Hall v. Conoco Inc.

• Decision Date: 10 April 2018
• Docket Number: No. 17-6086,17-6086
• Citation: 886 F.3d 1308
• Parties: Samantha HALL, Plaintiff-Appellant, v. CONOCO INC.; ConocoPhillips Company; Phillips 66 Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

886 F.3d 1308

Samantha HALL, Plaintiff-Appellant,

v.CONOCO INC.; ConocoPhillips Company; Phillips 66 Company, Defendants-Appellees.

No. 17-6086

United States Court of Appeals, Tenth Circuit.

Filed April 10, 2018

Jason B. Aamodt of Indian & Environmental Law Group, PLLC, Tulsa, Oklahoma (Krystina E. Phillips, Dallas L.D. Strimple, of Indian & Environmental Law Group, PLLC, Tulsa, Oklahoma; Trae Gray, Ryan Ellis, of LandownerFirm, PLLC, Coalgate, Oklahoma; G. Steven Stidham of Levinson, Smith & Huffman, P.C., Tulsa, Oklahoma, with him on the briefs), for Plaintiff-Appellant.

Brett J. Young (Joy M. Soloway, Katherine D. Mackillop, Devin Wagner, with him on the brief), of Norton Rose Fulbright US LLP, Houston, Texas, for Defendants-Appellees.

Before BACHARACH, MURPHY, and McHUGH, Circuit Judges.

BACHARACH, Circuit Judge.

This appeal involves issues of causation and exclusion of expert testimony. These issues arose in a suit by Ms. Samantha Hall against Conoco Inc., ConocoPhillips Company, and Phillips 66 Company (collectively, "ConocoPhillips") on theories of negligence, negligence per se, and strict liability.

Ms. Hall was diagnosed with leukemia

, and she attributes the disease to a ConocoPhillips refinery's emissions of a chemical known as benzene. Liability turned largely on whether benzene emissions had caused Ms. Hall's leukemia. On the issue of causation, the district court excluded testimony from two of Ms. Hall's experts and granted summary judgment to ConocoPhillips. We affirm because

• the district court did not abuse its discretion in excluding the expert testimony and

• expert testimony was necessary to create a genuine issue of material fact on causation because of the length of time between the exposure to benzene and the onset of Ms. Hall's disease.

I. Background

As a child, Ms. Hall had lived near ConocoPhillips's refinery in Ponca City, Oklahoma. Roughly two decades later, Ms. Hall developed a form of leukemia

known as "Acute Myeloid Leukemia with Inversion 16." This disease, according to Ms. Hall, resulted from her early exposure to the refinery's emissions of benzene.

In district court, Ms. Hall tried to prove this link through three expert witnesses:

1. Dr. David Mitchell, an air modeler,

2. Dr. Steven Gore, an oncologist, and

3. Dr. Mary Calvey, an epidemiologist.

Dr. Mitchell created an air model to estimate benzene concentrations near where Ms. Hall had lived. Based on Dr. Mitchell's estimates, Dr. Gore

• calculated Ms. Hall's cumulative exposure to benzene and• used this calculation to opine that benzene exposure had caused Ms. Hall's leukemia

.

Dr. Calvey expressed a similar opinion.

ConocoPhillips moved for

• exclusion of opinion testimony by multiple expert witnesses, including Dr. Gore and Dr. Calvey and

• summary judgment on the issue of causation.

The district court granted the motion to exclude the expert testimony by Drs. Gore and Calvey. In the absence of their testimony, the court also granted summary judgment to ConocoPhillips, concluding that Ms. Hall had not presented sufficient evidence linking her disease to benzene exposure.

II. Exclusion of Expert Testimony

Ms. Hall challenges the district court's exclusion of expert testimony by Drs. Gore and Calvey. We reject this challenge.

A. Standard of Review

The district court has "wide latitude" in deciding whether to exclude expert testimony, and we review the manner in which the district court exercises this gatekeeping function for an abuse of discretion. Bitler v. A.O. Smith Corp. , 400 F.3d 1227, 1232 (10th Cir. 2005).

The district court's exclusion of expert testimony is governed by federal law. See Sims v. Great Am. Life Ins. , 469 F.3d 870, 879 (10th Cir. 2006). Under Federal Rule of Evidence 702, a qualified expert witness may give opinion testimony if

• the expert's scientific knowledge would help the fact-finder understand the evidence,

• "the testimony is based on sufficient facts or data,"

• "the testimony is the product of reliable principles and methods," and

• "the expert has reliably applied the principles and methods to the facts of the case."

Fed. R. Evid. 702.

Before expert testimony can be admitted, the district court must determine that the proposed testimony is reliable. Daubert v. Merrell Dow Pharm. , 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The district court's assessment of reliability is reviewed for an abuse of discretion. Goebel v. Denver & Rio Grande W. Ry. , 346 F.3d 987, 990 (10th Cir. 2003). This review includes consideration of whether "the reasoning and methodology underlying the expert's opinion ... is both scientifically valid and applicable to a particular set of facts." Id. at 991.

B. Dr. Gore's Testimony

Dr. Gore rendered a differential diagnosis on the cause of Ms. Hall's leukemia

. A differential diagnosis "rule[s] in all scientifically plausible causes of the injury and then rule[s] out the least plausible causes until only the most likely cause remain[s]." Id. at 990.

Dr. Gore's first step was to rule in benzene, smoking, and idiopathic causes as potential causes of Ms. Hall's leukemia

.¹ Dr. Gore then ruled out smoking as a potential cause, leading him to conclude that benzene exposure had caused Ms. Hall's leukemia. Dr. Gore did not expressly rule out the possibility of idiopathic causes.

The district court assumed that a differential diagnosis could provide a suitable methodology. But the district court regarded Dr. Gore's differential diagnosis as unreliable based partly on his failure to justify ruling in benzene or ruling out "idiopathic causes" of Ms. Hall's disease. Hall v. ConocoPhillips , 248 F.Supp.3d 1177, 1190-91 (W.D. Okla. 2017) (quoting Chapman v. Procter & Gamble Distrib. , 766 F.3d 1296, 1311 (11th Cir. 2014) ). This reasoning fell within the district court's discretion.

1. Ruling In Benzene

To use a differential diagnosis, Dr. Gore needed to consider whether he could rule in benzene as a potential cause of Ms. Hall's disease. We may assume, as the district court did, that benzene emissions can cause Acute Myeloid Leukemia

with Inversion 16. With this assumption, however, Ms. Hall would still have needed to show that the benzene emissions actually caused her disease. For this showing, Ms. Hall relied on Dr. Gore's quantification of the exposure to benzene.

To quantify the exposure, Dr. Gore used the work of another expert witness, Dr. Mitchell, who had constructed an air model to estimate the highest hourly average concentration of benzene. With this estimate, Dr. Gore quantified the cumulative exposure to benzene based on how long Ms. Hall had lived near the refinery.² The result led Dr. Gore to rule in benzene as a potential cause of Ms. Hall's leukemia

.

The district court found two flaws in this methodology:

1. Dr. Gore could not reliably use the highest hourly average-emission level to calculate Ms. Hall's cumulative exposure to benzene.

2. Dr. Gore's calculation was based on mistakes involving the extent of Ms. Hall's exposure to benzene.

In finding these flaws, the district court acted within its discretion.

a. The Choice of the Highest Hourly Average-Emission Level

Dr. Gore estimated Ms. Hall's cumulative exposure by taking one of Dr. Mitchell's figures (the highest hourly average-emission level). ConocoPhillips questions the use of this figure, pointing out that Dr. Gore could have used other figures from Dr. Mitchell's air model.

In this model, Dr. Mitchell had estimated benzene emissions over an extended time period. This estimate included the highest hourly average concentration of benzene while Ms. Hall lived near the refinery. Dr. Mitchell took this figure and instructed Dr. Gore to use it for his own calculation.

But Dr. Mitchell admitted that he was not qualified to decide which figure to use in assessing the impact of benzene emissions on human health:

Q. You are not qualified when it comes to analyzing what value—acute, chronic, subchronic—is more relevant for assessing human health risk for benzene or any other chemical. You are not qualified to offer that opinion.

A. I fully agree with that. I'm an air modeler and I'm a meteorologist.

...

Q. And you don't know which one of those matters most or matters at all for assessing whether or not Samantha Hall developed [acute myeloid leukemia

] from benzene?

A. Counselor, that's out of my expertise. I'm not—I'm an air modeler and a meteorologist.

Appellant's App'x at 4944-45. Dr. Mitchell conceded that selection of the concentration level was best left to an oncologist like Dr. Gore.³ In turn, Dr. Gore acknowledged that he had not independently chosen which figure to use. Instead, he had admittedly relied on Dr. Mitchell's expertise to select the pertinent figure.

Dr. Gore testified that he had called Dr. Mitchell, who provided assurance that the highest hourly average-emission level was the metric used in the industry. Appellant's App'x at 5162. The district court could reasonably consider this assurance an inadequate safeguard of reliability. See Mitchell v. Gencorp Inc. , 165 F.3d 778, 781 (10th Cir. 1999) ("The expert's assurance that the methodology and supporting data is reliable will not suffice.").

Without an adequate safeguard of reliability, the district court could reasonably conclude that neither Dr. Gore nor Dr. Mitchell could defend the use of the highest hourly average-emission level. Both expert witnesses had seemingly disclaimed any responsibility for picking this figure: Dr. Mitchell had regarded Dr. Gore as the expert and Dr. Gore had regarded Dr. Mitchell as the expert, leaving no one qualified to choose which concentration level to use.

This circular loop stirred broader concern over the entirety of Dr. Gore's calculation. That calculation was designed to estimate Ms. Hall's cumulative exposure to benzene. If Dr. Gore had calculated the cumulative exposure based on an incorrect figure, the court could reasonably question the decision to rule in benzene as a potential cause.⁴ As a result, we conclude that the district...