Wagoner v. Exxon Mobil Corp.

Citation813 F.Supp.2d 771,86 Fed. R. Evid. Serv. 401
Decision Date24 August 2011
Docket NumberCivil Action No. 09–7257.
PartiesJames WAGONER, Jr. et al. v. EXXON MOBIL CORPORATION et al.
CourtU.S. District Court — Eastern District of Louisiana

OPINION TEXT STARTS HERE

L. Eric Williams, Jr., Williams Law Office, LLC, Amber E. Cisney, Richard J. Fernandez, LLC, Glenn Charles McGovern, Attorney at Law, Richard Julius Fernandez, Richard J. Fernandez, LLC, Metairie, LA for Macie J. Wagoner.

Gary A. Bezet, Allison N. Benoit, Barrye Panepinto Miyagi, Carol L. Galloway, Gayla M. Moncla, Gregory M. Anding, Janice M. Culotta, Louis C. Woolf, Robert E. Dille, Kean Miller, Vionne M. Douglas, Carleton Loraso, LLC, Baton Rouge, LA, M. Denise Moretz, Woolf, McClane, Bright, Allen & Carpenter, PLLC, Knoxville, TN, Tynan Buthod, Baker Botts, LLP, James M. Riley, Jr., Stacy Seidlitz Yates, Coats & Rose, Charles Stanton Perry, Marty Thompson, Haynes & Boone, LLP, Houston, TX, Lynn Marie Luker, Lynn Luker & Associates, LLC, New Orleans, LA, for Exxon Mobil Corporation et al.

ORDER & REASONS

ELDON E. FALLON, District Judge.

Before the Court are twelve motions: (1) a Motion for Summary Judgment (Rec. Doc. No. 145) filed by Defendant Radiator Specialty Company (“Radiator”); (2) a Motion for Partial Summary Judgment (Rec. Doc. No. 139) filed by Plaintiff Macie Wagoner; (3) a Motion for Summary Judgment (Rec. Doc. No. 154) filed by Defendant Exxon Mobil Corporation (“ExxonMobil”); (4) a Motion to Exclude Dr. Sheila Butler and Dr. Jack Saux and for Summary Judgment (Rec. Doc. No. 147) filed by Radiator; (5) a Motion to Exclude Dr. Butler and Dr. Saux and for Summary Judgment (Rec. Doc. No. 156) filed by ExxonMobil; (6) a Motion to Strike the Affidavit of Eric Wagoner, to Exclude Dr. Bhaskar Kura, and for Summary Judgment (Rec. Doc. No. 149) filed by Radiator; (7) a Motion to Exclude Dr. Kura and for Summary Judgment (Rec. Doc. No. 151) filed by ExxonMobil; (8) a Motion to Exclude Dr. Melvyn Kopstein (Rec. Doc. No. 150) filed by ExxonMobil; (9) a Motion to Exclude Dr. Kopstein (Rec. Doc. No. 152) filed by Radiator; (10) a Motion to Exclude Dr. David Pyatt (Rec. Doc. No. 140) filed by Plaintiff; (11) a Motion to Exclude Dr. Richard Monson and Dr. Ethan Natelson (Rec. Doc. No. 141) filed by Plaintiff; and (12) a Motion to Exclude Mr. John Spencer (Rec. Doc. No. 135) filed by Plaintiff. The Court, having heard the parties' oral arguments and reviewed the submitted memoranda and applicable law, now issues this Order and Reasons.

I. BACKGROUND

This case arises out of the death of James Wagoner, Jr. on December 12, 2009, allegedly due to defects in products that contain benzene. In her Complaint, Plaintiff Macie Wagoner, who filed suit on behalf of herself and as the legal representative of the decedent, avers that as part of his work from the 1970s until 2008, the decedent frequently came into contact with products containing benzene and that as a result, he was chronically exposed to a toxic substance. Among the products that the decedent allegedly used is Liquid Wrench, which is manufactured by Defendant Radiator Specialty Co. (“Radiator”), and Varsol, which is manufactured by Defendant Exxon Mobil Corporation (“ExxonMobil”). Plaintiff alleges that as a result of chronic exposure to benzene, the decedent suffered from and eventually died of multiple myeloma (MM). In her Complaint, Plaintiff has asserted a number of claims against Defendants, including ones alleging design and warning defects. In their Answers, Defendants have denied liability.

In March 2011, Radiator filed a motion for summary judgment, arguing that its Liquid Wrench product complied with the labeling requirements of the Federal Hazardous Substances Act (FHSA), 15 U.S.C. § 1261 et seq., and that as a consequence, all of Plaintiff's claims are preempted. In June 2011, the Court granted the motion in part and denied it in part. The Court found that the Liquid Wrench product complied with the FHSA and its implementing regulations and that as a result, under the express preemption clause of the FHSA, it provided adequate warnings as a matter of state law. The Court accordingly granted summary judgment as to Plaintiff's failure-to-warn claims. However, the Court concluded that the FHSA neither expressly nor impliedly preempted Plaintiff's remaining claims because the FHSA is focused on the adequacy of warnings, and not product design. The Court therefore denied Radiator's motion as to Plaintiff's remaining claims.

II. PENDING MOTIONS

The parties have now filed twelve motions. The following briefly summarizes the main contentions of the parties.

1. Radiator's Motion for Summary Judgment (Rec. Doc. No. 145)

Radiator has moved for summary judgment as to Plaintiff's remaining claims. Noting that Alabama law is applicable, Radiator argues that Plaintiff's remaining claims under the Alabama Extended Manufacturers' Liability Doctrine (AEMLD) fail because the Court has found that the warnings on its Liquid Wrench product are adequate under both federal and state law. Radiator asserts that as a consequence, the warnings allow it to establish as a matter of law its assumption of risk defense. It also contends that adequate warnings otherwise preclude the finding that Liquid Wrench was an “unreasonably dangerous” product under the AEMLD.

With respect to Plaintiff's non-AEMLD claims, Radiator has advanced two principal arguments. First, Radiator has suggested that the AEMLD subsumes these claims. Second, Radiator argues that Plaintiff has not adduced sufficient evidence to prevail on these claims. In particular, Radiator emphasizes that there is no evidence that it was negligent or wanton with respect to its Liquid Wrench product. Radiator concludes that summary judgment as to Plaintiff's non-AEMLD claims is therefore appropriate.

Plaintiff has filed an opposition to this motion. Plaintiff agrees that Alabama law is applicable, but she contends that under the AEMLD, an adequate warning does not obviate a manufacturer's liability. Plaintiff also argues that the AEMLD does not subsume her remaining claims and that she has adduced sufficient evidence to show negligence, wantonness, and fraud on the part of Radiator.

2. Plaintiff's Cross–Motion for Partial Summary Judgment (Rec. Doc. No. 139)

Plaintiff has filed a cross-motion for partial summary judgment, which addresses only her AEMLD claims against Radiator. In her motion, Plaintiff argues that there is evidence that benzene poses a serious health risk, that there are inexpensive substitutes that could have been used to manufacture Liquid Wrench, and that Radiator knew of the dangerousness of the Liquid Wrench product that contained benzene. Plaintiff also asserts that there is no evidence to support any of the affirmative defenses that are available under the AEMLD, including the lack of causal relation, assumption of risk, and contributory negligence.

Radiator has filed an opposition to this motion. It argues that Plaintiff's motion for partial summary judgment should be denied for the reasons it has advanced in support of its own motion for summary judgment.

3. ExxonMobil's Motion for Summary Judgment (Rec. Doc. No. 154)

ExxonMobil has filed a motion for summary judgment, in which it has made several arguments. These contentions can be grouped as follows. First, ExxonMobil asserts that Plaintiff has not adduced evidence to show that Varsol had a warning, design, or manufacturing defect or that it was unreasonably dangerous per se under the applicable Louisiana law. Second, ExxonMobil asserts that Plaintiff has failed to provide evidence to sustain the finding of causation. It has made three specific arguments in this regard: 1) that there is no evidence that the decedent used the Varsol product that it manufactured, 2) that there is no evidence that the decedent read the warnings or labels on Varsol, and 3) that Plaintiff's allegation that the decedent suffered from and died of MM as a result of his use of Liquid Wrench precludes a finding of causation as to ExxonMobil.

Plaintiff has filed an opposition to ExxonMobil's motion. Plaintiff agrees that Louisiana law is applicable, but argues that she has adduced evidence to support her claim that Varsol had a warning, design, and manufacturing defect and that it was unreasonably dangerous per se. With respect to ExxonMobil's arguments on causation, Plaintiff asserts that 1) there is evidence that the decedent used the Varsol product manufactured by ExxonMobil, 2) that the applicable Louisiana law establishes a presumption that an adequate warning would have been heeded and that ExxonMobil has not rebutted that presumption, and 3) that ExxonMobil misunderstands the law in arguing that her claim against Radiator precludes a finding of causation with respect to her claim against ExxonMobil.

4. Radiator's Motion to Exclude Dr. Sheila Butler and Dr. Jack Saux and for Summary Judgment (Rec. Doc. No. 147)

Radiator has moved to exclude Dr. Butler and Dr. Saux under Federal Rule of Evidence 702. These two doctors have been retained by Plaintiff to offer an opinion on both aspects of the causation inquiry in this toxic tort case: general causation—whether benzene exposure can cause MM—and specific causation—whether benzene exposure caused MM in the decedent. Radiator has presented three main contentions in support of its request to exclude Dr. Butler and Dr. Saux. First, it asserts that the two doctors are not qualified to render an expert opinion on the question of general causation. It notes that the question of whether benzene can cause MM is one that must be resolved by reference to epidemiological studies. Radiator observes that neither Dr. Butler nor Dr. Saux is an epidemiologist or a toxicologist.

Second, Radiator argues that the two doctors' opinion regarding general causation lacks a reliable foundation. Radiator asserts that their opinion regarding the presence of an association between benzene and MM rests on an unreliable or irrelevant basis...

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