytic, erythrocytic, or megakaryocyte precursors." Taber's Cyclopedic Medical Dictionary (19th ed. 2001), at 1170. Ms. Schrader was treated with chemotherapy and her AML was reported in remission in 2004. Doc. No. 221-26, at 14.

II. Procedural Matters

Plaintiffs filed suit against Chevron in 2005 and assert tort claims under Ohio law which contend that their illnesses were caused by emissions from the Hooven refinery. On August 16, 2007, Magistrate Judge Hogan entered an order (Doc. No. 120) which established a trial calendar for resolving the claims of the instant bellwether Plaintiffs. In pertinent part, this order required Plaintiffs to provide their experts' reports by March 11, 2008. This deadline was later extended to May 30, 2008. Doc. No. 139.

Plaintiffs identified Dr. James Dahlgren a medical doctor and professor of medicine at the University of California Los Angeles, as their medical causation expert. Dr. Dahlgren submitted expert reports on each of the bellwether Plaintiffs on or around May 14, 2008. Each of the reports follows the same format. There is a biography of each Plaintiff which summarizes their residential histories and provides some details concerning their individual experiences living in and around Hooven. Included in the biography is a written summary of each Plaintiffs medical history and current or ongoing medical problems. Then there is a medical questionnaire re-...