Opinion

Opinion issued February 6, 2003

In The

Court of Appeals

For The

First District of Texas

NO. 01-01-00319-CV

EUGINA J. DANIELS AND ISADORA SUSAN DANIELS, Appellants

V.

LYONDELL-CITGO REFINING CO., LTD.,

ATLANTIC RICHFIELD COMPANY,

AND LYONDELL CHEMICAL COMPANY F/K/A

LYONDELL PETROCHEMICAL COMPANY, Appellees

On Appeal from the 133rd District Court

Harris County, Texas

Trial Court Cause No. 1999-31936

O P I N I O N

After James B. Daniels died of lung cancer allegedly caused by workplace

exposure to benzene, Daniels’s wife and daughter sued Lyondell-Citgo Refining Co.,

Ltd., Atlantic Richfield Company, and Lyondell Chemical Company f/k/a Lyondell

Petrochemical Company,

the owners of the refinery where Daniels had worked. The

trial court granted a no-evidence summary judgment in favor of the refinery owners

on the issue of causation.

In two points of error, Eugina J. Daniels and Isadora Susan Daniels (the

Daniels family) argue that they presented more than a scintilla of evidence on general

and specific causation and that the trial court erred when it granted summary

judgment. We affirm.

Background

James B. Daniels began working for a petrochemical plant in 1976. The plant

is currently owned by Lyondell-Citgo Refining Co., Ltd, but was previously owned

and operated by Atlantic Richfield Company and Lyondell Petrochemical Company.

Throughout his career, Daniels worked in the Aromatics Recovery Unit (ARU),

holding various positions as assistant stillman, helper, boardman, and operator.

During the course of his work, Daniels was exposed to a variety of chemicals,

including benzene, mixed xylenes, ethylene, and propane. There were allegedly

numerous benzene leaks, which usually occurred in conjunction with the plant’s low-line connection and feed filtrate coils. The “low-line” is a system of pipes wherein

various chemicals—including benzene—are moved throughout the plant. The feed

filtrate coils take chemicals used for mixing chemical product from the “hot side” of

the ARU the cooler side wherein they are actually mixed.

In October 1996, Daniels was diagnosed with bronchial alveolar carcinoma, a

form of terminal lung cancer. He died in October 1997 at the age of 56.

The Daniels family sued the refineries for negligence and gross negligence in

this wrongful death action. The petition alleged that the refineries were responsible

for Daniels’s death “through their willful act and omission or gross negligence in

allowing the improper release of known carcinogens into Jim Daniels’ (sic) work

environment. By their wrongful conduct, Jim Daniels was exposed to carcinogens

which resulted in his death.”

The refinery owners filed a no-evidence motion for summary judgment based

solely on the Daniels family’s inability to show any evidence that benzene causes

bronchial alveolar carcinoma in humans. A hearing was held on the motion, and the

trial court granted the Daniels family additional time to conduct discovery. A second

hearing was held, and the trial court granted the refinery owners’ motion for summary

judgment.

Standard of Review

Under rule 166a(i), a party is entitled to summary judgment if, after adequate

time for discovery, there is no evidence of one or more essential elements of a claim

or defense on which an adverse party would have the burden of proof at trial. Tex. R.

Civ. P . 166a(i). Thus, a no-evidence summary judgment is similar to a directed

verdict. Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp. , 994

S.W.2d 830, 834 (Tex. App.—Houston [1st Dist.] 1999, no pet.). The motion for

summary judgment may not be general, but must state the elements on which there

is no evidence. Tex. R. Civ. P . 166a(i).

The trial court must grant the motion unless the non-movant produces more

than a scintilla of evidence raising a genuine issue of material fact on each of the

challenged elements. Tex. R. Civ. P . 166a(i); Macias v. Fiesta Mart, Inc. , 988

S.W.2d 316, 317 (Tex. App.—Houston [1st Dist.] 1999, no pet.). More than a

scintilla of evidence exists when the evidence supporting the finding, as a whole,

rises to a level that would enable reasonable and fair-minded people to differ in their

conclusions. Burroughs Wellcome Co. v. Crye , 907 S.W.2d 497, 499 (Tex. 1995).

Causation

The central issue presented is not whether the Daniels family’s witnesses

possessed adequate credentials, skills, or experience to testify about causation. The

issue before us is whether the trial court abused its discretion in finding that the

Daniels family’s evidence was scientifically unreliable and thus legally insufficient

to defeat the refinery owners’ motion for summary judgment.

Sometimes, causation in toxic tort cases is discussed in terms of general and

specific causation. Merrell Dow Pharmaceuticals, Inc. v. Havner , 953 S.W.2d 706,

714 (Tex. 1997). General causation exists when a substance is capable of causing a

particular injury or condition in the general population, while specific causation exists

when a substance causes a particular individual’s injury. Id . In many toxic tort cases,

direct experimentation cannot be done, and there will be no reliable evidence of

specific causation. Id . at 715.

The Daniels family presented evidence from two experts—Michael Wolfson,

M.D., a board certified specialist in occupational medicine, and Hari Dayal, Ph.D.,

a professor and researcher in human epidemiology at the University of Texas Medical

Branch, Galveston—to support their general causation theory that occupational

exposure to benzene at an oil refinery causes lung cancer. An expert’s bare opinion

will not suffice. See Burroughs Wellcome , 907 S.W.2d at 499-500 . When the expert

brings to court little more than his credentials and a subjective opinion, this is not

evidence that would support a judgment. Viterbo v. Dow Chem. Co. , 826 F.2d 420,

421 (5th Cir. 1987). The testimony of an expert is generally opinion testimony.

Whether it rises to the level of evidence is determined under our rules of evidence,

including rule 702, which require courts to determine if the opinion testimony will

assist the jury in deciding a fact issue.

Havner , 953 S.W.2d at 712 .

In Havner , the Texas Supreme Court clarified this determination as follows:

To say that the expert’s testimony is some evidence under our standard

of review simply because the expert testified that the underlying

technique or methodology supporting his or her opinion is generally

accepted by the scientific community is putting the cart before the horse.

Id . The underlying data should be independently evaluated in determining whether

the opinion itself is reliable.

In E.I. du Pont de Nemours & Co. v. Robinson , 923 S.W.2d 549 (Tex. 1995),

the Texas Supreme Court set forth some of the factors that courts should consider in

looking beyond the bare opinion of the expert. Those factors include:

(1) the extent to which the theory has been or can be tested;

(2)the extent to which the technique relies upon the subjective

interpretation of the expert;

(3) whether the theory has been subjected to peer review and

publication;

(4) the technique’s potential rate of error;

(5) whether the underlying theory or technique has been generally accepted

as valid by the relevant scientific community; and

(6) the non-judicial uses that have been made of the theory or technique.

See Robinson , 923 S.W.2d at 557 .

If the foundational data underlying opinion

testimony are unreliable, an expert will not be permitted to base an opinion on that

data because any opinion drawn from that data is likewise unreliable. Havner , 953

S.W.2d at 714 .

In point of error one, the Daniels family argues that it presented more than a

scintilla of evidence on general causation. It relies, to a considerable extent, on

epidemiological studies for proof of general causation. Accordingly, we consider the

use of epidemiological studies and the “more likely than not” burden of proof.

Epidemiological studies examine existing populations to attempt to determine

if there is an association between a disease or condition and a factor suspected of

causing that disease or condition. Id. at 715 ( citing Bert Black & David E. Lilienfeld,

Epidemiologic Proof in Toxic Tort Litigation , 52 Fordham L. Rev. 732 , 750 (1984)).

Commentators in this area uniformly acknowledge that epidemiological studies

cannot establish that a given individual contracted a disease or condition due to

exposure to a particular drug or agent. See, e.g. , Michael Dore, A Commentary on the

Use of Epidemiological Evidence in Demonstrating Cause-In-Fact , 7 Harv. Envtl.

L. Rev . 429, 431-35 (1983); Steve Gold, Causation in Toxic Torts: Burdens of

Proof, Standards of Persuasion, and Statistical Evidence , 96 Yale L. J . 376, 380

(1986).

Relative Risk

Recognizing that epidemiological studies cannot establish the actual cause of

an individual’s injury or condition, a difficult question for the courts is how a plaintiff

faced with this conundrum can raise a fact issue on causation and meet the “more

likely than not” burden of proof.

Generally, epidemiological studies showing an increased risk may support a

recovery. The Havner court, recognizing that there is not a precise fit between

science and legal burdens of proof, was persuaded that properly designed and

executed epidemiological studies may be part of the evidence supporting causation

in a toxic tort case and that there is a rational basis for relating the requirement that

there be more than a “doubling of the risk” to the no-evidence standard of review and

to the “more likely than not” burden of proof. Havner , 953 S.W.2d at 717 .

“The use

of scientifically reliable epidemiological studies and the requirement of more than a

doubling of the risk strikes a balance between the needs of our legal system and the

limits of science.” Id . at 718.

The Supreme Court was careful to note, however, that a relative risk of more

than 2.0 is not a litmus test and no single epidemiological test is legally sufficient

evidence of causation. Id . Other factors, such as the Robinson factors, supra , must

be considered because there may in fact be no causal relationship even if the relative

risk is high.

Scientific Reliability

Sound methodology also requires that the design and execution of

epidemiological studies be examined. For example, bias can dramatically affect the

scientific reliability of an epidemiological study. Id. at 719. Epidemiological studies

“are subject to many biases and therefore present formidable problems in design and

execution and even greater problems in interpretation.” Id . ( quoting Marcia Angell,

The Interpretation of Epidemiologic Studies , 323 New Eng. J. Med . 823, 824

(1996)). Expert testimony that is not scientifically reliable cannot be used to shore

up epidemiological studies that fail to indicate more than a doubling of the risk. Id .

Similarity

To raise a fact issue on causation and thus to survive legal sufficiency review,

a claimant must do more than simply introduce into evidence epidemiological studies

that show a substantially elevated risk. A claimant must show that he or she is similar

to those in the studies. This would include proof that (1) the injured person was

exposed to the same substance, (2) the exposure or dose levels were comparable to

or greater than those in the studies, (3) the exposure occurred before the onset of

injury, (4) the timing of the onset of injury was consistent with that experienced by

those in the study, and (5) if there are other plausible causes of the injury or condition

that could be negated, the plaintiff must offer evidence excluding those causes with

reasonable certainty. Havner , 953 S.W.2d at 720 .

In sum, courts must make a determination of reliability from all the evidence.

Id . Courts should allow a party, plaintiff or defendant, to present the best available

evidence, assuming it passes muster under the five factors listed in the previous

paragraph, and only then should a court determine from a totality of the evidence,

considering all factors affecting the reliability of particular studies, whether there is

legally sufficient evidence to support a judgment. Id . Finally, courts should not

foreclose the possibility that advances in science may require re-evaluation of what

is “good science” in future cases. Id . at 721.

The Daniels family’s summary judgment evidence is grounded in three studies:

(1) a 1989 study of Chinese factory workers, (2) a 1989 study of Italian refinery

workers, and (3) a 1979 study of British workers. We will review each of these

studies according to the factors delineated in Havner .

1. Chinese Factory Workers - 1989

This retrospective cohort study evaluated 28,460 benzene-exposed workers

from 233 factories in China.

The primary types of factories or manufacturing

processes involving benzene exposure were spray or brush painting, shoe

manufacturing, synthetic rubber production, leather processing, organic chemical, and

adhesive production facilities. Increased mortality was noted among benzene-exposed males in comparison with that among unexposed males. The standardized

mortality ratio (SMR) was 2.31—thus satisfying the Havner requirement that the

relative risk be more than 2.0. See Havner , 953 S.W.2d at 718 . Importantly,

however, the 2.31 SMR was for benzene-exposed non-smokers. The SMR for

benzene-exposed smokers was 1.20. At the conclusion of the study, the authors

stated that “the present study has suggested that other cancers, as well as some

nonmalignant conditions, may be associated with benzene exposure.” (Emphasis

added.)

This study was part of an ongoing analysis. There were at least three additional

articles, all of which were attached as exhibits to the refinery owners’ motion for

summary judgment.

The results reported in the 1996 article indicated that, when the

sample size was enlarged from 28,460 in the original study to 74,828 in the follow-up

study, the mortality ratio for lung cancer for men exposed to benzene was 1.5,

compared to 2.31 in the original study. Because the SMR was no longer doubled, we

hold that the findings were no longer statistically significant.

The refinery owners refer us to the opinion of the Texarkana Court of Appeals,

which held in Austin v. Kerr-McGee Refining Co. , 25 S.W.3d 280 (Tex. App. –

Texarkana 2000, no pet.), that summary judgment is proper when the scientific

literature makes only general references, or does not connect the alleged carcinogen

with the specific disease involved in the case at issue. Id . at 288. Here, having held

that the study was not statistically significant, we need not determine whether it was

overly broad and thus inapplicable when it referred to “lung cancer” as opposed to

“bronchial alveolar carcinoma,” the specific type of lung cancer that caused Daniels’s

death.

2. Italian Refinery Workers - 1989

This study examined the mortality rate of 1,595 males workers employed in one

of the largest Italian refineries. The authors found that workers in the “moving

department” had a significantly increased mortality from all cancers and a 3.6 SMR

for lung cancer, specifically.

Like the Chinese study, there was a follow-up to this study in 1999.

Also like

the Chinese study, the follow-up found no risk-doubling for lung cancer.

3. British Workers - 1979

This study examined 15,032 male refinery workers. The study, however, was

evaluating the effect on workers who were exposed to “crude petroleum, its fractions

and polycyclic aromatic hydrocarbons.” It did not specifically address benzene.

The study found an SMR of 1.89 from dying of lung cancer. Besides the fact

that benzene was not addressed, the British study, like the Chinese and Italian studies,

was updated by a follow-up study in 1992, which examined 34,597 employees.

This

follow-up reiterated no risk-doubling, statistically significant excess of

“bronchus/lung” cancer.

The Daniels family’s experts relied on these three epidemiological studies to

support their conclusion that benzene exposure caused Daniels’s death. None of the

studies has the Havner requisite risk-doubling; therefore, none of the studies reaches

the Havner standard of statistical significance. The Daniels family presented no

evidence of general causation. See Havner , 953 S.W.2d at 714 (holding that, if

foundational data underlying opinion testimony are unreliable, experts will not be

permitted to base opinions on that data.)

We overrule point of error one.

Conclusion

Proof of both general and specific causation are required to defeat a no-evidence toxic tort summary judgment. Because the Daniels family failed to present

summary judgment proof sufficient to raise a fact question concerning general

causation, we need not address their second point of error asserting that they offered

sufficient proof of specific causation. The trial court did not abuse its discretion

when it granted the refinery owners’ motion for summary judgment. We affirm the

judgment of the trial court.

George C. Hanks, Jr.

Justice

Panel consists of Chief Justice Radack and Justices Nuchia and Hanks.