Cavallo v. Star Enterprise

• Decision Date: 10 July 1995
• Docket Number: Civ. A. No. 94-1499-A.
• Citation: 892 F. Supp. 756
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Ardith CAVALLO, Plaintiff, v. STAR ENTERPRISE, et al., Defendants.

892 F. Supp. 756

Ardith CAVALLO, Plaintiff, v. STAR ENTERPRISE, et al., Defendants.

Civ. A. No. 94-1499-A.

United States District Court, E.D. of Virginia, Alexandria Division.

July 10, 1995.

Mark C. Hayes, Law Offices of Mark C. Hayes, P.C., Alexandria, VA, Donnell R. Fullerton, Donnell R. Fullerton, P.C., Fairfax, VA, John E. Drury, Law Offices of John Drury, Washington, DC, for plaintiff.

John A.C. Keith, Blankingship & Keith, Fairfax, VA, Richard E. Wallace, Jr., Howrey & Simon, Washington, DC, for defendants.

MEMORANDUM OPINION

ELLIS, District Judge.

In this toxic tort case, the Court must exercise its "gatekeeping responsibility" to assess whether Plaintiff's proffered expert opinions on causation are admissible under Daubert v. Merrell Dow Pharmaceuticals, Inc., ___ U.S. ___, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Plaintiff here alleges chronic injury from exposure to aviation jet fuel ("AvJet") vapors, and like many toxic tort cases, the central dispute is causation. Specifically, the question presented is whether the opinions of two experts that Plaintiff's exposure to AvJet caused her various chronic respiratory illnesses are admissible where no study or published literature links AvJet vapors to Plaintiff's claimed illnesses and where the experts fail to establish why studies showing a correlation between exposure to other chemicals and much less significant illnesses support their proffered conclusions in this case.

I. Statement of Facts¹

Plaintiff Ardith Cavallo is a resident of Fairfax, Virginia. Late in the evening of December 9, 1991, Ms. Cavallo and her husband, Lawrence Cavallo, dined at a Chinese restaurant. The couple enjoyed a leisurely dinner and some late-night conversation with the proprietors. Then, shortly after midnight, the Cavallos left the restaurant and proceeded across the parking lot to their car. On the way to the car, the Cavallos noticed an odor in the air, which Mr. Cavallo identified as an oil smell. By the time the couple reached the car, a process which consumed approximately five minutes, Ms. Cavallo had begun to experience severe burning in her eyes, a sensation of fullness in her left ear, and irritation in her throat. Mr. Cavallo apparently did not experience these effects.

The restaurant, it appears, is located in a shopping mall just 500 feet from a petroleum distribution, mixing and transfer terminal ("the Star facility") owned and operated by Defendant Star Enterprise ("Star").² Beginning either late in the evening of December 9, 1991 or very early the following morning, approximately 34,000 gallons of AvJet accidentally overflowed from a storage tank located at the Star facility. While the parties dispute the exact timing of the spill, they agree for purposes of these proceedings that the spill was either ongoing or had already concluded at the time the Cavallos crossed the restaurant parking lot. According to Ms. Cavallo's air modeling expert, Dr. Robert Haberlein, the spill resulted in airborne emissions of hydrocarbon vapors in the restaurant parking lot, at a maximum, "worstcase" concentration of 61 milligrams per cubic meter ("61 mg/m3") (Haberlein Rpt., at V-1). Although Star's air modeling expert opines that this figure is seriously flawed and overstates the possible concentration of AvJet vapors in that area by a factor of 1000, Star concedes the 61 mg/m3 level of exposure for purposes of the motions at bar.

On reaching her home, which is located approximately one half mile from the Star facility, Ms. Cavallo applied boric acid to her eyes in an effort to sooth them. Although she continued to suffer pain and discomfort, Ms. Cavallo did not seek emergency medical treatment. Rather, she waited nine days before seeking medical attention for her ailments. On December 19, 1991, she consulted Dr. Joseph Sabri, an otolaryngologist.³ According to Dr. Sabri, Ms. Cavallo complained of mild congestion, tinnitus,⁴ dizziness and headaches, all of which she believed were related to the AvJet spill. After examining Ms. Cavallo and finding no physical symptoms, Dr. Sabri diagnosed her with vasomotor rhinitis, which he explained was a "stuffy nose or a cold." (Sabri Tr., at 16-17). He then prescribed Advil and warm showers. Ms. Cavallo followed this advice for several months, but grew frustrated when her symptoms persisted and consulted another physician, Dr. Richard Rosenthal, on May 4, 1992. According to Dr. Rosenthal, who specializes in immunology and allergies, Ms. Cavallo described her symptoms at that time as dizziness, eye irritation, a stuffy nose, and postnasal drip. Following his physical examination, Dr. Rosenthal diagnosed Ms. Cavallo with conjunctivitis, or eye redness, but detected no pulmonary problems or sinusitis.

Ms. Cavallo's symptoms continued, and on June 30, 1993, she consulted another otolaryngologist, Dr. Neeraj Gupta. Although Dr. Gupta's physical examination of Ms. Cavallo revealed no significant pathology in her upper respiratory system, a CAT scan performed on July 1, 1993 disclosed what Dr. Gupta termed "acute possible chronic sphenoid sinusitis," which he considered to be "close to a medical emergency." (Gupta Tr., at 21-22). To treat the sphenoid sinusitis, Dr. Gupta prescribed antibiotics and nasal spray. The treatment apparently worked, as a second CAT scan performed three months later revealed that Ms. Cavallo's "sinusitis had resolved or almost completely resolved," (Gupta Tr., at 26), thereby rendering further antibiotic treatment unnecessary. Dr. Gupta also performed another physical exam, the results of which were normal. Nonetheless, Ms. Cavallo continued to complain of "nonspecific" symptoms, such as nasal congestion, postnasal drip, eye irritation, facial pain, headaches, and fullness of the ears. (Gupta Tr., at 27). Then, as now, these symptoms tended to abate when she left the vicinity of the Star facility, but renewed upon her return.

Finally, on July 5, 1994, Ms. Cavallo consulted yet another physician, Dr. Joseph Bellanti, an immunologist who is her current treating physician and whom she has retained to testify as an expert in this case. Following a physical examination, Dr. Bellanti determined that Ms. Cavallo suffered from postnasal drip, a swollen eye, frontal pain, conjunctivitis, a stuffy nose, acute sinusitis, and bronchitis. In his written report, Dr. Bellanti concludes that Ms. Cavallo has developed chronic sphenoid sinusitis and pulmonary dysfunction, illnesses he believes were directly caused by Ms. Cavallo's exposure to petroleum vapors from the AvJet spill in December 1991. Furthermore, Dr. Bellanti concludes that her exposure to AvJet vapors on the night of the spill has "sensitized" her to various volatile organic compounds, including petroleum vapors, as well as certain household chemicals found in products such as Windex and aftershave lotion. Dr. David Monroe, a toxicologist retained by Ms. Cavallo as another expert in this action, agrees that her conjunctivitis and sinusitis were caused by the Avjet spill and also concludes that she has developed an increased sensitivity to various chemical irritants as a result of the spill.⁵ It is these two opinions that are the focus of the pending motions.

The Cavallos brought this suit against Star on November 14, 1994, alleging injuries under four separate counts. Three of the counts, Counts Two through Four, have already been dismissed in a prior proceeding before Judge Bryan.⁶ Only Count One remains. In this count, Ms. Cavallo claims that Star was negligent in permitting the December 1991 AvJet spill, and that her chronic illnesses are a direct result of her exposure to vapors from that spill. She seeks damages for personal injury (including chronic conjunctivitis, sinusitis, pulmonary disease, and increased sensitization to petroleum hydrocarbons),⁷ impairment of earning capacity, lost business profits, medical expenses, pain and suffering, as well as punitive damages.

Star now brings two motions. The first is a motion in limine to exclude the expert testimony of Drs. Bellanti and Monroe on the causation issue. Relying on the principles outlined in Daubert and its progeny, Star argues that neither expert grounds his conclusion of causation on scientific tests or literature linking the chemicals to which Ms. Cavallo was allegedly exposed, and at the levels and duration of purported exposure, to the injuries she claims to have sustained. Indeed, Star claims, their opinions run counter to all available published studies on the effects of AvJet or kerosene at the alleged level of exposure. As such, Star contends, their opinions are not founded on a scientifically valid methodology and are impermissibly speculative. In response, Ms. Cavallo points out that in forming their conclusions of causation, both experts relied on published studies involving the effects of other volatile organic compounds. To look beyond this basic adherence to form and inquire whether their reasoning is valid, Ms. Cavallo argues, is to usurp the role of the jury and exceed the proper bounds of judicial gatekeeping under Daubert. Star's second motion is a motion for summary judgment, and it appears to rely chiefly on the motion in limine. Thus, Star contends that if the motion in limine is granted, there would be insufficient evidence of causation to permit a jury to find in favor of Ms. Cavallo.

Oral argument on the motions was heard on June 16, 1995, following which the matters were taken under advisement. The Court thereafter reviewed the record, the parties' arguments, and the relevant case law, and on June 21, 1995, issued an Order granting the motion in limine for reasons to be set forth in a subsequent memorandum opinion. The motion for summary judgment remained under advisement, and is now ripe for disposition, as well. This Memorandum Opinion sets forth the reasons for granting the motion in limine and the summary judgment motion.

II. Motion in Limine

The...