Joint Appendix — Chevron USA Inc. v. Echazabal
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DEC 26 200,
No. 00-1406
CLERK
In the Supreme Court of the Anite
CHEVRON U.S.A., iNC., PETITIONER,
v.
MARIO ECHAZABAL, RESPONDENT.
On Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit
JOINT APPENDIX
STEPHEN M. SHAPIRO LARRY MINSKY
Counsel of Record Counsel of Record
Mayer, Brown & Platt Lemaire, Faunce, Pingel
190 South LaSalle Street & Singer, P.C.
Chicago, Illinois 60603 17785 Center Court Drive,
(312) 782-0600 Suite 250
Cerritos, CA 90703
(562) 916-7449
* Counsel for Petitioner Counsel for Respondent
_——$—$——————————————— een
PETITION FOR CERTIORARI FILED MARCH 9, 2001
CERTIORARI GRANTED OCTOBER 29, 2001
i
TABLE OF CONTENTS
Relevant Docket Entries in the United States District
Court for the Central District of California
Relevant Docket Entries in the United States Court
of Appeals for the Ninth Circuit
First Amended Complaint (April 8, 1997)
Chevron’s Answer to First Amended Complaint
(May 2, 1997)
Declarations in Support of Chevron’s Motion for
Summary Judgment (October 6, 1997):
* Declaration of Julie L. Claydon
* Declaration of Michael J. Nyeholt
* Declaration of Patrick W. Beatty
* Declaration of William L. Saner
¢ Declaration of Kenneth McGill, M.D.
* Declaration of Ron Di Padua
* Declaration of Dennis N. Leonard
Exhibits in Support of Chevron’s Motion for
Summary Judgment (October 6, 1997):
* Exhibit 1, Chevron Job Bulletin (9/29/95)
* Exhibit 3, Chevron letter to Echazabal (12/28/95) ... 55
* Exhibit 5, Chevron letter to Echazabal (2/6/96)
* Exhibit 6, Chevron letter to Irwin (2/21/96)
* Exhibit 16, Job Summary, GO-400 (1993)
¢ Exhibit 17, Physical/environmental demands,
GO-308-ES (12/1/93)
* Exhibit 20, Refinery Hepatotoxic Substance
Inventory (6/30/97)
* Exhibit 23, Tang deposition (excerpts)
* Exhibit 27, Weingarten letter to Chevron’s Medical
Department (1/10/96) ............45: 95
* Exhibit 28, McGill letter to Suchov (1/10/96) ...... 96
* Exhibit 29, Weingarten letter to McGill (2/28/96) ... 98
Declarations in Support of Plaintiff's Opposition to
Chevron’s Motion for Summary Judgment
(November 14, 1997):
* Declaration of Marion Joseph Fedoruk, M.D. ...... 99
¢ Declaration of Gary Gitnick, M.D. .............. 110
* Declaration of Mario Echazabal ................ 117
- Exhibit E to Declaration of Mario Echazabal
(excerpts):
Bia tothe? ep Bale CRESS occ ccvcucsescesunas 122
Suchov letter to Baily (11/10/93) .............. 124
Suchov letter to Chevron’s Medical Department
(HOE ovccccssavecucen seu as ohaceaean 125
¢ Exhibits to Declaration of Larry Minsky:
- Exhibit J (Baily Deposition) (excerpts) ......... 126
- Exhibit M (McGill Deposition) (excerpts) ....... 128
- Exhibit N (Saner Deposition) (excerpts) ......... 143
- Exhibit O (Tang Deposition) (excerpts) ......... 155
Exhibits in Support of Irwin’s Motion for
Summary Judgment (November 18, 1997):
¢ Exhibit 20, Baily Deposition (excerpts) .......... 157
¢ Exhibit 21, McGill Deposition (excerpts)......... 160
Exhibit to Chevron’s Reply in Support of
Summary Judgment (November 27, 1997):
¢ Saner Deposition (excerpts) ............000000- 170
District Court Order Granting Chevron’s Motion for
Summary Judgment (C.D. Cal. January 5, 1998) .... 171
Order and Opinion (9th Cir. May 23,
2000, amended September 26, 2000) ............. 196
Memorandum (9th Cir. May 23, 2000)
iil
Supreme Court Order Granting Writ of Certiorari
(October 29, 2001)
l
RELEVANT DOCKET ENTRIES IN THE
UNITED STATES DISTRICT COURT FOR THE
CENTRAL DISTRICT OF CALIFORNIA,
No. 97-CV-3498
No. Date General Description
19
20
5/8/97
5/8/97
5/8/97
5/8/97
7/7197
10/6/97
10/6/97
10/6/97
11/14/97
11/14/97
Notice of removal by defendant
Chevron USA Inc. from LA Cnty
Superior Court
lst Amended Complaint
Answer by defendant Chevron USA
Inc.
Joinder by defendant Irwin Industries
Answer by defendant Irwin Industries
Inc.
Motion by defendant Chevron USA
Inc. for summary judgment
Lodged Chevron’s statement of
uncontroverted facts
Exhibits in support of Chevron’s
summary judgment motion
Plaintiff's memo in opposition to
Chevron’s motion for summary
judgment [17-1]
Plaintiff s statement of general issues
in opposition to Chevron’s motion for
summary judgment [17-1]
2 3
No. Date General Description No. Date |§= General Description
21 11/14/97 Plaintiff's evidentiary objections in 32 12/4/97 Irwin’s reply brief in support of
support of his opposition to summary motion for summary judgment [24-1]
judgment [19-1] [24-2]
22 11/14/97 — Declaration of Marion Joseph Order by Judge Lourdes G. Baird
Fedoruk MD, Gary Gitnick MD,
FACG, Mario Echazabal and Larry
Minsky in support of plaintiff's
Grant in part Deny in part Irwin’s
motion for partial summary judgment
[24-1], Grant in part Deny in part
opposition to summary judgment Irwin’s motion for summary
24 —«'11/18/97_—- Motion by defendant Irwin Industries we pay ag taper eee
sateen ee causes of actn, but GR as to the issue
25 11/18/97 —_ Exhibits supporting Irwin’s motion of pun dams; granting Chevron’s
for summary judgment pases iy “es ae eal
-
26 11/24/97 Chevron’s reply to opposition to sian cee et maneitt-inieedas
motion for summary judgment [17-2] 01/08/98]
28 12/1/97 Plaintiff's memo in opposition to Order by Judge Lourdes G. Baird
Irwin’s motion for summary granting plaintiff's motion to certify
judgment [24-2] order granting summary judgment to
29 12/1/97 ‘Plaintiff's evidentiary objection Chevron for immediate appeal [Entry
supporting opposition to Irwin’s date 03/04/98]
motion for summary judgment [24-2] Notice of Appeal
30 12/1/97 Plaintiff s statement of general issues . waist
in opposition to Irwin’s motion for i eee
summary judgment [24-1] include plaintiffs 6th cause of action
31 12/1/97 Plaintiff's supplemental declaration for Intentional Interference with
of M Echazabal and L Minsky in
support of opposition to Irwin’s
motion for summary judgment [24-1]
Contractual Relations [Entry date
05/18/98}
4
RELEVANT DOCKET ENTRIES IN THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT, No. 98-55551
Date
7/29/98
8/4/98
9/16/98
9/16/98
9/16/98
10/15/98
11/3/99
11/8/99
General Description
Filed appellant Echazabal’s opening brief and
excerpts of record in 3 volumes
Filed EEOC’s amicus brief
Rec’d Amicus Empioyers Group’s brief
Rec’d Amicus Equal Employment Advisory
Council & Chamber of Commerce’s brief
Filed appellee Chevron’s brief
Filed appellant Echazabal’s reply brief, and
Suppl Exc of Rec in 1 volume
Argued and submitted to Myron H. Bright,
Stephen R. Reinhardt, Stephen S. Trott
Filed order (Myron H. Bright, Stephen R.
Reinhardt, Stephen S. Trott): The ct may
consider the question whether the “direct
threat” defense set forth in 42 USC § 12113(b)
applies to threats to the health or safety of
parties claiming discrimination or only to
threats to the health or safety of “others.” If
either of the parties to this appeal or the EEOC
wishes to submit a supp’! brf on this question,
it shall notify the ct of its intention to do so w/i
7 days from the date of this order, with svc on
12/14/99
12/15/99
12/16/99
12/16/99
1/25/00
5/23/00
5/23/00
5
General Description
the parties and amici. If such ntc is given, the
parties and amici shall each have the option of
filing a supp’! brief. Any such brf shall be filed —
w/i 28 days from the date of this order. A brf
filed by a party or the EEOC shall not exceed
15 pages; a brf filed by any other amici shall
not exceed 5 pages.
Filed Amicus Equal Employment Advisory
Council Chamber of Commerce supplemental
brief
Filed appellant’s supplemental brief
Rec’d amicus EEOC’s ltr dated 12/15/99 re:
they will not be filing a supp! brief
Filed appellee Chevron’s supplemental brief
Filed order (Myron H. Bright, Stephen R.
Reinhardt & Stephen S. Trott): the case is
ordered resubmitted.
Filed Opinion: Reversed in part, vacated in
part, and remanded for further proceedings
consistent with this opinion. (Terminated on the
Merits after Oral Hearing; Reversed; Written,
Signed, Published. Myron H. Bright; Stephen
R. Reinhardt; Stephen S. Trott) Filed entered
judgment.
Filed Memorandum Disposition: Reversed and
remanded for further proceedings consistent
with this disposition. (Terminated on the Merits
after Oral Hearing; Reversed; Written, Un-
signed, Unpublished. Myron H. Bright, Stephen
6
Date = General Description
R. Reinhardt, Stephen S. Trott) Filed and
entered judgment.
6/12/00 Filed appellee Chevron’s petition for rehearing
with suggestion for rehearing en banc
6/16/00 Filed order (Myron H. Bright, Stephen R.
Reinhardt & Stephen S. Trott) aplt is ordered to
file a response to the petition for rehearing with
suggestion for rehearing en banc
7/6/00 Filed aplt’s response to petition for rehearing
with suggestion for rehearing enbanc rehearing
9/26/00 Filed order and amended opinion: The opinion
filed on 5/23/00 is amended to include the
attached dissent by Judge Trott.
12/12/00 Filed order: The petition for rehearing and
petition for rehearing en banc are denied.
12/20/00 Mandate issued. Costs taxed.
7
[PLAINTIFF’S FIRST AMENDED COMPLAINT’]
SUPERIOR COURT OF THE STATE OF
CALIFORNIA FOR THE COUNTY OF LOS ANGELES
MARIO ECHAZABAL, an individual, Plaintiff,
vs.
CHEVRON U.S.A., INC.; a corporation; IRWIN INDUSTRIES,
INC., a corporation; and DOES I through
XXX, inclusive, Defendants.
Case No: BC-166431
First Amended Complaint For Injunctive Relief
And Damages For Employment Discrimination On
The Basis Of Disability; Violation Of Constitutional
Right Of Privacy; Violation Of The Confidentiality Of
Medical Information Act; Intentional Interference
With Contractual Relations
Demand for Jury Trial
[Filed April 8, 1997]
1. +
[PARTIES] |
1. Plaintiff MARIO ECHAZABAL (Plaintiff) is and was at
relevant times herein a resident of the County of Los Angeles
* [Plaintiff's First Amended Complaint and all other materials in
this Appendix are reproduced verbatim. Typographical errors have
been preserved. }
and an employee within the meaning of the various
discrimination statutes alleged herein.
2. Plaintiff is informed, believes and thereupon alleges that
at times relevant herein, Chevron Products Company, a
successor to Chevron U.S.A. Products Company, was a wholly
owned division of Defendant CHEVRON U.S.A., INC., a
Pennsylvania corporation doing business within the state of
California. At all times relevant herein, CHEVRON U.S.A.,
INC. controlled, managed, supervised, and was fully
responsible for the acts, conduct and omissions as alleged
herein of Chevron Products Company/Chevron USA Products
Company’s oil refinery located at 324 West El Segundo
Boulevard, El Segundo, California (Plant). Unless otherwise
specified, Chevron Products Company and its successor,
Chevron U.S.A. Products Company, and Chevron U.S.A.., Inc.
shall be collectively referred to as Chevron. Plaintiff is
informed, believes and thereupon alleges that at times relevant
herein, Chevron was a federal contractor having contracts in
excess of $50,000 and an employer within the meaning of § 504
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§
794 et seq. (Section 504) and within the meaning of Titles I and
II of the Americans With Disabilities Act of 1990 as amended,
42 U.S.C. §§ 12101 et seq. (ADA) and within the meaning of
California’s Fair Employment and Housing Act (FEHA).
3. Defendant IRWIN INDUSTRIES, INC. (Irwin) is a
California corporation qualified to do and doing business within
the state of California and an employer within the meaning of
the ADA and FEHA.
4. Defendants Does I Through XXX are sued herein under
fictitious names because Plaintiff does not presently know their
true names and capacities. Plaintiff will seek leave to amend
this Complaint to allege their true names and capacities when
ascertained. Plaintiff further alleges that each defendant,
fictitious or otherwise, named herein was and is culpable in
some manner or capacity for the events and illegal conduct
9
herein alleged or is/are a necessary party for obtaining
appropriate relief. Defendants Chevron, Irwin and Does I
through XXX shall at times herein be collectively referred to as
Defendants.
5. Plaintiff is informed, believes and thereupon alleges that
in carrying out each of the acts, conduct, omissions and
violations alleged in this complaint, each defendant, fictitiously
or individually named, acted as an agent, principal, and/or
representative for each other defendant.
Il.
[EXHAUSTION OF ADMINISTRATIVE REMEDIES]
6. All procedural and jurisdictional conditions precedent to
the filing and maintaining of this action have been exhausted to
the extent any were required to be exhausted. On or about
March 22, 1996, Plaintiff filed a charge of employment
discrimination against Defendants Chevron and Irwin with the
Equal Employment Opportunity Commission (EEOC) alleging
disability discrimination. Thereafter, Plaintiff was
issued/notified by the Department of Fair Employment and
Housing (DFEH), by letter dated March 22, 1996, and by the
EEOC by letter dated December 6, 1996 of his right to sue. On
or about February 20, 1997, Plaintiff filed an additional charge
of disability discrimination against Chevron with the DFEH and
by letter dated March 12, 1997 the DFEH issued Plaintiff his
right to sue.
Ii.
[EQUITY AND IRREPARABLE INJURY]
7. Plaintiff has no plain, adequate or complete remedy to
redress the wrongs alleged herein and this suit for injunctive
relief is his only means of securing said adequate relief.
Plaintiff is presently suffering and will continue to suffer
irreparable injury as a result of the acts, conduct and omissions
of Defendants as alleged herein who have denied Plaintiff his
right of privacy and his right to be free from illegal
10
discrimination and will continue to maintain said illegal
practices and policies as alleged herein until and unless
enjoined by this court.
IV.
[COMMON ALLEGATIONS OF FACT]
8. Plaintiff worked at the Plant from in or about 1972
through 1975 and again from in or about 1980 through on or
about February 28, 1996, working in various jobs including
maintenance worker, pipefitter, and on the “firewatch.”
9. Inorabout 1986, Irwin became a maintenance contractor
for Chevron at the Plant. Plaintiff then became an Irwin
employee. Plaintiff continued to perform the same or similar
functions/jobs.
10. Plaintiff was hired by Irwin in or about 1986.
11. Throughout the period of his employment with Irwin and
throughout the period of time that Plaintiff worked at the Plant,
and specifically since at least in or about 1986, Plaintiff
performed all of the essential functions of each and every
position required of him in a competent and professional
manner without injury to himself or others.
12.In or about the latter part of 1992, Plaintiff was
diagnosed with having chronic active hepatitis. This
information was provided directly to Chevron. Between the
latter part of 1992 and approximately February of 1996,
Chevron was advised of Plaintiff's ongoing medical condition
and was provided with copies of medical reports from
Plaintiff's physician(s) advising Chevron that despite his
diagnosis of chronic active hepatitis that he did not pose a
threat to himself or others and could, from a medical
perspective, perform all of the essential functions for each
job/position he was assigned.
11
13. On or about October 11, 1995, Plaintiff applied for
employment directly with Chevron, seeking to be hired into the
position of Plant Helper. Thereafter, by letter dated December
28, 1995, Chevron offered Plaintiff the position of Plant Helper,
but that said offer was contingent upon Plaintiff completing a
pre-employment physical examination.
14. On or about January 2, 1996, Plaintiff underwent the pre-
employment physical examination required by Chevron. By
letter dated February 6, 1996, Chevron advised Plaintiff that
they had determined that Plaintiff's disability
prevented/precluded Plaintiff from performing the tasks of the
position of Plant Helper, and accordingly, Chevron was
withdrawing its offer of employment. That same letter also
advised Plaintiff that Chevron would keep the results of that
pre-employment physical examination confidential. Thereafter,
by letter dated February 21, 1996, Chevron advised Irwin that
they had determined that Plaintiff's disability
prevented/precluded Plaintiff from working anywhere within
the Plant, and accordingly, Chevron requested/instructed Irwin
to remove Plaintiff from performing any job within the Plant.
15. On or about February 28, 1996, Plaintiff was advised by
Irwin that both Irwin and Chevron had determined that Plaintiff
would no longer be permitted to perform any job at the Plant
because of his disability even though Plaintiff was fully capable
of performing the position of Plant Helper as well as other
positions/jobs within the Plant without injury to himself or
others.
16. On or about February 28, 1996, Plaintiff met with
Irwin’s director of human resources, Manfred F. Kiesser, who
affirmed that Plaintiff would no longer be permitted to perform
any work at the Plant.
17. On or about March 8, 1996, Irwin’s medical advisor
informed Irwin, who in turn informed Plaintiff, that Plaintiff
would no longer be entitled to perform any work at the Plant or
12
any other refinery because Plaintiff had chronic active hepatitis.
Furthermore, Plaintiff was informed that due to his training,
knowledge, experience and disability, there was no other work
available for him through Irwin.
18. Plaintiff is informed, believes and thereupon alleges that
at no time did Plaintiff ever authorize Chevron or any other
person or entity to provide any of his personnel and/or medical
records to Irwin or any health care practitioner for Irwin.
19. As a direct and proximate result of the aforementioned
acts, omissions and conduct of Defendants Irwin, Chevron, and
Does I through XXX as alleged herein, Plaintiff has been
deprived of his ability to continue employment in his chosen
profession or other similar positions from Defendants, has lost
and will continue to lose income and benefits from the date of
his termination forward, together with prejudgment interest
thereon in an amount to be proven at the time of trial.
20. As a further direct and proximate result of the
aforementioned acts, conduct and omissions of Defendants
Chevron, Irwin and Does I through XXX, Plaintiff has been
damaged financially and professionally and particularly become
emotionally upset, distressed, aggravated, and has suffered
embarrassment, mortification, humiliation, dignity, and loss of
reputation. Plaintiff claims damages therefrom including the
cost of medical care, all in an amount to be proven at the time
of trial. ,
21. Defendants Chevron, Irwin and Does I through XXX
intentionally, knowingly and illegally deprived Plaintiff of his
rights, including illegally terminating his employment and
thereafter or contemporaneously illegally violating his privacy
rights/rights of confidentiality with the knowledge that he
would be damaged thereby. At times relevant herein,
Defendants Chevron, Irwin and Does I through XXX knew that
Plaintiff would suffer severe financial and emotional injury by
and through their wrongful, illegal and malicious acts and
13
conducts as alleged herein in denying, terminating, and
thereafter interfering with Plaintiffs right of continued
employment as well as by breaching his rights or privacy and
22. The acts, conduct and grossly negligent omissions taken
together toward Plaintiff were carried out by managerial
employees, officers, and agents of Defendants Chevron, Irwin,
and Does I through XXX and were done in a deliberate, cold,
callous and intentional manner in order to injure and damage
Plaintiff. By and through their acts, conduct and omissions,
Plaintiff has been injured thereby and Plaintiff is entitled to an
award of punitive damages.
V.
[CLAIMS FOR RELIEF]
A.
[FIRST CAUSE OF ACTION AGAINST ALL
DEFENDANTS]
VIOLATION OF THE FAIR EMPLOYMENT AND
HOUSING ACT: DISABILITY DISCRIMINATION (Cal.
Gov’t Code §§12920 et seq.)
23. Plaintiff realleges each and every allegation of
paragraphs one through and including twenty-two of this
complaint and incorporates them herein by reference as
allegations asserting a violation of the FEHA for disability
ecsieninatl
24. At times relevant herein and especially as of the
applicable dates of the aforementioned illegal discriminatory
conduct as alleged herein, Plaintiff was a qualified individual
with a disability within the meaning of the disability
25. At all times relevant to his employment with Irwin and
at all times relevant to his application for employment with
14
Chevron, Plaintiff was able to perform in a professional and
competent manner, with or without reasonable accommodation,
all of the essential functions of each position/job function he
preformed for Irwin at the Plant or for which he had applied
with Chevron without injury to himself or others.
26. At all times relevant to his application process for
employment with Chevron as a Plant Helper, Chevron was
required to maintain all of Plaintiff's applications, personnel
and medical records in strict confidence in accordance with
provisions of law. At all times relevant to his employment with
Irwin, Irwin was required to maintain all of Plaintiff's medical
records in strict confidence in accordance with the provisions
of law.
27. Plaintiff is informed, believes and thereupon alleges that
in or about early 1996, without Plaintiff's authorization,
Chevron failed to maintain Plaintiff's medical
information/records/reports in a confidential manner as
required by law and thereafter released said confidential
personnel and medical records to unauthorized persons and
entities including Defendant Irwin, its employees and agents.
Plaintiff is informed, believes and thereupon alleges that at the
time of said unauthorized release of personnel and medical
information, Chevron knew or should have known that said
medical and personnel information was confidential, could not
be released without Plaintiff's authorization, and that Plaintiff
had not provided Chevron with any such release.
28. The aforementioned acts and conduct of Defendant
Chevron and Does I through XV was willful and intentional
and constitutes illegal employment discrimination on the basis
of disability in violation of Plaintiff's rights under FEHA.
29. The aforementioned acts and conduct of Defendants
Irwin and Does XVI through XXX was intentional and willful
and constitutes illegal employment discrimination on the basis
of disability in violation of Plaintiff's rights under FEHA.
15
30. As a direct and proximate result of the aforementioned
acts, conducts and omissions of Defendants Chevron, Irwin and
Does I through XXX, Plaintiff has been damaged and is entitled
to be made whole with respect to all terms and conditions of
employment he would have enjoyed including an order to be
hired or reinstated into the same or comparable position. As a
further direct and proximate result of the aforementioned
conduct, Plaintiff is entitled to prejudgment interest together
with all other general, compensatory and punitive damages in
an amount subject to proof at the time of trial.
31. Plaintiff is further entitled to an award of reasonable
attorneys’ fees as provided by FEHA.
B.
[SECOND CAUSE OF ACTION AGAINST ALL
DEFENDANTS}
VIOLATION OF THE AMERICANS WITH DISABILITY
ACT (42 U.S.C. §§12101 et seq.)
32. Plaintiff realleges each and every allegation of
saunas exe Gamudh end testaling Gitpens of Gis
complaint and incorporates them herein by reference as
asserting a claim for disability discrimination under Title I and
Title II of the ADA as against Chevron and under Title I of the
ADA as against Irwin.
33. The aforementioned acts and conduct of Defendant
Chevron and Does | through XV in (a) rejecting/refusing to hire
Plaintiff because of his disability and (b) refusing to permit
Plaintiff to work in any position at the Plant because of his
disability and (c) by failing to maintain in confidence and
thereafter releasing privileged and confidential
medical/personnel information without Plaintiff's proper
authorization was intentional and willful and constitutes illegal
employment discrimination on the basis of disability in
violation of Plaintiff's rights under Titles I and II of the ADA.
16
34. The aforementioned acts and conduct of Defendants
Irwin and Does XVI through XXX in terminating Plaintiffs
employment and/or refusing to permit Plaintiff to continue to
work at the Plant or at any other facility or refinery where Irwin
employed persons such as Plaintiff was intentional and willful
oO aenllity in violation of Plaintiff's rights under Title I of the
pe tee eee result of the aforementioned
acts, and omissions of Defendants i
Does I through XXX, Plaintiff Sse mere tea
to be made whole with respect to all terms and conditions of
employment he would have enjoyed including an order to be
hired or reinstated into the same or comparable position. As a
further direct and proximate result of the aforementioned
conduct, Plaintiff is entitled to prejudgment interest together
with all other general, compensatory and punitive damages in
an amount subject to proof at the time of trial.
36. Plaintiff is further entitled to an award of reasonable
attorneys’ fees from said Defendants as permitted by the ADA.
C.
[THIRD CAUSE OF ACTION AGAINST CHEVRON
ONLY]
VIOLATION OF SECTION 504, 29 U.S.C. §§794 et seq.
37. Plaintiff realleges each and every allegation of
paragraphs one through and including thirty-six of this
cede a nee Gam Besmn ty celia as
> or disability discriminat; ‘
Chevron under Section 504. aa
38. The aforementioned conduct of Defendant Chevron in
refusing to hire Plaintiff in or about February of 1996 and
thereafter refusing to allow Plaintiff to perform any position
within the Plant was intentional and willful and constitutes
17
illegal employment discrimination on the basis of his disability
in violation of Plaintiff's rights under Section 504.
39. Asa direct and proximate result of Defendant Chevron’s
acts, conduct and omissions as alleged herein, Plaintiff is
entitled to an order requiring Chevron to hire Plaintiff into the
position of Plant Helper or a comparable position with
comparable pay and benefits and to be made whole from the
date of his rejection of employment forward with respect to
each and every term, condition and entitlement of the
employment he would have enjoyed with Chevron had he been
hired, together with prejudgment interest thereon together with
other general, compensatory and punitive damages in an
amount subject to proof at the time of the trial.
40. Plaintiff is further entitled to an award of reasonable
attorneys’ fees as permitted by Section 504 as amended.
D.
[FOURTH CAUSE OF ACTION AGAINST CHEVRON}
VIOLATION OF PLAINTIFF'S CONSTITUTIONAL
41. Plaintiff realleges each and every allegation of
paragraphs one through five and seven through twenty-two of
this complaint and incorporates them herein by reference as
allegations asserting a violation of Plaintiff's right of privacy
him under Article I of the California Constitution as
against Chevron only.
42. At all times relevant to Plaintiff's applications for
employment with Chevron, Article I of the California
Constitution obligated Chevron to guarantee to Plaintiff that his
personnel records, including all medical records pertaining to
him would be maintained in a private and confidential manner
in keeping with said privacy rights guarantees. At all times
relevant herein, Plaintiff had an entitlement to and did
18
reasonably believe that his personnel files, including his
medical records, would be maintained in strict confidence and
that they would not be dispensed, transmitted, dispersed,
discussed, nor any matters contained therein conveyed or
communicated in any manner to any person or entity unless the
disclosure of same was authorized by Plaintiff.
43. Atall times relevant herein, Defendant Chevron knew or
should have known that any personnel records, including
medical records, provided to Chevron by Plaintiff or
created/generated/prepared in conjunction with Plaintiff's
applications for employment with Chevron must be maintained
in a confidential manner and could not be released without
authorization by Plaintiff.
44. Plaintiff is informed, believes and thereupon alleges that
on at least one occasion occurring in or about early 1996,
Chevron and/or Does | through XV illegally and intentionally
dispensed, disseminated, transmitted, mailed, transferred or in
some manner communicated to agents, officers or employees
of Irwin confidential medical/personnel records/information of
or pertaining to Plaintiff which was within the control or
possession of Chevron without first obtaining Plaintiff's
authorization before disclosing said confidential information.
The unauthorized release of said private and confidential
information constitutes a serious invasion of Plaintiff s privacy
rights.
45. As a direct and proximate result of said wrongful
conduct as alleged herein, Plaintiff has been damaged and is
entitled to an award of general, compensatory and punitive
damages in an amount to be proven at the time of trial, together
with prejudgment interest thereon.
E.
[FIFTH CAUSE OF ACTION AGAINST CHEVRON]
VIOLATION OF THE CONFIDENTIALITY OF MEDICAL
INFORMATION ACT (Cal. Civil Code §§56 et seq.)
19
46. Plaintiff realleges each and every allegation of
paragraphs one through five and seven through twenty-two and
forty-one through forty-five and incorporates them by reference
as if fully set forth as allegations asserting a violation of
California’ Confidentiality of Medical Information Act (CMIA)
as against Chevron only.
47. Plaintiff is informed, believes and thereupon alleges that
in or about early 1996, Defendant Chevron, without proper
authorization by Plaintiff as required by the Confidentiality of
Medical Information Act, California Civil Code §§56 et seq.,
disclosed, disseminated and in some manner communicated to
Defendant Irwin, its agents, officers and/or employees
confidential medical information/records within Chevron’s
possession or under its control. Plaintiff is informed, believes
and thereupon alleges that at times relevant herein, Defendant
Chevron knew or should have know that the disclosure of said
confidential medical information could not be released,
disseminated, or communicated to others unless the disclosure
of which had been authorized by Plaintiff. At all times relevant
herein, Plaintiff had not authorized the disclosure of said
medical information/records to Irwin.
48. As a direct and proximate result of the illegal disclosure
of Plaintiff's medical information to Irwin and/or its agents in
violation of CMIA, Plaintiff has been damaged and is entitled
to an award of general, compensatory and punitive damages a
permitted by law, all in an amount to be proven at the time of
trial, together with prejudgment interest and attorneys’ fees as
permitted by law.
F.
[SIXTH CAUSE OF ACTION AGAINST CHEVRON
ONLY]
INTENTIONAL INTERFERENCE WITH
CONTRACTUAL RELATIONS
20
49. Plaintiff realleges each and every allegation of
paragraphs one through five and seven through forty-seven of
this complaint and incorporates them herein by reference as if
fully set forth as allegations asserting a cause of action against
Chevron for intentional interference with Plaintiffs contractual
relations with Irwin.
50. At all times relevant herein, Defendant (Chevron knew
that Plaintiff had a contract of employment with Irwin to work
at the Plant and further that Plaintiff desired to continue to work
at the Plant.
51. As a direct and proximate result of the aforementioned
illegal acts and conduct of Defendant Chevron in directing,
advising, and instructing Irwin to prohibit Plaintiff from
continuing to work at the Plant, and thereafter by disclosing
confidential medical records/information to officers,
employees, and/or agents of Irwin which Defendant Chevron
knew or should have known that the release/dissem-
ination/communication of said confidential medical information
would prevent Plaintiff from continuing to work for Irwin at the
Plant or at any refinery, Defendant Chevron intentionally and
illegally interfered with Plaintiffs contract of employment with
Irwin.
52. As a direct and proximate result of the aforementioned
acts and conduct of Defendant Chevron, Plaintiff has lost
employment together with benefits and entitlements to
employment with Irwin in an amount to be proven at the time
of trial, together with such other general, compensatory and
punitive damages in an amount to be proven at the time of trial,
together with prejudgment interest thereon.
V.
[PRAYER FOR RELIEF]
WHEREFORE, Plaintiff demands judgment from Defen-
dants as follows:
21
1. INJUNCTIVE RELIEF AGAINST DEFENDANTS
CHEVRON AND IRWIN:
Plaintiff prays that this Court specifically enjoin Defendants
Chevron and Irwin:
(a) to expunge all personnel and/or medical records to the
extent they state, suggest, or imply that Plaintiff is
physically incapable of or should not or cannot perform
the job for which he sought to be hired or for which he
was hired and maintain said records in accordance with
law;
(b) to provide as to Chevron a clear written standard as to
when Defendants may release confidential personnel
and/or medical records and how said records must be
maintained for any applicant or employee;
(c) to order Defendant Chevron to hire Plaintiff into the
position of Plant helper or the next comparable position
with comparable pay and benefits;
(d) in the event Chevron is not ordered to hire Plaintiff, to
order Defendant Irwin to reinstate Plaintiff into the last
position he held or the next comparable position with
comparable pay and benefits.
2. ALL CAUSES OF ACTION AGAINST DEFENDANTS
CHEVRON AND DOES I THROUGH XV:
Plaintiff prays to be made whole with respect to all lost
wages and benefits as well as each term, condition and
entitlement of employment he would have had with Defendant
Chevron but for Chevron’s illegal rejection of his 1995/1996
application for employment from the date of his rejection
forward, including but not limited to all front and back pay,
retirement/pension, and medical benefits, together with
prejudgment interest thereon in an amount subject to proof at
the time of trial;
22
3. AS TO ALL CAUSES OF ACTION AGAINST
DEFENDANTS IRWIN AND DOES XVI THROUGH XXX:
Plaintiff prays to be made whole with respect to all lost
wages and benefits as well as each term, condition and
entitlement of employment with Defendant Irwin but for
Irwin’s illegal termination of his employment from the date of
his termination forward, including but not limited to ali front
and back pay, retirement/pension, and medical benefits,
together with prejudgment interest thereon in an amount subject
to proof at the time of trial;
4. AS TO THE FIRST AND SECOND CAUSES OF
ACTION AGAINST ALL DEFENDANTS:
Plaintiff prays for general, compensatory and punitive
Camages according to proof in an amount to be established at
tae time of trial;
5. AS TO THE THIRD, FOURTH, FIFTH AND SIXTH
CAUSES OF ACTION AGAINST __DEFENDANTS
CHEVRON AND DOES I THROUGH XV:
Plaintiff prays for general, compensatory and punitive
damages as permitted by law according to proof in an amount
to be established at the time of trial;
6. AS TO THE FIRST, SECOND AND THIRD CAUSES
OF ACTION AGAINST ALL DEFENDANTS:
Plaintiff prays for an award of reasonable attorneys’ fees;
7. AS TO THE FIFTH CAUSE OF ACTION AGAINST
DEFENDANT CHEVRON:
Plaintiff prays for an award of reasonable attorneys’ fees as
permitted by law;
23
9. OTHER RELIEF:
Costs of suit, prejudgment interest as permitted by law,
together with such other and further relief as this Court deems
just and proper.
Dated: April 8, 1997 Respectfully submitted, -
SIEVERS & MINSKY
By /s/ L. Minsky
LARRY MINSKY
Attorney for Plaintiff
MARIO ECHAZABAL
DEMAND FOR JURY TRIAL
Plaintiff hereby demands trial by jury on all of the issued
plead herein so triable and as otherwise permitted by law.
Dated: April 8, 1997 Respectfully submitted,
SIEVERS & MINSKY
By /s/ L. Minsky _
LARRY MINSKY
Attorney for Plaintiff
MARIO ECHAZABAL
24
[DEFENDANT CHEVRON’S ANSWER TO FIRST
AMENDED COMPLAINT}
SUPERIOR COURT OF THE STATE OF
CALIFORNIA FOR THE COUNTY OF LOS ANGELES
[Title omitted in printing]
CHEVRON’S ANSWER TO ECHAZABAL’S FIRST
AMENDED COMPLAINT
[Filed May 2, 1997]
To Plaintiff And Counsel:
Defendant Chevron U.S.A. Inc. (“Chevron”) answers the
“ Amended Complaint of plaintiff Mario Echazabal as
ollows:
1. Chevron denies the material allegations of Echazabal’s
First Amended Complaint pursuant to C.C.P. § 431.30.
Chevron denies that Echazabal suffered, or will suffer, damages
as a result of any act or omission by Chevron as alleged in the
First Amended Complaint.
FIRST AFFIRMATIVE DEFENSE
(Failure to Mitigate)
2. Chevron is not liable for any damages Echazabal could
have prevented through reasonable measures available to him.
25
(Privilege)
3. Assuming arguendo that Chevron interfered with
Echazabal’s contractual relations, its acts or omissions were
privileged.
(Health and Safety)
4. Chevron is not liable to Echazabal because, as a result of
his medical condition, he could not perform his essential duties
without endangering the health and safety of himself and his
coworkers.
FOURTH AFFIRMATIVE DEFENSE
(Justification)
-5. Assuming arguendo that Chevron breached Echazabal’s
right to privacy, any invasion was justified because it
substantially furthered one or more countervailing interests.
FIFTH AFFIRMATIVE DEFENSE
(Business Necessity)
6. Chevron is not liable to Echazabal because its job
selection criteria are job-related and consistent with business
necessity, and Echazabal cannot perform his job in the refinery
environment without seriously endangering his own health.
(Statutes of Limitation)
7. Echazabal’s claims are barred by C.C.P. §§ 339 and 340,
Cal. Gov. Code §§ 12960 and 12965, and 42 U.S.C. § 2000e-5.
SEVENTH AFFIRMATIVE DEFENSE
(Unconstitutionality of Punitive Damages)
8. Any award of punitive damages is in violation of the
California and federal constitutions.
26
EIGHTH AFFIRMATIVE DEFENSE
(Damages Limitations)
. 9. The damages recoverable on Echazabal’s claims are
limited by 42 U.S.C.A § 1981a and Cal. Civ. Code § 56.35.
Chevron prays for judgment as follows:
(1) That Echazabal takes nothing by reason of his First
Amended Complaint; ©
(2) that Chevron be awarded costs of suit; and
(3) for any further relief the Court deems just and proper.
May 2, 1997 |
HAWKINS, SCHNABEL, LINDAHL & BECK
By: /s/ KG
Kurt G. Gresenz, Attorneys for Defendant
CHEVRON U.S.A. INC.
©
27
[DECLARATIONS IN SUPPORT OF CHEVRON’S
MOTION FOR SUMMARY JUDGMENT}
DECLARATION OF JULIE L. CLAYDON
I, Julie L. Claydon, declare:
1. I am employed by Chevron Products Company as a
safety technician. I work at Chevron’s E] Segundo refinery. |
have been employed by Chevron since September 1990. The
following matters are true of my own personal knowledge and
if I was called as a witness I could competently testify to them.
2. My duties as a safety technician include record keeping
for the safety section. In this capacity | maintain a database of
chemicals used and stored at the refinery. The various sections
at the refinery update me when new chemicals are introduced
to the refinery and when existing chemicals are discontinued.
This information is then inputted to our system.
3. In late May or early June 1996 I was asked to print a list
of all chemicals at the refinery from 1992 through 1996, sorted
by their work location. I requested the help of a systems
administrator, who was able to search the database for the
selected categories. Attached as Exhibit 22 is a true and correct
copy of this chemical inventory. The left-hand column reflects
the location at the refinery where the chemical is used or stored.
The next column identifies the chemical. The “Start Date”
column reflects when the chemical was first introduced to the
refinery. The “End Date” column reflects when the chemical
was discontinued. If there is no end date, the chemical is still
used or stored at the refinery.
4. I declare under penalty of perjury under the laws of the
State of California that the preceding matters are true and
correct of my own personal knowledge.
28
Executed this 21 day of August, 1997, in El Segundo,
California.
/s/ Julie L. Claydon__
Julie L. Claydon
i
DECLARATION OF MICHAEL J. NYEHOLT
I, Michael J. Nyeholt, declare:
1. lam employed by Chevron Products Company at the E]
Segundo refinery. | started with Chevron in 1969 and have been
working at the Chevron refinery in El Segundo since 1974. The
following is true of my own personal knowledge, and if called
as a witness I could competently testify to these matters.
2. I currently hold the position of industrial hygienist in the
Environmental, Fire and Safety division at the Chevron El
Segundo refinery. I started in that position in August 1996. My
job duties include monitoring for harmful airborne exposures
that an employee or contractor might encounter in the regular
course of operations. One of the purposes of the monitoring is
to help provide a safe working environment. The monitoring is
generaily for typical exposures to employees in the workplace.
3. We conduct these tests refinery-wide. We perform two
kinds of monitoring: area monitoring and personal monitoring.
An area sample involves placing the testing device in a
stationary position and monitoring for exposures in that area. A
personal sample involves affixing the testing device to a
worker and monitoring for exposures he or she encounters in
the performance of his or her duties.
4. I am responsible for conducting the monitoring and
maintaining the results. We maintain the monitoring results in
29
a computer database and are required to keep the results for 30
years. | was asked to print copies of our air monitoring results
from 1992 through 1996. A true and correct copy of these
results are attached as Exhibit 18. Each test identifies, in the
first column, the sample number, the date of the test, whether
it is an area or personal sample, a description of the task being
performed, the refinery location (by division, and if applicable,
the plant within the division where the test took place) and the
tester’s description and/or comments concerning the test. The
second column identifies the substance tested for
(“contaminant”) and the results of the test (“conc. result”). The
5. For example, the second to the last sample on page 22 of
Exhibit 18 translates as follows: It is sample number 262116,
performed on 10/10/93, and is a personal sample. The job tested
was that of a welder removing a lead lining on a flash vessel in
a specific plant in the coker unit. The test was for lead
exposure. An exposure of 210 micrograms per cubic meter of
air was measured. The permissible exposure to lead is 50
micrograms per cubic meter of air. Thus, for this sample, the
exposure exceeded the permissible exposure by more than 4
times. I am informed and believe that lead is a chemical
dangerous to the liver.
6. I declare under penalty of perjury under the laws of the
state of California that the preceding is true and correct of my
own personal knowledge.
Executed on August 21, 1997, in El Segundo, California.
/s/_ Michael J. Nyeholt_
Michael J. Nyeholt
e
30
DECLARATION OF PATRICK W. BEATTY
I, Patrick W. Beatty, declare:
1. I am employed by Chevron Research and Technology
Company as a staff toxicologist. My job title is Team Leader —
Petroleum Toxicology and Health Risk Assessment. I have
been employed by Chevron since 1988 (in various operating
divisions). The following matters are true of my own personal
knowledge and if I was called as a witness I could competently
testify to them.
2. I received an A.B. degree in Chemistry in 1972 from
Transylvania University in Lexington, Kentucky. I received a
Ph.D. in Bio-Chemistry in 1977 from Vanderbilt University in
Nashville, Tennessee. I did post-doctoral research in the
department of bio-chemistry and bio-physics for two and a half
years at Oregon State University in Corvallis, Oregon, from
1977 to 1979. | am also a Diplomate of the American Board of
Toxicology, certified in 1994.
3. Asastaff toxicologist, I provide consultation to Chevron
companies and operating division regarding the evaluation of
potential health effects to Chevron employees, customers and
the general public arising from Chevron products and
processes. inaedeetanbalanaditaiedetanen tienes
hepatotoxicity which exist in a petroleum refinery environment.
A true and accurate copy of this list is attached as Exhibit 19.
I put together this list by consulting standard toxicological
reference works and text books, and reviewing a literature
search of medical and toxicological literature relevant to —
hepatotoxicity.
4. After completing this list, | provided it to our industrial
hygiene department and asked them to cross-reference my list
against the chemical inventory of Chevron’s El Segundo
refinery (Exhibit 22). The industrial hygiene department was
asked to identify all substances at the refinery containing one
or more of the hepatotoxic chemicals I listed on Exhibit 19. The
31
industrial hygiene department provided me with their results, |
reviewed them and deleted from their list those substances
which I did not consider to pose a realistic hepatotoxic risk in
the refinery environment. A true and accurate copy of my final
list is attached as Exhibit 20.
5. I declare under penalty of perjury under the laws of the
State of California that the preceding matters are true and
correct of may own personal knowledge.
Executed this 2d day of September, 1997, in Richmond,
/s/ Patrick W. Beatty _
Patrick W. Beatty
‘ California.
»
DECLARATION OF WILLIAM L. SANER
I, William L. Saner, declare:
1. lamemployed by Chevron U.S.A. Products Company as
the Manager of Human Resources at the El Segundo refinery.
I have held that position since June 1, 1993. My duties include
coordinating and administering all hiring for the El] Segundo
refinery, providing management support and day-to-day
supervision to all Human Resources staff.
~~ 2. I supervise the Human Resources staff which provides
records retention in connection with job applications and
related documents which are kept in the normal course of
business related to hiring at the E] Segundo refinery and am
familiar with our procedures. The exhibits referenced in this
declaration are business records maintained in the ordinary
course of our operations.
32
3. Attached as Exhibit | is a true and accurate copy of
Chevron job bulletin no. 1595, dated September 29, 1995,
listing job openings for plant helper positions at the refinery.
Attached as Exhibit 2 is a true and accurate copy of the
October 11, 1995. Among other things, it indicates that Mr.
Echazabal was seeking employment as a Plant Helper - 3C.
4. Onor about December 28, 1995, I authorized an offer of
employment to be extended to Mr. Echazabal as a plant helper
subject to certain conditions. Attached as Exhibit 3 is a true and
accurate copy of our December 28, 1995 letter to Mr.
Echazatal confirming our verbal offer and its conditions. Mr.
Echazabal was advised that the offer of employment was
“contingent upon . . . completing a pre-employment physical
examination.”
5. Attached as Exhibit 4 is a true and accurate copy of the
Request for Medical Services form generated in connection
with Mr. Echazabal’s exam. Most notably, with respect to
Medical Classification, the examining physician, Dr. McGill,
checked the box for “B. Work Limitations Required.” Dr.
McGill wrote-in by hand the following notations: “because of
uncorrectable abnormality” and “No exposure to solvents or
other liver toxic chemicals.”
6. Idiscussed Mr. Echazabal’s offer with Dr. McGill and he
advised me that, because of a medical condition, Mr. Echazabal
should not be exposed to the hydrocarbons and other chemicals
to which he would be routinely exposed if he were working as
a plant helper at the refinery.
7. Attached as Exhibit 16 is a true and accurate copy of our
Job Summary (form GO-400) for the positions of Coke
Handler, Coker Plant Helper 1/C, 2/C, 3/C. It covers the
position for which Mr. Echazabal applied. The Job Summary
describes key job responsibilities. The accompanying
Physical/Environmental Demands (form GO-308-ES), a true
33
and accurate copy of which is attached as Exhibit 17, also
reviews what abilities/demands are placed on the employee and
documents the airborne contaminants and chemicals in the
work environment. These are noted for this position to be
“Hydrocarbon Liquids & Vapors, Acid, Caustic, Refinery
Waste Water and Sludge, Petroleum Solvents, Oils, Greases,
Chlorine Bleach.”
8. Given my knowledge of the plant helper position, and
my review of the Job Summary and Physical/Environmental
Demands forms, I knew that exposure to hydrocarbons and
chemicals is a necessary and inseparable part of the job. Based
on this knowledge and Dr. McGill’s medical opinion that these
exposures would be detrimental] to Mr. Echazabal’s health, |
withdrew Chevron’s job offer to Mr. Echazabal.
9. Attached as Exhibit 5 is a true and accurate copy of my
February 6, 1996 letter to Mr. Echazabal. My letter
communicated to him that the results of his medical
exarnination indicated he had a medical condition which would
restrict him from performing the tasks of the position we had
conditionally offered to him and that we were withdrawing that
offer of employment.
10. I was advised that Mr. Echazabal was employed by Irwin
Industries, Inc. (“Irwin”), a contractor who provides certain
services at Chevron’s El Segundo refinery, and had been
assigned by Irwin to work at the refinery. Given our medical
evaluation that Mr. Echazabal should not be working in an
environment where he would be exposed to hydrocarbons and
chemicals of the type routinely encountered at the refinery, it
was my judgment that we request Irwin to remove him from the
refinery or place him in a position that would eliminate his
exposure to solvents and chemicals. Chevron’s February 21,
1996 letter to Irwin, a true and accurate copy of which is
attached as Exhibit 6, was sent under my direction. We advised
Irwin that we had withdrawn our job offer to Mr. Echazabal
based on a medical condition that restricted him from
34
performing the tasks of the position offered, and that the
restriction required that he not be exposed to solvents and
certain chemicals. This letter also asks that Mr. Echazabal be
immediately removed from the refinery or placed in a position
that would eliminate his exposure to solvents/chemicals. I did
this to protect Mr. Echazabal based on my belief that the work
environment posed a significant risk of causing him substantial
harm. It was not my intention that Echazabal lose his job at
Irwin. Rather, I expected Irwin would likely transfer him to
another location that did not pose the same health hazards.
11. There is no way to modify the work environment at the
El Segundo refinery to eliminate a plant helper’s exposure to
hydrocarbons, chemicals and solvents. Nor do I see any
possible way to modify the job duties of a plant helper to
eliminate such exposures. This is especially true for an entry-
level plant helper who is charged with much of the cleaning and
maintenance responsibilities. It is a necessary and inherent part
of the job duties of a plant helper to work in areas of the
refinery which necessarily expose a plant helper to vapors and
chemicals, including those which I am informed and believe are
liver toxic.
12. Attached as Exhibit 25 is a true and correct copy of an
Authorization For Release For Medical And Other Information
(form GO-153). This form includes a release which provides as
follows:
I authorize the release of any and all information
related to any diagnosis, treatment, and prognosis of
my physical and mental condition, including
information concerning the use of drugs or alcohol,
by and between my healthcare providers, pharmacy,
the Company, the Company’s employee benefit plan
administrators, any insurers of the Company’s
employee benefit plans or of its compliance with
industrial injury or occupational safety and health
laws, any organization retained by the Company to
35
assist in the administration of its employee benefit
plans or its compliance with industrial injury or
occupational safety and health laws, and any other
private or governmental entity from whom I am or
may be entitled to benefits. I further authorize the
release of any other information by and between the
above-named parties related to any benefits I may be
entitled to other than from the Company. This shall
include, but not be limited to, all information
concerning any fact or upon which such benefits are
based. Information I am releasing shall be used to
administer the Company’s employee benefit plans,
scheduled returns to work, and comply with industrial
injury and occupational safety and health laws. This
authorization is valid for two years from the date I
sign it, or until you and my employer receive written
notification of its revocation. A copy of this
authorization is as valid as the original.
This form was signed by Mr. Echazabal on January 2, 1996. (It
is identical to an authorization signed by Mr. Echazabal in 1993
in connection with an earlier application for employment with
Chevron, a true and accurate copy of which is attached as
Exhibit 24.) I am informed and believe that at the time Mr.
Echazabal executed the authorization, he was employed by
Irwin, an entity from which he was receiving benefits.
13.1 did not release any information regarding Mr.
Echazabal’s medical condition or its significance to Irwin, or
any agent or employee of Irwin, other than the information
communicated in my February 21, 1996 letter. To the best of
my knowledge and belief, no other Chevron employee has done
so either. The information in my letter relevant to Mr.
Echazabal’s medical condition was my statement that he had a
“medical condition” imposing the work restriction that he not
be exposed to “solvents and certain chemicals.”
36
14. Mr. Echazabal never became a Chevron employee. His
conditional job offer was withdrawn based on our finding that
Mr. Echazabal could not perform the essential functions of a
plant helper without subjecting himself to a significant risk of
substantial harm, a risk that could not be eliminated through
reasonable accommodation.
15. I declare under penalty of perjury that the foregoing is
true and correct and that, if called as a witness, I could and
would competently testify to the above.
Executed August 21, 1997 at El Segundo, California.
/s/_ William L. Saner
William L. Saner
»
DE TIO TH McGILL, M.D.
I, Kenneth McGill, M.D., declare:
1. I am a self-employed medical doctor working at the
medical clinic at Chevron’s El Segundo Refinery.
2. I graduated from the University of Saskatchewan in 1954
with a Bachelor of Arts degree in Engineering and Arts. I
graduated from the University of British Columbia Medical
School with an M.D. degree in 1960.
3. I did an internship and residency at St. Mary’s Hospital
in Long Beach from 1960 through 1962. My residency was
rotating and included emergency care. I have also subsequently
attended numerous professional seminars and conferences to
continue my medical training. I have been licensed to practice
medicine in California continuously since 1962.
37
4. From 1962 through 1980 I was self-employed and had a
general and family medical practice in South Laguna,
California. From 1980 through approximately 1986 I practiced
industrial medicine working at various industrial clinics in
Southern California. Industrial medicine includes treating
injuries which occur on the job and biomedical testing for
exposures to various chemicals and substances in the work-
place. It includes such diverse things as treating chemical
exposures, testing for hearing loss and treating accidents on the
job. From approximately 1986 through approximately 1989 I
worked as a medical doctor for the City of Los Angeles
Department of Water & Power. I was the doctor on staff at the
Water & Power clinic. Since approximately January 1988 I
have worked at the Chevron El Segundo Refinery in the
medical clinic. Since approximately July 1993 I have been the
Clinical Doctor.
5. As Clinician at the El Segundo Refinery I am concerned
both with treating injuries and accidents once they occur and,
just as importantly, developing and implementing programs for
the prevention of injuries.
6. One of my functions is to give pre-employment physical
exams and assess applicants for employment at the refinery
from a medical standpoint. This function typically includes
taking a history from the applicant, assessing whether any past
or current medical problems are likely to have an impact on
what they will be asked to do and/or what they will be exposed
to in the workplace and, when appropriate, investigating further
to determine their ability to safely perform the position for
which they are being considered. One of the things | take into
account is whether the job the applicant is seeking is likely to
aggravate a condition the person already has. For example, if an
applicant has pre-existing pulmonary problems or allergies, we
have to very carefully examine whether it would be appropriate
to put that person in an environment where they are exposed to
dust.
38
7. In the normal course of business the medical clinic
maintains medical charts which record medical examinations,
assessments and/or treatment of persons seen in the clinic. Mr.
Echazabal was seen at the clinic several times between 1992
and 1996. Pursuant to our standard practice we maintained a
chart concerning Mr. Echazabal. I reviewed that chart. Included
in it are subsequent records concerning his chronic active
hepatitis C. I personally saw Mr. Echazabal on some occasions,
including January 2, 1996, when he came to the clinic, gave a
medical history and underwent a physical examination as part
of the employment process. Attached as Exhibit 15 is a true and
accurate copy of the Medical History & Physical Examination
form (GO-146) filled out at Mr. Echazabal’s January 2, 1996
visit. Mr. Echazabal disclosed in connection with the
Medications inquiry that within the last twelve months he had
taken Interferon for a liver condition. In connection with his
Exposure History he answered “Yes” to questions about
whether he had been regularly exposed to insulation materials,
welding and soldering fumes and other dusts and fumes within
the last six months. He specifically identified exposure to
“coker dusts.” Mr. Echazabal also indicated that with respect
to chemical agents, he had been exposed to solvents and
cleaning fluids. Also, he had been exposed to engine exhaust
and noise. Mr. Echazabal reported that all of these exposures
were at work. Mr. Echazabal also answered “yes” to questions
inquiring about a history of hepatitis or jaundice. He disclosed
both that he had a liver condition and was undergoing liver
treatment. My notes in connection with my January 2, 1996
examination indicate that Mr. Echazabal was to set-up an
appointment for a current liver function test at his HMO. The
purpose of this was to assist me in assessing his current liver
function.
8. The refinery creates and maintains job summaries with
respect to every position at the El Segundo Refinery. These
include descriptions of what employees need to be able to do in
particular jobs and, where appropriate, what environmental
39
conditions they will encounter. I knew Mr. Echazabal was
applying for a position to become a coker plant helper so from
our manual I obtained the summaries regarding that position. A
true and accurate copy of the applicable Job Summary (Form
GO-400) is attached as Exhibit 16. A true and accurate copy of
Chevron’s Physical/Environmental Demands (form GO-308-
ES) is attached as Exhibit 17. These summaries are prepared in
the normal course of business and are used and relied upon by
the medical clinic in connection with assessing whether
applicants for jobs are capable of safely performing the
required functions. The information in these two summaries
were consistent with my general understanding and enhanced
my knowledge of the coker plant helper position and its
requirements. In particular, the Physical/Environmental
Demands (form GO-308-ES), which was updated on December
1, 1993, addressed the issue of Airborne Contaminants &
Chemicals in the work environment, listing: “Hydrocarbon
Liquids & Vapors, Acid, Caustic, Refinery, Waste, Water and
Sludge, Petroleum, Solvents, Oils, Greases, Chlorine, Bleach.”
Given Mr. Echazabal’s medical history, his impaired liver
function as evidenced by lab tests in his chart and his diagnosis
of chronic active Hepatitis C, 1 was concerned about whether he
could work in the environment at the coker unit and provide the
services required of a plant helper without endangering his own
health. A plant helper in the coker unit is exposed to chemicals
and solvents including several that are hepatotoxic, that is,
damaging to the liver. A healthy individual can be expected to
withstand this exposure with no significant health risk. But
given Mr. Echazabal’s history of a long term liver problem, his
diagnosis of chronic active Hepatitis C, and significantly
elevated liver enzymes over a period of years, he had a reduced
liver function as demonstrated by lab test results, he would be
far more at risk than a person who had normal liver function
and was performing the duties of a plant helper. My concern
was that further exposure to hepatotoxic chemicals and solvents
would further damage his already reduced liver capacity and
seriously endanger his health. Small exposures over a long
40
period of time would pose a health hazard for him. Also, a
single event large exposure (for example, as a result of a
ruptured pipe, a relief valve popping and venting, a fire,
explosion or other emergency situation) could by itself
significantly injure him and potentially cause death. In short,
hepatotoxic exposure to a person like Mr. Echazabal with an
already impaired liver suffering from a progressive liver
disease such as chronic active hepatitis C could be fatal. One of
the liver’s primary functions is to filter poisonous substances
from the body. Given the existence of numerous potential toxic
substances at the refinery, even if not specifically liver toxic, a
person with an impaired liver would be less able to detoxify
such an exposure. This circumstance by itself carries the risk of
serous injury or death.
9. I received a letter dated January 10, 1996 from Zelman
Weingarten, M.D., one of Mr. Echazabal’s personal physicians.
A true and correct copy of this letter is attached as Exhibit 27.
It advises that Mr. Echazabal had been followed in the
Gl/Hepatology Department of Healthcare Partners Medical
Group for several years with a history of chronic active
Hepatitis secondary to Hepatitis C, and that he had been treated
for extended periods with Interferon without clearance of the
problem. Mr. Echazabal was described at that time as being
asymptomatic. Dr. Weingarten advised that Mr. Echazabal did
not pose a contagious problem, provided he did not donate
blood, use needles, etc. I was concerned about whether his
chronic active Hepatitis C would affect his ability to work as a
plant helper in the coker unit without injuring himself as a
result of exposures to chemicals and solvents. Dr. Weingarten’s
letter did not address this additional issue.
10. Attached as Exhibit 28 is a true and accurate copy of my
January 10, 1996 letter to Mordo Suchov, M.D., whom I knew
to be one of his treating doctors at the Healthcare Partners
Medical Group. I advised Dr. Suchov, among other things, that
Mr. Echazabal had applied for a job that may entail exposure to
41
hepatotoxic hydrocarbons and asked his opinion as to whether
this exposure would be a risk to Mr. Echazabal’s liver
condition.
11. On January 24, 1996 I received a partial printout of
blood tests results which I believe Mr. Echazabal brought into
the clinic that day. A copy of that partial printout is attached as
Exhibit 14. It reports tests on blood drawn on 1/5/96. The copy
I was given did not go all the way to the bottom of the page and
did not include the particular liver function tests | was
interested in. On that date, I placed a phone call directly to the
laboratory and spoke with a technician, my notes show he gave
his name as Fred, who read me the additional test results that
were not on the page I was provided. I was advised on that date,
and noted in my chart, the following lab results:
SGPT 329
SGOT 147
GGTP 170
Alpt 90
These results were markedly abnormal. These each show liver
enzymes at values far above normal. These enzymes are
intracellular enzymes which indicate liver cell damage. There
is a normal range for these enzymes indicating normal
clearance of liver cells. These results, however, combined with
Mr. Echazabal’s history, show that his liver has already
suffered significant damage. A normal healthy adult may only
routinely need to use 50-60% of their liver capacity and has, in
effect, excess capacity. Mr. Echazabal has a greatly decreased
capacity to process toxins. Additionally, exposure specifically
to hepatotoxins will further impair his already damaged liver
and damage his health by continuing to degrade his liver’s
ability to function. Given that his liver is already in effect
impaired the prospect of further damage is quite serious and
must be avoided.
42
12. From our chart we also had prior lab results regarding
Mr. Echazabal which I was able to review and compare. A true
and accurate copy of a report dated October 15, 1992 is
attached as Exhibit 7. It shows:
Reference
Range
G-Glutamy! Transpep 167.0 Units/L_ 1.00-94.0
Transaminase, SGO 118.0 IV/L 1.00-45.0
Transaminase, SGP 275.0 IV/L 1.00-60.0
On or about December 19, 1992, I received a letter from one of
Mr. Echazabal’s physicians, a true and correct copy of which
is attached as Exhibit 8, which reports the following results:
G-Glutamy] Transpep 39.0
Transaminase, SGO 108.0
Transaminase, SGP 129.0
A true and accurate copy of a report dated January 6, 1993 is
attached as Exhibit 9. It has the following information:
Reference
Range
G-Glutamyl Transpep 142.0 Units/L__1.00-94.0
Transaminase, SGO 212.0 IV/L 1.00-45.0
Transaminase, SGP 469.0 IV/L 1.00-60.0
43
A true and accurate copy of another report dated March 26,
1993 is attached as Exhibit 10. It shows:
Reference
Range
GGT 185 U/L 0-65
AST (SGOT) 145 U/L 0-50
ALT (SGPT) 406 U/L 0-55
On or about April 5, 1993, I received another letter from one of
Mr. Echazabal’s physicians, a true and correct copy of which
is attached as Exhibit 11, with the following results:
GGT 181
SGOT 177
SGPT 494
A true and accurate copy of another lab report dated April 9,
1993, is attached as Exhibit 12. That report has the following
entries:
Reference
Range
G-Glutamyl Transpep 151.0 Units/L 1.00-94.0
Transaminase, SGO 120.0 IV/L 1.00-45.0
Transaminase, SGP 265.0 IV/L 1.00-60.0
A true and accurate copy of a report dated June 25, 1993 is
attached as Exhibit 13. For the equivalent items it showed:
Reference
Range
GGT 161 U/L 0-65
AST (SGOT) 214 U/L 0-50
ALT (SGPT) 513 U/L 0-55
44
13. Based on my review of Mr. Echazabal’s medical chart,
taken on January 5, 1996, I noted that despite a history of
having received aggressive Interferon treatment for a period of
years, the liver enzyme levels still showed considerable
impairment in liver function.
14. It is my professional opinion to a reasonable degree of
medicai certainty that Mr. Echazabal’s chronic liver condition
is uncorrectable. Based on my knowledge of the job
requirements of plant helper in the coker unit, it was and
remains my medical opinion that Mr. Echazabal could not
safely perform that job. Working in that environment would
present a danger to Mr. Echazabal and would potentially
damage his liver and endanger his health to a significant
degree. It was and remains my opinion that Mr. Echazabal
should not be put in a position where he is working with
solvents or other liver toxic chemicals. Based on my knowledge
of the requirements of a plant helper in the coker unit, he
should not be hired to perform that job. In fact, any job out in
the refinery that exposed him to hydrocarbons, chemicals and
solvents would not be appropriate. It was and remains my
opinion that Mr. Echazabal faced a significant risk of
substantial harm in the position conditionally offered to him. |
am advised that Mr. Echazabal had worked for many years for
Irwin Industries (and before that other employers) at the
Chevron El Segundo Refinery. | have considered this fact, as
well as his failure to respond to aggressive Interferon treatment,
in reaching my opinion that it would pose a significant health
risk for him to continue working around hepatotoxic chemicals
and solvents.
15. On January 29, 1996 I also discussed this issue by
telephone with Dr. T.L. Bridge, Chevron’s Medical Director in
San Francisco. He agreed with my assessment that Mr.
Echazabal could not safely work as a plant helper at the
refinery. Thereafter I discussed this issue with William Saner,
45
head of Human Resources at the refinery, and provided him my
assessment.
16. On January 29, 1996 I completed the bottom half of the
REQUEST FOR MEDICAL SERVICE report, a true and
accurate copy of which is attached as Exhibit 4. As noted on the
form, if Mr. Echazabal were to be hired by Chevron, it would
be subject to the work limitation imposed as a result of his
uncorrectable abnormality. The work limitation was that there
should be “no exposure to solvents or liver toxic chemicals.”
Thereafter I discussed this issue with William Saner, head of
Human Resources at the refinery.
17. I received a letter dated February 28, 1996 from Mr.
Echazabal’s doctor, Zelman Weingarten, M.D., dated February
28, 1996. A true and accurate copy of that letter is attached as
Exhibit 29. Dr. Weingarten noted that in a prior letter I had
mentioned that Mr. Echazabal had applied for a job that “may
entail exposure to hepatotoxic hydrocarbons.” Dr. Weingarten’s
letter advised that, “this, of course, is recommended not to be
the case.” In short, Mr. Echazabal’s own personal doctor
concurred in my assessment that Mr. Echazabal should not be
in a job involving exposure to hepatotoxic chemicals and
solvents. This reinforced my earlier opinion.
18. Based on my knowledge of the job requirements of a
plant helper in the coker unit and what they actually do on the
job, I see no way to modify the essential duties of the position,
or otherwise accommodate Mr. Echazabal, so that he could
safely perform these functions. Working in that environment is
a necessary and inherent part of the job. Because of Mr.
Echazabal’s impaired liver function, he cannot work in that
environment without significantly endangering his health.
19. At no time did I provide any of Mr. Echazabal’s medical
records to Irwin or its agents. Nor am I aware of anyone at the
medical clinic having done so. I have also reviewed our chart
regarding Mr. Echazabal. Had we provided any of his medical
46
records to anyone, there would be a notation or cover letter
reflecting this fact in the chart pursuant to our custom and
practice in the clinic. For example, my communications with
Mr. Echazabal’s treating physicians in the course of my
assessment of his condition are all documented in the file (some
of which are attached as exhibits to this motion). There is no
record of any disclosure or communication between the clinic
and Irwin.
I declare under penalty of perjury that the foregoing is true
and correct and that, if called as a witness, I could and would
competently testify to the above. Executed this 25th day of
August, 1997 at El Segundo, California.
/s/_ Kenneth McGill, M.D.
Kenneth McGill, M.D.
»
DECLARATION OF RON DIPADUA
I, Ron Di Padua, declare:
1. Iam employed at the Chevron El Segundo Refinery as
a Shift Supervisor in the Coker/Sulfur Acid Division, also
referred to as the coker unit. During my shift, I am responsible
for the day-to-day activities in my unit including supervising
the personnel who work there.
2. The plant helper hired for the coker unit in January 1996
would be working under my supervision if assigned to my
crew, or under the supervision of another shift supervisor if the
was assigned to another crew.
3. One function of the coker unit is to thermally crack
residium and extract distillates from it. The coker unit has three
47
furnaces and six coke drums. They are involved in a batch
process with three drums typically being filled while the other
three are in the recovery/cooling process for preparation of
removal. The coke drums are large, permanently installed
pressure vessels (approximately 27 feet in diameter and 97 feet
tall). Residium is heated to between 550 degrees F to 915
degrees F and pumped into the coke drums. Under pressure and
heat the residium is fractionized. Distillates are separated out
and taken away. Corrosion inhibitors are added in the
distillation section. This includes Nalco 5163 Corrosion
Inhibitor and Nalco 5186 Corrosion Inhibitor. Nalco 5743
process Antifoam is injected into the coke drums while they are
feeding towards the end of the feeding cycle. Hydrocarbons
distilled from the coke include thermocracked naptha heavy,
naptha light, and naptha sour. Sour water and other recyclable
oils are also byproducts of the process. '
4. One of our goals is to minimize leakage to the
environment. But some weepage and escape of these chemicals
and/or hydrocarbons occurs, in particular at flanges, block
valves and flow valves. Air monitors regularly check for leaks.
When a small leak is suspected the operators use Snoop Liquid
Leak Detector to locate leaks. Plant helpers are not directly
involved in these operations. But they are working in and
around the area where these chemicals are stored and used and
are occasionally exposed to leakage. There is also a risk of a
major event, e.g., major leak, fire or explosion. These occur
only very infrequently but can result in a plant helper in the
coker unit having major exposure to the chemicals and products
used and produced in these operations.
5. Once the thermocracking and distillation process in a
particular coke drum has run its course, the next steps are to
cool it, open the drum and empty the coke so the process can
resume. Cooling involves flushing the still sealed coke drum
with water. The water is drained and, as a result of having
mixed with the coke and petroleum product in the drum,
48
contains contaminants such as manganese. While the coke
drum is draining, plant helpers are directly involved in
removing the heads, top and bottom, from the coke drums. This
includes using an impact gun to remove bolts fastening the
heads. They commonly may need to use products called Rust
Buster or Master Mechanic (like a heavier duty version of
WD40) to spray onto the bolts to loosen stuck bolts on the
heads. As the heads are being removed and continuing
thereafter, the plant helpers are exposed to steam coming off
the petroleum coke containing 10-12% VCM (volatile
combustible matter). The steam contains small amount of
contaminants which it picked up from the coke. One of the
plant helpers (called the driller) then uses a high pressure water
spray (approximately 2,500 Ibs/sq inch) to actually cut the coke
that is in the now opened coke drum. The driller drills or cuts
through it so that it falls out of the drum and into an open coke
pit. Sometimes the plant helper hits a “hot spot” and steam and
coke fines blow back up to the top deck where he is working.
Mixed in with the coke is also small amounts of lead, iron,
manganese, selenium and other substances. Plant helpers also
clean the heads, inlet lines, deck and associated equipment. The
plant helper will also grease valves and start resealing the drum
heads. This activity commonly requires th. plant helper to use
“plumbers dope,” and various greases and oils to make it easier
to thread flanges and bolts. A plant helper will commonly mix
plumber’s dope with SS Jet Lube or GS68 oil and apply this to
flanges and bolts.
6. Plant helpers are also involved in using a crane to lift
coke out of the coke pit and put it on a conveyor belt which
carries the coke to another area for loading onto trucks to be
taken away from the refinery. A plant helper is typically
assigned to monitor the conveyor belt and clean up when coke
falls off the belt. Once the coke is cut out of the drums, it is
open to the environment and plant helpers are exposed to coke
dust.
49
7. When open-topped trucks are used to transport the coke,
a solution including Corexit is automatically sprayed onto the
load to suppress dust while the coke is being trucked.
8. From time to time we also halt processing operations and
have a shutdown to allow maintenance or modifications to
occur. During shutdowns there is typically a lot of welding
going on in the unit. A plant helper working in the coke unit
would necessarily be exposed to welding fumes when he is
working nearby or downwind.
9. Plant helpers also use GS220 oil on gear boxes and
winch motors, GS68 oil on joy motors, Quindlubic 822 oil for
operating chutes, actuators and rams, and Duralith NLG1 #2
Grease for primary crusher and rollers on the belts as well as
for greasing the crane bucket.
10. There is no way to perform the functions of a plant
helper without being exposed to this environment including
hydrocarbons, chemicals and solvents. Exposures to some of
these substances arises from plant helpers using them directly.
Additional exposure results from being in a work area when
others are using them. I am informed and believe, based on a
review of the Declaration of Kenneth McGill, M.D., which is
being filed with the court together with this declaration, that a
healthy individual can be expected to withstand this exposure
with no significant health risk. But a person with a long term
liver problem, a diagnosis of chronic active Hepatitis C and
reduced liver function would be far more at risk than a person
who had normal liver function and was performing the duties
of a plant helper.
11. I have reviewed the Job Summary (Form GO-400) for
the Coke Handler; Coker Plant Helper 1/C, 2/C, 3/C and the
Physical/Environmental Demands (Form GO-308-ES), it
accurately describes the plant helper position.
I declare that the foregoing is true under penalty of perjury
and, if called as a witness, I could and would testify to the
50 51
above based on my own personal knowledge, except where |
have indicated I am relying on information and belief. Executed
this 22 day of September, 1997 at El Segundo, California.
/s/ Ron DiPadua
Ron DiPadua
accidental releases of listed toxic chemicals, as well as the
maximum amount of the listed toxic chemicals on-site during
the calendar year and the amount contained in wastes
transferred off-site. The SARA/ECPRA reports cover the
emission, escape, release, transfer and disposal of the
designated substances from Chevron’s El Segundo refinery.
4. Under the SARA (§ 313(d)), chemicals are designated
for reporting by the EPA when it determines any one of the
following:
(A) The chemical is known to cause or can
reasonably be anticipated to cause significant
adverse acute human health effects at
concentration levels that are reasonably likely
to exist beyond the facility site boundaries as a
result of continuous, or frequently recurring,
releases.
(B) The chemical is known to cause or can
reasonably be anticipated to cause in humans —
(i) cancer or teratogenic effects, or (ii) serious
or irreversible — (I) reproductive dysfunctions,
(If) neurological disorders, (III) heritable
genetic mutations, or (IV) other chronic health
effects.
»
D IN N. IN
I, Dennis N. Leonard, declare:
1. | am employed by Chevron Products Company. I have ,
worked for Chevron for the past seven and a half years, the
entire time at the Chevron El Segundo refinery. My job title is
Policy 530 Coordinator and I work in the Environmental, Fire
and Safety division. The following matters are true of my own
personal knowledge and if called as a witness I could
competently testify to them.
2. Chevron is required to prepare Toxic Chemical Release
Inventory reports in compliance with Section 313, Title III of
the Superfund Amendments and Reauthorization Act of 1986
and the Pollution Prevention Act of 1990 (“SARA”), and filing
them with the Emergency Planning and Community Right-To-
Know (“ECPRA”) Reporting Center and the California
Environmental Protection Agency. The reports cover
substances determined by the Environmental Protection Agency
(“EPA”) to pose environmental and/or health hazards.
(C) The chemical is known to cause or can
reasonably be anticipated to cause, because of
— (i) its toxicity, (ii) its toxicity and persistence
in the environment, or (iii) its toxicity and
tendency to bioaccumulate in the environment,
a significant adverse effect on the environment
of sufficient seriousness to warrant...
reporting.
5. My duties include gathering the data upon which these
reports are based. I get this data from the various operating
divisions within the refinery. I then assist with the preparation
3. Reporting is required to provide the public with
information on the releases of listed toxic chemicals in their
communities and to provide the EPA with release information
to assist it in determining the need for future regulations.
Facilities must report the quantities of both routine and
52
and submission of the SARA/ECPRA reports. My
responsibilities also include filing and maintaining these reports
internally at the refinery. Attached as Exhibit 21 are true and
correct copies of Chevron’s SARA/ECPRA reports for 1995,
the most recent compliance period.
6. I declare under penalty of perjury under the laws of the
state of California that the preceding matters are true and
correct of my own personal knowledge.
Executed on August 29, 1997, in El Segundo, California.
/s/ Dennis N. Leonard
Dennis N. Leonard
53
[EXHIBITS IN SUPPORT OF CHEVRON’S MOTION FOR
SUMMARY JUDGMENT]
[EXHIBIT 1}
BULLETIN
No. 1595 Chevron Refining
E] Segundo Refinery
September 29, 1995
NOW HIRING FOR PLANT
HELPER POSITIONS
TO ALL EMPLOYEES:
The Refinery is currently looking for entry level Plant Helpers
for the Environmental, Fire and Security Division and the
Coker-Sulfur/Acid Division.
If you know of anyone whom you would consider for a plant
helper position, please have the individual read our Sunday,
October 1, 1995, Classified advertisement placed in the Daily
Breeze and Los Angeles Times. The advertisement gives a brief
job description along with instructions on how to set an
appointment to complete a job application. Candidates may
start calling our job line at (310) 615-5239, on Monday,
October 2, 1995.
The Classified Advertisement will read as follows:
Chevron U.S.A. Products Co.
El Segundo Refinery
Chevron U.S.A. Products Co., one of the leading oil companies
in the nation, is currently seeking individuals for our El
Segundo Refining facility. Refinery experience preferred.
For an appointment call (310) 615-5239 starting October 2nd
through the 6th between the hours of 8:00 a.m. through 10:30
a.m. and 12:00 p.m. through 3:30 p.m. Please identify position
by this number 25B or 25C when calling for your appointment.
54
Chevron offers an excellent salary, work environment, and
benefit package including an on-site fitness center.
Must be 18 years of age and possess a valid California Driver’s
License. All applicants must pass a medical examination which
includes drug screening.
Chevron is an Equal Opportunity Employer
PLANT HELPER-B
25B
Requirements for the job include but are not limited to: Oral
and written communications necessary for basic day-to-day job
functions. Must be able to work at elevated heights and climb
ladders and stairs, some of which are located on towers and
columns in work area. Variety of activities involving day-to-
day monitoring of refinery systems. Calibrate and maintain
analyzers. Work closely with operation and maintenance
personnel on repair of refinery equipment.
PLANT HELPER-3C
25C
Requirements for the job include, but are not limited to: Must
work rotating 12 hour shifts (including weekends and holidays
due to 24 hour/7 day a week operation). Oral and written
communications necessary for basic day-to-day job functions.
Must be able to work at elevated heights and climb ladders and
stairs, some of which are located on towers and columns in
work area. Checking mechanical equipment, safety inspections
of equipment, head-up and un-head large process drums. As
required lubricate, service and make repairs to drilling
equipment. Operate large conveyor belts and truck loading
systems.
D.E. TORMEY
GMM:spd/29 ALEX SLOAN
Post until October 6, 1995 Bulletin - HRD
55
[EXHIBIT 3]
Chevron U.S.A. Products Company
El Segundo Refinery
324 W. El Segundo Boulevard
El Segundo, CA 90245
(310) 615-5000
December 28, 1995
Mario Echazabal
455 E. 27th St.
Los Angeles, CA 90011
Dear Mr. Echazabal:
I am pleased to confirm our verbal job offer for the Plant
Helper position at the Chevron U.S.A. Products Company, El
Segundo Refinery in El Segundo, California. Your starting rate
would be $17.29 per hour.
Our offer of employment is contingent upon your providing
Chevron with proof of your identity and eligibility to work in
the United States according to the Immigration Reform and
Control Act of 1986, as well as completing a pre-employment
physical examination.
Please advise Anastasia Nakamura at (310) 615-5390 by
December 29, 1995 of your decision to accept or decline
employment.
If you accept this job offer, you will need to complete a pre-
employment physical examination and drug screen. Your
appointment with the El] Segundo Clinic has been set up for
January 2, 1996 at 9:30 a.m. You must arrive for your
appointment 15 minutes prior to the actual examination to
complete the required medical forms.
56
We look forward to hearing from you. If there are any
questions, please contact Anastasia Nakamura on (310) 615-5390.
Very truly yours,
/s/ W.L. Saner/an
eo
[EXHIBIT 5]
Chevron U.S.A. Products Company
El] Segundo Refinery
324 W. El Segundo Boulevard
El Segundo, CA 90245
(310) 615-5000
February 6, 1996
CERTIFIED MAIL Z 046 331 528
Mr. Mario Echazabal
455 E. 27th Street
Los Angeles, CA 90011
Dear Mr. Echazabal:
We have completed the review of your pre-employment
physical examination. Unfortunately, the results of your
examination indicate that you have a medical condition which
would restrict you from performing the tasks of the position we
offered. It is therefore, with regret, that we must now withdraw
our offer of employment.
The results of your recent test will be kept in confidence by
Chevron’s Medical Department and will not be disclosed to any
57
other company. If you wish to discuss the results of the
physical, please contact our Medical Department on (310) 615-
5259.
We wish you the very best in your future endeavors.
Sincerely,
/s/ W.L. Saner
cc’d Medical
®
[EXHIBIT 6]
Chevron U.S.A. Products Company
El Segundo Refinery
324 W. El Segundo Boulevard
El Segundo, CA 90245
(310) 615-5000
February 21, 1996
CERTIFIED MAIL P 321 119 448
2679 Redondo Ave.
Long Beach, CA 90806
Dear Mr. Bud Miller:
Your employee Mr. Mario Echazabal recently applied for
employment at the Chevron U.S.A. Products Company. As a
result of his application, we extended a job offer which was
contingent on several conditions including his completing a
physical examination. Unfortunately, the results of Mr.
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58
Echazabal’s examination indicate that he has a medical
condition that would restrict him from performing the tasks of
the position we offered. The restrictions require that Mr.
him in a position that eliminates his exposure to
solvents/chemicals. However, should Mr. Echazabal wish to
pursue further analysis of his medical condition, we may
immediately remove Mr. Echazabal from our Refinery or place
Please contact our Senior Contracts Administrator, Ms. Fran
Hsu, on (310) 615-5534 with any questions that you may have.
It is therefore, with regret, that we have withdrawn our offer of
employment to Mr. Echazabal. Further, we must ask you to
Echazabal not be exposed to solvents and certain chemicals.
cc: Medical Department
/s/ W.L. Saner
bec: FV Hsu
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COKER SECTION
79
[EXHIBIT 23]
DEPOSITION OF CHARLES BRIAN TANG, M.D.
JUNE 30, 1997
[Page 5:18 to 7:18]
Q Do you have any knowledge about or knowledge of the
medical examination that was purportedly done on March 8,
1996?
A_ lam aware of the examination done on the individual,
but I’m not sure of the date. I have to check the date you
quoted.
Q With the exception of the date, what’s the basis of your
knowledge?
A_ The basis of my knowledge is this gentleman came in for
a pre-employment physical examination. He was examined by
Dr. Socol, Harvey Socol, and we discussed his case with regard
to some abnormalities on his physical examination which we
felt would be of danger to him if he continued to work in a
refinery envirenment.
Q Do you know in fact Dr. Socol performed any kind of
physical examination on Mr. Echazabal?
A Yes, I know he did.
Q How do you know that?
A Because he told me.
Q Other than his representations, do you have any
independent knowledge that he performed an examination?
A_ From what he told me, plus what he wrote on his medical
records.
80
Q Were you present in the clinic on that day?
A Yes, | was.
Q Did you actually see Mr. Echazabal go into any kind of
room with Dr. Socol?
A No, 1! did not.
Q Did Dr. Socol share his thoughts about the purported
examination with you on or about the date of the examination?
A Yes, around that approximate time, he did.
Q Was that immediately after the examination, or before he
wrote anything up?
A_ Ican’t remember.
Q Do you know if he talked to you about the examination
of Mr. Echazabal before he wrote any kind of opinion regarding
Mr. Echazabal’s condition?
A He did talk to me about the examination before he wrote
an opinion.
Q Did you provide him with any input?
A Yes, I did.
Q Why don’t you tell me what input you provided? What
did Dr. Socol say to you and what did you say to Dr. Socol?
A Dr. Socol and I discussed his elevated liver enzymes and
our concern about the cause of his liver enzymes being
elevated, and if they remained elevated, he should not be
exposed to potential hepatotoxins.
81
[Page 27:7 to 37:23]
Q Is it your opinion that no one can work at a refinery if
somebody has elevated enzyme levels?
A It’s my opinion that a person should not work in a
refinery if he is going to be exposed to hepatotoxins, but he can
work in a refinery if he is not going to be exposed to
hepatotoxics.
Q Irrespective of their enzyme level?
A That’s correct. If his liver enzymes are elevated, but he’s
not going to be exposed to hepatotoxins, then he should be able
to work in a refinery. But, if he is going to be exposed to
hepatotoxins, and has elevated liver enzymes, he should not be
working there.
Q Irrespective of work he might be doing there; is that
right?
Mr. Kardassakis: Ambiguous.
By Mr. Minsky:
Q In other words, you said he shouldn’t be working in a
refinery if his liver enzymes are elevated and he’s going to be
exposed to certain kinds of toxins; is that right?
A Yes.
Q That’s true, irrespective of the amount or frequency with
which he will be coming into contact with those toxins?
A Yes.
Q So just the slightest exposure and what would happen?
A What is your definition of a slightest exposure?
Q Well, you tell me what would cause, in your opinion —
let’s back up.
82
If a person with elevated enzymes, in your opinion, should
not be exposed to certain types of toxins, what first off, is the
level at which you deem to be too high a level for that person
not to be exposed to the chemicals, to the toxins?
A_ I feel he should not be exposed to any hepatotoxins.
Q My question is, at what level do you believe that a liver
enzyme level is too high in order not to be exposed to
hepatotoxins?
A At the level where the liver enzymes are in their
hundreds.
Q_ So if the liver enzymes reach at least 100 or above?
A Right. 100 or above I would seriously consider not
exposing that individual to hepatotoxins.
Q Does it matter the degree or the amount of exposure? In
other words, once they are — enzyme levels are 100 or above, is
it your opinion that there is no way in which that employee
should be exposed to the chemicals — in other words, on an
eight hour day, take an eight hour day. If one hour out of that
eight hour day, they are going to be exposed to the chemicals,
is that too much if the enzyme level is 100 or above?
A Yes.
Q Is there anything that could be done to ensure that a
monitoring process for example, to ensure that if they are
exposed, that we can pull that employee out of there?
Mr. Kardassakis: Ambiguous.
By Mr. Minsky:
Q Would a monitoring process to check the enzyme levels
be an appropriate way to determine whether or not it in fact is
going to cause some risk of injury to the employee, if they are
exposed to the hepatotoxic chemicals?
83
A_ I don’t understand the question.
Q [ll try again. Take an employee who has got an enzyme
level 100 and above. You put them as a risk category; correct?
A Yes.
Q_ Isevery individual going to be subjected to injury if they
are exposed to the hepatotoxic chemicals if they have 100 and
above?
A Is every individual—
Q Who has an enzyme level of 100 and above going to
represent a risk of injury if they are exposed to hepatotoxic
chemicals?
A_ Notevery individual. Just like any individual who has no
elevated liver enzymes.
Q So just simply because you have a higher or elevated
enzyme level doesn’t mean you have a risk of injury; is that
right? If you are exposed to hepatotoxic chemicals?
A_ Well, we have an individual who is injured already, with
the liver disease, the elevated liver enzymes, so he is already
injured, and we know hepatotoxins can make it fatal.
Q Weare talking theoretically; correct?
A_ No, theoretically. Realistically, yes.
Q When you say realistically, how long will it take for an
individual, such as Mr. Echazabal, to be exposed to those
chemicals and toxins before they will show some sort of injury
occurring?
A Some people I know have died. Reported in the
literature, have died in a few days. Others, it takes months and
years to do that.
84
Q When will you start — as far as the literature goes, doctor
— start seeing some sort of indication in the enzyme levels as a
result of exposures to the chemicals and toxins?
A_ It could be in a matter of a few hours as I mentioned,
some people have died of massive hepatic failure in a few
hours, and can also occur over months and years, too.
Q Would it be fair to say somebody exposed to the
chemicals over a ten year period should indicate some sort of
change in their enzyme level?
Mr. Kardassakis: Incomplete hypothetical.
By Mr. Minsky:
Q A person such as the plaintiff, Mr. Echazabal, who is
exposed to the chemicals and toxins over a ten year period,
would you anticipate seeing some sort of change in the enzyme
level?
Mr. Kardassakis: Incomplete hypothetical. You haven’t told
him when he first had that, what treatment he had in the
intervening time, or what his liver enzymes did over time.
Mr. Turner: Join.
By Mr. Minsky:
Q You said that the literature reflects that it could be as
short as a few hours; sometimes months, before any kind of
effect will have om that individual; correct?
A Yes, from exposure to hepatotoxins.
Q You said Mr. Echazabal was an injured person, right?
Isn’t that your testimony?
A Yes. He has a chronic pote:.ially fatal illness, nght now.
Q Are you aware that Mr. Echazabal had been working at
the refinery for many years?
85
A_ I don’t know his entire history, how many years he was
working. | don’t know.
Q Do you have any idea as to how long in fact Mr.
Echazabal had been diagnosed with having hepatitis?
A Reviewing his records today, it appears that they knew it
in about 1992.
Q Would you anticipate that somebody with his chemical —
excuse me — his enzyme level should have — there should have
been some sort of reaction in terms of the enzyme level for his
continued exposure to the hepatotoxic chemicals between 1992
and 1996?
Mr. Turner: Objection, incomplete hypothetical. Calls for
Mr. Minsky: Which facts?
Mr. Turner: There is no evidence he’s actually been exposed.
By Mr. Minsky:
Q You can answer the question.
Mr. Kardassakis: Do you want him to assume no treatment?
He got treatment, but you haven't told him that in the
hypotheticai.
By Mr. Minsky:
Q First off, doctor, do you know what the level of treatment
was?
A Well, first of all, I don’t know where he was, whether he
— what type of work he’s been doing, whether he’s been
exposed to hepatotoxins, what treatment he’s been getting, so
I wouldn't know how to answer that question, presently.
Q Is it your position that there is simply nothing that can be
done for an individual to allow them to work im an environment
86
where there are hepatotoxic chemicals if they have an elevated
enzyme level, meaning over 100?
A I would not want anyone or myself to work in an
environment where there are hepatotoxins with such elevated
liver enzymes.
Q What do you think the chance of risk of injury is? Would
you say it’s 50 percent likely they will develop deterioration of
their medical condition from exposure?
A I don’t know.
Q You don’t have any opinion, doctor?
A Well, my opinion is, it’s individualistic, and it’s — all I
know it occurs, and when it occurs, it’s the person that suffers
that gets hurt.
Q So you don’t have an opinion one way or the other,
whether it’s a 50 percent chance or likelihood the person will
develop a deterioration of the condition?
Mr. Kardassakis: Incomplete hypothetical, calls for
speculation.
Mr. Turner: Join.
By Mr. Minsky:
Q You can answer.
A I wouldn’t know how to answer it, except I am concerned
about the individual, that he has a chronic illness which can be
severely worsened by the hepatotoxins.
Q What do you think the likelihood of that worsening is,
greater than 50 percent?
Mr. Kardassakis: Incomplete hypothetical, calls for
speculation.
87
By Mr. Minsky:
Q Mr. Echazabal was there. You have seen his medical
chart. You know he was working at the refinery; correct?
A As I recall, he was working at the refinery.
Q All right. He’s working at the — what do you think his —
you concurred in a report written by Dr. Socol saying no
exposure to hepatotoxic chemicals; right?
A Yes.
Q What do you think the likelihood is of him developing
any deterioration of his condition if he went and took that job?
Mr. Kardassakis: Incomplete hypothetical.
By Mr. Minsky:
Q You can answer, doctor.
A Depends on how much exposure he gets.
Q Well, did you evaluate that? Did you ask any questions
about that when you concurred with Dr. Socol?
A We talked about it, but any exposure still could cause it as
trace amounts could blow out his liver.
Q What did you determine? In your opinion, once he walks
in there, he’s got 100 percent chance that it’s absolutely going
to happen and he’s going to deteriorate his condition; is that
right?
A There is a high probability.
Q What would you say that probability is, greater than 50
percent? '
A I don’t put figures on that.
88
Q I would like you to put a figure on it; give me your best
medical opinion what you think that probability is?
A I don’t know.
Q You don’t have the slightest idea?
Mr. Kardassakis: Argumentative. He said “high probability”.
He didn’t put numbers on it. You are raising your voice.
By Mr. Minsky:
Q High probability. Does it mean greater than 50 percent?
A I’m not going to put numbers on it.
Q I don’t know what you mean by “high”. What is “high”,
doctor?
Mr. Kardassakis: Argumentative.
By Mr. Minsky:
Q You can answer that. My voice is not elevated.
Mr. Turner: I would join in the evaluation of plaintiff's
counsel’s voice.
By Mr. Minsky:
Q What is “high”, doctor? Does doctor mean by “high”,
greater than 50 percent, ten percent? What do you mean?
A Any level above one percent is high for me when it’s a
person’s life.
Q Thank you, doctor.
Did you think it was important to understand precisely what
kind of job he would be doing in order to render your
determination with Dr. Socol in telling Irwin Industries that Mr.
Echazabal should not go to work at whatever job duties he was
going to do?
89
Mr. Turner: Objection, misstates the findings.
The Witness: Our recommendation is that he not be exposed
to hepatotoxins, based on his physical examination and then the
companies decide, based on our recommendation, if that job
entailed that risk or not.
If it does not entail any exposure to hepatotoxins, he’s hired.
If he’s exposed to hepatotoxins, our recommendation is that he
is not hired. I’m not involved in what his job is over there,
because | don’t know.
[Page 45:4 to 49:22]
Q Any other formal training?
A I have just attended residency courses at UCI. Rutgers
University School of Medicine in New Jersey. Became board
certified in occupational medicine in 1992.
Q Are you also board certified in internal medicine?
A No.
Q Do you hold any other board certifications other than
occupational medicine?
A No.
Q And you have been practicing as a doctor in private
practice since 1978 in California?
A Approximately around that time. I was licensed in
California in 1974, I believe, but I didn’t come out here because
I was in Africa, for a while.
Q But since approximately 1978, have you been in private
practice in California?
A Actually, I opened up my office — yeah, about that time,
"78, °79.
90
Q You said you teach at the USC School of Medicine. What
do you teach?
A I teach occupational preventive medicine. | teach the
residents.
Q In occupationa! preventive medicine, is one of the things
you are concerned about, not exposing employees to
circumstances or conditions that would endanger their health?
A Yes.
Q Now, Mr. Echazabal had, according to your review of the
medical records, markedly increased liver enzymes, didn’t he?
A Yes.
Mr. Minsky: Objection. That’s not the testimony.
By Mr. Kardassakis:
Q Is one of the functions of the liver to help act as sort of a
detoxification site for the body?
A Yes.
Q If you have markedly increased liver enzymes, does that
tell you the liver is not fully functional?
A Yes.
Q Does that mean a person with increased liver enzymes
would have less capacity to deal with toxins once they get into
the body?
A Yes.
Q Does that mean the person is more at risk for death as a
resuli of exposure to toxins?
A Yes.
91
Q Do hepatotoxins not only potentially cause death, but also
further damage to the liver itself?
A Ayes.
Mr. Minsky: Objection. Restate the question. (Record read)
The Witness: Yes.
By Mr. Kardassakis: What is the risk of puttifig a person with
Mr. Echazabal’s liver enzyme tests into a refinery? Why would
you not want to do that?
Mr. Minsky: Objection. Incomplete hypothetical. The same
problems you were referring to before, counsel. |
The Witness: What’s the question again?
By Mr. Kardassakis:
Q Why would you not want to put Mr. Echazabal to go back
to work in the refinery? What’s the concern?
Mr. Minsky: Same objection.
The Witness: The concern is as 1 mentioned to Mr. Minsky,
is that I just don’t want this individual to be exposed to
hepatotoxins. If he can work in a refinery without exposure,
without exposure to hepatotoxins, he can work in a refinery, but
if his work entails he will be exposed to hepatotoxins, I would
not recommend that he do that.
Q Why?
A Why? Because he has a condition that will be worsened
by such an exposure, causing probable death.
Q When you have a person who is in his condition, and it
may cause their death, would you recommend the employer
play it conservatively on how much exposure they are going to
allow or how much they are not going to allow?
92
Mr. Minsky: Objection, incomplete hypothetical; assumes
facts not in evidence, lack of foundation. You are asking the
doctor to speculate on things which the doctor already indicated
he doesn’t want to speculate on.
How can he answer a question he refuses to answer
questions on, because he doesn’t like to give the numbers?
The Witness: If he’s exposed to hepatotoxins, he should not
be there.
By Mr. Kardassakis:
Q Period?
A Right.
Q You are not going to try to quantify how much exposure
he can have during the course of the day?
A Right. With his physical condition, he should not be
exposed to hepatotoxins.
Q That’s because with his condition, even a small amount of
exposure can result in his death; is that right?
A Yes.
Mr. Kardassakis: No further questions.
Examination (Resumed)
By Mr. Minsky:
Q Doctor, even a small amount you said can result in his
death. Is that what you testified to?
A Yes.
Q You are saying, based upon what you have read in the
report of Mr. Echazabal, you believe the slightest exposure to
hepatotoxic chemicals will cause his death; is that right?
93
A It can.
Q What is the probability of that cause, doctor?
A In all due respect to me, you asked me that question last
time, and I said I cannot put a number on that.
Q So it’s all or nothing? In other words, either he not be
exposed because if he is exposed, death is going to occur; is
that right?
A Death can occur.
[Page 54:6 to 55:14]
Q If Mr. Echazabal’s condition remains constant and he
would be working in the refinery, did that play in at all in your
opinion as to whether or not he should be allowed to continue
to work in the refinery?
Mr. Kardassakis: Without foundation.
Mr. Turner: Same objection.
Mr. Kardassakis: Without foundation, incomplete hypothet-
ical.
By Mr. Minsky:
Q You can answer.
A My answer to that is | didn’t think his condition was
stable. He has chronic active hepatitis by diagnosis. At the time,
his condition was not stable.
Q Stable in the sense there hadn’t been any real changes
there?
A Well, his liver enzymes are markedly elevated, so there
was a chronic destruction of his liver going on, chewing away
at his liver inside, so the enzymes are always high. The only
94
time it’s stable is if the liver enzymes came down to normal,
which I never got evidence of.
Q When there is a deterioration in the liver, how does that
affect — what do you actually see in terms of the effects of that
on an individual?
A The effects on an individual, sometimes are minimal,
sometimes they are severe, but the point is, is that there is a
chewing up of his liver. It’s slowly being destr_,ed and over
time, it eventually requires a liver transplant, if there is one
available. I understand interferon, which is trying to slow down
the chewing up of the liver.
Q Did that have any effect?
A it didn’t appear to. His liver enzymes were still markedly
elevated.
95
[EXHIBIT 27]
Health Care Partners
Medical Group
January 10, 1996
Chevron Corporation
Medical Department
P.O. Box 97
El Segundo, CA 90245-9952
RE: ECHAZABAL, MARIO
SS#: 524-70-7651
MR#: 1-H102214
To whom it may concern:
Mr. Echazabal has been followed in the Gl/Hepatology
Department for several years with a history of chronic active
hepatitis, secondary to hepatitis C. He has been treated with
extended periods with Interferon without clearance of the
problem. At present, he is asymptomatic.
The physical examination is unremarkable. He has no
limitations.
Our plan is to follow him closely in the Gl/Hepatology Clinic.
He is able to return to regular duties without any limitations. He
does not pose a contagious problem, provided he does not
donate blood, use needles, etc. General measures have been
explained to the patient in detail, but again, he is able to return
to his usual duties at work.
96
If there are any questions about this, please do not hesitate to
contact our office.
Sincerely,
/s/ Zelman Weingarten, M.D.
4
(EXHIBIT 28]
Chevron U.S.A. Products Company
El Segundo Refinery
324 W. El Segundo Boulevard
El Segundo, CA 90245
(310) 615-5000
Medical Clinic
January 10, 1996
MORDO SUCHOV, M.D.
Health Care Partners Medical Group
1025 W. Olympic Blvd.
Los Angeles, CA 90015
RE: MARIO ECHAZABAL
SS#: 524-70-7651
MR#: 1-H102214
Dear Dr. Suchov:
I’ve been informed that an applicant for employment, Mario
Echazabal, has been under your care for abnormal hepatic
function and continuing treatment relative to hepatitis C.
97
Mr. Echazabal is re-applying for work at Chevron after a three
year interim of treatment. This clinic had done an extensive
work-up, including communications with the treating doctors
at that time. In order to consider his present application we will
need recent results of his current liver function tests and short
letter from yourself giving the present diagnosis, condition and
prognosis.
The job Mr. Echazabal has applied for may entail exposure to
hepatotoxic hydrocarbons, thus we would appreciate your
opinion as to whether this exposure would be a risk to his
present liver condition.
Enclosed please find authorization for release of medical
information signed by the applicant. A self-addressed, stamped
envelope is enclosed for your convenience in replying. Any
charges for this information would remain the responsibility of
the applicant. Thank you for your assistance and cooperation in
this matter.
Sincerely,
/s/ Kenneth McGill, M.D.
KM/jl
Enclosures
February 28, 1996
Kenneth McGill, M.D.
Chevron USA Products Company
El Segundo Refinery
324 West El Segundo Blvd.
El Segundo, CA 90245
Attn: Medical Clinic
Re: Mario Echazabal
S.S. #524-70-7651
M.R. #1-H102214
Dear Dr. McGill:
In response to your letter of 1/10/96, 1 would first like to refer
you to the letter we sent you on 1/10/96, which it appears has
not reached your desk (I am including a copy of that letter for
your evaluation). Mr. Echazabal has been treated here in the
past for chronic active hepatitis secondary to hepatitis C.
Although he received extended periods of Interferon therapy,
the problem was not cleared. During the last physical
examination, we found the patient to be in good general health
without any changes and no evidence of liver failure. I had
recommended at the time for him to be allowed to return to
work and to his usual activities, and I recommended some
general measures. In your letter, it is mentioned that Mr.
Echazabal has applied for return of his job and it mentioned
that “this may entail exposure to hepatotoxic hydrocarbons.”
This, of course, is recommended not to be the case. If we can
99
be of any assistance, please do not hesitate to contact us.
Sincerely,
/s/ Zelman Weingarten, M.D.
+
[DECLARATIONS SUBMITTED IN OPPOSITION TO
CHEVRON’S MOTION FOR SUMMARY JUDGMENT]
DECLARATION OF MARION JOSEPH FEDORUK, M.D.
1, MARION JOSEPH FEDORUK, M_D., hereby declare and
State:
1. I am a medical doctor, board certified in Occupational
Medicine, Industrial Hygiene and Toxicology. The matters
stated in this declaration are true of my own personal
knowledge, except as to matters stated on information and
belief, and as to those matters, I believe them to be true.
2. I received my medical degree from the University of
Alberta in Edmonton, Canada in 1978. Thereafter, I served a
mixed internship at Montreal General Hospital (McGill
University) in Montreal, Canada from 1978 to 1979, and was a
Resident in Occupational Medicine through the Department of
Community and Environmental Medicine at the University of
California, Irvine from 1981 to 1983. I served as a Lecturer in
the Graduate School of Public Health, Division of Public
Health, Division of Occupational and Environmental Health,
San Diego State University from 1983 to 1988. From 1985 to
1986, I was a Clinical Instructor of Medicine, Department of
Medicine, University of California, San Diego, School of
Medicine. In 1985, I became Assistant Clinical Professor of
Medicine, Department of Community and Environmental
Medicine, University of California, Irvine. I have also held an
100
appointment as Assistant Clinical Professor of Medicine,
Pulmonary Division, Department of Medicine, University of
California, San Diego, School of Medicine.
3. My main medical specialty lies in the area of
occupational medicine, toxicology and exposure assessment,
wherein I assess work places, including a wide variety of
industrial facilities such as oil refineries to determine and assess
employee health risks for, inter alia, exposure to toxic
chemicals, including liquids, dusts and fumes. I am certified by
the American Board of Preventive Medicine, certified in
Occupational Medicine, American Board of Toxicology, and
the American Board of Industrial Hygiene - Toxicology
Aspects. A true and correct copy of my current curriculum vitae
is attached hereto as Exhibit A and incorporated.
4. I examined/reviewed at least the following
materials/information, conducted my own studies, researched,
and spoke with the following persons in connection with the
opinions and conclusions described herein: (a) I met and spoke
with the plaintiff, Mario Echazabal (Echazabal); (b) |
personally visited Chevron’s E] Segundo Refinery (Refinery),
spoke briefly with Mr. Michael Nyeholt (Nyeholt) while at the
Refinery, took photographs of the coker area, and took several
air samples for petroleum hydrocarbons to which Mr.
Echazabal could have been exposed while at the Refinery; (c)
I reviewed deposition transcripts and declarations of Messrs.
DiPadua (DiPadua) and Saner (Saner); (d) I reviewed the
declarations of Dr. C. Brian Tang (Tang); (e) I reviewed the
declarations of Patrick Beatty (Beatty), Dr. Kenneth McGill
(McGill), Dennis Leonard (Leonard), Mr. Nyeholt, and Julie L.
Claydon, together with all exhibits attached thereto; (f) |
reviewed Mr. Echazabal’s medical records; and (g)_ i!
performed my own review of pertinent literature, which
included the following sources: Hyman J. Zimmerman, M.D.’s
text entitled Hepatotoxicity: The Adverse Effect of Drugs and
other Chemicals on the Liver; Robert K. Ockner’s article
101
“Laboratory Tests in Liver Disease” from the Cecil Textbook of
Medicine edited by James B. Wyngaarden, M.D. and Lloyd H.
Smith, Jr., M.D.; The National Institutes of Health Consensus
Development Statement “Management of Hepatitis C” dated
May of 1997; “Common Laboratory Tests in Liver Diseases”
by Howard J. Worman, M.D. from the University of Columbia.
5. Mr. Echazabal has hepatitis C which is a chronic viral
infection of the liver characterized by ongoing liver
inflammation. This is a chronic condition and individuals with
this disorder generally live for decades. Mr. Echazabal’s
medical records indicate that he reports no symptoms of liver
failure, has no clinical findings on physical examination that
would demonstrate the presence of an impaired liver, and his
blood tests which assess the ability of his liver to maintain
normal body functions including metabolism and elimination
have been normal overall.
6. The liver has an essential role in maintaining the overall
functioning of the body including general metabolism and
elimination of waste products. It is responsible for making of
proteins such as albumin and blood clotting factors. The liver
also plays a role in eliminating metabolic waste products such
as bilirubin which is a metabolic waste product formed from the
breakdown of red blood cells. There is no evidence that these
functions are impaired; in fact, the overall test results which
measure these liver activities establish that these liver functions
are operating well within normal limits.
7. Blood tests can measure whether a person’s liver
function is adequate to maintain normal body functioning. For
example, Mr. Echazabal’s blood tests have consistently
revealed normal albumin levels which is one of the main
proteins that the liver manufactures. His blood tests reveal that
the ability of his liver to maintain normal biochemistry or body
metabolism is not impaired. Drs. Tang, Philip Baily, and
McGill’s opinions to the contrary are simply wrong.
102
8. The three specific enzyme test results identified by Dr.
McGill in his declaration, the GGT, SGOT/AST and
SGPT/ALT, and referred to by Dr. Tang show evidence of
inflammation of the liver and generally reflect that certain
enzymes from certain cells in Mr. Echazabal’s liver are injured
and are leaking a higher than normal amount of enzymes into
his blood stream. These tests do not mean, however, that Mr.
Echazabal has liver failure or that his liver is not able to
maintain normal bodily functions or metabolism.
9. Mr. Echazabal is in my opinion capable of being
employed in the position he applied for as a helper at the
Refinery, and working in this position would not place his
hepatitis C condition at a clinically significant increased risk.
This opinion is based on several reasons, in addition to what |
have already expressed.
10. Mr. Echazabal has been employed at the Refinery for
decades, beginning in 1972 through and including February of
1996, save for a break from approximately 1975 to 1979.
During his employment at the Refinery, he performed similar
tasks at the coker unit, the same unit and work environment he
would have worked in had he been hired by Chevron to work
as a plant helper. The plant helper position for which Mr.
Echazabal applied did not differ in any material manner, from
an environmental and/or health risk to his liver, than the
majority of work that he had previously been performing for
decades at the Refinery. Since 1992, when a record of his blood
tests actually began, Mr. Echazabal has not shown any
clinically or medically significant change in his overall liver
condition.
11. One of the principal sources of potential hydrocarbon
exposure for the plant helper and for Mr. Echazabal during the
majority of the time he worked at the Refinery were the
associated with the coker unit. The coker unit is
involved in thermally cracking residuum and extracting
distillates (DiPadua declaration). Hydrocarbons which are
103
distilled from this process include heavy naphthas, light
napthas, and sour naphthas. The function of the coker unit is
not, as suggested by Chevron in its papers, the “distillation of
liver toxic hydrocarbons.” As discussed below, there is no
medical or scientific evidence that exposure to the petroleum
hydrocarbons emanating from this process at the levels
encountered represents a significant risk of hepatotoxicity for
employees including Mr. Echazabal. The potential for exposure
to hepatotoxins that could cause liver injury is clinically
insignificant and is the same for Mr. Echazabal as it is for
others performing similar tasks at the Refinery.
12. The potential hydrocarbon exposures that plant helpers
may or do experience are known since the atmospheric
hydrocarbon concentrations associated with performing tasks
at the coker unit and other relevant areas have been quantified
by Chevron personnel. These levels are set forth in Exhibit 18
attached to the declaration of Mr. Nyeholt. Thirty-nine air tests
have been conducted for hydrocarbon levels by Chevron staff
in the coker area. These samples were primarily taken of
workers performing routine tasks as well as special tasks in the
coker area and provide a direct indication of the type of
exposure that Mr. Echazabal encountered in his prior work and
would encounter if he were given the job of a plant helper.
13. Eight of the air tests conducted by Chevron (Exhibit 18)
revealed nondetectable levels of hydrocarbons, meaning that
the laboratory that conducted the analyses for Chevron was not
able to measure any detectable level of hydrocarbons in the
samples taken. Nondetectable levels were measured during
many types of operations including work at the coker drum.
Tasks that were identified as being performed included drum
feed switching, monitoring the deheading process, dropping the
head of the drum, and general monitoring of the coker drum.
The tests revealed that nondetectable hydrocarvon levels were
even measured in a worker who was “enveloped in steam that
is normally released in this process.” Other tasks which
104
revealed nondetectable hydrocarbon concentrations included
unplugging a plugged coke drum. This individual was
described as having “spent a lot of time in steam clouds.”
14. During my visit to the Refinery, both I and Mr. Minsky,
Mr. Echazabal’s counsel, took various photographs. The
camera used was a Pentax P2-70- Attached hereto as Exhibit B
is a true and accurate photograph of me standing within the
coker structure holding a Drager testing device in my hands. A
cloud of vapor surrounds my body. This photograph was taken
by Mr. Minsky using this camera. The results of the test taken
as depicted in this photograph reflected that the vapors within
which I was enveloped contained a nondetectable level of
petroleum hydrocarbons.
i5. Chevron’s monitoring records (Exhibit 18) also reveal
that thirty-six air tests had concentrations that were less than
five parts per million. This involved a broad range of activities
that included work directly while heavy oil gas was being
discharged from a sampling box and a heavy stream of naptha
was being discharged into a drain at the feet of the operator.
The operator was described as being exposed to a “heavy vapor
coming from the heavy gas oil sampling box.” Other tasks that
were monitored included routine maintenance functions,
working on a steam pump, and being exposed to “vapors while
steaming out for maintenance.” The highest measured
concentration was only eleven parts per million.
16. There is no reliable scientific or medical evidence to
suggest that exposures to petroleum hydrocarbon vapors from
naphthas at the concentration levels referenced at paragraph 15
pose a realistic risk of hepatotoxicity for Mr. Echazabal.
Naphthas represent a broad range of hydrocarbons which as a
group have trivial or clinically insignificant potential to
produce hepatotoxicity in occupationally exposed persons.
17. Several agents are identified by Chevron as being
hepatotoxic other than naphthas. However, given the exposure
105
levels to which plant helpers are likely to be exposed, taken
together with the potential of these agents to produce liver
injury based on my research as described herein, there is no
reliable evidence to conclude that Mr. Echazabal’s liver
function would worsen or become impaired by remaining
employed within the coker and/or being hired to work as a plant
helper. Furthermore, my review of Mr. Echazabal’s medical
records supports my opinion that there has been no significant
change in the condition of his liver since his condition was first
18. Coke dust has been implicated by Chevron as being a
hepatotoxic agent. In their declarations, Mr. DiPadua and by
inference Dr. McGill state that coke dust contains hepatotoxic
agents. Mr. DiPadua and Dr. McGill fail to point out, however,
that at the level of coke dust exposure at the Refinery, the
atmospheric concentrations of coke dust would be medically
insignificant and not lead to hepatotoxicity. Furthermore,
Chevron industrial data demonstrate that exposure to coke dust
is minimal. Area samples obtained in the area of the coker
including the drilling and cutting of drums _ revealed
nondetectable concentrations. Monitoring devices offered to
employees performing tasks such as cutting drums, working
around the furnaces, deheading and reheading drums, cutting
the drums, working as a coke handler, working around the coke
transport system, primary and secondary coke crushers, the A-
Frame storage area, and the coker overhead crane all revealed
very low and clinically insignificant exposure levels. The
highest concentration level measured was collected inside a
“circus tent” located near the crusher and coke pit belt system.
However, all of these exposures are significantly below the
recommended exposure limit for coke dust recommended by
Chevron.
| 19. The Chevron MSDS, the document used to communicate
information on the hazardous properties of a substance or the
regulatory warning notification, for coke only identified
106
polynuclear aromatic hydrocarbons as being potentially
hazardous constituents. Polynuclear aromatic hydrocarbons
would not be expected to produce hepatotoxicity. The MSDS
does not identify the presence of any hazardous metals that Dr.
McGill and Mr. DiPadua have identified as being present inside
and/or mixed in with coke including lead, iron, manganese,
selenium and other substances. It is likely that coke dust could
contain these metals; however, it is important to point out that
these metals are likewise routinely found in soils and dust
throughout Southern California and to which Mr. Echazabal is
routinely exposed. There is no evidence that is available to me
that the coke/coke dust to which Mr. Echazabal and others were
routinely exposed contain large amounts of these metals in
concentrations that would pose a risk of hepatotoxicity. Indeed,
the Chevron MSDS states that the coke dust could be classified
as nuisance dust by the American Conference of Governmental
Industrial Hygienists.
20. Even assuming that coke dust contains iron, manganese
and selenium at a concentration of 1%, the metals described by
Chevron, there is no evidence that the exposure levels which
any employee, including Mr. Echazabal, would experience
would present a clinically significant risk of hepatotoxicity.
One to two over-the-counter multivitamin and mineral tablets
contain a larger dose or amount of iron, selenium and maganese
than the amount Mr. Echazabal would be likely to absorb from
breathing Refinery air on a daily basis from working at the
Refinery.
21. The other agent identified in or mixed in with coke dust
is lead. Atmospheric tests for lead by Chevron (Ex. 18)
revealed that there is no evidence that potential lead exposures
that Mr. Echazabal would and did receive would pose a risk of
hepatotoxicity. I have read the statement of Mr. Nyeholt with
respect to lead exposure. Mr. Nyeholt indicated that in one air
sample, that lead exposure was increased at a concentration of
210 ug/m3 which is over the current OSHA limit by
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approximately four times. He indicated that lead is a chemical
dangerous to the liver. Irrespective of the purported purpose of
this statement, it is medically and scientifically irrelevant to
assess the potential risk to Mr. Echazabal had he continued to
_ work in the Refinery. First, the task identified by Mr. Nyeholt
was the removal of a lead lining that was in a flash vessel. This
is work that would not be performed by Mr. Echazabal and
indeed was performed by a contract employee. Second, the
concentrations present for eight hours would mandate the use
of proper respiratory and other protective equipment in
accordance with Cal-OSHA regulations. The use of respirators
and appropriate personal protective equipment and work
practices would eliminate the lead hazard for any worker,
including Mr. Echazabal.
22. I have also reviewed the list of chemicals attached to Mr.
Beatty’s declaration and conducted my own investigation and
analysis. The fact that Chevron maintains chemicals in its
Refinery which are toxic and/or potentially hepatotoxic does
not mean that Refinery workers such as Mr. Echazabal are
exposed to concentrations that pose a realistic risk. Chevron’s
monitoring reports and the statements of its personnel reflect
that Chevron has a staff to maintain compliance with all OSHA
safety regulations in the handling of all toxic substances and the
mere presence of a chemical on a list does not imply that a
worker would have a significant exposure to the chemical.
23. I have also reviewed the declaration of Mr. Leonard and
Exhibit 21, Chevron’s Toxic Chemical Release Inventory, and
have reached the same conclusions and opinions as expressed
above; namely, that Mr. Echazabal is not at risk by virtue of the
fact that Chevron maintains these chemicals in the
Refinery/coker.
24.1 have also examined and considered the issue of
possible leaks and episodic explosions to which Mr. Echazabal
and all other persons in the Refinery could be exposed. There
are lethal and potentially hepatotoxic chemicals at the Refinery
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and in the event of an explosion, any person with significant
exposure in the Refinery would likely experience negative
health consequences. In my opinion, however, Mr. Echazabal
is at no greater risk than anyone else from sustaining an injury.
25. The cleaning agents, oils, greases, lubricants and
solvents identified by Dr. McGill and Mr. DiPadua do not
represent any clinically significant risk of hepatic injury to Mr.
Echazabal from the anticipated use of the products.
Furthermore, given the protective clothing that is available and
is worn, the theoretical risk of hepatic injury to Mr. Echazabal
based on a potential exposure to these substances is clinically
insignificant.
26. Dr. Tang’s representation that any exposure to liver
toxins would harm and probably kill Mr. Echazabal is
insupportable. Dr. Tang’s conclusion that Mr. Echazabal not
work around or with hydrocarbons is not realistic and cannot be
achieved when taken at face value. Hydrocarbons are
ubiquitous in the general environment and come from a number
of sources such as auto exhaust, consumer products such as
toiletries and perfumes, cleaning products, emissions from
paints and carpeting, glues, adhesives, and thousands of other
commercial products. Los Angeles air routinely contains many
hydrocarbons. Consequently, it is not possible to work
anywhere in a job that involves no exposure to hydrocarbons.
The determination that somebody should be removed from
working in an environment should be based upon objective
medical and scientific evidence that the work environment
poses an actual risk of substantial harm. The determination of
this risk should be based upon information about the exposure
potential to the chemical(s) in question, the toxicity potential of
the agent, and the dose response relationship of the agent, since
the toxic effects of any agent are largely dependent upon dose
or the amount a person receives. An aspirin may be useful for
a headache but several hundred are harmful. Based upon my
review of the available medical information and a review of
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deposition transcripts and other information, this type of
assessment was not made by defendants. In addition, from an
industrial hygiene perspective, the adverse health effects of
many exposures can be adequately controlled through the use
of personal protective equipment, such as the use of respirators,
other equipment, and following proper work practices.
27. During the period between late 1992 and February 1996,
Chevron received and/or evaluated medical reports and
laboratory results concerning Mr. Echazabal’s ongoing medical
condition. During this time period, Mr. Echazabal continued to
work in the Refinery. Had Chevron hired him or had he not
been hired but been allowed to continue to work in the
Refinery, his medical condition could have been monitored.
The monitoring could have consisted of several types of
actions, including medical examinations and blood tests. This
type of monitoring is routinely performed in industry to assess
workers for early adverse effects of chemicals. Chevron
currently maintains such a practice for workers who are
exposed to recognized hazards at the Refinery. This simple type
of surveillance would have provided defendants with the means
to monitor the condition of Mr. Echazabal’s liver.
28. The risk of suffering an injury from an explosion at the
Refinery is not unique to Mr. Echazabal. My review of his
medical files confirms that there is no evidence that his liver
condition places him at an unusual or increased risk of toxicity
from smoke, heat, carbon monoxide or cyanide gas which are
the common hazards associated with death or significant
injuries from fires. Furthermore, given his work history at the
coker, which specifically required him on a routine basis to
work with leaks at the coker as well as fires and explosions,
there is no demonstrated evidence in his medical file that Mr.
Echazabal’s liver worsened.
29. There is no medical or scientific evidence which
supports the conclusions presented by defendants that Mr.
Echazabal’s health and specifically his liver condition were or
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would be placed at any appreciable or clinically significant
degree of risk if he had been permitted to continue to work at
the Refinery or been hired as a plant helper. Mr. Echazabal’s
past history of employment at the Refinery, together with my
review and evaluation of the chemicals to which he was or
would have been exposed, hepatotoxic or otherwise, reflect that
the duties to which he was or would have been assigned at the
coker/Refinery did not pose a risk or unusual health threat to
Mr. Echazabal, nor would it have caused any significant
clinical change to his hepatitis C condition.
I declare under penalty of perjury that the foregoing is true
and correct. Executed within the United States on this 4 day of
November, 1997.
/
MARION JOSEPH FEDORUK, M.D.
a
DECLARATION OF GARY GITNICK, M.D., F.A.C.G.
I, GARY GITNICK, M.D., F.A.C.G., hereby declare and
state:
1. Iam a medical doctor, professor of medicine and Chief
of the Division of Digestive Diseases at the University of
California Los Angeles School of Medicine. The Division of
Digestive Diseases at UCLA is one of the largest
gastroenterology divisions in the world. I received my Bachelor
of Science and Doctor of Medicine degrees at the University of
Chicago, after which I completed an internship at Johns
Hopkins University Hospital. Thereafter, I completed by
internal medicine and gastroenterology subspecialty training at
the Mayo Clinic and spent three years as a research associate at
the National Institutes of Health. In approximately 1969, I
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joined the faculty at the University of California. Currently,
some of my administrative responsibilities include serving as
the Chief, Division of Digestive Diseases at the UCLA School
of Medicine. I have previously served as Chief of Staff, UCLA
Medical Center, Medical Director, UCLA Health Care
Programs, Director of the Division of Gastroenterology
Research Laboratories, and Chief Immunovirology Research
Section at UCLA. Currently, | am also a member of the
American College of Gastroenterology, Western Society for
Clinical Research, the American Association for the
Advancement of Science, American Association for the Study
of Liver Diseases, American Federation for Clinical Research,
American Gastroentrological Association, American Society
for Microbiology, International Association for the Study of
Liver Diseases, Royal Society of Health, London, Royal
Society of Medicine, London, Southern California
Gastroenterological Society, and Western Society for Clinical
Investigation.
2. During the 30 plus years that I have been practicing in
this field, I have written or edited over 300 publications and am
the author or editor of at least 60 different books, including the
text books entitled Principles and Practices of Gastro-
enterology and Hepatology, Diseases of the Liver and Biliary
Tract, and am also the editor of a yearly series of books
inclusive of such titles as Current Hepatology and Current
Gastroenterology.
3. During the span of my practice in this field, I have
delved extensively into the area of liver disease. In fact, one of
the research groups that I was involved with actually described
non-A, non-B hepatitis later known as hepatitis C. | am
intimately familiar with the research in this area and have
written extensively on the liver, liver diseases, and specifically
hepatitis C. A true and correct copy of my current curricula
vitae, depicting my background and experience, described at
112
paragraphs 1-3 of this Declaration, is attached hereto as Exhibit
C and incorporated.
4. I have examined/reviewed at least the following
materials and information in connection with my opinions and
conclusions described herein: (a) the Declarations of Dr.
Marion Joseph Fedoruk, Dr. Kenneth McGill, Mr. Ron
DiPadua; (b) deposition testimony from Drs. McGill, Baily,
Tang, Mr. William Saner, and the Plaintiff, Mr. Mario
Echazabal; (c) various documents submitted to my office for
review pertaining to the job duties that Mr. Echazabal did
perform at the refinery and what he would have been required
to perform had he been hired by Chevron. I evaluated the
information described above in connection with the years of
research that I and others of whom I am aware have generated
concerning persons such as Mr. Echazabal who have been
diagnosed with chronic active hepatitis C.
5. My assessment of Mr. Echazabal’s medical condition is
that he has chronic active hepatitis C, a chronic viral infection
of the liver characterized, as Dr. Fedoruk has stated, by ongoing
liver inflammation. Individuals with this condition can and do
live for decades. Chronic active hepatitis C affects a person’s
body in the following manner: for many decades, most people
have no symptoms or signs of disease. Eventually, some may
develop fatigue and even liver failure. The majority of people
with hepatitis C lead normal lives and some never develop
symptoms, while others may not develop symptoms for many
decades.
6. The liver has essentially two major functions; those
being (a) it metabolizes or breaks down both foreign substances
which enter the body and normal substances produced by the
body; and (b) it builds, stores and releases substances produced
by the body/liver. For example, the liver makes proteins such
as albumin. These are necessary building blocks for the body.
It produces and releases clotting factors, such as prothrombin,
and stores and releases glycogen to the body when required.
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There is no evidence that any of these functions that Mr.
Echazabal’s liver performs or should perform is in any way
maahad
7. Between 1992 and 1997, a series of blood tests were
taken from Mr. Echazabal. Blood tests can and do provide one
of the best methods for determining whether a person’s liver
function is adequate to maintain normal bodily functioning. To
determine whether a person’s liver is functioning properly,
there are two main tests which must be run and which serve as
the best and only true indicators of liver function. See, for
example, my book entitled Diseases of the Liver and Biliary
Tract. The two tests are those which detect (1) albumin levels
in the blood and (2) prothrombin. My review of Mr.
Echazabal’s medical file reflects that his prothrombin time was
12.3 with a control range of 11.0 to 13.2 based on a report dated
August 1, 1993, and a prothrombin time of 12.4 with a control
range of 11.0 to 13.2 based on a report dated February 17,
1993. Mr. Echazabal’s medical records also reflect that his
albumin readings were consistently within a normal range,
going between 4.6 and 3.8, a normal range being defined as 3.2
to 5.5 seconds; these tests covered the period between 1992 and
1997. The results of his prothrombin and albumin tests establish
that Mr. Echazabal’s liver is functioning properly. These are the
only tests which a physician can rely upon to determine liver
function.
8. I am aware that Drs. Baily, McGill and Tang have
rendered an opinion that liver function can be and in this case
was established by examining the results of Mr. Echazabal’s
GGT, SGOT/AST, and the SGPT/ALT scores. This opinion is
simply wrong and inconsistent with the body of literature
pertaining to liver function. The GGT, SGOT/AST, and
SGPT/ALT scores reflect only evidence of inflammation of the
liver, and generally reflect that certain enzymes from certain
cells in Mr. Echazabal’s liver are injured and are leaking higher
than normal amounts of those enzymes into his blood stream.
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| agree with Dr. Fedoruk when he opines that these tests do not
mean that Mr. Echazabal has liver failure or that his liver is not
able to maintain normal bodily functions or metabolism. It is
my opinion that any reliance upon these three enzyme tests to
conclude, as have Drs. Baily, McGill and Tang, that Mr.
Echazabal cannot be exposed to any particular kinds of
chemicals, solvents, liquids, or vapors, hepatotoxic or
otherwise, because his liver is not functioning properly, is
simply wrong.
9. lam aware that Dr. McGill suggested that Mr. Echazabal
was suffering from reduced liver function arising from his
contraction of chronic active hepatitis C. Such opinions
contradict the medical research in this area. See, for example,
Dr. Seef’s work on the nature course of hepatitis C. My review
of Mr. Echazabal’s medical file supports my contention that he
has no symptoms of liver failure or a reduction in normal liver
function whatsoever. While it is true that Mr. Echazabal has
abnormal liver enzyme levels, those enzyme levels do not
reflect reduced liver function. Mr. Echazabal’s albumin levels
are normal, his prothrombin levels are normal, his cholesterol
levels are normal to below normal, his bilirubin levels are
normal, he has no clinical findings on physical examination that
demonstrate the presence of an impaired liver, inclusive of no
evidence of ascites or encephalopathy. In short, there is no
evidence whatsoever, based upon my years of teaching, clinical
work, and research in the area, to support any medical
conclusion/opinion that Mr. Echazabal’s liver is not fully
functional.
10. lam aware that Drs. McGill, Baily and Tang have opined
that Mr. Echazabal’s liver is less able to detoxify any
chemicals, liquids or vapors, hepatotoxic or otherwise, that he
would encounter or be exposed to generally and specifically
while working at Chevron’s El Segundo refinery. I am also
aware that while working at the refinery, and specifically at the
coker unit, Mr. Echazabal was repeatedly exposed to leaks and
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on at least one occasion to an explosion. I am further aware that
Chevron has identified a number of chemicals, solvents,
liquids, and vapors which it claims to be hepatotoxic. Based on
my review of Mr. Echazabal’s medical file and my years of
research in this field, I can say to a reasonable degree of
medical certainty that Mr. Echazabal is in no greater risk of
injuring himself and specifically his lever by working in the
refinery than other employee. His liver is functioning properly
and there is no evidence of liver failure. Mr. Echazabal’s liver
is as capable of detoxifying or metabolizing toxins that enter
his body as is any other person.
11.1. am also aware that Dr. Tang has opined that any
exposure to hepatotoxic chemicals or liquids wili harm and
possibly kill Mr. Echazabal. Such a conclusion, in my opinion,
is simply without any support in the medical literature. In years
of studying the liver, liver disease, and specifically hepatitis, |
am not aware of any research which directly correlates an
exacerbation of hepatitis C to exposure of hydrocarbons.
12. I am also aware that Dr. McGill states at paragraph 8 of
his Declaration that hepatotoxic exposure to a person like Mr.
Echazabal with an impaired liver suffering from a progressive
liver disease such as chronic active hepatitis C could be fatal.
Once again, there is no evidence that Mr. Echazabal has an
impaired liver, nor is there any basis to conclude that the kinds
of exposures to which Plaintiff has and would be exposed could
cause Plaintiff death or even injury.
13. While Mr. Echazabal does have a chronic liver condition
which is not correctable, there is no evidence that his liver
condition has not improved. Mr. Echazabal was treated with
interferon, a standard treatment for his condition; it is not an
“aggressive” treatment as suggested by Dr. McGill at paragraph
13 of his Declaration. The only way to establish whether there
has been an improvement in Mr. Echazabal’s liver is to conduct
serial liver biopsies. A singular biopsy which Mr. Echazabal
did undergo merely confirmed the diagnosis; it did not
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determine whether Mr. Echazabal’s liver condition has
i ved. The GGT, SGOT/AST, and SGPT/ALT enzyme
tests do not and cannot establish whether an individual’s liver
condition has improved.
14. There is no medical or scientific evidence which
supports the conclusion presented by Drs. Tang, Baily and
McGill that Mr. Echazabal’s health, and specifically his liver
condition, were or would be placed at any appreciable or
clinically significant degree of risk if he had been permitted to
continue to work at the refinery or had been hired as the Plant
Helper. Based on my review of Mr. Echazabal’s past history of
employment at the refinery, together with my review and
evaluation of his medical file and the other evidence which I
reviewed, coupled with my years of research, establish that his
liver was fuuctioning properly and that his continued
employment at the refinery would not pose a risk or unusual
health threat to Mr.
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