Parker v. Mobil Oil Corp.

• Decision Date: 17 October 2006
• Citation: 857 N.E.2d 1114,7 N.Y.3d 434
• Parties: Eric PARKER, Appellant, v. MOBIL OIL CORPORATION et al., Respondents. (And Third-Party Actions.)
• Court: New York Court of Appeals Court of Appeals

857 N.E.2d 1114

7 N.Y.3d 434

Eric PARKER, Appellant, v. MOBIL OIL CORPORATION et al., Respondents. (And Third-Party Actions.)

Court of Appeals of New York.

October 17, 2006.

COPYRIGHT MATERIAL OMITTED

Kreindler & Kreindler LLP, New York City (Marc S. Moller and Blanca I. Rodriguez of counsel), and Baggett, McCall, Burgess, Watson & Gaughan, Lake Charles, Louisiana (William B. Baggett, Sr., Wells T. Watson and Jeffrey T. Gaughan of counsel), for appellant.

Wilson, Elser, Moskowitz, Edelman & Dicker LLP, Newark, New Jersey, and New York City (Robert J. Kelly, Richard E. Lerner, Robert P. Scott and Suna Lee of counsel), for Mobil Oil Corporation and another, respondents.

Smith Mazure Director Wilkins Young & Yagerman, P.C., New York City (Joel Simon of counsel), for Island Transportation Corporation, respondent.

Rivkin Radler LLP, Uniondale (James Quinn, Jay D. Kenigsberg and Harris J. Zakarin of counsel), for Getty Petroleum Marketing, Inc., respondent.

Locks Law Firm, PLLC, New York City (Seth R. Lesser of counsel), and Val Washington for American Trial Lawyers Association and another, amici curiae.

Metzer Law Group, APLC, Long Beach, California (Raphael Metzger of counsel), for Council for Education and Research on Toxics and others, amici curiae.

Mayer, Brown, Rowe & Maw, Washington, D.C. (Andrew J. Pincus, Charles A. Rothfeld and Rajesh De of counsel), and National Chamber Litigation Center, Inc. (Robin S. Conrad and Amar D. Sarwal of counsel), for Chamber of Commerce of the United States of America, amicus curiae.

Malaby, Carlisle & Bradley, LLC, New York City (Robert C. Malaby and David P. Schaffer of counsel), Crowell & Moring LLP, Washington, D.C. (William L. Anderson and Jennifer G. Knight of counsel), and Shook, Hardy & Bacon, LLP (Victor E. Schwartz and Mark A. Behrens of counsel), for Coalition for Litigation Justice, Inc., amicus curiae.

Michael A. Cardozo, Corporation Counsel, New York City (Leonard Koerner, Fay Leoussis, Christopher G. King, Amy London and Elizabeth S. Natrella of counsel), for City of New York and another, amici curiae.

Debevoise & Plimpton LLP, New York City (Anne E. Cohen, Robert D. Goodman and Genevieve A. Pope of counsel), and Hugh F. Young, Jr., Reston, Virginia, for Product Liability Advisory Council, Inc., amicus curiae.

Jordan and Moses, Saint Simons Island, Georgia (Randall A. Jordan and Mary Helen Moses of counsel), Louis P. Warchot, Washington, D.C., and Daniel Saphire for Association of American Railroads, amicus curiae.

National Legal Scholars Law Firm, P.C., Lyme, New Hampshire (Anthony Z. Roisman of counsel), for Margaret A. Berger and others, amici curiae.

OPINION OF THE COURT

CIPARICK, J.

Plaintiff Eric Parker commenced this action in 1999 against Mobil Oil Corporation, Island Transportation Corporation and Getty Petroleum Marketing, Inc., alleging that exposure to benzene in gasoline caused him to develop acute myelogenous leukemia (AML). Parker had worked as a gas station attendant for 17 years and had been exposed to benzene through inhalation of gasoline fumes and through dermal contact with gasoline. There is no dispute that benzene is a known carcinogen.

Parker worked at several full-service stations between March 1981 and August 1998. As part of his duties, he pumped gasoline for customers, exposing him to gasoline vapors; the pumps were not fitted with vapor recovery systems to reduce exposure to fumes until the early 1990s. He was also exposed to fumes upon receipt of deliveries of gasoline and upon daily gauging of gasoline levels in the tanks and he was responsible for cleaning up gasoline spills, occasioning it to remain on his hands and clothing throughout the day. Defendants did not warn him of the dangers of benzene exposure or provide him with safety or protective gear. It should be noted that Parker was also exposed to therapeutic radiation.

Prior to the completion of discovery, and before the exchange of expert reports, defendant Mobil Oil and several third-party defendants moved to preclude Parker's expert testimony on the issue of medical causation. Defendants argued that the expert testimony was scientifically unreliable and should be excluded under Frye v. United States, 293 F. 1013 (D.C.Cir.1923). Further, defendants moved for summary judgment dismissing all claims, arguing that they lacked the necessary support in the absence of appropriate causation evidence.

In support of the motion, defendants introduced the opinions of two experts prepared for other litigations. The first, Dr. Gerhard K. Raabe — an epidemiologist and Director of Medical Information Health Risk Assessment for Mobil — acknowledged that there is an increased risk of AML for service station employees exposed to large amounts of benzene ("typically over 100 PPM TWA"¹) over an extended period of time, but concluded that the low levels of benzene exposure resulting from gasoline service station work are "below the practical threshold for the dose necessary to initiate the leukemia process." Raabe cited to a National Institute for Occupational Safety and Health (NIOSH) study of benzene exposure for service station employees (the maximum concentration of benzene in gasoline was 2% with the greatest level of exposure 0.19 ppm TWA, which is less than the 1 ppm occupational standard set by the Occupational Safety and Health Administration [OSHA]); to a study of petroleum workers exposed to gasoline with a concentration of 2% to 3% benzene that did not show any additional risk of AML from exposure to gasoline; and to a European study of service station workers exposed to gasoline that was 3% to 5% benzene that did not find an elevated risk of AML. Defendants also provided a letter from Raabe responding to an expert opinion in another litigation citing a study he coauthored, which found an increased risk of AML for those exposed to "increasing cumulative doses of benzene above 200 ppm-years ... [and] no excess risk for AML for doses below" that level.

Defendants also offered the affidavit of Richard D. Irons, Ph.D., a toxicologist — likewise prepared for other litigation. Irons explained that the dose-related relationship was a unifying concept in the medical sciences and a cornerstone of pharmacology and toxicology; that there is usually a threshold below which no effect can be observed; and that the evidence of an association between chronic exposure to benzene and AML became less reliable as the dosage decreased; and that there was "virtually no reliable evidence to indicate that a causal relationship exists between chronic exposure to benzene at 10 ppm or lower and the development of AML." In order to determine causation, according to Irons, it is necessary to know the amount of benzene sufficient to cause AML and the amount of benzene to which the particular plaintiff was exposed. He noted that the plaintiff's expert in that case did not quantify the benzene exposure and did not address studies finding no increased risk of AML in service station or petroleum distribution workers. Irons also pointed out that AML has been known to develop in those who have been exposed to the drugs and chemicals used in chemotherapy.

In opposition to defendants' motion, Parker argued that whether benzene can cause AML is not novel scientific evidence subject to Frye review, and that there is a difference of opinion in the scientific community as to what level of benzene exposure causes leukemia. To support his arguments, he produced reports from two experts. Philip J. Landrigan, M.D., a board-certified physician in occupational medicine and fellow of the American College of Epidemiology, detailed Parker's medical history as well as his exposure to benzene as a component of gasoline. Landrigan noted that Parker had received radiation treatment for a prior illness. The doctor also observed that, during his service station employment, Parker frequently had cuts or abrasions on his hands that would have increased the absorption of benzene directly into his bloodstream. Further, there was at least one instance where Parker was doused with gasoline but continued to work in his gasoline-saturated clothing for the remainder of the day.

Landrigan cited several studies that linked benzene exposure to leukemia. He noted that a NIOSH study of rubber plant workers in Ohio found a relationship between increasing cumulative benzene exposure and leukemia mortality. He concluded that the study showed a risk of mortality from leukemia of about "150 times above background" over a 40-year working lifetime from exposure to benzene at 10 ppm. At 5 ppm, the risk was 12 times over background and at 1 ppm (or 40 ppm-years) the risk was doubled. The expert went on to explain that "[e]xtensive mathematical modeling was conducted to determine the shape of this positive dose-response relationship. These analyses found that a linear model best explained the association. No evidence was found for a threshold level below which no leukemia occurs."

Landrigan further noted several studies that found an increased risk of leukemia in petroleum refinery workers and pointed out that the studies that did not find an increased risk of leukemia considered all refinery workers rather than specifically addressing only those exposed to benzene. He also stated that, in recognition of the carcinogenic nature of benzene, OSHA lowered the previous workplace standard from 10 ppm to 1 ppm. Landrigan found it unlikely that Parker would have contracted AML without his specific occupational exposure to benzene and therefore concluded "to a reasonable degree of medical certainty that Mr. Parker contracted his [AML] as a result of his personal occupational exposure to benzene."

Parker also submitted a two-page report from Bernard D. Goldstein, M.D., an expert in toxicology and epidemiology. Dr. Goldstein stated that Parker had greater levels of exposure to benzene than the workers in the refinery studies, as modern...