Wills v. Amerada Hess Corp.
| Decision Date | 11 August 2004 |
| Docket Number | Docket No. 02-7913. |
| Citation | 379 F.3d 32 |
| Parties | Patricia A. WILLS, individually and as personal representative of the Estate of Ricky Lee Wills, deceased, on behalf of Ricky Lee Wills and those persons similarly situated, Plaintiff-Appellant, v. AMERADA HESS CORP., Spentonbush/Red Star Companies, Inc., Sheridan Transportation Corp. and Hygrade Operators Inc., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
Appeal from the United States District Court for the Southern District of New York, Robert P. Patterson, Jr., J.
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Kenneth Heller, Kenneth Heller P.C., New York, New York, for Plaintiff-Appellant.
Robert J. Kelly, Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, Newark, NJ, (James M. Hazen, Hill, Betts & Nash LLP, New York, New York, of counsel), for Defendants-Appellees.
Before: JACOBS and SOTOMAYOR, Circuit Judges.*
Plaintiff-appellant Patricia A. Wills ("Wills" or "plaintiff") seeks damages under the Jones Act, 46 U.S.C. § 688(a), general maritime law, and New York state law for losses related to the 1996 death of her husband, Ricky Lee Wills ("decedent"), from cancer complications. Wills alleges that decedent's illness and death are attributable to his exposure to hazardous chemicals while working aboard ships owned and operated by defendants-appellees Amerada Hess Corporation, SpentonBush/Red Star Companies, Inc., Sheridan Transportation Corporation, and Hygrade Operators, Inc. (collectively "defendants"). The district court granted summary judgment in favor of defendants upon concluding that Wills failed to proffer sufficient admissible evidence of causation. See Wills v. Amerada Hess Corp., No. 98 CIV. 7126(RPP), 2002 WL 140542, at *17 (S.D.N.Y. Jan.31, 2002).
On appeal, Wills argues that the district court erred in holding that the burden of proof as to causation rested with her, and that the district court abused its discretion in excluding her proposed experts' testimony on the issue of causation. Specifically, Wills contends that because her suit was brought under the Jones Act, the burden-shifting rule prescribed by The Pennsylvania, 86 U.S. (19 Wall.) 125, 22 L.Ed. 148 (1873) ("The Pennsylvania Rule" or "the Rule"), should apply, and the standards of reliability to which expert testimony is held under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), should be relaxed. For the reasons discussed below, we disagree with both contentions and affirm the district court's judgment granting defendants summary judgment on Wills's claims.
From 1985 to 1995, decedent served as a seaman aboard vessels owned or operated by defendants. These vessels transported petroleum-based fuels such as crude oil, jet fuel, kerosene, and gasoline. In December 1995, roughly four months after leaving defendants' employ, decedent was diagnosed with squamous cell carcinoma. Although he underwent an aggressive treatment regime, the cancer progressed. He died on October 2, 1996, at the age of thirty-nine.
Decedent's wife and executrix of his estate, Patricia A. Wills, filed this suit in October 1998, alleging that decedent's cancer was due, in part, to his harmful exposure to benzene and polycyclic aromatic hydrocarbons ("PAHs") while working aboard defendants' vessels. Her complaint raised claims of wrongful death, unseaworthiness, and maintenance and cure under general maritime law, negligence and loss of consortium under New York state law, and negligence and wrongful death under the Jones Act.2 Pursuant to a schedule set by the district court, discovery was to be completed by August 31, 1999, and trial was to begin in September of that year.
For purposes of this appeal, we summarize only those aspects of the protracted discovery process that relate to Wills's proposed experts. Defendants first sought to identify Wills's experts and the nature of the experts' anticipated testimony through interrogatories, propounded on April 21, 1999. Wills moved to strike the interrogatories. The district court denied her motion and ordered Wills to respond by May 25, 1999. In late August 1999, Wills disclosed the names of three proposed expert witnesses: Jesse H. Bidanset, Ph.D., a forensic toxicologist; Cynthia W. Duffield, a civil engineer; and Richard C. Rodi, an engineer and basic ship design manager. Instead of scientific reports describing the nature of the experts' research and detailed descriptions of their anticipated testimony, Wills provided defendants with only superficial descriptions of the experts' intended testimony. The district court ordered Wills to produce more detailed expert reports by November 1, 1999.
At a November 4, 1999 hearing, the district court, in response to defendants' assertion that there was no proven link between benzene exposure and squamous cell carcinoma, ordered Wills to provide, within two weeks, a scientific report establishing such a causal link. On November 19, 1999, Wills produced a "preliminary report" authored by Dr. Bidanset (the "First Report"), which concluded "with reasonable scientific certainty that [decedent's] occupational exposure to various petroleum products was the most probable cause of his squamous cell carcinoma." The brevity of the First Report, and, inter alia, its failure to cite sufficient scientific evidence to support its conclusion, prompted the district court to continue its December 6, 1999 order staying further discovery until Dr. Bidanset could be deposed and the admissibility of his testimony determined. Wills v. Amerada Hess Corp., No. 98 CIV. 7126(RPP), 2000 WL 42201, at *3 (S.D.N.Y. Jan.19, 2000).3
On April 28, 2000, Wills provided defendants with another report from Dr. Bidanset (the "Second Report"), and Dr. Bidanset's deposition was taken later that year. In the Second Report, Dr. Bidanset also advanced the "oncogene theory" of causation — a theory which, by his own admission, is "controversial." Wills, 2002 WL 140542, at *14. The more widely-accepted scientific theory of causation — the so-called "dose-response" theory — suggests that toxins are only carcinogenic when a person is exposed to concentrations over and above a specified threshold level. Below the specified threshold level, the effects of the toxins are thought to be benign. In contrast, Dr. Bidanset's oncogene theory suggests that for some toxins there is no safe level of exposure because the cancer can be triggered by the interaction of a single molecule of the toxin with a single human cell. Dr. Bidanset surmised that decedent's cancer had developed in the manner predicted by the oncogene theory.
On January 2, 2001, appellees moved to exclude Dr. Bidanset's testimony, and for summary judgment on all claims. In response, Wills moved to apply The Pennsylvania Rule to her claims, thereby shifting the burden of proof on the issue of causation to appellees. Further, Wills submitted two additional expert reports — from Dr. Alfred Neugut, an oncologist and epidemiologist, and Paul Haas, an industrial hygienist — with her response papers. The district court refused to consider these additional expert reports, excluding them as untimely. (Order of Feb. 26, 2001).
In an opinion and order dated January 31, 2002, the district court granted defendants' motion to exclude the proposed testimony and reports of Dr. Bidanset, finding them to be without sufficient indicia of reliability as required for admissibility under Rule 702 of the Federal Rules of Evidence ("Rule 702"). Wills, 2002 WL 140542, at *13-15. First, the district court rejected Wills's contention that the standards for admissibility under Daubert are relaxed in cases brought under the Jones Act. Id. at *9. Second, applying Daubert's non-exhaustive list of factors to be considered when admitting evidence under Rule 702, the district court found Dr. Bidanset's opinions insufficiently reliable to be admissible under Rule 702. Id. at *15. Specifically, the district court found that Dr. Bidanset's First Report — which the district court deemed devoid of scientific evidence linking squamous cell carcinoma to exposure to benzene and PAHs, the toxins to which decedent allegedly was exposed — "demonstrate[d] that Dr. Bidanset was ready to form a conclusion first, without any basis, and then try to justify it." Id. at *10. Further, the district court noted that Dr. Bidanset conceded in his deposition that he was unaware of any scientific studies that would support his contention, made in the First Report, that the "aggressiveness" of decedent's cancer demonstrates that he was "intensely exposed to ... carcinogenic hydrocarbons." Id.
With regard to the Second Report, the district court was skeptical of Dr. Bidanset's assumption that decedent was exposed to benzene, PAHs, and diesel exhaust emissions — an assumption that Dr. Bidenset based largely on the fact that the vessels on which decedent worked were powered by diesel engines and carried petroleum products. Although Dr. Bidanset was able to document that, on at least some of the defendants' vessels, benzene emissions occasionally exceeded levels permitted by the Occupational Safety and Health Administration ("OSHA"), the district court found no evidence that decedent worked on any of those particular vessels at the times when such high levels were recorded. Id. at *10. Dr. Bidanset also relied on the affidavit of another seaman, Mark Miller, who, for a period of five months, intermittently worked with decedent aboard defendants' ships. Miller averred that both he and decedent were exposed to noxious odors, but the district court discounted the value of such statements on the ground that Miller lacked the expertise necessary to determine the toxicity of the fumes. Id. at *11.
Next, the district court considered the scientific studies upon which Dr. Bidanset...
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