In re Lockheed Litigation Cases

• Decision Date: 31 January 2005
• Docket Number: No. B166347.,B166347.
• Citation: 23 Cal.Rptr.3d 762,126 Cal.App.4th 271
• Court: California Court of Appeals Court of Appeals
• Parties: LOCKHEED LITIGATION CASES.

23 Cal.Rptr.3d 762

126 Cal.App.4th 271

LOCKHEED LITIGATION CASES.

No. B166347.

Court of Appeal, Second District, Division 3.

January 31, 2005.

Certified for Partial Publication.^*

Review Granted April 13, 2005.

Girardi and Keese, Thomas V. Girardi, Los Angeles, Howard B. Miller, El Segundo, Robert W. Finnerty and Carrie J. Rognlien, Los Angeles, for Plaintiffs and Appellants.

Horvitz & Levy, Ellis J. Horvitz, David M. Axelrad and Mary-Christine Sungaila, Encino, for Defendants and Respondents ExxonMobil Corporation and Union Oil Company of California.

Steptoe & Johnson, Laurence F. Janssen and Lawrence P. Riff, Los Angeles, for Defendant and Respondent ExxonMobil Corporation.

Morgan, Lewis & Bockius, V. Thomas Meador III and Deanne L. Miller, Los Angeles, for Defendant and Respondent Union Oil Company of California.

Latham & Watkins, Ernest J. Getto, Kirk A. Wilkinson, Los Angeles, Cynthia

H. Cwik, San Diego; Tatro Tekosky Sadwick & Mendelson and Rene Tatro, Los Angeles, for American Chemistry Council as Amicus Curiae on behalf of Defendants and Respondents.

Atlantic Legal Foundation, Martin S. Kaufman, Scarsdale, NY, and Stephen E. Johnson, El Segunod, for Robert K. Adair, D. Allan Bromley, Ronald E. Gots, Clark W. Heath, Dudley Herschbach, Steven Lamm, A. Alan Moghissi, Rodney Nichols, Robert Nolan, Richard Wilson and Lee Zwanziger as Amici Curiae on behalf of Defendants and Respondents.

Fred J. Hiestand, Sacramento, for Californians Allied for Patient Protection and The Civil Justice Association of California as Amici Curiae on behalf of Defendants and Respondents.

KITCHING, J.

Antonio Aguilar and 23 other plaintiffs (collectively Plaintiffs) appeal a judgment in favor of ExxonMobil Corporation (Exxon) and Union Oil Company of California (Union Oil) (collectively Defendants).¹ Plaintiffs seek damages for injuries allegedly caused by exposure to toxic chemicals. The trial court before trial excluded expert testimony by Plaintiffs' expert, Dr. Daniel Teitelbaum, on the issue of causation and then granted Defendants' oral motion to dismiss the complaint. Plaintiffs contend the exclusion was error and the dismissal was procedurally improper.

Dr. Teitelbaum principally relied on epidemiological studies to support his opinion of causation. All of the studies involved exposure to multiple solvents, including solvents that are not at issue here. The trial court concluded that the multiple-solvent epidemiological studies that Dr. Teitelbaum relied on provided no reasonable basis for an opinion that any one of the solvents here at issue can cause disease. We conclude that the court properly exercised its discretion under Evidence Code section 801, subdivision (b), in reaching that conclusion and that the court properly excluded the expert testimony. The court also concluded that an epidemiological study can provide a reasonable basis for an expert opinion of causation only if the study shows a relative risk of greater than 2.0.² We conclude that that conclusion was error and that a court cannot exclude an epidemiological study from consideration solely because the study shows a relative risk of less than 2.0. However, we find that the error was not prejudicial. We also conclude that Plaintiffs have shown no prejudicial error in other arguments concerning the exclusion of expert testimony and that Plaintiffs invited and waived any error with respect to the dismissal. We therefore affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Prior Proceedings in These Coordinated Actions

Former and current employees of Lockheed Corporation (Lockheed) sued Lockheed and manufacturers and suppliers of chemicals, seeking damages for personal injuries allegedly caused by occupational exposure to chemicals. The actions were coordinated in Lockheed Litigation Cases, Judicial Council Coordination Proceeding No. 2967. The coordinated actions have been tried in groups of plaintiffs. The Court of Appeal has decided appeals arising from six prior trials and one summary judgment.

In a case management order filed in December 2000, the trial court ordered hearings to determine whether the plaintiffs' expert's opinion on the issue of "general causation" would be admissible in the trial of the plaintiffs' wrongful death claims (Group 6B). The case management order also provided that similar hearings could be held prior to other group trials.

a. The Group 6B Appeal

After a series of hearings, the court determined in an order dated June 15, 2001, that (1) Dr. Teitelbaum's expert opinion on causation was based on a survey of epidemiological studies that did not support the conclusion that the chemicals at issue in the Group 6B trial can cause cancer, and (2) as a matter of law, an expert reasonably can rely on an epidemiological study to support an opinion on causation only if the study shows a relative risk of greater than 2.0. Exxon and Union Oil moved for summary judgment on the ground that the Group 6B plaintiffs could not establish the element of causation. The court excluded Dr. Teitelbaum's declaration, concluded that there was no admissible evidence to establish causation, and granted summary judgment. We affirmed the judgment. (Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 10 Cal.Rptr.3d 34.)

b. This Appeal

Plaintiffs in this appeal, known as Groups 4 and 5, seek damages for injuries allegedly caused by exposure to acetone, toluene, methyl ethyl ketone (MEK), and isopropyl alcohol supplied by Exxon, and exposure to MEK and super high flash naptha supplied by Union Oil. The superior court previously conducted separate trials on the Groups 4 and 5 plaintiffs' claims and awarded compensatory and punitive damages against the defendants. The Court of Appeal in two separate appeals concluded that the trial court misapplied collateral estoppel with respect to prior findings that warnings provided by the defendants were inadequate, and reversed the judgments. The Court of Appeal also determined that the plaintiffs were not entitled to recover punitive damages. (Arnold v. Ashland Chemical Company, 2000 WL 1094103 (Feb. 18, 2000, B121434) [nonpub. opn.]; Aguilar v. Ashland Chemical Company (June 6, 2000, B128469) [nonpub. opn.].) On remand, the trial court consolidated the two groups for retrial.

2. Hearing on the Admissibility of Expert Testimony for Groups 4 and 5

On remand, Exxon and Union Oil in January and February 2002 moved for hearings to determine whether the plaintiffs' experts' opinions on the issue of causation would be admissible in the retrial of the Groups 4 and 5 plaintiffs' claims. Defendants argued that Plaintiffs' experts' opinions were not based on matter that provided a reasonable basis for the opinions and, as to some plaintiffs, that the opinions were not based on methodologies generally accepted in the scientific community. Plaintiffs argued in opposition that (1) Defendants' motions were a disguised attempt to have the court decide the issue of causation before trial, and that the court had no authority to do so; (2) Plaintiffs need only establish that their experts were qualified and that their expert opinions were based on reliable matter as required by Evidence Code section 801, subdivision (b); and (3) the experts' opinions were not based on a new scientific technique and therefore were not subject to the admissibility test of People v. Kelly (1976) 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240.

The court issued a second case management order in April 2002. The court ordered Plaintiffs and Defendants to file expert declarations in support of their respective positions regarding "general causation" as to each chemical at issue and each alleged illness, and ordered the parties to lodge with the court all medical and scientific literature upon which their experts relied.

Plaintiffs filed a declaration by Dr. Teitelbaum on May 6, 2002, stating his opinion that the chemicals at issue can cause or can be significant factors in the causation of the diseases suffered by Plaintiffs. Attached to the declaration were 770 pages of documents on which Dr. Teitelbaum relied in forming his opinion. Plaintiffs filed a corrected declaration by Dr. Teitelbaum on May 30, 2002, together with material safety data sheets, transcripts of prior testimony by Dr. Teitelbaum, and approximately 1,700 pages of epidemiological studies, animal toxicology studies, case reports, and other materials on which he relied. Plaintiffs also filed a supplemental declaration by Dr. Teitelbaum on May 30, 2002, explaining his reliance on some of the cited materials and providing additional materials. The court conducted a hearing in June 2002 in which Dr. Teitelbaum testified as to how he reached his conclusions, the methodology that he applied, and other matters.

Defendants argued that the materials on which Dr. Teitelbaum relied to support his opinion of causation failed to provide a reasonable basis for his opinion as required by Evidence Code section 801, sub-division (b). They argued that (1) the epidemiological studies on which Dr. Teitelbaum relied did not support his opinion because the studies all involved exposure to multiple solvents, including solvents that were not at issue in this litigation, and because the studies did not show a relative risk of greater than 2.0; (2) animal toxicology studies without supporting human epidemiological studies cannot support an opinion of causation in human beings as a matter of law, and Plaintiffs failed to provide evidence explaining why the animal studies on which Dr. Teitelbaum relied are probative of causation in human beings and how to extrapolate from the results of the animal studies to an opinion of causation in human beings; (3) clinical reports are merely anecdotal evidence that may suggest a hypothesis of causation but cannot support an opinion of causation; and (4) apart from the foregoing, Dr. Teitelbaum misrepresented the contents of some of the materials and...