Cano v. Everest Minerals Corp.

• Decision Date: 28 March 2005
• Docket Number: No. Civ.A.SA01-CA-610-XR.,Civ.A.SA01-CA-610-XR.
• Citation: 362 F.Supp.2d 814
• Parties: Hilaria CANO, et al., Plaintiffs, v. EVEREST MINERALS CORP., et al., Defendants.
• Court: U.S. District Court — Western District of Texas

362 F.Supp.2d 814

Hilaria CANO, et al., Plaintiffs, v. EVEREST MINERALS CORP., et al., Defendants.

No. Civ.A.SA01-CA-610-XR.

United States District Court, W.D. Texas, San Antonio Division.

March 28, 2005.

Mark A. Hovenkamp, John L. Grayson, Grayson Hovenkamp, Dennis C. Reich, Michael T. Howell, Reich & Binstock, Houston, TX, for Plaintiffs.

Ricardo G. Cedillo, Davis, Cedillo & Mendoza, San Antonio, TX, John R. Breihan, McGinnis, Lochridge & Kilgore, Austin, TX, Barry L. Wertz, McGinnis, Lochridge & Kilgore, Vineet Bhatia, Brian D. Melton, Susman Godfrey LLP, H. Ronald Welsh, Cunningham, Welsh, Darlow, Zook & Chapoton, LLP, Mary Lou Strange, Vinson & Elkins, LLP, Houston, TX, Jane F. Thorpe, David R. Venderbush, Scott A. Elder, Alston & Bird, L.L.P., Atlanta, GA, Frank Finn, Thompson & McKnight, Dallas, TX, Wallace M. Mays, Cima Energy Corporation, Greenwood Village, CO, for Defendants.

ORDER

RODRIGUEZ, District Judge.

On this date, the Court considered Defendants' Motion to Exclude Expert Testimony of Dr. Malin Dollinger (docket no. 196), Plaintiffs' Response (docket no. 232), and Defendants' Reply (docket no. 250). In addition, the Court has reviewed voluminous additional material submitted by both sides, including but not limited to, Defendants' Memorandum of Science and Law in Support of Motions to Exclude Expert Testimony (docket no. 198), both sides' responses to the questions posed by the Court at the December 2003 status conference (including two volumes of appendices filed by Plaintiffs), submissions filed after the Daubert hearings, and the various other motions and affidavits filed by the parties. After careful consideration of the submitted briefs, the evidence, and the applicable legal principles, the Court GRANTS Defendants' Motion to Exclude Expert Testimony of Dr. Malin Dollinger (docket no. 196). Because Dr. Dollinger's testimony is the Plaintiffs' sole evidence regarding specific causation, the Court also GRANTS Defendants' Motion for Summary Judgment Based on Plaintiffs' Lack of Admissible Proof (docket no. 191) and DISMISSES this case WITH PREJUDICE. All other pending motions are dismissed as moot.

Background

This is a toxic tort case with federal jurisdiction under the Price-Anderson Act, 42 U.S.C. § 2210. See Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir.2000). The Plaintiffs include fifty-three individuals who have or have had various forms of cancer and numerous related claimants.¹ The individuals with cancer resided or worked in or around Karnes County, Texas, where the Defendants engaged in uranium mining and milling activities. Uranium was discovered in Karnes County in 1954 and the first uranium mill began operating in 1961 near Falls City. The uranium was removed from the ground and transported to the mills, where the natural uranium was extracted from the ore to produce yellowcake. The waste material, called tailings, was placed in tailings piles or ponds around the facility. The uranium mills were decommissioned in the early 1980s and the tailings ponds were capped and closed by the early 1990s.

Plaintiffs allege that their exposure to ionizing radiation from the uranium ore and its decay products caused their cancers. Natural uranium is primarily U-238 (99.27%),² and thus Plaintiffs' primary exposure from the uranium ore is exposure to U-238 and its decay products. The half-life of U-238 is 4.5 × 10⁹ years, which results in a low decay rate. Although natural uranium is radioactive, it is considered weakly radioactive. ATSDR 1999, Toxicological Profile for Uranium ("Natural uranium is radioactive but poses little radioactive danger because it gives off very small amounts of radiation.") Uranium emits ionizing radiation.³

Plaintiffs suffer from many different types of cancer, including lung, bladder, colorectal, pancreatic, kidney, skin, breast, uterine, esophageal, liver, stomach, bone, brain, and leukemia. Plaintiffs contend that they were exposed to uranium primarily as a result of Defendants' hauling ore from the mine to the mill in uncovered trucks, allowing the uranium ore to fall from the trucks and uranium dust to blow off the trucks. Plaintiffs further contend that, with each additional vehicle that passed over the road, the ore was crushed and the resulting particles were suspended in the air. Due to this resuspension of particulates in the air with each passing vehicle, Plaintiffs allege that uranium and its progeny were dispersed in their community and that, as a result, Plaintiffs were exposed to ionizing radiation through inhalation and ingestion of the ore dust and contaminated food and water, which caused their cancers. They also attribute additional exposure to direct gamma radiation from the haul roads, facilities' tailings pile, and from the uranium at the facilities themselves (for workers and plant visitors).⁴

Under the Price-Anderson Act, any public liability action arising out of a nuclear incident is deemed to arise under the Act. However, the substantive rules of decision are governed by state law to the extent it does not conflict with the Act. 42 U.S.C. § 2214(hh). The Plaintiffs' burden under Texas law is to prove to a reasonable degree of medical certainty, based on a reasonable medical probability and scientifically reliable evidence, that their exposure to ionizing radiation from the natural uranium ore and its progeny was a cause of their injuries. Black v. Food Lion, Inc., 171 F.3d 308, 310 (5th Cir.1999). In toxic tort cases such as this one, causation is often discussed in terms of general and specific causation. See Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 714 (Tex.1997). General causation deals with whether a substance is capable of causing a particular injury or condition in the general population, and specific causation deals with whether a substance caused a particular individual's injury. Id.

Plaintiffs have designated five experts in this case, all of whom have been challenged by the Defendants. On March 1 and 2, 2005, this Court held a hearing to consider Defendants' challenges to four of those experts.⁵ Dr. Dollinger is the only expert offered to testify on the issue of specific causation, and exclusion of his testimony would necessitate a grant of summary judgment in favor of Defendants.⁶ Thus, because the Court concludes that the testimony of Dr. Malin Dollinger is not admissible under Daubert and the Federal Rules of Evidence, the Court need not consider the other Daubert challenges to Plaintiffs' experts.

Applicable Law Regarding Expert Testimony

In 1993, the United States Supreme Court issued its seminal decision, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), in which it established the standard for admitting expert scientific testimony in a federal trial. In Daubert, the Court abandoned Frye's "general acceptance" test as the dominant standard for determining admissibility, noting that it had been superseded by the adoption of the Federal Rules of Evidence. Id. at 587-89, 113 S.Ct. 2786. The Court noted that, "under the Rules the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Id. at 589, 113 S.Ct. 2786. Thus, the Court held that, "[f]aced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset... whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue." Id. at 592, 113 S.Ct. 2786. "This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Id. at 592-93, 113 S.Ct. 2786. Ordinarily, "a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested." Id. at 593, 113 S.Ct. 2786. Another pertinent consideration is whether the theory or technique has been subjected to peer review and publication; however, publication is not a sine qua non of admissibility. Id. In the case of a particular scientific technique, the court should ordinarily consider the known or potential rate of error and the existence and maintenance of standards controlling the technique's operation. Id. at 594, 113 S.Ct. 2786. Finally," `general acceptance' can yet have a bearing on the inquiry." Id. Widespread acceptance can be an important factor in ruling particular evidence admissible, and "`a known technique that has been able to attract only minimal support within the community' may properly be viewed with skepticism" Id. (citation omitted).

The inquiry is a flexible one, and its focus must be solely on principles and methodology rather than the conclusions generated. Id. at 594-95, 113 S.Ct. 2786. However, conclusions and methodology are not entirely distinct from one another. General Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). Nothing in Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. Id. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered. Id.

Federal Rule of Evidence 702 embodies these reliability principles. It requires the district court to consider: (1) whether the knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue; (2) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education; (3) whether the testimony is based upon sufficient facts or data; (4) whether the testimony is the product of reliable principles and methods; and (5) whether the witness has applied the principles...