LeBlanc Ex Rel. Estate of LeBlanc v. Chevron USA, Inc.LeBlanc Ex Rel. Estate of LeBlanc v. Chevron USA, Inc.
This is an appeal from the district court‘s order granting Defendant-Appellees’ summary judgmеnt motion. Plaintiff-Appellant ATP Oil & Gas Corporation, Inc., (“ATP“) challenges the decision of the Interior Board of Land Appeals (“Board“), which had affirmed the Minerals Management Service‘s (“MMS“) 1 denial of ATP‘s request for a Suspension of Operations. For the reasons stated below, we AFFIRM.
We review a district court‘s order granting summary judgment de novo, applying the same standard to the agency decision as the district court. See Hayward v. U.S. Dep‘t of Labor, 536 F.3d 376, 379 (5th Cir.2008). We must uphоld an agency decision unless it is “arbitrary, capricious, or otherwise not in accordance with law.”
We have reviewed the briefs and record in this case, and heard oral argument. We hold that the Board‘s decision affirming the denial of the Suspension of Operations was not arbitrary, capricious, or otherwise at odds with the law. The MMS followed its regulations in denying ATP‘s request for a Suspension of Operations because ATP did not hаve an executed drilling-rig contract, an approved Exploration Plan, or an Application for Permit to Drill.
AFFIRMED.
** Pursuant to
Gary A. Bezet, Kean, Miller, Hawthorne, D‘Armond, McCowan & Jarman, L.L.P., Baton Rouge, LA, Anthony Michael Williams, Kean, Miller, Hawthorne, D‘Armond, McCowan & Jarman, L.L.P., New Orleans, LA, Robert P. Scott, Abrams Scott & Bickley, L.L.P., Charles Stanton Perry, Haynes & Boone, L.L.P., Houston, TX, for Defendants-Appellees.
Before CLEMENT, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM: *
Victoria Richaux LeBlanc, the representativе of the estate of Malcolm LeBlanc; Timothy LeBlanc; and Heidi LeBlanc (the “LeBlanc family“) appeal the district court‘s exclusion of their proffered expert witness testimony on causation and consequent grant of summary judgment in their toxic tort case against several oil and energy companies. Malcolm LeBlanc, a tanker truck driver, and his family sued Chevron USA, Inc.; Exxon Mobil Corp.; Mobil Corp.; Murphy Oil USA, Inc.; Shell Oil Co.; and El Paso Energy and its successor entities (collectively, the “Energy Companies“), seeking damages for his myelofibrosis with myeloid metaplasia. Mr. LeBlanc 1 alleged that he contracted the disease because of his exposure to
We AFFIRM.
I. Facts & Procedural History
From 1961 to 1991, Malcolm LeBlanc drove tanker trucks for Younger Brothers, Inc., and Matlack Tank Lines, Inc. As a tanker truck driver, he regularly loaded and unloaded pure benzene and benzene-containing fuel at several refineries owned or operated by the Energy Companies. In November of 2004, Mr. LeBlanc was diagnosed with myelofibrosis with myeloid metaplasia (“MMM“), a very rare terminal disease of the bone marrow. On February 8, 2010, Mr. LeBlanc died.
Prior to Mr. LeBlanc‘s death, the LeBlanc family filed this suit as a diversity action, seeking compensatory and exemplary damages fоr personal injury and for loss of consortium and society on theories of negligence, products liability, misrepresentation, and unjust enrichment. 2 Prior to the first appeal of this case, the Energy Companies moved to exclude the reports and testimony of Dr. Gardner and Prof. Solanky. The district court excluded the two experts and granted summary judgment in favor of the Energy Companies. LeBlanc v. Chevron USA, Inc. (LeBlanc I), 513 F.Supp.2d 641, 644 (E.D.La.2007). In the first appeal, we vacated the district court‘s order and remanded for reconsideration in light of a report by the Federal Agency for Toxic Substances and Disease Registry (“ATSDR“) finalized between the time of the district court‘s order and appellate oral argument. LeBlanc v. Chevron USA Inc. (LeBlanc II), 275 Fed.Appx. 319, 321-22 (2008) (unpublished). That report suggested a link between benzene and aplastic anemia, and then linked aplastic anemia to myelofibrosis. Id. at 321 (“[I]n the report, the ATSDR concluded that ‘[b]enzene also causеs a life-threatening disorder called aplastic anemia in humans and animals.’ The report also states that myelofibrosis (the disease with which Appellant has been diagnosed) is a form of aplastic anemia.“).
On remand, the district court excluded Dr. Gardner‘s testimony and again granted summary judgment in favor of the Energy Companies, concluding that the scientific evidence did not support Dr. Gardner‘s conclusions. LeBlanc v. Chevron USA Inc. (LeBlanc III), Civ. No. 05-5485, 2009 WL 3837397, at *1-3, 2009 U.S. Dist. LEXIS 106339, at *4-10 (E.D.La. Nov. 13, 2009). 3 Again, without Dr. Gardner, the
II. Standard of Review
“We review the district court‘s determination of admissibility of expert evidence for abuse of discretion.” Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 351 (5th Cir.2007). In this context, as in others, “[a] trial court abuses its discretion when its ruling is based on an erroneous view of the law or a clearly erroneous assessment of the evidence.” See id. (quoting Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir.2003)).
The аdmissibility of expert witness testimony is governed by
[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
III. Analysis
The district court excluded Dr. Gardner‘s and Prof. Solanky‘s testimony pursuant to
A. Dr. Gardner
The LeBlanc family‘s theory of the Energy Companies’ liability depended on the premise that benzеne exposure caused Mr. LeBlanc‘s MMM. The LeBlanc family was therefore obligated to prove both a “general” and a “specific” causal link between the benzene exposure and the onset of Mr. LeBlanc‘s MMM—that is, that benzene is
On the question of general causation, Dr. Gardner, whom the Energy Companies concede is a highly-qualified hematologist, intended to testify that it was his expert opinion that benzene can cause MMM. Dr. Gardner purported to base this conclusion on his evaluation of several studies. The Energy Companies argued to the district court and argue on appeal that none of these studies are relevant or reliable under Daubert and that Dr. Gardner‘s methodology in reaching his conclusion is therefore invаlid. In both the final order that preceded the LeBlanc family‘s first appeal and the final order appealed in this case, the district court agreed with the Energy Companies.
Where, as here, the dispute between the parties concerns solely the propriety of the district court‘s exclusion of expert witness testimony because the underlying studies cannot support the witness‘s conclusion, the Supreme Court‘s decision in General Electric Co. v. Joiner, 522 U.S. 136 (1997), governs. In Joiner, a toxic tort case in which the plaintiff sought to admit expert general causation testimony, the Court found no abuse of discretion where “[t]he District Court ... concluded that the ... epidemiological studies upon which [the plaintiff] relied were not a sufficient basis for the experts’ opinions.” Id. at 145. The Court explained that, while
[t]rained experts commonly extrapolate from existing data[,] nothing in either Daubert or the Federal Rules of Evidence requires a district court tо admit opinion evidence which is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.
Id. at 146; see also Knight, 482 F.3d at 355 (“District courts must carefully analyze the studies upon which experts rely for their opinions before admitting their testimony.“). Applying Knight to the evidence before it, the district court here found that the gap betwеen the data and Dr. Gardner‘s opinion was indeed too great. LeBlanc I, 513 F.Supp.2d at 664; see also LeBlanc III, 2009 WL 3837397, at *2-3, 2009 U.S. Dist. LEXIS 106339, at *10-11 (adopting the findings made in LeBlanc I as to the reliability of the studies considered there and rejecting the newly-proferred studies).
After our remand in LeBlanc II, there were two related avenues open to the LeBlanc family to prove general causation: (1) to show that the disease from which Mr. LeBlanc suffered was a form of aplastic anemia and that benzene causes aplastic anemia, оr (2) to otherwise convince the district court that benzene causes MMM. See 275 Fed.Appx. at 321 (citing U.S. DEP‘T OF HEALTH & HUMAN SERVS., PUB.
Dr. Gardner‘s disputed testimony in the district court—along with the testimony of other witnesses—attempted to show general causation through both avenues. On appeal, the LeBlanc family only expressly addresses whether benzene causes MMM, and we accordingly limit our review. 6 Dr. Gardner purported to rely on both epidemiological studies and his “clinical еxperience” in his expert opinion. The district court ruled that neither provided a sufficient basis for his opinion.
1. Epidemiological Studies
Simply put, the several studies and reports on which Dr. Gardner purported to rely suffer from common deficiencies that this court in Knight and the Supreme Court in Joiner have explained support a district court‘s exclusion of expert testimony.
First, some of the studies do not represent statistically significant results. Joiner, 522 U.S. at 145 (holding that a study showing a statistically insignificant increаse in disease incidence following exposure to the alleged causal chemical can properly be rejected by the district court as a foundation for the expert‘s opinion); see also David H. Kaye & David A. Freedman, Reference Guide on Statistics, in REFERENCE MANUAL ON SCIENTIFIC EVIDENCE 83, 124 (Fed. Judicial Ctr. ed., 2d ed. 2000) (“[S]ignificant differences are evidence that something besides random error is at work....“). The Hanis study, Nancy M. Hanis, et al., Epidemiologic Study of Refinery and Chemical Plant Workers, 24 J. OCCUPATIONAL MEDICINE 203 (1982); Kaplan study, Samuel Kaplan, Update of a Mortality Study of Workers in Petrоleum Refineries, 28 J. OCCUPATIONAL MED. 514 (1986); and Tondel report, Martin Tondel, Bodil Persson, & John Carstensen, Myelofibrosis & Benzene Exposure, 45 OCCUPATIONAL MED 51 (1995), fall into this category.
Second, some of the studies do not assess the relationship between benzene exposure and myelofibrosis but rather only provide an arguable inferential starting point for doing so. The district court may permissibly conclude that such studies do not support an expert‘s conclusion. Knight, 482 F.3d at 353. Similarly, some of the studies note that the subjects were exposed to a range оf substances and then nonspecifically note increases in disease incidence. Such studies also are not the type that compel a district court to accept the expert‘s reliance upon them. Joiner, 522 U.S. at 146. The Hanis study; the Honda/Delzell studies, Yashushi Honda, Elizabeth Delzell, & Philip Cole, An Updated Study of Mortality Among Workers at a Petroleum Manufacturing Plant, 37 J. OCCUPATIONAL & ENVT‘L MED. 194 (1995), and Elizabeth Delzell, Philip Cole, & Yashushi Honda, A Follow-Up Study of Mortality and Cancer Incidence Among Workers at the Wood River Manufacturing Complex (1992) (unpublished); the Zoloth study, Stephen R. Zoloth, et al., Patterns of Mortality Among Commercial Pressmen, 76 J. NAT‘L CANCER INST. 1047 (1986); and the Rushton study, L.R. Rushton & M.R. Alderson, Epidemiological Survey of Oil Distribution Centres in Britain, 40 BRIT. J. INDUS. MED. 330 (1983), fall into this category.
Finally, some of the materials relied upon by Dr. Gardner are simply not scientific evidence; that is, they are merely secondary literature that purports to rely on scientific studies either not cited or that the district court properly rejected on their own. They therefore cannot meet the reliability requirement of Daubert. Cf. Moore v. Ashland Chem. Inc., 151 F.3d 269, 278 (5th Cir.1998) (en banc) (approving district court‘s rejection of secondary material supporting expert causation testimony where expert “admitted that he did not know what tests [the secondary author] had conducted in generating the [secondary material]” and reaching the conclusion proffered). The ATSDR Report and Shell internal reports and correspondence fall into this category. 7
None of the scientific evidence upon which Dr. Gardner purported to rely was therefore sufficiently reliable as to render the district court‘s exclusion of his testimony an abuse of discretion.
2. Clinical Experience
Finally, Dr. Gardner sought to testify on causation based upon his clinical experience as a practitioner. The LeBlanc family correctly notes that the Supreme Court in both Kumho Tire, 526 U.S. at 148-49, and Daubert, 509 U.S. at 592, endorsed expert witness testimony based on personal observation and experience. But personal observation is still subject to the rеlevancy and reliability requirements of Daubert. Kumho Tire, 526 U.S. at 148-49.
Even when an expert is extrapolating from personal experience as a practitioner rather than from reviewing research undertaken by others, “nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert.” Joiner, 522 U.S. at 146. In other words, even Dr. Gardner‘s clinical opinion that benzene causes myelоfibrosis must have some demonstrable and reliable basis in underlying facts.
Here, the district court concluded that Dr. Gardner had no such basis, and the
[I]f one wanted to explain to a jury how a bumblebee is able to fly, an aeronautical engineer might be a helpful witness. Since flight principles hаve some universality, the expert could apply general principles to the case of the bumblebee. Conceivably, even if he had never seen a bumblebee, he still would be qualified to testify, as long as he was familiar with its component parts.
On the other hand, if one wanted to prove that bumblebees always take off into the wind, a beekeeper with no scientific training at all would be an acceptable expert witness if a proper foundation were laid for his conclusions. The foundation would not relate to his formal training, but to his firsthand observations. In other words, the beekeeper does not know any more about flight principles than the jurors, but he has seen a lot more bumblebees than they have.
Berry v. City of Detroit, 25 F.3d 1342, 1349-50 (6th Cir.1994). The inquiry before Dr. Gardner here—whether benzene causes myelofibrosis—requires an epidemiological, scientific basis and is more аkin to the mechanisms underlying a bumblebee‘s ability to fly than to the fact that bumblebees take off into the wind. It is not a question as to which a clinician‘s firsthand observation of patients offers much insight. The district court did not abuse its discretion in declining to allow Dr. Gardner‘s conclusion that benzene causes myelofibrosis based on his clinical experience.
*
Even considering all of the possible sources that Dr. Gardner cites together, there is simply insufficient support for the proposition that benzene causes myelofibrosis. The district court therefore did not abuse its discretion in refusing to allow Dr. Gardner to testify that benzene causes myelofibrosis.
B. Prof. Solanky
The district court excluded Prof. Solanky‘s testimony because its admissibility was derivative of the admissibility of Dr. Gardner‘s testimony. The sole function of Prof. Solanky‘s expert testimony was to conduct statistical analyses of several of the studies undеrlying Dr. Gardner‘s causation opinion so as to assess the statistical significance of those studies’ results when not reported in the studies themselves. Because we conclude that Dr. Gardner‘s testimony was properly excluded, Prof. Solanky‘s testimony was irrelevant and was also properly excluded under Daubert. See 509 U.S. at 591-92 (“Rule 702‘s ‘helpfulness’ standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility.“).
IV. Conclusion
For the reasons stated above, we hold that there was no abuse of discretion in the district court‘s exclusion of Dr. Gardner‘s and Prof. Solanky‘s testimony. The ruling of the district court and its consequent grant of summary judgment to the
* Pursuant to