¶ 2. In 2005 at age forty-nine, plaintiff was diagnosed with a rare type of non-Hodgkin’s lymphoma — Primary CNS (Central Nervous System) Large B-Cell Lymphoma. He attributes the onset of the disease to benzene exposure that allegedly occurred between 1968 and 1973 while he was a teenager playing on a ballfield on the grounds of the former Goodyear rubber manufacturing plant that operated in
¶ 3. In late 2009, Goodyear and CRDC filed their respective motions for summary judgment. Plaintiff opposed the motions, and a hearing was held in May 2010. Following the hearing, the superior court granted both motions and entered a final judgment in favor of defendants. The court concluded that plaintiff was not entitled to present his case to a jury because he had provided neither circumstantial evidence sufficient to support an inference that he had been exposed to benzene in any amount, let alone an amount that could have caused his illness, nor expert testimony sufficient to eliminate other potential causes of his disease. On appeal, plaintiff argues that his circumstantial evidence of causation was sufficient to present his case to the jury. Thus, what this appeal boils down to is whether the superior court erred by not allowing the case to go to trial for the jury’s consideration.
¶ 4. This Court exercises de novo review on appeal from a grant of summary judgment, applying the same standard as that applied by the trial court.
Field v. Costa,
¶ 5. We stress, however, that while plaintiff, as the nonmoving party, is entitled to all reasonable inferences regarding the state of the evidence, he cannot survive Goodyear’s motion for summary judgment on his toxic tort claim unless he is able to point to evidence suggesting a probability, rather than a mere possibility,'that (1) he was exposed to the specified chemical at a level that could have caused his physical condition (general causation); and (2) the exposure to that chemical did in fact result in the condition (specific causation).
Golden v. CH2M Hill Hanford Group, Inc.,
¶ 6. “In a toxic tort case, general causation addresses whether a substance is capable of causing a particular injury or
V 7. Of course, in many, if not most, toxic tort cases it is impossible “to quantify with hard proof — such as the presence of the alleged toxic substance in the plaintiffs blood or tissue — the precise amount of the toxic substance to which an individual plaintiff was exposed.”
Plourde v. Gladstone,
¶ 8. When direct evidence of the precise amount of exposure to a toxic substance is limited, courts have allowed expert witnesses to use “differential diagnosis” as an accepted method of proving specific causation.
Id.
at 1157-58;
Plourde,
¶ 9. Here, plaintiff relies upon three sources of evidence to avoid summary judgment. First, he offers statements made by himself and boyhood friends concerning their alleged exposure to toxic chemicals from the Goodyear plant when they were teenagers playing ball on a field adjoining the plant in the late 1960’s and early 1970’s. Plaintiff estimated that between 1968 and 1973 he spent thirty hours a week in the summer, and somewhat less during the school year, playing ball on the Goodyear field. He and friends stated that the grass was discolored and that a gully frequently filled with an oily, pungent, and discolored liquid ran through the outfield. Second, plaintiff relies on the report and deposition testimony of Robert Nicoloro, the project manager for an environmental firm hired by Goodyear in 2007 to conduct a site investigation in response to a clean-up agreement reached by Goodyear and the State of Vermont. The 2009 report stemming from the investigation listed contaminants of concern, including petroleum products containing benzene, that could have been released into the environment by way of normal plant operations. Given the standard of review on summary judgment, the court concluded that neither the 2009 report nor Mr. Nicoloro’s testimony precluded the possibility that petroleum products containing benzene could have migrated via discharge stormwater from the plant and through the gully into the ballfield. Third, plaintiff relies upon the testimony of his two experts, Dr. David Goldsmith and Dr. Camilo Fadul. Dr. Goldsmith, an epidemiologist, testified that occupational expo sure to benzene is generally associated with a risk of non-Hodgkin’s lymphoma, of which Primary CNS Large B-Cell Lymphoma is a subtype. Dr. Fadul, a neuro-oncologist, testified that plaintiff’s cancer was not caused by an immunodeficiency disorder, one of the known causes of that form of cancer.
¶ 10. In sum, plaintiff proffered evidence indicating that, as a teenager some thirty-five years earlier, he frequently played on a field adjoining the Goodyear plant. A gully that ran across the field may have contained water contaminated by petroleum products containing benzene. Benzene has been associated with non-Hodgkin’s lymphoma, a general category of cancer under which plaintiff’s subtype falls. Plaintiffs lymphoma was not caused by an immunodeficiency disorder, a known cause of that type of lymphoma.
¶ 11. Assuming that we accept all of this evidence as true, it falls well short of what plaintiff would be required to show in order to prevail in a jury trial. Indeed, if a jury were to find in favor of plaintiff on the evidence relied upon by plaintiff, we would have to overturn the verdict. In the end, plaintiffs suspicion that his cancer was caused by exposure to benzene on the Goodyear ballfield when he was a teenager is purely speculative. As plaintiffs own expert acknowledged, there is no way to know whether any benzene-containing product actually contaminated the ballfield. It is possible, of course. Although benzene itself was not used at the plant, plant operations entailed the use of petroleum products, including gasoline, that contain benzene. But even if we were to assume that benzene-containing products made their way into the gully and through the field, there is no evidence indicating the amount or concentration of benzene that was present. Nor is there any evidence indicating plaintiffs level of exposure to any benzene that may have been present on the field. Nor is plaintiff able to point to studies indicating a risk of cancer posed by exposure to limited amounts of benzene from petroleum products in an outside environment.
¶ 12. Further, plaintiff cannot rely upon differential diagnosis to overcome the complete lack of evidence as to the level of any exposure to benzene. His own expert acknowledged that a large percentage of cases of plaintiffs type of lymphoma are of unknown origin, so any attempt to establish causation by ruling out other causes must fail. See
Bland,
¶ 13. Nonetheless, relying upon our discussion of epidemiological studies in
George,
plaintiff asserts that his experts’ testimony regarding general and specific causation was sufficient to have a jury weigh the evidence on causation. As we noted in
George,
“[ejpidemiological studies quantify the degree of association between a given substance and a disease by assigning a ‘relative risk’ factor to the association.”
¶ 14. Here, in contrast, the trial court accepted the testimony of plaintiffs experts, but determined that the testimony along with other evidence proffered by plaintiff was insufficient on the element of causation to present his case to the jury. Plaintiffs first expert, Dr. Goldsmith, did not directly interview plaintiff or review his medical records. He specifically testified that his statement of opinion as to the derivation of plaintiffs illness was limited to general causation, and not specific causation. Indeed, when asked whether he was “in this case, giving an opinion as to the specific causation of [plaintiffs] disease,” he responded as follows: “No. I’m speaking about the general causation of his disease.” At one point, Dr. Goldsmith testified “[t]hat the epidemiology literature shows that it is more likely than not that exposure to benzene from rubber and tire manufacturing and other solvents are an explanation for [plaintiffs] non-Hodgkin’s lymphoma.” (Emphasis added.) Upon further questioning, Dr. Goldsmith emphasized, however, that his opinion was meant to indicate only that there is a general association between non-Hodgkin’s lymphoma and exposure to benzene.
¶ 15. As for the strength of that association, Dr. Goldsmith testified: “My
¶ 16. Further, in addition to being unable to estimate or evaluate the likely degree of exposure, cf.
Plourde,
¶ 17. Nor was Dr. Fadul’s testimony sufficient to get plaintiffs case to the jury. As explained above, Dr. Fadul was able to exclude only one known cause of plaintiffs lymphoma. Unfortunately for plaintiff, the vast majority of cases concerning his type of lymphoma are of unknown etiology. Therefore, the jury could not find more-probable-than-not specific causation based on Dr. Fadul’s testimony.
¶ 18. Finally, we address the issue of spoliation. Without citing any case law or pointing to anything in the record to support his vague accusations, plaintiff suggests that Goodyear was obligated to keep records of its release of contaminants from the plant but either failed to do so or destroyed any records that were kept, making it virtually impossible for him to prove his ease. Plaintiff fails to cite a specific legal basis for the obligation he claims Goodyear had to keep records. Nor does he cite any evidence of spoliation or note any extensive attempt on his part to discover Goodyear’s past records. Under these circumstances, we find unavailing plaintiffs unsupported argument that Goodyear’s lack of records should result in an inference “favorable to the plaintiff” — presumably that benzene made its way from the plant to the ballfield at a level of concentration sufficient to cause plaintiff’s illness.
Affirmed.