Petition for Writ of Certiorari — Cavallo v. Star Enterprise
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N°. —9-64-4-9-S-MAR+ 9 1997
TOR OF THE CLERK
Supreme Court of the Chited States
October Term 1996
ARDITH CAVALLO,
Petitioner,
v.
STAR ENTERPRISE; TEXACO REFINING
AND MARKETING (EAST), INCORPORATED;
and SAUDI REFINING, INC.,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CiRCUIT
Petition for A Writ of Certiorari
William A. Beeton, Jr.*
Allen H. Sachsel
Counsel for Petitioner
10521 Judicial Drive
Suite 307
Fairfax, Virginia 22030
(703) 385-9400
* Counsel of Record
THE LEX GROUP ¢ 1205 East Main Street @ Suite 2 East ¢ Richmond, VA 23219
(804) 644-4419 @ (800) 856-4419 @ Fax: (804) 644-3256
QUESTION PRESENTED
Whether in reviewing the district court's application of
Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993), to exclude expert scientific testimony, the Fourth
Circuit erroneously applied the most highly deferential abuse
of discretion standard of review.
TABLE OF CONTENTS
QUESTION PRESENTED.........:ccccseseseseses sesseessnenenenenenenenens i
TABLE OF AUTHORITIES. ...........ccccssssssssecessceessrennsossonses iv
OPINIONS BELOW. ........ccccerssscccsssenssscsssnsscsesenccserccsesssenncsnesss l
FETTER TIC TION iacscetivccesecrcsecsossnvessvaccsoresseencensseocsnrvesnsaasneseessns |
FE TIVO VED vaicenscsctarisvasceacsenscessisespsvepectoosyesseveaseasenrsans 2
Ae EEE svi ccicepissassavssaciiacdoscivencessiesegeceazconssacsenesyes Rare
I. Factual Background ..............cccssesssesseoeseeenes 2
Il. Proceedings Below. ........ssssscsssseesenesesseeses 3
REASONS FOR GRANTING THE WRIT .ssssssssccccscsssssssseseeeesceeseeee
I, SRRING cs inlcocadscnicahosibgunidirselamacininynvestiniubeatbn 5
If. Conflict In the Circuits On An Important
CHUESTION ccssssevcsssecvovcisnvessnsneneaccnrsnenessayenvasenroute 6
A. TIMPOTtANCe .........c.s.srererersrsssesenersreenens 6
B. FE CIS sick esvscvanscenesvntccsniseasvtns 8
3 The “Manifestly
Erroneous” Standard ............. 9
Z The Deferential “Abuse
of Discretion” Standard....... 11
3. Different Standards For
Various Parts of
Admissibility Rulings ......... 12
Il. THE NEED FOR CLARIFICATION ............c00000ee 13
Hak ERIN eet Ma anT EMRE OMEN Sik wii Ne SES 15
APPENDIX
Opinion of the United States Court of Appeals
for the Fourth Circuit
entered November 20, 1996 .......................0000eeeeeeee A.l
Order of the United States District Court
for the Eastern District of Virginia,
Granting Motion in Limine
ET MS hk ie kiccccinsindesctncdcsacavidsceateiwnenccs: A.23
Opinion of the United States District Court
for the Eastern District of Virginia
OTIS FEY FER, PIS i sccsktkensiscnssnsssscpiccioscceconsans A.2>
Order of the United States District Court
for the Eastern District of Virginia,
Granting Summary Judgment
EOI PRN FB Pe ssiik insivasistsscnccnicdtiviicniariantocss A.68
Memorandum and Order of the United States District Court
for the Eastern District of Virginia,
granting FRCP Rule 12(b)(6) Motion to Dismiss
CCREROD SULCRRTY FUE FIGS cvissceisaisdvsrnpivrsoncscrenceboans A.69
iil
Order of the United States District Court
for the Eastern District of Virginia,
Denying Motion for Reconsideration
entered August 10, 1995 .......:ccseeeerseenseneens A.74
Order of the United States District Court
for the Eastern District of Virginia,
Denying Motion for Reconsideration
entered August 1, 1995 ......gcccccssecsesereeseresssrenesses A.76
Order of the United States Court of Appeals
for the Fourth Circuit,
Denying Petition for Rehearing
with Suggestion for Rehearing in banc
entered December 19, 1996........ccsessecseesseeeeseees A.79
TABLE OF AUTHORITIES
Cases:
Ambrossini v. Labarraque,
966 F.2d 1464 (D.C. Cir 1992) wu... cseccereereeeensenens
Ambrossini v. Labarraque,
101 F.3d 129 (D.C. Cir. 1996) .......ccssssserseresrennes 2,9
American & Foreign Ins. C. V. General Elec. Co.,
45 F.3d 135 (6th Cir. 1995).......0ccsecscsesssoosooeses 10, 13
Benedi v. McNeil -- P.P.C., Inc..
66 F.3d 1378 (4th Cir. 1995)............cccssasseserssncesnseseees 7
Bradley v. Brown,
42 F.3d 434 (7th Cir. 1994)........ccccssreecersesserseeonenes 10
iv
Christopherson v. Allied-Signal Corp.,
939 F.2d 1106 (Sth Cir, 1991),
certiorari denied, S03 U.S. 912..0.....cccesecssecsccccsssseess 10
City of Greenville v. W.R. Grace Co.,
Ret Fie Ota LET hiinlsuii 7
Claar v. Burlington N.R._R.,
EF FM OPM GE, PID ine scks Sess csesetic he 1]
Compton v. Subaru of America, Inc.,
Be CIO ODES CAO aE SIG isseisiiccscshcsserssscauins. ce 11
Cook v. American S.S. Co.,
Da ede Fad Ce OM Ae oe 10, 13
Cooter & Gell v. Hartmarx Corp,,
CR Sa: BULLIED petcebiiiicsecnminnnladn bits 8. 13
Daubert y. Merrill Dow Pharmaceuticals. Inc.,
509 U.S. 579 (1993) ......... i, 4, 5, 6, 10, 11, 12, 13. 14
Deimer v. Cincinnati Sub-Zero Prods., Inc..
mae Tee CIE Pc 10
DeLuca vy. Merril Dow Pharmaceuticals. Inec..,
911 F.2d 941 (3rd Cir. 0, SRN SR GAP SHEAR eatin a 13
Duffee v. Murray Ohio Manufacturing Co.,
1 F.3d 1410 (10th Cir, 1996)... cccecececcceeee. 11,12, 13
Eiland v. Westinghouse Elec. Corp.,
BF GN, BO iivsiisccevsisssnsrdncnntvcecs kin, 10
Ferebee v. Chevron Chemical Co.,
FOE oe AAT LIPASE: LORS) cxersisrriserrnsesiscarnneins 7
Frye v. United States,
Be is CE Cas Sills TDD wenvnicdepsecssnsencnrseonmnnnsece 5,6
Gier v. Educational Service Unit,
Oe Fee Fe ele BF itrecetnasccnins sdnvenmnsinecnvisiessns 1]
Joiner v. General Electric Co.,
78 F.3d (11th Cir. 1996),
certiorari granted (March 17, 1997),
PA 1,4, 6, 7,8
Joy v. Bell Helicopter Textron, Inc.,
999 F.2d $49 (D.C. Cir. 1993..........soserss biGaremae 1]
Lust v. Merrill Dow Pharmaceuticals, Inc.,
ee Fee Te REE, FP ate sisscobionseisatoscesaicsiavianus 1]
McCullock v. H.B. Fuller Co.,
OB ae cs 8 8 aS 9) EER RN aietorer ost 10
In re Paoli R.R. PCB Litigation,
35 F.3d 717 (3d Cir. 1994),
certiorari denied sub nom.
General Electric Co. vy. Ingram,
ob Me is a Oe Se OE A RI Basset eoklons 4,7,8
Pedraza v. Jones,
FEF Fe CS FONE rcrccieateiteninininaioien 10
Rogers v. Raymark Industries, Inc.,
PPE FE F506 CO. EDGED sesaixccscrecnesssscnccssstvinsses 1]
vi
Rosada vy. Deters,
5 F.3d 119 (Sth Cir, gg | AOR RED 10
Salem vy. United States Lines Co.,
FORMA AVE CERT a iclhain aid. 6,9
Spring Co. v. Edgar,
id sid gh shade, Eo ICI alt NS ER OTE 6
United States v. 14.38 Acres of Land, Sit. in Leflore Cty., MS,
wu F306 1074 (Sth Gr, POG 10
United States v. Bonds,
12 F.3d 540 (6th Cir. 3 ROSE Se 10
United States v. Brown,
776 F.2d 397 (2d Cir. 1985),
certiorari denied, 475 U.S. 1141 (1986)..cccccccccssccoccoes 9
United States v. Daccarett,
OF oor eC eet BR
United States v. Davis,
40 F.3d 1069 (10th Cir. 1994),
certiorari denied. J.5, :
Rae See AARP OURO cr 1]
United States v. Green,
548 F.2d 1261 (6th Cir. 8 ROSA EAPO ey 10
United States y. Rincon,
28 F.3d 921 (9th Cir. 1994),
certiorari denied, U.S. :
IP ee OP iioiei i 1]
Vii
United States v. Sepulveda,
Se ge” BES Ce MR 5 | eR agai a ean ter 9
United States v. Shay,
Fe Ee Fe AEE ils POT EE cecrcssvctdincescievinviaininintenieants 9
Ventura v. Titan Sports, Inc.,
65 F.3d 725 (8th Cir. 1995),
certiorari denied, __US.__,
SE Bi ok PE EE ED vcesininisasustessnsnspcanvevencsonavsoenoves 1]
Watkins v. Schriver,
Fe EE Saath 8 Fe Pica vnerntnnsadsnstevanconensanbancinces 1]
Wells vy. Ortho Pharmaceutical Corp.,
788 F.2d 741 (11th Cir. 1986),
rehearing in banc denied, 795 F.2d 89 (1986),
certiorari denied, 479 U.S. 950 (1986)... 8
Statutesand Rules:
Ber ee ici ch shash, abn eiae cevand snianesataiiamnaueueiesibniondecdh 2
2ZQtA.3.C. (BBZC/CID «6+ 62 86 0 te Ree
Federal Rules of Civil Procedure, Rule 12(b)(6)............c008 3
Federal Rules OF EVIGGHCE ....0...cscrssesvseees sopesussesorsecesere 5, 32,13
Te cial 2
Vill
eS re er rae
PETITION FOR A WRIT OF CERTIORARI
Ardith Cavallo respectfully seeks a writ of certiorari to
review that part of the judgment of the United States Court of
Appeals for the Fourth Circuit in this matter, which, based on
the district court’s exclusion of expert scientific testimony,
affirmed a summary judgment dismissing Count I of her
complaint. This case and General Electric Co. v. Joiner (No.
96-188), in which certiorari was granted on March 17, 1997,
present the same major issue. Either consideration with No.
96-188, or deferral of a ruling on this Petition until after
decision in No. 96-188 is appropriate.
OPINIONS BELOW
The opinion of the court of appeals (A.1)' is reported
at 100 F.3d 1150. The opinion of the district court (A.25) is
reported at 892 F.Supp. 756. The district court orders in
accordance with its opinion (A.23,68) are unreported. An
earlier district court memorandum opinion and _ order
dismissing three counts of the complaint not involved in this
Petition (A. 69) is unreported. The orders of the district court
denying reconsideration (A.74-78) are not officially reported.
The order of the court of appeals (A.79) denying rehearing and
a suggestion for rehearing in banc is not officially reported.
JURISDICTION
The judgment of the court of appeals was entered
November 20, 1996. A timely petition for rehearing with a
suggestion for rehearing ‘n banc was denied on December 19,
' “A.” references are to the Appendix, which is bound in this
volume.
EE
1996. Jurisdiction of this Court is invoked pursuant to 28
U.S.C. 1254(1).
RULE INVOLVED
Rule 702 of the Federal Rules of Evidence provides:
Testimony by Experts. If scientific, technical.
or other specialized knowledge will assist the
trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience,
training, or education, may testify thereto in the
form of an opinion or otherwise.
STATEMENT
I. Factual Background
This case, instituted under 28 U.S.C. 1332(a)(1), arises
from ongoing problems with a petroleum tank farm located in
Fairfax County, Virginia, in close proximity to a residential
and shopping area.” Around Midnight on December 9, 1991.
Ardith Cavallo left a restaurant in a shopping center adjacent
to the tank farm. She and her husband walked to their car.
They smelled oil, and Mrs. Cavallo began to experience
various physical reactions. Later it was learned that Star
negligently had spilled 34,000 gallons of aviation jet fuel
(“AvJet”).
Mrs. Cavallo’s symptoms worsened. She saw various
physicians and received varying diagnoses. Ultimately, she
,
: The facility is operated by Star Enterprise, a joint venture
partnership between Texaco Refining and Marketing (East), Incorporated,
and Saudi Refining, Inc. It has been the subject of considerable litigation.
2
was diagnosed with Reactive Airways Disfunction Syndrome
(“RADS”), a medically recognized condition which creates a
heightened sensitivity to chemicals, and which is caused by an
initial “insult” or exposure to high concentrations of
chemicals, such as those in petroleum products.
Il. Proceedings Below
Mrs. Cavallo sued, inter alia, for personal injuries
caused by the spill.” Summary judgment was entered against
her based on the grant of a motion in limine excluding the
testimony of her proposed expert witnesses -- Joseph A.
Bellanti, M.D., her treating physician, who is head of the
Department of Allergy and Immunology at Georgetown
University Medical Center, and Dr. David Monroe, a
toxicologist -- as to the sensitizing effect of the 1991 spill
upon her.
The district court held that Dr. Bellanti, who, as stated
above, is a preeminent allergist and immunologist, and Mrs.
Cavallos treating physician, could not testify as to the etiology
of Mrs. Cavallo’s illness because he did not follow the
methodology of toxicology in reaching his conclusions (A.59-
62). It also held the testimony of Dr. David Monroe, a
toxicologist, inadmissible because it believed his methodology
flawed in that he could not cite specific studies involving
AvJet (A.38-48, 54).
3 ‘ : . os
The complaint contains four counts. This Petition relates to Count
|, only. The district court dismissed the entire action (A.3). The November
20, 1996 court of appeals’ decision to which this Petition relates reversed
and remanded an FRCP Rule 12(b)(6) dismissal of the other three counts
which relate to ongoing personal injuries to Mrs. Cavallo and damage to
the Cavallos’ residential property located near the Star facility (A.21-22).
Lawrence Cavallo, Ardith Cavallo’s husband, who is not a party in this
Petition, also is a plaintiff seeking property damages in two of the
remanded counts.
The above conclusions were based on the district
court's misinterpretation >f this Court’s decision in Daubert v.
Merrill Dow Pharmaceuticals, Inc., 509 U.S. $79 (1993), that
Daubert tightened the rules for admission of expert testimony,
stating (A.66):
Prior to Daubert, courts presented with this
Situation [admissibility of expert scientific
testimony] may have been more inclined to
admit the expert testimony and allow the jury,
aided by vigorous cross-examination, to sort
out the relative reliability of Opposing opinions.
But Daubert recognized the danger in this
approach.* * * Given this, Daubert assigned
district courts a more rigorous role to play in
ferreting out expert opinion not based on
scientific method.
The Fourth Circuit affirmed. It ruled that the district
court's call was a “close” question, applying the most
deferential abuse of discretion standard of abuse of discretion
standard of review possible, and rejecting as the proper
Standard of review a less deferential standard of review
adopted by the Third Circuit in Jn re Paoli RR. PCB
Litigation, 35 F.3d 717 (3d Cir. 1994), certiorari denied sub
nom. General Electric Co. v. Ingram, cw HSB
1253 (1995), by the Eleventh Circuit in Joiner v. General
Electric Co., 78 F.3d. 524 (11th Cir. 1996), certiorari granted
(March 17, 1997), No. 96-188,* and by the District of
4 Te . .
Joiner has three opinions. The majority adopts the Puolj
approach (see, infra), with the concurring opinion (78 F.3d at 534-535)
Suggesting that district judges appoint “an expert under Fed. R. Evid. 706,
to assist the court in evaluating scientific evidence.” The dissent believes
that “more precise explanation of the standard of review is required”,
namely, that there are “[t]hree standards in reviewing admissibility of
€xpert opinion; (1) trial court’s fact finding reviewed for clear error: (2)
4
care)
Columbia Circuit in Ambrosini v. Labarraque, 966 F.2d 1464,
1469 (D.C. Cir. 1992), and 101 F.3d 129, 131 (D.C. Cir.
1996). (A.6-7, 21).° In so doing, the Fourth Circuit affirmed
as a proper exercise of district court discretion a decision made
based on an erroneous district court view that Daubert
tightened the standards for admissibility of expert testimony
(see, supra, and A.66), even though the circuit court itself
recognized that Daubert liberalized the standards for
admission of such testimony (A.18-19), and that the district
court's approach was “restrictive” (A.21).°
REASONS FOR GRANTING THE WRIT
I. Daubert
In Daubert, this Court held that the standard for
admissibility of expert scientific testimony no longer would be
that of “general acceptance” of the basis of the proposed
expert's opinion. The Federal Rules of Evidence, with their
liberal approach and preference for admissibility of evidence,
made the “general acceptance” test enunciated 70 years earlier
in Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923),
not the exclusive test for admissibility under the Federal Rules
of Evidence. 509 U.S. at 587-589. Instead, the Court held that
district judges should engage in a “flexible” inquiry
considering, by way of example, a number of non-exclusive
factors. 509 U.S. at 592-594.’ However, the Court, while
trial court's ruling whether opinion is scientific knowledge is question of
law requiring plenary review; and (3) trial court’s ruling whether opinion
assists the trier of fact is reviewed for abuse of discretion.” 78 F.3d at 535.
. Only Paoli is discussed in the Fourth Circuit’s opinion.
As stated, supra, even being most differential to the trial court's
rulings, the court of appeals called the question “close.”
: Factors listed by the Court are whether the proposed expert has
scientific knowledge that will assist the tier of fact (including on inquiry of
6
announcing a significant change in the law, did not consider
with this new approach whether in reviewing district court
rulings on admissibility the standard of review would remain
that stated 31 years earlier in Salem v. United States Lines ( 0.,
370 U.S. 31, 35 (1962), that “the trial judge has broad
discretion in the matter of the admission or exclusion of expert
evidence, and his action is to be sustained unless manifestly
erroneous.” To support the just quoted statement in Salem, the
Court cited Spring Co. v. Edgar, 99 U.S. 645, 658 (1879).
The Edgar standard of review, unexamined jin Daubert,
predates Frye by 44 years, and predates Daubert by well over
a century. It was formulated and applied long before, and
Without regard to, the Federal Rules of Evidence that are the
underpinnings of Daubert.
Il. Conflict In The Circuits On An Important Question
A. Importance
Expert testimony is becoming more and more critical
in an increasingly technical world. Ever more cases turn on its
admissibility. Accordingly, both the — standards for
admissibility in the trial courts, and the standard of review
applied by the courts of appeals to district court rulings on
admissibility under the Daubert criteria must be as uniform as
possible. Currently, such is not the case, and this Court should
resolve now the circuit conflicts as a major step toward
achieving both ends,
This uniformity concern is shared by both plaintiffs
and defendants. The Court. on March 17 1997, granted the
petition of defendants General Electric, et al., in No. 96-188 to
the validity of the methodology), whether the theory has been tested,
Whether it has been Subject to peer review, the potential error rate, and
possibly “general acceptance.” /d.
, : ue a . , 8 ‘
review the Eleventh Circuit’s decision in Joiner. General
Electric’s Petition appropriately states at 6:
The issue of standard of review is fundamental
and surely will have to be resolved by this
Court. It is difficult to see any reason why the
time for review has not now come, particularly
when the disparity of review standards among
the Circuits means that judgments are being
reversed in some Circuits that would be
affirmed in others.””!
‘ Petitioners in No. 96-188 filed a Second Supplemental Brief
calling attention to, inter alia, the Fourth Circuit's decision in this case.
, In this case, the courts below erred. Dr. Bellanti testified to a
reasonable degree of medical certainty that Mrs. Cavallo’s condition was
caused by her exposure to AvJet. There “need not be a clearly established
animal or epidemiological studies before a doctor can testify that, in his
opinion, a relationship [between product exposure and physical harm]
exists . . . [a]s long as the basi: methodology to reach such a conclusion is
sound, such as use of tissue samples, standard tests, and patient
examination.” Ferebee v. Chevron Chemical Co., 756 F.2d 1529, 1535-
1536 (D.C. Cir. 1984). And, “a doctor does not always have to employ all
of these techniques in order for the doctor's differential diagnosis to be
reliable.” Paoli, supra, 35 F.3d at 759. Dr. Bellanti employed standard
medical techniques and tests to diagnose Mrs. Cavallo’s illness, and
accepted differential diagnosis to determine its cause.
Dr. Monroe was not required to cite specific epidemiological
studies regarding AvJet, or a specific study finding long term effects from
exposure to specific levels of many of the compounds in AvJet. The ruling
of the district court is inconsistent with cases from the Fourth Circuit, as
well as with other circuits. The decision conflicts with Benedi v. MlcNeil --
P.P.C., Inc., 66 F.3d 1378, 1384 (4th Cir. 1995) (“we do not read Daubert
as restricting expert testimony to opinions that are based solely on
epidemiological data), and with City of Greenville v. W.R. Grace Co., 827
F.2d 975, 980 n.2 (4th Cir. 1987) (extrapolation from effects of high levels
of exposure to low levels permissible, and liability need not wait until
people actually get sick from low level exposure). It also is at odds with
Ferebee, supra, 736 F.2d at 1535 (“a cause and effect relationship need not
be clearly established by epidemiological studies before a doctor can testify
B. The Conflicts
Nine circuits hold that trial court determinations to
exclude expert testimony are to be reviewed either under a
traditional and highly deferential abuse of discretion standard,
or for “manifest error.”'° Three circuits -- the Third, the
Eleventh, and the District of Columbia Circuit -- take the
position that when exclusion of expert scientific testimony
results in either a summary judgment or a directed verdict. the
review is more searching and less deferential than other
rulings regarding admissibility of evidence. In Paoli. the
Third Circuit described this review as a “hard look.” 35 F.3d at
749. It reasoned that the liberal thrust of the Federal Rules of
Evidence, their preference for admissibility, and the fact that
the appellate court is in as good as the trial court to make the
evaluation, require a more Stringent and less deferential
standard of appellate review. Jd at 749-750.
The Eleventh Circuit in Joiner adopted the Paoli
standard of review, writing that, “[bJecause the Federal Rules
of Evidence governing expert testimony display a preference
for admissibility, we apply a particularly stringent standard of
review to the trial judge’s exclusion of expert testimony” (78
F.3d at 529). The District of Columbia Circuit has ruled
similarly, stating that review of a summary judgment is de
novo, and “that ‘when a court denies the right to have a jury
decide a disputed issue, especially one of a scientific nature. its
that, in his opinion, such a relationship exists”), and Wells v. Ortho
Pharmaceutical Corp., 788 F.2d 741, (11th Cir. 1986), rehearing in banc
denied, 795 F.2d 89 (1986), certiorari denied, 479 US. 950 (1986)
(“Plaintiffs’ burden . . . did not necessarily require them to produce
scientific studies showing a Statistically significant association . . . [of]
malformations in a large population”).
See n. 13, infra.
These two standards are essentially the same, described by
different terminology. See Cooter & Gell vy. Hartmarx Corp., 496 U.S.
384, 401 (1990) (in reviewing findings of fact “the abuse of discretion and
clearly erroneous standards are indistinguishable”).
i0
:
é
:
reasons for doing so must be strong.’"” Ambrosini v.
Labarraque, 101 F.3d 129, 131 (D.C. Cir. 1996), quoting from
Ambrosini v. Labarraque, 966 F.2d 1464, 1469 (D.C. Cir.
1992).'' But see Joy v. Bell Helicopter Textron, Inc., 999 F.2d
549, 567 (D.C. Cir. 1993) (trial judges are to be allowed
“broad discretion” in determining admissibility of expert
scientific testimony).
The positions of the circuits, other than the Third,
Fourth, Eleventh, and District of Columbia Circuits are
summarized below:'”
1. The “Manifestly Erroneous” Standard
Six Circuits state the standard of review as “manifestly
erroneous. ”
First Circuit -- “Because gauging an expert witness’s
usefulness is almost always a case-specific inquiry .. . a trial
judge's rulings in this sphere should be upheld ‘unless
manifestly erroneous.’” United States v. Sepulveda, 15 F.3d
1161, 1183 (1st Cir. 1993), citing Salem v. United States Lines
Co., supra, 370 U.S. at 35. See also United States v. Shay, 57
F.3d 126, 132 (1st Cir. 1995) (“district court’s decision to
admit or exclude expert testimony is entitled to great
deference’).
Second Circuit -- “A decision to allow expert
testimony is within the broad discretion of the trial judge and
‘is to be sustained on appeal unless manifestly erroneous.””
United States v. Daccarett, 6 F.3d 37, 58 (2d Cir. 1993),
quoting United States v. Brown, 776 F.2d 397, 400 (2d Cir.
i Petitioners in No. 96-188 believe the District of Columbia Circuit
applies an “abuse of discretion” standard of review. In light of the recent
decision in Ambrosini, we believe that is an inaccurate statement,
” The summary in points | and 2, following, is taken in part from
the Petition in No. 96-188.
1985), certiorari denied, 475 US. 1'41 (1986): MfeCullock y
H.B. Fuller Co., 61 F.3d 1038. 1042 (2d Cir. 1995).
Fifth Circuit -- The Fifth Circuit holds that under
Daubert “a trial court is accorded a wide berth to determine
the admissibility of expert testimony.” United States v. 14.38
Acres of Land, Sit. in Leflore Cty. MS, 80 F.3d 1074, 1077 (Sth
Cir, 1996). “A trial court’s ruling regarding admissibility of
expert testimony is protected by an ambit of discretion and
must be sustained unless manifestly erroneous.” Rosada y
Deters, 5 F.3d 119, 124 (Sth Cir. 1993), quoting
Christophersen y. Allied-Signal Corp., 939 F.2d 1106, 1109
(Sth Cir. 1991), certiorari denied, 503 U.S. 912 (1992). See
also Pedraza v. Jones, 71 F.3d 194, 197 (Sth. Cir. 1995)
(“district court did not abuse its discretion in refusing to
consider the affidavit as expert testimony”); Ejiland
Westinghouse Elec. Corp., 58 F.3d 176, 180 (Sth Cir. 1995)
(“manifestly erroneous’’).
Sixth Circuit -- In applying Daubert, “{a] trial court
‘has broad discretion in the matter of the admission or
exclusion of expert evidence, and [the court’s] action is to be
sustained unless manifestly erroneous.’” Ame» igan & Foreign
Ins. Co. v. General Elec. Co., 45 F.3d 135137 (6th Cir.
1995), quoting Salem v. United States Lines supra, 370
U.S. at 35; United States vy. Bonds. 12 F 34340, 554 (6th Cir.
1993) (“the trial court’s actions are to be sustained unless
‘manifestly erroneous”), quoting United States v. Green. 348
F.2d 1261, 1268 (6th Cir. 1977). But see Cook v. American
SS. Co., 53 F.3d 733. 738 (6th Cir. 1995) (review of Rule 70?
decisions may involve three different standards of review).
See n. 4, supra, and pp. 12-13 . infra.
Seventh Circuit -- Under Daubert, “we will not disturb
the district court's findings unless they are manifestly
erroneous.” Bradley v. Brown, 42 F.3d 434, 436-37 (7th Cir.
1994); Deimer v. Cincinnati Sub-Zero Prods., Inc.. 58 F.3d
341, 344 (7th Cir. 1995).
10
4
4
P|
;
:
a
PROMOS of AS
Ninth Circuit -- “We review de nove the district court's
interpretation of the Federal Rules of Evidence and will
uphold its decision to exclude expert testimony unless it is
‘manifestly erroneous.’” Claar y. Burlington N.R.R., 29 F.3d
499, 500-C1 (9th Cir. 1994), quoting Rogers v. Raymark
Industries, Inc., 922 F.2d 1426, 1429 (9th Cir. 1991); United
States v. Rincon, 28 F.3d 921, 923 (9th Cir. 1994), certiorari
denied, __ U.S. __, 115 S. Ct. 605 (1994). See also Lust v.
Merrell Dow Pharmaceuticals, Inc., 89 F.3d 594, 597 (9th Cir.
1996) (“[t]he abuse of discretion standard applies to an F.R.E.
702 ruling even though the ruling was dispositive of a motion
for summary judgment”).
2. The Deferential “Abuse of Discretion” Standard
Without using the phrase “manifestly erroneous”, two
circuits, in addition to the Fourth, review for abuse of
discretion, emphasizing that great deference is to be accorded
trial court rulings on admissibility.
Eighth Circuit -- The Eighth Circuit holds that district
court exclusions of expert testimony under Daubert will be
affirmed unless there was “a clear abuse of discretion.” Gier
v. Educational Service Unit, 66 F.3d 940, 944 (8th Cir. 1995);
Ventura v. Titan Sports, Inc., 65 F.3d 725, 735 (8th Cir. 1995),
certiorari denied, _ U.S. ___, 116 S. Ct. 1268 (1996); Watkins
v. Schriver, 52 F.3d 769, 771 (8th Cir. 1995) (“[t}he district
court's ruling as to the exclusion of such testimony will be
reversed only for an abuse of discretion”).
Tenth Circuit -- Admissibility rulings under Daubert
“will be disturbed only for a clear abuse of discretion.” United
States v. Davis, 40 F.3d 1069 (10th Cir. 1994), certiorari
denied, _ U.S. ___, 115 S. Ct. 1387 and 1806 (1995). Accord:
Duffee v. Murray Ohio Manufacturing Co., 91 F.3d 1410,
1411 (10th Cir. 1996). But see Compton v. Subaru of
America, Inc., 82 F.3d 1513, 1517-1518 (10th Cir. 1996)
1]
(once it is determined that district court properly applied
Daubert, reversal may be only for abuse of discretion:
however, because “of the ‘liberal thrust of the Federal Rules’,
[citation omitted] we have instructed, ‘the touchstone of
admissibility . . . is helpfulness to the trier of fact’”),
3. Different Standards for Various Parts
of Admissibility Rulings
The conflict and confusion in the circuits goes beyond
generalized and broad statements of the applicable standard of
review. There is disagreement regarding whether different
standards of review apply to the various parts of the Daubert
analysis. In this case, the Fourth Circuit made no distinction
between the standard of review to be utilized in reviewing the
district court’s decision on the validity of the methodology
employed by the proposed scientific experts and that to be
used for evaluating a determination of whether the testimony
would be helpful to the jury. In other words. it held that a
highly deferential abuse of discretion standard of review
should be applied to al/ aspects of a trial court’s Daubert
rulings.'> Other circuits have ruled similarly. See, ¢.2.. Duffee
sg The Fourth Circuit erred no matter how Stringent the standard of
review. The trial court made its ruling based on an erroneous view of the
law, namely that Daubert was intended to restrict admissibility of expert
scientific testimony, stating erroneously (A.66) that “[pJrior to Dauhert
courts presented with this situation may have been more inclined to admit
the expert testimony and allow the jury, aided by vigorous cross
examination, to sort out the relative reliability of opposing expert
opinions.” Daubert holds exactly the Opposite -- that the Federal Rules of
Evidence Jiberalize admissibility. See Daubert, 509 US. at 596
(“conventional devices, (“vigorous cross examination, presentation of
contrary evidence, and careful instruction on the burden of proof’) rather
than wholesale exclusion . . . are the appropriate safeguards”). The “district
court... necessarily . . . abuse [d] its discretion [by] bas[ing] its ruling on
12
ae
Sethe
‘ are
eer et err
v. Murray Ohio Manufacturing Co., supra, 91 F.3d at 1411,
United States v. Daccarett, supra, 6 F.3d at 59, American &
Foreign Ins. C. v. General Elec. Co., supra, 45 F.3d at 137,
139. Indeed, it is safe to say that most courts that use either
the “manifestly erroneous”, or the abuse of discretion standard
of review apply that standard to all aspects of district court
Daubert rulings.
By contrast, as Judge Smith wrote in his dissent in
Joiner (see n. 4, supra), and as he believes should be the case,
other circuit courts have applied different standards of review
to the various parts of the Daubert screening process -- fact
finding reviewed for clear error, or whether clearly erroneous,
methodology determination reviewed as question of law, ie.,
plenary or de novo review; ruling regarding assistance of
evidence to trier of fact reviewed for abuse of discretion. That
multi-faceted standard has been used by some courts. See,
e.g, Cook v. American SS. Co., supra, 53 F.3d at 738.
Compare Paoli, supra (“A district court’s ruling on
admissibility of evidence is reviewed for abuse of discretion,
but to the extent the district court’s ruling tums on an
interpretation of a Federal Rule of Evidence review is
plenary’”, quoting DeLuca v. Merrill Dow Pharmaceuticals,
Inc., 911 F.2d 941, 944 (3d Cir. 1994)).
ill. The Need For Clarification
In 1962, this Court held in Salem v. United States
Lines Co., supra, that the standard of review for rulings on
admission or exclusion of expert testimony was abuse of
discretion. Salem was decided when Frye's “general
acceptance” was the sole determinant of admissibility.
“General acceptance” did not mandate Daubert's detailed
an erroneous view of the law.” Cooter & Gell v. Hartmarx Corp., supra,
496 U.S. at 405.
13
multi-part inquiry. Because of the change made by Daubert in
the task to be undertaken by district judges, it is appropriate
that the standard of review in the courts of appeals also be
reexamined.
Daubert was a significant change in the law. Without
clarification of other related aspects of law that Daubert
necessarily calls into question (as evidenced by the circuit
conflicts), the job remains only partly done. The issue and
consequences of this incompleteness, which increasingly
impact the entire Federal Judicial System, are much too
important and too far reaching to be left in flux. Whether a
traditional and highly differential abuse of discretion standard
applies, or to what part, or parts, of Daubert rulings it applies,
or whether the liberal thrust of the Federal Rules dictates
something else, especially in cases of exclusion. is a question
that must be answered by this Court.'* The circuit conflicts
will not resolve themselves. Further uncertainty as to both the
standard of review and its application is unwarranted. Uniform
standards must be set before the conflicts and confusions
become even more widespread. Additional delay in doing so
can only make the task more complex and difficult.
’s We note that rulings on admissibility of expert scientific
testimony involve analysis of considerations inapplicable to other
evidentiary rulings. A different standard therefore seems appropriate,
especially since some of the determinations are questions of law.
14
PAS yee aris: Rte
CONCLUSION
For the foregoing reasons, certiorari should be granted,
and this case should be considered with No. 96-188.
Alternatively, ruling on this Petition should be postponed until
after decision in No. 96-188.
Respectfully submitted,
William A. Beeton, Jr.*
Allen H. Sachsel
Counsel for Petitioner
10521 Judicial Drive
Suite 307
Fairfax, Virginia 22030
(703)385-9400
*Counsel of Record
15
APPENDIX
bi
2
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 95-2540
ARDITH CAVALLO,
Plaintiff-Appellant,
and
LAWRENCE CAVALLO,
: Plaintiff,
V.
STAR ENTERPRISE; TEXACO REFINING
AND MARKETING (EAST), INCORPORATED;
SAUDI REFINING, INC.,
Defendants-Appellees.
No. 95-2541
LAWRENCE CAVALLO,
Plaintiff-Appellant,
and
ARDITH CAVALLO,
Plaintiff,
¥.
A. 1
STAR ENTERPRISE; TEXACO REFINING
AND MARKETING (EAST), INCORPORATED;
SAUDI REFINING, INC..
Defendants-Appellees.
Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge;
Albert V. Bryan, Jr., Senior District Judge.
(CA-94-1499-A)
Argued: April 3, 1996
Decided: November 20. 1996
Entered: November 20, 1996
Before ERVIN, Circuit Judge, LAY, Senior Circuit Judge of
the United States Court of Appeals for the Eighth Circuit,
sitting by designation, and TRAXLER, United States District
Judge for the District of South Carolina. sitting by designation.
Affirmed in part and reversed and remanded in part by
published opinion. Judge Ervin wrote the opinion, in which
Senior Judge Lay and Judge Traxler joined.
COUNSEL
ARGUED: Allen Huberth Sachsel. Fairfax, Virginia, for
Appellants. Richard Edward Wallace. Jr, HOWREY &
SIMON, Washington, D.C... for Appellees. ON BRIEF: Mark
C. Hayes, LAW OFFICE OF MARK C. HAYES, P.C..,
Alexandria, Virginia; Donnell R. Fullerton, DONNELL R.
A.2
FULLERTON, P.C., Fairfax, Virginia; John E. Drury, LAW
OFFICE OF JOHN E. DRURY, Washington, D.C., for Appel-
lants. Anthony F. King, Nancy C. Libin, HOWREY &
SIMON, Washington, D.C., for Appellees.
OPINION
ERVIN, Circuit Judge:
Ardith and Lawrence Cavalle sued Star Enterprise, '
which operates a petroleum distribution terminal located near
their home, alleging various damages from an underground
petroleum release in 1990 and a fuel spill in 1991. Their
complaint included four causes of action: Count I--
“Negligence with Respect to AVJet Fuel Spill”; Count II--
“Negligent Petroleum Release and Negligent Abatement and
Remediation of the Petroleum Release”; Count III--"Common
Law Trespass”; and Count IV-- “Liability Under the State
Water Control Law.” The district court dismissed Counts I],
III, and IV under Fed. R. Civ. P. 12(b)(6), holding that they
were barred by statutes of limitation and federal preemption.
After discovery, the court granted Star’s motion for summary
judgment on Count I.
The Cavallos appeal. They contend that the district
court applied an incorrect statute of limitation, misconstrued
federal preemption doctrine, and erred in excluding the
testimony of two of their experts.” We agree with the Cavallos
. Star Enterprise is a joint venture partnership between Texaco
Refining and Marketing (EAST), Inc., and Saudi Refining, Inc. We refer to
the defendants collectively as “Star.”
. In addition to the questions they raise in their opening brief, the
Cavallos add two new arguments in their Reply Brief: (1) that the statute of
limitation applicable to their trespass and statutory claims is five years
A.3
that the Complaint and the EPA Orders provide insufficient
information to determine whether their claims are preempted
Thus we reverse the court’s dismissal of Count II, that portion
of Count III containing the loss of use and enjoyment claim,
and Count IV and remand for further proceedings. We uphold
the dismissal of that portion of Count III containing the
personal injury claim, however, even though the court rested
its decision on preemption, because it fails to state a claim
under Virginia law. And we affirm the court’s summary
judgment on Count I, finding that the district court acted
within its discretion by excluding the expert testimony.
I
Star’s distribution terminal (“the Tank Farm’) is
located in Fairfax, Virginia, less than a mile west of the
Cavallos’ home. It includes office and warehouse space, a
truck >ading rack, underground Storage tanks holding up to
forty thousand gallons, and above-ground storage tanks
holding over seventeen million gallons. Drainage on the site is
rather than two years, and (2) that “[t]he district court erred by failing to
convert Star’s Rule 12(b)(6) motion into a motion for summary judgment
and by taking judicial notice of incomplete documents.” The Cavallos
abandoned the statute of limitation issue at oral argument, stating that they
Were not appealing it but might ask the district court to reconsider the
question if we remand. Also at oral argument, the Cavallos noted that they
had raised the conversion issue before the district court.
Under the decisions of this and the majority of circuits, an issue
first argued in a reply brief is not properly before a court of appeals. See
Hunt v. Nuth, 57 F.3d 1327, 1338 (4th Cir. 1995) (citing United States vy.
Caicedo-Llanos, 960 F.2d 158, 164 (D.C. Cir. 1992)), cert. denied. 116 S.
Ct. 724 (1996); 9 James Wm. Moore, Moore's Federal Practice q
228.02[2-3] (1995) (“The case law is to the effect that the appellant cannot
raise new issues in a reply brief. . . .”). That the question was raised in the
district court is immaterial. The Cavallos’ omission of the issue from their
initial brief denied Star an opportunity to respond, so considering it now
“would be unfair to the appellee and would risk an improvident or
ill-advised opinion on the legal issues raised.” Hunt, 57 F.3d at 1338.
A.4
controlled by a containment dike and an on-site pond--water
from the former is pumped into the latter--and the pond’s
contents are treated and released into local creeks.
On September 14, 1990, Fairfax residents noticed an
oil “sheen” on the surface of Crook Branch Creek. Star soon
acknowledged that a large amount of aviation fuel, diesel fuel,
and gasoline had leaked into the soil and groundwater.
Investigation by the Virginia State Water Control Board
revealed an underground “plume” of various fuels. Thereafter,
at the Board’s request, the Environmental Protection Agency
(“EPA”) assumed responsibility for the investigation pursuant
to the Resource Conservation and Recovery Act (“RCRA”) §
7003, 42 U.S.C. § 6973. The EPA and Star negotiated an
Administrative Consent Order--subsequently superseded by an
Administrative Order--which required Star to implement
corrective measures under EPA supervision. In accordance
with the Orders, the EPA assumed control of Star’s
remediation efforts on July 3, 1991.
Another significant spill occurred on December 9,
1991. A valve was left open, allegedly due to the negligence of
one of Star’s employees or agents, and thirty-four thousand
gallons of aviation fuel were released. The spill, contained by
the dike, remained on the Tank Farm grounds for two weeks.
On the evening of the 1991 spill, the Cavallos were
exposed to fuel vapors in a parking lot about five hundred feet
from the Tank Farm. Both noticed an oil-like odor, and Mrs.
Cavallo allegedly experienced an immediate irritating reaction.
She was treated by several doctors, including Dr. Joseph
Bellanti, Director of Allergy-Immunology at Georgetown
Medical Center. Dr. Bellanti testified that Mrs. Cavallo
suffered from sinusitis, conjunctivitis, and pulmonary
dysfunction. His testimony was complemented by that of Dr.
David Monroe, a toxicologist, who reported that the exposure
A.5
caused Mrs. Cavallo to experience burning eyes,
conjunctivitis, sinusitis, and throat irritation. In addition to
their exposure on the night of the 1991 spill, the Cavallos
claim that since that time they continually have been exposed
in their home to vapors from the Tank Farm. Mrs. Cavallo
alleges that she continues to suffer physical symptoms caused
by her exposure to the vapors, and both Cavallos claim
damage to their property.
I]
We review de novo the district court’s summary
judgments and 12(b)(6) dismissals. See, eg. Schatz v.
Rosenberg, 943 F.2d 485, 489 (4th Cir. 1991) (Rule 12(b)(6)
dismissal), cert, denied sub nom., Schatz v. W. 2inberg and
Green, 112 S. Ct. 1475 (1992); Goodman v. RTC. 7 F.3d
1123, 1126 (4th Cir. 1993) (summary judgment). But the
parties disagree on the standard by which we review the
district court’s decision to exclude expert testimony. The
Cavallos argue, quoting the Third Circuit's decision in Jn re
Paoli R.R. Yard PCB Litigation, that trial judges should not be
given the same deference in their decisions to exclude expert
evidence as they are given in their decisions about other types
of evidence:
The decision to exclude expert testimony
resulting in a summary judgment is subject to a
“hard look” review by the appeals court, i.e., a
less deferential review than the traditional
abuse of discretion standard in light of “a
significant risk that district judges will set the
threshold too high and will in fact force
appellants to prove their case twice.”
Brief of Appellants at 3 (quoting 35 F.3d 717, 733 (3d Cir.
1994)). As the defendants point out, however, this court
A.6
Pe ne eS ee =
recently reached the opposite conclusion. In Benedi vy.
McecNeil-P.P.C., Inc., a Fourth Circuit panel stated that
“Daubert [v. Merrell Dow Pharmaceuticals, Inc.,| clearly
vests the district courts with discretion to determine the
admissibility of expert testimony.” 66 F.3d 1378, 1384 (4th
Cir. 1995) (citing 113 S. Ct. 2786 (1993)). Accordingly, we
review the district court’s decision only for abuse of
discretion.
IT]
A
The district court dismissed Count III which contained
both a personal injury claim by Mrs. Cavallo and a claim for
the loss of the use and enjoyment of the Cavallo’s real
property resulting from exposure to vapors under the federal
preemption doctrine. See complaint Para. 79. In addition to
defending the court’s preemption analysis, Star offers an
alternative ground for upholding the district court's dismissal.
Under Virginia law, it argues, the Cavallos must show
physical impact on their property, and “wafting vapors. . . [are]
insufficient as a matter of law.” To support its position, Star
cites another Fourth Circuit case involving the Tank
Farm--Adams vy. Star Enterprise, 51 F.3d 417, 422-25 (4th Cir.
1995).
The Adams plaintiffs, a group of landowners, sued for
diminution of their property values and for health risks
allegedly caused by their subdivision’s proximity to an
underground “plume” of petroleum products leaked from the
Tank Farm. The landowners did not claim that the plume
actually contaminated their soil, nor that they detected vapors
from the leak on their property. The harm they alleged
consisted of a stigma attached to their subdivision and a “fear
of being exposed to toxic materials.” /d. at 422 & n.5. The
A.7
court held that the landowners’ claims could not proceed,
because Virginia law allowed recovery only if “the activity or
condition complained of was actually physically perceptible
from the plaintiff[s’] property.” Jd at 422-23 (emphasis
added).
Star argues that “wafting vapors” are not “physically
perceptible” under Adams. We disagree. The context for the
Adams court’s focus on physical perception was its discussion
of Foley v. Harris, in which the Virginia Supreme Court
allowed recovery against a defendant whose wrecked cars
Were visible from the plaintiffs’ property. 286 S.E.2d 186.
190-91 (Va. 1982). The Adams court distinguished Foley
because the Foley plaintiffs, unlike those in Adams, could
sense the source of the offense from their own property.
Adams, 51 F.3d at 422-23. Smell, like sight, certainly
constitutes physical perception. And, although the Cavallos do
not allege that they smelled the vapors, the physical symptoms
Mrs. Cavallo suffered also might suffice. We conclude, based
upon Adams, that the portion of Count III relating to the loss
of use and enjoyment claim may be cognizable under Virginia
law and that it was error to dismiss it under Fed. R. Civ. P, 12
(b)(6) upon the alternative ground suggested by Star. Since the
damage alleged in Adams was based simply upon a fear of
future events and these allegations are much more direct, we
hold that they are sufficient to Sustain the loss of use and
enjoyment portion of Count III under Virginia law.
We reach a different result, however, with reference to
that portion of Count III asserting a personal injury claim by
Mrs. Cavallo. The Virginia Supreme Court stated in Foley
that” [t]he discomfort and annoyance [complained of] must . . .
be significant and of a kind that would be suffered by a normal
person in the community.” Foley, 286 S.E.2d at 190, 19]
(emphasis added). Mrs. Cavallo is not such a person; in fact,
she alleges specifically that she is"highly susceptible" to
A.8
.
te aes
i a
petroleum vapors. Complaint § 50. Hence, the personal injury
portion of Count III is not cognizable under Virginia law and
was properly dismissed.
B
An agreement between the parties treats all the
Cavallos’ claims as filed on December 8, 1993. The district
court ruled that all counts but Count I are necessarily barred by
the interaction of the statutes of limitation and federal
preemption, because: (1) the counts involve remediation
efforts at the Tank Farm, (2) the statutes of limitation bar all
claims based on events occurring before December 8, 1991,
and (3) preemption bars all claims based on events occurring
after September 1991, when the EPA took control of
remediation efforts. Because we affirm on other grounds the
district court’s dismissal of the physical injury claim in Count
III, supra part IIl.A, we limit our preemption analysis to
Count II, the portion of Count III containing the loss of use
and enjoyment claim, and Count IV only.
This court summarized the law of preemption in Worm
v. American Cyanamid Co.:
The principles of preemption resolve conflicts
between federal and state law on the authority
of Article VI of the Constitution, which
provides:
This Constitution, and the Laws of the
United States which shall be made in
Pursuance thereof . . .shall be the
supreme Law of the Land; and the
Judges in every State shall be bound
thereby, any Thing in the Constitution
A.9
or Laws of any State to the Contrary
notwithstanding.
U.S. Const. Art. VI. § 2. From this Supremacy
Clause flows the well-established principle that
federal legislation, if enacted pursuant to the
Congress’ constitutionally delegated authority,
can nullify conflicting state or local actions.
See, e.g. Gibbons vy. Ogden, 22 US. (9
Wheat.) 1, 210-11, 6 L.Ed. 23 (1824).
Preemption may occur on two bases, the first
of which turns on discovering the intent of
Congress. Congress may expressly provide that
federal law supplants state authority in a
particular field or its intent to do SO may be
inferred from its regulating so pervasively in
the field as not to leave sufficient vacancy
within which any state can act. See, e.g., Rice y.
Santa Fe Elevator Corp., 331 U.S. 218, 230.
67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947).
But even absent an express or implied
congressional intent to preempt state authority
in a field, state law is nevertheless preempted
by operation of law to the extent that it actually
conflicts with federal law. See [J isconsin
Public Intervenor v. Mortier. —
111 S.Ct. 2476, 2482, 115 L.Ed.2d 532 (1991);
Pacific Gas & Elec. Co. y State Energy
Resources Conserv. & Dey Comm'n, 461 U.S.
190, 204, 103 S.Ct. 1713. 1722, 75 L.Ed.2d
752 (1983).
.. . When we address the question of whether
State law actually conflicts with federal law, we
resolve the more specific inquiries of whether
A.10
“it is impossible to comply with both state and
federal law” or “whether the state law stands as
an obstacle to the accomplishment of the full
purposes and objectives” of federal law. See
Silkwood v. Kerr-McGee Corp., 464 U.S. 238,
248, 104 S.Ct. 615, 621, 78 L.Ed.2d 443
(1984).
With these principles stated, we proceed to an
examination of [the statute in question], first to
determine if Congress intended by its
enactment to supplant state authority in the
field, and if not, whether state tort and warranty
law conflicts with the federal regulatory
scheme.
970 F.2d 1301, 1304-05 (4th Cir. 1992).
Two years after Worm, in Feikema v. Texaco, Inc., 16
F.3d 1408 (4th Cir. 1994), this court addressed whether
state-court relief would conflict with an EPA Consent Order.
The Feikema plaintiffs sought damages and an injunction
requiring
excavation, treatment and replacement of
contaminated soil to a specified depth and over
a specified area; . . . “enhanced ground water
extraction and bio-remediation to reduce the
off-site contamination”; and . . . construction of
a “free phase hydrocarbon trench removal
system across the water table.”
Id. at 1416. Because the EPA Order in Feikema focused on a
particular incident, and thus was not intended to supplant state
authority in the entire field, the court applied only the second,
actual-conflict prong of the Worm inquiry:
A.l1
[W]hen the EPA, acting within valid statutory
authority of the RCRA and not arbitrarily,
enters into a consent order, that order will also
preempt conflicting state regulation, including
a federal court order based on state common
mw... :
... [T]he test for determining whether state law
conflicts with federal law is whether “it is
impossible to comply with both state and
federal law” or whether “the state law stands as
an obstacle to the accomplishment of the full
purposes and objectives” of federal law.
Feikema, 16 F.3d at 1416 (quoting Worm , 970 F.2d at 1305)
(emphasis added) (other citations omitted). Noting that the
Consent Order “addresse[d] the same site and conditions
covered by the homeowners’ suit,” the Feikema_ court
determined that an injunction would conflict with the EPA's
activities and thus was preempted. /d.
Regarding the damages claims, the Feikema court
expressed greater reluctance to preempt state law. It quoted the
Supreme Court’s opinion in Nader vy. Allegheny Airlines, Inc.:
A common-law right, even absent a saving
clause, is not to be abrogated “unless it be
found that the preexisting right is so repugnant
to the statute that the survival of such right
would in effect deprive the subsequent statute
of its efficacy; in other words, render its
provisions nugatory.”
426 U.S. 290, 298 (1976) (quoting Texas & Pacific R. Co. v.
Abilene Cotton Oil Co., 204 U.S. 426, 437 (1907)), quoted in
A.12
oben wk?
Josh Ue. elt’ waditnacode
a Ce a eee ee ee
Feikema, 16 F.3d at 1413. Moreover, the Feikema court found
indications in RCRA’s legislative history that some state
causes of action should be permitted: “[W]hile Congress
intended for the EPA to have broad authority to act in an
imminent hazard situation, it also intended such action to
complement other efforts and remedies.” Feikema, 16 F.3d at
1415 (citing Report of the Committee on Environment and
Public Works, S. Rep. No. 98-284, 98th Cong., Ist Sess. 56
(1983)). Because the Consent Order did not provide for
damages payments to homeowners, the court found, awarding
damages to the plaintiffs would not conflict with the Consent
Order. Consequently, it allowed the damages claims to
proceed. /d. at 1417-18.
Judge Murnaghan wrote separately in Feikema to
emphasize that the court was not applying a different standard
to damages than to equitable relief. Jd. at 1418 (Murnaghan, J.,
concurring). He stressed that, whatever the relief sought, a
“claim is preempted only to the extent that it may actually
conflict with the EPA’s Consent Order and only while that
Order remains in effect.” Jd (Murnaghan, J., concurring). In
Feikema, he wrote, preemption applied to the injunction claim
but not the damages claims because, on the particular facts of
the case, an injunction would conflict with the Consent Order
but a damages award would not. /d (Murnaghan, J.,
concurring).
The EPA Orders in this case, like those in F, eikema, do
not contemplate compensation for damages to private parties.
Thus the Cavallos contend that the damages they seek, like the
award sought in Feikema, would not conflict with the EPA
Orders. The district court disagreed with the Cavallos, relying
on Judge Murnaghan’s concurrence, and held that the Orders
preempted any damages claims based on remediation efforts
within the scope of the Orders:
A.13
[Djamages claims are preempted insofar as
they arise from remediation efforts under the
scope of the EPA Orders. The damages sought
here distinguish the case from those damages
which were allowed in Feikema. Damage
liability for activities in conformity with the
EPA Orders conflicts with the federal interest
as effectively as an injunction.
Memorandum Opinion and Order at 5, in Joint Appendix at
197 (citing 16 F.3d 1408, 1418 (4th Cir. 1994) (Murnaghan, ai
concurring)).
The district court used the correct “conflict” test, and
we agree that Star cannot be held liable “for activities in
conformity with the EPA Orders.” But that does not end the
inquiry, as the district court appears to have assumed.
Although all of Star’s allegedly tortious acts occurred after the
EPA took control of remediation, the EPA Orders
encompassed only remediation efforts, and all of Star's
activities at the Tank Farm did not involve remediation.
Moreover, even EPA-directed remediation efforts might be
actionable if improperly performed. To determine whether
damages would conflict with the EPA Orders, then, we must
look beyond the temporal scope of the Orders and the scope of
the activities they encompassed. Damages claims conflict with
EPA Orders only if the allegedly tortious activities (1) were
required, directed, or supervised by the EPA, and (2) were
performed properly.
In Count II, the Cavallos allege “negligence,
carelessness and recklessness” by Star in:
a. Improperly _ operating, supervising,
and/or managing the [Tank Farm] Facility;
A.14
b. Improperly designing, installing and
repairing and updating of the Facility;
c. Failure to properly test and inspect
Facility equipment;
d. Failure to properly and promptly notify
Plaintiff and Mantua residents of the Petroleum
releases at the Facility[;]
¢. Failure to properly and _ promptly
remediate[sic] and recover/remove the
Petroleum Releases[;] and
f. Failure to properly mitigate venting of
storage tanks.
Complaint 4 72, in Joint Appendix at 38. Count IV is based in
part on the December 1991 spill, and in part on Star's regular
venting of its tanks. Complaint § 86-87, in Joint Appendix at
21.
To the extent they occurred after December 8, 1991)
incidents of improper operation, supervision, management,
design, installation, repair, and updating of the Tank Farm or
its equipment may be actionable if not compelled by the EPA
Orders. Likewise, failure by Star to notify the Cavallos of
petroleum releases may support their claims if the releases or
failures to notify were not authorized or approved by the EPA.
For example, the Complaint indicates that the December 10,
1991, AVJet spill was a mistake--not contemplated by EPA
Orders or officials--and alleges that Star waited eight days
‘ The district court held that claims based on events before
December 8, 1991, are barred by the statute of limitations, see supra part
I11.B, and the Cavallos do not appeal that ruling, see supra n.2.
A.15
before notifying the EPA. Complaint {§ 26-43, in Joint
Appendix at 28-31. Damages caused by that spill, or by Star's
failure to notify the Cavallos during the period before it
notified the EPA, thus are not preempted by the EPA Orders.
The EPA Orders did encompass all of Star's
remediation efforts, so failures “to properly and promptly
remediate and recover/remove the Petroleum Releases” are
likely to be preempted. Similarly. the Cavallos allege that
venting was “regularly performed,” apparently under EPA
supervision, so claims of improper venting probably are
preempted. Even remediation and venting, however, are
actionable if Star tortiously failed to notify the EPA of the
releases--a jury might find, for instance, that the delay after the
December 1991 spill was negligent--or if Star improperly
implemented EPA instructions.
In sum, the fact that allegedly tortious conduct
occurred within the temporal and subject-matter scope of an
EPA Order does not necessarily compel preemption of a
damages claim based on that conduct. We cannot conclusively
determine, from the face of the Complaint and the text of the
EPA Orders, that the Orders or EPA instructions pursuant to
the Orders compelled all of Star’s allegedly improper activities
and its manner of performing them. Thus we cannot determine
whether damages based on those activities would conflict with
EPA authority, or, in turn, whether the preemption doctrine
applies.
C
The Cavallos assert that, because their claims are
grounded in Virginia state law and originally were filed in
Virginia state court, the admissibility of expert testimony
should be governed by Virginia law. As Star points out,
however, this court held expressly in Scott v. Sears, Roebuck
A.16
& Co. that federal rules apply to the admission of expert
testimony in diversity cases:
Unlike evidentiary rules concerning burdens of
proof or presumptions, the admissibility of
expert testimony in federal court sitting in the
diversity jurisdiction is controlled by federal
law. State law, whatever it may be, is
irrelevant.
789 F.2d 1052, 1054 (4th Cir. 1986). But the Cavallos respond
that Daubert, which was decided seven years after Scott,
implemented a heightened burden of proof--”established
toxicological methodology” instead of “greater weight of all
the evidence.” Because Scort specifically excepted burdens of
proof, they contend, the rule it established is invalid after
Daubert and Virginia law should apply. Their argument is
meritless. A standard for admission of testimony, however
stringent, is not a burden of proof. Daubert governs whether
evidence is admitted, not how persuasive it must be to the
factfinder. Consequently, Scott remains good law even after
Daubert, and the district court correctly applied federal law in
determining whether to admit the experts’ testimony.
On the merits of the expert-testimony question, the
Cavallos’ brief succinctly stated the essence of their position:
The trial court concluded that neither Dr.
Bellanti nor Dr. Monroe strictly adhered to the
established toxicological methodology in
forming their conclusions that Ms. Cavallo’s
exposure to AVJet vapors from the December
1991 spill caused her various chronic
illness[es], and that their testimony, therefore[,]
is not supported by appropriate validation as
A.17
required by Daubert v. Merrell Dow. 113 S.Ct.
at 2795.
Cavallos’ Brief at 17 (citation to Joint Appendix omitted).
The parties agree that Daubert is the leading case on
this issue. But neither party emphasizes that the Supreme
Court itself viewed Daubert as a liberalization, not a
tightening, of the rules controlling admission of expert
testimony. The Court recognized that the question had been
governed for seventy years by the standard first set out by the
D.C. Circuit in Frye v. United States--that scientific expert
testimony must be based on principles that are “sufficiently
established to have gained general acceptance in the particular
field in which [they] belong[ ].” 293 F. 1013, 1014 (D.C. Cir.
1923) (emphasis added). It held, however, that the Frye test
had been superseded by Fed. R. Evid. 702.
Rule 702 provides:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to
understand the evidence or to determine a fact
in issue, a witness qualified as an expert by
knowledge, skill, experience, training or
education, may testify thereto in the form of an
opinion or otherwise.
The Daubert Court noted that Rule 702 does not
mention Frye’s “general acceptance” test. Moreover, it stated:
A rigid “general acceptance” requirement
would be at odds with the “liberal thrust” of the
Federal Rules and their “general approach of
relaxing the traditional barriers to ‘opinion’
testimony.” Beech Aircraft Corp. v. Rainey,
A.i8
488 U.S. [153,] 169 (1988). . . . That austere
standard, absent from and incompatible with
the Federal Rules of Evidence, should not be
applied in federal trials.
113 S. Ct. at 2794 (emphasis added) (citations to nonquoted
sources omitted).
The Daubert Court held that two questions control
admission of scientific expert testimony: “whether the
reasoning or methodology underlying the testimony is
scientifically valid and. . . whether that reasoning or
methodology properly can be applied to the facts in issue.” Jd
at 2796. In lieu of the Frye test, it decided, the validity of the
methodology or reasoning is determined using a flexible
inquiry based on five factors: (1) whether the testimony has
been tested, (2) whether it has been published or exposed to
peer review, (3) its rate of error, (4) whether there are
standards and controls over its implementation, and (5)
whether it is generally accepted. /d. at 2796-97. If valid, the
Court wrote, whether the testimony can “properly be applied
to the facts in issue” is determined by reference to other rules
of evidence, id. at 2797, such as the relevance and prejudice
provisions of Rule 401, id. at 2794, and Rule 403, id. at 2798.
The Daubert Court concluded by reemphasizing that
scientific evidence is to be admitted more liberally under Rule
702 than it was under Frye, and that exclusion is the least
favored means of rendering questionable scientific evidence
ineffective:
Vigorous cross-examination, presentation of
contrary evidence, and careful instruction on
the burden of proof are the traditional and
appropriate means of attacking shaky but
admissible evidence. Additionally, in the event
A.19
the trial court concludes that the scintilla of
evidence presented supporting a position is
insufficient to allow a reasonable juror to
conclude that the position more likely than not
is true, the court remains free to direct a
judgment, and likewise to grant summary
judgment. These conventional devices, rather
than wholesale exclusion under = an
uncompromising “general acceptance” test, are
the appropriate safeguards where the basis of
scientific testimony meets the standards of
Rule 702.
Id. at 2798 (citations omitted).
In the instant case, the district court concluded that the
bases of the doctors’ opinions were not sufficiently established
to warrant their admission into evidence:
In sum, neither Dr. Monroe nor Dr. Bellanti
sufficiently adhered to the established
toxicology methodology in forming [his]
conclusions that Ms. Cavallo’s exposure to
AVJet vapors from the December 1991 spill
caused her various chronic illnesses. Their
testimony, therefore[,] is not “supported by
appropriate validation” as required by Daubert,
and is ultimately unreliable. In the final
analysis, the opinions of Drs. Monroe and
Bellanti are based largely on hypothesis and
speculation. This is not to say that the doctors
are insincere in their opinions, or that their
opinions may not some day be validated
through scientific research and experiment. It
may well be that the AVJet spill forever
“sensitized” Ms. Cavallo to petroleum vapors
A.20
and various other household chemicals. But the
published scientific literature and test results
simply do not support that conclusion at this
time. And the price paid for this seemingly
stringent standard of reliability is that,
unavoidably, some legitimate injuries will be
left unredressed.
Memorandum Opinion at 39-40, in Joint Appendix at
1799-[1]800 (footnotes omitted).
The district court’s interpretation is restrictive in this
case, but it is not inconsistent with Daubert. Although
Daubert eliminated the requirement of general acceptance, the
five factors it established still require that the methodology
and reasoning used by a witness have a significant place in the
discourse of experts in the field. The district court determined
that the testimony of Dr. Bellanti and Dr. Monroe did not have
such a place. By making that determination, the court properly
exercised its discretion. The Cavallos have shown that the
question of admission is close, but we defer to the court's
decision to exclude the evidence and affirm its summary
judgment on Count I.
IV
The face of the Complaint and the text of the EPA
Orders are insufficient to determine whether EPA involvement
preempts Count II, the loss and use and enjoyment claim of
Count III, and Count IV. Whatever the preemption doctrine’s
effect, however, the personal injury claim of Count III does
not state a claim under Virginia law. Moreover, the district
court acted within its discretion by excluding testimony by the
Cavallos’ experts. Accordingly, we affirm the district court’s
summary judgment on Count I and its dismissal of the
personal injury claim of Count III, but we reverse its dismissal
A.21
of Count II, the loss of use and enjoyment claim of Count III,
and Count IV and remand them for further proceedings.
AFFIRMED IN PART _ AND _ REVERSED _ __ AND
REMANDED IN PART
A.22
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
ARDITH CAVALLO,
Plaintiff,
v.
STAR ENTERPRISE, eg, al.
Defendants.
Civil Action No. 94-1499-A
Entered: June 21, 1995
ORDER
Plaintiff Ardith Cavallo brought suit against
Defendants for injuries she allegedly sustained as a result of
her exposure to aviation fuel vapors following a spill at a
petroleum distribution terminal owned and operated by
Defendant Star Enterprise. She claims that a result of her
exposure to these vapors, she has developed chronic
respiratory problems, including sinusitis and conjunctivitis,
as well as increased sensitivity to irritant compounds. In a
motion in limine, Defendants moved to exclude the proffered
testimony of Drs. Monroe and Bellanti on the ground that
their opinions did not meet the requirements for expert
testimony set forth in Daubert vy. Merrell Dow
Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993). In addition,
Defendants moved for summary judgment on the basis the
Plaintiff had not come forward with sufficient evidence of
causation to create a triable issue of fact for the jury.
Plaintiff opposed these motions.
The parties submitted numerous legal memoranda,
accompanied by voluminous documentary exhibits, in
support of their respective positions, and the Court heard
A.23
extensive oral argument on the matter at a hearing held June
16, 1995. Following oral argument, the Court took the
motions under advisement. Having further reviewed and
considered the parties’ memoranda and the record evidence,
the Court ORDERS as follows:
l. For reasons to be more fully articulated in a
forthcoming Memorandum Opinion, the Court concludes
that the proffered opinions of Drs. Monroe and Bellanti with
respect to the cause of Plaintiff's alleged injuries are not
sufficiently “ground(ed) in the methods and procedures of
science” or “scientific(ally) valid” to permit admission under
the requirements of Rule 702. Daubert, 113 S. Ct. at 2795 &
n.9. Therefore, the motion in limine is GRANTED.
2 It appears to the Court that it follows from the
granting of the motion in limine thai the motion for summary
judgment should also be granted. However, the Court is still
reviewing the matter and will issue a further order or a final
order once it has completed its review.
3. The Court ORDERS that the trial, currently
scheduled to commence June 26, 1995, be, and hereby is,
canceled and taken off the docket. Shoumd the Court
conclude that summary judgment is warranted, a final order
will be entered. Should the Court conclude otherwise, the
Court will reschedule the trial.
The Clerk is directed to send copies of this Order to
all counsel of record.
/s/ T. S. Ellis, I
T. S. Ellis, III
United States District Judge
Alexandria, Virginia
June 21, 1995
A.24
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA,
ALEXANDRIA DIVISION
ARDITH CAVALLO,
Plaintiff,
STAR ENTERPRISE, et al.,
Defendants.
Civil Action No. 94-1499-A
July 10, 1995, Decided
July 10, 1995, ENTERED
COUNSEL: For PLAINTIFF: Mark C. Hayes, Law Offices
of Mark C. Hayes, P.C., Alexandria, Virginia, Donnell R.
Fullerton, Donnell R_ Fullerton, P.C., Fairfax, Virginia, John
E. Drury, Law Offices of John Drury, Washington, D.C.
For DEFENDANT: John A. C. Keith, Blankingship & Keith,
Fairfax, Virginia, Richard E. Wallace, Jr., Howrey & Simon,
Washington, D.C.
JUDGES: T. S. Ellis, III, United States District Judge
OPINION BY: T. S. Ellis, III
OPINION: MEMORANDUM OPINION
In this toxic tort case, the Court must exercise its
“gatekeeping responsibility" to assess whether Plaintiff's
proffered expert opinions on causation are admissible under
Daubert v. Merrell Dow Pharmaceuticals, Inc., _ U.S. _, 113
A.25
S. Ct. 2786 (1993). Plaintiff here allege schronic injury from
exposure to aviation jet fuel ("AvJet") vapors, and like many
toxic tort cases, the central dispute is causation. Specifically,
the question presented is whether the opinions of two experts
that Plaintiff's exposure to AvJet caused her various chronic
respiratory illnesses are admissible where no study or
published literature links AvJet vapors to Plaintiff's claimed
illnesses and where the experts fail to establish why studies
showing a correlation between exposure to other chemicals
and much less significant illnesses support their proffered
conclusions in this case.
I. Statement of Facts'
Plaintiff Ardith Cavallo is a resident of Fairfax,
Virginia. Late in the evening of December 9, 1991, Ms.
Cavallo and her husband, Lawrence Cavallo, dined at a
Chinese restaurant. The couple enjoyed a leisurely dinner and
some late-night conversation with the proprietors. Then,
shortly after midnight, the Cavallos left the restaurant and
proceeded across the parking lot to their car. On the way to the
car, the Cavallos noticed an odor in the air, which Mr. Cavallo
identified as an oil smell. By the time the couple reached the
car, a process which consumed approximately five minutes,
Ms. Cavallo had begun to experience severe burning in her
eyes, a sensation of fullness in her left ear, and irritation in her
throat. Mr. Cavallo apparently did not experience these effects.
The restaurant, it appears, is located in a shopping mall
just 500 feet from a petroleum distribution, mixing and
transfer terminal ("the Star facility") owned and operated by
For purposes of disposing of the motions at bar, the facts in this
case, many of which are hotly disputed, are presented here in the light most
favorable to Plaintiff. See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).
A.26
Defendant Star Enterprise ("Star").’ Beginning either late in
the evening of December 9, 1991 or very early the following
morning, approximately 34,000 gallons of AvJet accidentally
overflowed from a storage tank located at the Star facility.
While the parties dispute the exact timing of the spill, they
agree for purposes of these proceedings that the spill was
either ongoing or had already concluded at the time the
Cavallos crossed the restaurant parking lot. According to Ms.
Cavallo's air modeling expert, Dr. Robert Haberlein, the spill
resulted in airborne emissions of hydrocarbon vapors in the
restaurant parking lot, at a maximum, "worst-case"
concentration of 61 milligrams per cubic meter ("61 mg/m*")
(Haberlein Rpt., at V-1). Although Star's air modeling expert
opines that this figure is seriously flawed and overstates the
possible concentration of AvJet vapors in that area by a factor
of 1000, Star concedes the 61 mg/m’ level of exposure for
purposes of the motions at bar.
On reaching her home, which is located approximately
one half mile from the Star facility, Ms. Cavallo applied boric
acid to her eyes in an effort to soothe them. Although she
continued to suffer pain and discomfort, Ms. Cavallo did not
seek emergency medical treatment. Rather, she waited nine
days before seeking medical attention for her ailments. On
December 19, 1991, she consulted Dr. Joseph Sabri, an
otolaryngologist. According to Dr. Sabri, Ms. Cavallo
complained of mild congestion, tinnitus,’ dizziness and
+
+
Star is a joint venture partnership. The joint venture partners, also
defendants in this case, are Texaco Refining and Marketing (East), Inc. and
Saudi Refining, Inc. For convenience, all three defendants are referred to
collectively as “Star”.
3 orn pt ea
An otolaryngologist is an ear, nose, and throat specialist
. Tinnitus is defined as "[a] sound in the ears, as buzzing, ringing,
or whistling, caused by a defect in the auditory nerve." Webster's 1] New
Riverside University Dictionary 1212 (1984).
A.27
headaches, all of which she believed were related to the AvJet
spill. After examining Ms. Cavallo and finding no physical
symptoms, Dr. Sabri diagnosed her with vasomotor rhinitis,
which he explained was a "stuffy nose or a cold." (Sabri Tr., at
16-17). He then prescribed Advil and warm showers. Ms.
Cavallo followed the advice for several months, but grew
frustrated when her symptoms persisted and consulted another
physician, Dr. Richard Rosenthal, on May 4, 1992. According
to Dr. Rosenthal, who specializes in immunology and
allergies, Ms. Cavallo described her symptoms at that time as
dizziness, eye irritation, a stuffy nose, and postnasal drip.
Following his physical examination, Dr. Rosenthal diagnosed
Ms. Cavallo with conjunctivitis, or eye redness, but detected
no pulmonary problems or sinusitis.
Ms. Cavallo's symptoms continued, and on June 30,
1993, she consulted another otolaryngologist, Dr. Neeraj
Gupta. Although Dr. Gupta’s physical examination of Ms.
Cavallo revealed no significant pathology in her upper
respiratory system, a CAT scan performed on July 1, 1993
disclosed what Dr. Gupta termed “acute possible chronic
sphenoid sinusitis," which he considered to be "close to a
medical emergency." (Gupta Tr., at 21-22). To treat the
sphenoid sinusitis, Dr. Gupta prescribed antibiotics and nasal
spray. The treatment apparently worked, as a second CAT
scan performed three months later revealed that Ms. Cavallo's
"sinusitis had resolved or almost completely resolved," (Gupta
Tr., at 26), thereby rendering further antibiotic treatment
unnecessary. Dr. Gupta also performed another physical exam,
the results of which were normal. Nonetheless, Ms. Cavallo
continued to complain of "nonspecific" symptoms, such as
nasal congestion, postnasal drip, eye irritation, facial pain,
headaches, and fullness of the ears. (Gupta Tr., at 27). Then, as
now, these symptoms tended to abate when she left the
vicinity of the Star facility, but renewed upon her return.
Finally, on July 5, 1994, Ms. Cavallo consulted yet
another physician, Dr. Joseph Bellanti, an immunologist who
A.28
SURE Meare
is her current treating physician and whom she has retained to
testify as an expert in this case. Following a physical
examination, Dr. Bellanti determined that Ms. Cavallo
suffered from postnasal drip, a swollen eye, frontal pain,
conjunctivitis, a stuffy nose, acute sinusitis, and bronchitis. In
his written report, Dr. Bellanti concludes that Ms. Cavallo has
developed chronic sphenoid sinusitis and pulmonary
dysfunction, ilinesses he believes were directly caused by Ms.
Cavallo's exposure to petroleum vapors from the AvJet spill in
December 1991. Furthermore, Dr. Bellanti concludes that her
exposure to AvJet vapors on the night of the spill has
‘sensitized" her to various volatile organic compounds,
including petroleum vapors, as well as certain household
chemicals found in products such as Windex and aftershave
lotion. Dr. David Monroe, a toxicologist retained by Ms.
Cavallo as another expert in this action, agrees that her
conjunctivitis and sinusitis were caused by the Avjet spill and
also concludes that she has developed an increased sensitivity
to various chemical irritants as a result of the spill.” It is these
two opinions that are the focus of the pending motions.
The Cavallos brought this suit against Star on
November 14, 1994, alleging injuries under four separate
counts. Three of the counts, Counts Two through Four, have
already been dismissed in a prior proceeding before Judge
Bryan.° Only Count One remains. In this count, Ms. Cavallo
: Unlike Dr. Bellanti, however, Dr. Monroe has no opinion
regarding whether Ms. cavallo's alleged chronic pulmonary disease resulted
from the AvJet spill.
6 The tortious conduct alleged in those three counts involved the
continued release of petroleum hydrocarbon vapors from the Star facility
during and after Star's clean-up efforts, efforts which the Cavallos alleged
to be inadequate and harmful. specifically, Count Two presented a claim
for “Negiigent Petroleum Release and Negligent Abatement and
Remediation of the Petroleum Release"; Count Three sought damages for
"Common Law Trespass"; and Count Four claimed "Liability under the
State Water Control Law." By order dated January 20, 1995, Judge Bryan
A.29
claims that Star was negligent in permitting the December
1991 AvJet spill, and that her chronic illnesses are a direct
result of her exposure to vapors from that spill. She seeks
damages for personal injury (including chronic conjunctivitis,
sinusitis, pulmonary disease, and increased sensitization to
petroleum hydrocarbons), impairment of earning capacity,
iost business profits, medical expenses, pain and suffering, as
well as punitive damages.
Star now brings two motions. The first is a motion in
limine to exclude the expert testimony of Drs. Bellanti and
Monroe on the causation issue. Relying on the principles
outlined in Daubert and its progeny, Star argues that neither
expert grounds his conclusion of causation on scientific tests
or literature linking the chemicals to which Ms. Cavailo was
allegedly exposed, and at the levels and duration of purported
exposure, to the injuries she claims to have sustained. Indeed,
Star claims, their opinions run counter to all available
published studies on the effects of AvJet or kerosene at the
alleged level of exposure. As such, Star contends, their
opinions are not founded on a scientifically valid methodology
and are impermissibly speculative. In response, Ms. Cavallo
points out that in forming their conclusions of causation, both
experts relied on published studies involving the effects of
other volatile organic compounds. To look beyond this basic
adherence to form and inquire whether their reasoning is valid,
dismissed Counts Two through Four on the ground that damages stemming
from fuel discharges that were in compliance with orders of the
Environmental Protection Agency ("EPA"), such as those discharges
occurring during Star’s remediation efforts, are barred by the doctrine of
preemption. Because Mr. Cavallo was only named as a plaintiff in
Counts Three and Four, he is no longer a party to this action.
: From a review of the complaint and her subsequent pleadings, it
is apparent that Ms. cavallo seeks damages for her chronic, ongoing
illnesses and not for her initial pain and discomfort immediately
following her exposure to the vapors from the spilled fuel.
A.30
Ms. Cavallo argues, is to usurp the role of the jury and exceed
the proper bounds of judicial gatekeeping under Daubert.
Star's second motion is a motion for summary judgment, and it
appears to rely chiefly on the motion in limine. Thus, Star
contends that if the motion in limine is granted, there would be
insufficient evidence of causation to permit a jury to find in
favor of Ms. Cavallo.
Oral argument on the motions was heard on June 16,
1995, following which the matters were taken under
advisement. The Court thereafter reviewed the record, the
parties’ arguments, and the relevant case law, and on June 21,
1995, issued an Order granting the motion in limine for
reasons to be set forth in a subsequent memorandum opinion.
The motion for summary judgment remained under
advisement, and is now ripe for disposition, as well. This
Memorandum Opinion sets forth the reasons for granting the
motion in limine and the summary judgment motion.
II. Motion in Limine
The admissibility of expert testimony is expressly
governed by Rule 702 of the Federal Rules of Evidence, *
which provides:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to
understand the evidence or to determine a fact
: As the Supreme Court made clear in Daubert, U.S. __ at
113 S. Ct. at 2792-94, Rule 702 displaces the former Frye "standard
regarding expert testimony, a standard which focused exclusively upon
whether the proffered expert opinion had gained "general acceptance" in
the relevant scientific community. Frye v. United States, 293 F. 1013, 1014
(D.C. Cir. 1923). Although "general acceptance” remains a relevant factor
under Rule 702 in determining the admissibility of scientific expert
testimony, it is but one of many relevant factors. Daubert, U.S. __at
__, 113 S. Ct. at 2797.
A.31
in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or
education, may testify thereto in the form of an
opinion or otherwise.
In discussing the requirements of Rule 702, the
Supreme Court has emphasized that federal judges maintain a
"gatekeeping responsibility" to ensure that admitted scientific
testimony is both relevant and reliable. Daubert, US. at
__, 113 S. Ct. 2786 at 2795 & n.7. Because expert witnesses,
unlike ordinary witnesses, may offer opinions that are not
based on first hand knowledge or observation, Rule 702
sensibly imposes threshold standards for admitting such
testimony. Thus, underlying the Rules’ allowance of expert
testimony is the fundamental "assumption that an expert's
opinion will have a reliable basis in the knowledge and
experience of his discipline." /d., U.S.__ at__, 113 S.Ct. at
2796. Given this, and given the unique potential of expert
evidence to "be both powerful and quite misleading," id., _
U.S. _ at _, 1138S. Ct. at 2798 (citation omitted), the
reliability and relevance of expert testimony are preliminary
matters for the courts’ determination. /d., U.S. at, 113
S. Ct. at 2794-98.
In performing this "gatekeeping" task, district judges
are instructed to engage in a two-part analysis. United States
v. Dorsey, 45 F.3d 809, 813 (4th Cir.), cert. denied, _ US.
__, 132 L. Ed. 2d 871, 115 S. Ct. 2631, (1995); Daubert v.
Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1315 (9th
Cir. 1995) (on remand from Daubert, U.S. __ at _, 113
S.Ct. at 2786) (hereinafter "Daubert Remanded"). First,
district courts must determine whether the proffered expert
testimony consists of "scientific knowledge", which is
essentially a reliability inquiry. /d. Second, even if the
"scientific knowledge" prong is satisfied, courts must inquire
further to ascertain whether the proposed testimony is relevant,
Perey ee
oe Fo
that is, whether it will "assist the trier of fact." Jd. These two
steps are addressed seriatim.
The Supreme Court has interpreted the "scientific
knowledge" requirement of Rule 702 as "establish{ing] a
standard of evidentiary reliability" or "trustworthiness",
Daubert, _ U.S. __ at __, 113 S. Ct. at 2795 & n.9, where
"evidentiary reliability" means, in effect, "scientific validity".
Id, US. __ at __, 113 S. Ct. at 2795 n.9. And to be
scientifically valid, an expert's opinion must be "ground{ed] in
the methods and procedures of science," id., and "supported by
appropriate validation." /d., Dorsey, 45 F.3d at 813. Thus,
conjecture, hypothesis, "subjective belief, or unsupported
speculation" are impermissible base for expert opinion and
must be discarded. Daubert, U.S. __ at _, 113 S. Ct. at
2795; Anderson v. National R.R. Passenger Corp., 866 F.
Supp. 937, 943 (E.D. Va. 1994). In short, Daubert commands
that in court, science must do the speaking, not merely the
scientist.” See Daubert Remanded, 43 F.3d at 1311.
A variety of factors may affect the validity, or
reliability, of a particular scientific expert opinion, but the
Daubert Court noted four in particular. They are:
(1) whether the theory or technique used
by the expert can be, and has been, tested; (2)
whether the theory or technique has been
subjected to peer review and publication; (3)
the known or potential rate of error of the
method used; and(4) the degree of the
7 Of course, scientists, like all human beings, hold certain opinions
based on no more than intuition or belief. Because such opinions are not
subject to rigorous scientific validation (through testing, peer review, and
the like), they are mere hypotheses that fall short of the evidentiary
requirements of Rule 702. Were such untested opinions and beliefs
admissible, then, contrary to Daubert, scientists would be speaking in court
without the benefit of science.
A.33
method's or conclusion's acceptance within the
relevant scientific community.
Dorsey, 45 F.3d at 813 (citing Daubert, U.S. at, 113
S. Ct. at 2796-97). Testing is an important factor because it is
at the heart of scientific methodology; if a particular theory or
technique cannot be tested in an attempt to prove its truth or
falsity, it bears less resemblance to science than to general
philosophy. Daubert, U.S. at___, 113 S. Ct. at 2796-97.
Testability central to the scientific method. Similarly, while
not dispositive, the peer review and publication inquiries are
important for the simple reason that a theory or technique that
has withstood the critical review of fellow scientists is apt to
be more reliable than one that has remained sheltered from
professional scrutiny. Daubert, U.S. at__, 113 S. Ct. at
2797 (stating that "submission to the scrutiny of the scientific
community is a component of 'good science,’ in part because it
increases the likelihood that substantive flaws in methodology
will be detected"). The rate of error of a particular method is
relevant, of course, to its reliability, as is the degree to which a
method or theory has been embraced by the scientific
community. It bears emphasizing that no one factor controls,
and the circumstances of each particular case must be carefully
considered.
The second part of the admissibility analysis gives the
courts a more familiar role to play. Described by the Supreme
Court as "fit", this second prong focuses on the relevance of
the proffered opinion to an issue in the case. Daubert, _ U.S.
__ at, 113 S. Ct. at 2795-96. As the Daubert Court aptly
noted, "fit" is required because "scientific validity for one
purpose is not necessarily scientific validity for other,
unrelated purposes." ___—*U.S. __ at __,113 S. Ct. at 2796.
Accordingly, not only must the opinion be scientifically valid,
or reliable, but it must also advance the trier of fact's
understanding of a material issue in the case.
A.34
Se a ee ee ee
The distinction between "scientific validity" and "fit"
is not always clear, and the two inquiries may overlap in a
particular case. For instance, there may be times where an
expert relies on published literature and widely accepted,
tested theories in forming her opinion, and her ultimate
conclusion is clearly relevant to an issue in the case. Yet, if
those published theories and studies purport to prove XYZ,
and from them, the expert concludes ABC, it may be that the
expert's reasoning process itself is not scientifically valid. Put
another way, there may be a lack of "fit" between the tested
theories relied upon and the ultimate conclusion reached. An
extreme example illustrates this point. A study regarding the
mating habits of gypsy moths may be scientifically valid for
certain purposes, and an expert's conclusion that a particular
chemical caused a certain illness may be relevant in a given
case. But if the expert purports to base her causation
conclusion on the gypsy moth study, then the opinion can
hardly be said to have met the requirements of Rule 702.
Although courts must not exclude expert testimony based on a
valid methodology simply because they disagree with the
ultimate conclusion reached, they have an obligation to ensure
that the conclusion is reliable, that is, that there is a
scientifically valid link between the sources or studies
consulted and the conclusion reached. Cf Porter v. Whitehall
Lab., Inc., 9 F.3d 607, 614 (7th Cir. 1993) (stating that "tif
experts cannot tie their assessment of data to known scientific
conclusions, based on research or studies, then there is no
comparison for the jury to evaluate and the expert's testimony
is not helpful to the jury").
The Third Circuit addressed this problem in Jn re Paoli
R.R. Yard PCB Litigation, 35 F.3d 717 (3d Cir. 1994), cert.
denied, ___ U.S. __,115 S. Ct. 1253 (1995). There, residents
housed near a railcar maintenance facility that had used
polychlorinated biphenyls (commonly referred to as PCBs) in
its business activities for many years claimed that their
continued exposure to the PCBs had caused a variety of
A.35
illnesses. In reviewing the Daubert principles, the Third
Circuit panel noted that the scientific knowledge requirement,
which mandates that the expert's conclusions be based on
"good grounds", applies to each step of the expert's analysis.
Paoli R.R., 35 F.3d at 745. Thus, the panel emphasized that
"any step that renders the analysis unreliable under the
Daubert factors renders the expert's testimony inadmissible.
This is true whether the step completely changes a reliable
methodology or merely misapplies that methodology." Jd.
(emphasis in original). Similarly, the Paoli panel remarked
that "the expert's view that a particular conclusion ‘fits’ a
particular case must itself constitute scientific knowledge -- a
challenge to ‘fit’ is very close to a challenge to the expert's
ultimate conclusion about the particular case." Jd. at 746. Cf
Developments in the Law -- Confronting the New Challenges
of Scientific Evidence, 108 Harv. L. Rev. 1481, 1536 (1995)
(stating that where expert relies on studies involving animal
exposure to particular chemical to prove similar effect in
humans, "[c]ourts must assess the scientific validity of the
hypothesis proffered to justify such an extrapolation").
This interrelationship between fit and _ scientific
validity is illustrated by a case involving an alleged correlation
between a pregnant woman's use of Retin-A, a Vitamin A
derivative acne medication, and her child's birth defects.
Chikovsky v. Ortho Pharmaceutical Corp., 832 F. Supp. 341
(S.D, Fla. 1993). Although there were no published studies on
the effects of Retin-A on fetal development, the plaintiff's
expert in Chikovsky concluded that the Retin-A absorbed by
the mother had caused the child's birth defects. He based this
conclusion on studies showing a correlation between birth
defects and high doses of Vitamin A and certain other Vitamin
A derivatives. In holding that the expert's opinion was not
scientifically valid, the court cited the expert's ignorance of the
amounts of Retin-A absorbed by the plaintiff, noted the
absence of any established dose-response relationship for
Vitamin A and birth defects, and explicitly found that his
A.36
"analogies to research concerning Vitamin A and other
Vitamin A derivatives is [sic] wanting." /d. at 346.
Similarly, in Schmaltz v. Norfolk & Western Ry. Co.,
878 F. Supp. 1119 (N.D. Ill. 1995), the plaintiff claimed that
his exposure to certain herbicides containing atrazine caused
his chronic respiratory disease. Like the situation in Chikovsky,
the plaintiff's expert could not cite any documented cases
where exposure to these chemicals caused the alleged illness.
Rather, he relied on studies where high doses of atrazine
caused eye irritation in rabbits. In excluding the expert's
testimony under Daubert, the court observed that the record
fails to make clear why the incidence of eye
irritation in rabbits exposed to high doses of
atrazine could reasonably lead a doctor to
conclude that an indirect exposure to atrazine
could cause pulmonary or respiratory
conditions in humans. ‘The analytical gap
between the evidence presented and the
inferences to be drawn on the ultimate issue . . .
is too wide' in the present case.
Schmaltz, 878 F. Supp. at 1122 (quoting Conde v. Velsicol
Chem. Corp., 24 F.3d 809, 814 (6th Cir. 1994)). Thus, it is
apparent that a determination regarding the scientific validity
of a particular theory requires not only an examination cf the
trustworthiness of the tested principles on which the expert
opinion rests, but also an analysis of the reliability of an
expert's application of the tested principals to the particular set
of facts at issue.
These, then, are the principles that describe and control
a district court's gatekeeping function, and they are therefore
the principles that govern the assessment of the expert
opinions at bar.
A.37
A. Dr. Monroe
1. The illness
Dr. Monroe is a toxicologist. In his report on Ms.
Cavallo, Dr. Monroe concludes that she "is suffering a variety
of irritant effects from exposure to petroleum hydrocarbon
vapors from the Fairfax Terminal site." (Monroe Rpt. at 5).
This conclusion is certainly vague, as it fails to identify the
"irritant effects" from which Ms. Cavallo suffers. Nor does it
distinguish between harms attributable to the December 1991
AvJet spill and harms caused by vapors released incident to
Star's normal operations. These deficiencies are important, for
as noted earlier and due to prior rulings in this case, Ms.
Cavallo may only recover for specific injuries directly
attributable to the AvJet spill. Yet, it is also important to note
that this fact does not necessarily preclude recovery for
symptoms related to her continued exposure to the petroleum
hydrocarbons from the Star facility, provided the spill itself
injured her in such a way as to render her more susceptible to
such symptoms.
As it happens, however, Dr. Monroe's deposition
testimony provides a more detailed description of his opinions
in this case. From this testimony, it appears that the "irritant
effects" to which Dr. Monroe referred in his written report
include chronic burning sensations in the eyes, conjunctivitis,
sinusitis, and throat irritation. It is also apparent that Dr.
Monroe believes that Ms. Cavallo's exposure to AvJet fumes
on the night of the spill has chronically "sensitized" her to
petroleum hydrocarbons and various other chemicals. While
she could tolerate exposure to low levels of these
hydrocarbons before the spill, he opines, her inhalation of
heightened concentrations of hydrocarbons on the night of the
spill has now rendered her unable to tolerate those same low
levels of daily exposure.” Dr. Monroe's opinion is plainly
relevant to the issue of causation, and if scientifically valid,
would be admissible to show that Ms. Cavallo's exposure to
cay tents tS Me NN. AOE Ae RN ARS IE,
Sin naw eee ty
10
Excerpts from Dr. Monroe's deposition testimony are instructive.
Q: Do you have any opinion as to which of these
conditions Mrs. Cavallo suffers from?
A: My opinion is that her condition is the result of
the irritant effects of emissions from the Avjet spill. And
it is a chronic condition also involving continuing low
level exposures to various compounds from that site. Oh,
| should also note that she apparently was able to tolerate
those low level exposures prior to her exposures at the
time of the spill incident, and that is what indicates to me
that she became more sensitive at that particular time.
(Monroe Tr., vol I., at 42).
Q: Which of her symptoms were caused by her
subsequent exposure to petroleum hydrocarbons since
December of 1991?
A: I believe that the December of 1991 exposure
initiated the disease processes in Mrs. Cavallo. | don't
believe the subsequent exposures caused these illnesses,
though her condition appears to improve and worsen
according to ongoing exposures.
(Monroe Tr., vol. II, at 7).
Q: So there's [sic] really two things that happened
to her; she had this [sic] specific irritant effects that were
directly caused in December of ‘91 as well as this
increased sensitivity, is that correct?
A: | believe that is what her medical records
indicate.
(Monroe Tr., Vol. Il, at 36-37).
vapors from the AvJet spill caused her various ongoing
illnesses.
2. The methodology
Analysis properly focuses, therefore, on whether Dr.
Monroe's opinion in this regard passes the scientific validity
test of Daubert. And, as Daubert makes clear, the proper focus
of this inquiry rests upon the validity of his chosen
methodology. While Dr. Monroe is not explicit regarding the
methodology he followed in this case,'' Star contends that
¥ Although Dr. Monroe notes that various factors support his
conclusion, he does not set forth what methodology is appropriate or valid
for a toxicologist to follow in reaching such a conclusion. As stated in his
report, the factors supporting his conclusion are:
1) her general good health prior to the exposure.
2) close proximity in time between her exposure to
volatile components of the aviation fuel spill and the
initial onset of symptoms
3) highly irritant nature of the volatile petrochemicals as
indicated by symptomology [sic] of firemen and others
at the spill site.
4) opinions of her treating physicians that the observed
symptoms are the probable result of exposure to
petroleum hydrocarbons
5) worsening of symptoms when the petroleum vapors
are present and improvement of symptoms when she is
able to spend time away from the area.
6) consistency of Mrs. Cavallo's symptoms with the
known health effects of exposure to volatile organic
compounds as detailed in the published medical
literature
(Monroe Rpt. at 6).
A.40
uy
Po PORL 8 AE LRN BIE! AAD ttt ie hay ees Nie ie
Ce ld be eae en ey
there are certain scientific principles and methods upon which
a toxicologist must rely in forming an opinion regarding
whether exposure to specific chemicals could cause certain
maladies in individuals. Specifically, the methodology adopted
by Star's toxicology expert, Dr. Joseph Rodricks, and endorsed
by the World Health Organization, the National Academy of
Sciences, and various agencies of the United States
Government, calls for the following "risk assessment”:
[((1)] First, an evaluation is made of the
chemicals to which the individual might have
been exposed, and of the concentrations of
these chemicals in air breathed by the
individual. {(2)] The second step involves an
evaluation, based on the published scientific
literature, of the exposures necessary to
produce the adverse effects associated with the
chemicals to which individuals may be
exposed. [(3)] These two evaluations are then
combined in the final step of the risk
assessment to provide an estimate of the
likelihood that any of the harmful properties of
any or all of the chemicals might have been
expressed in the exposed individual.
(Rodricks Rpt. at 3). As Dr. Rodricks explains, all chemicals
can cause health problems at some level or concentration of
exposure, but they vary widely in the types of harm caused
and in the levels of exposure required to trigger those harms.
In addition, all chemicals have thresholds of exposure that
must be exceeded before the harms will occur, and these
thresholds may be identified through scientific studies and
literature. The task of the toxicologist, therefore, is to identify
A.4l
a dose-response relationship for a particular chemical (or
chemical mixture) and illness and analyze the results to
determine whether the duration and concentration of exposure
in a given instance could have caused the alleged harms.
(Rodricks Rpt. at 2-3).
Significantly, in her memorandum opposing the
motion in limine, Ms. Cavallo acknowledges that the
methodology described by Dr. Rodricks is the appropriate
methodology for a toxicologist. Furthermore, she contends
that Dr. Monroe followed that methodology in reaching his
conclusion. It is this contention that must now be examined.
With respect to the first step in the analysis, Dr.
Monroe concedes that he knows some, but not all, of the
specific volatile components of the spilled AvJet fuel, such as
naphthalene, xylene, hexane, nomane, decane, undacane,
octane, and ethyl benzine. In addition, the parties agree for
present purposes that the concentration of exposure was 61
mg/m’, for a duration of 5-30 minutes.'”
12 ; .
Dr. Monroe was not aware of the concentration and duration of
exposure in making his initial assessment. It is fairly clear from a review of
the record that in many instances, Dr. Monroe did not follow the
methodology to form his opinion, but rather formed his opinion and then
tried to conform it to the methodology. The following dialogue is
illustrative:
Q: And it's your
3
61 mg/m ] would be
Mrs. Cavallo; is t
A: I}
Q: What
you this. What w > ad
A: Well, I'm:
Q: Would that b
CAD ete «Si wae Wie ee CaP
TOE A AER oh tt ROE BE Wet Ser
CE — Fs
The second step in the methodology requires the
toxicologist to consult the published literature to ascertain a
dose-response relationship for the particular chemicals at
issue. Dr. Monroe agreed in his deposition that "there should
be a threshold below which irritant effects do not occur," and
he conceded that he did not know the specific threshold for the
chemicals to which Ms. Cavallo was exposed. (Monroe Tr.,
Vol II, at 37). Nonetheless, he stated that the literature and
studies he reviewed provided ample support for his conclusion
that Ms. Cavallo's one-time exposure to AvJet for a period of
5-30 minutes at a concentration of 61 mg/m’ caused her
chronic conjunctivitis and her heightened chemical
sensitivity.’” With respect to the chronic conjunctivitis, the
A: I've not found that to be essential for my assessment.
Q: Why is that, sir?
A: Because the available information is sufficient to
indicate that the exposure was of sufficient duration to
cause an irritant effect on Mrs. Cavallo.
(Monroe Tr., vol. 1, at 50-51).
13
Notably, Dr. Monroe acknowledged that he could find no
literature supporting the proposition that exposure to AvJet at a
P =. ar a . ‘
concentration of 61 mg/m’ for 5-30 minutes could cause Ms. Cavallo's
sinusitis. The following exchange took place during his deposition:
Q: In your opinion can an exposure, one-time
exposure to 61 milligrams per cubic meter cause
sinusitis?
A: I believe it can cause respiratory irritation. |
have not found any -itations which support its causing
sinusitis.
Q: In your opinion can an exposure at 61
milligrams per cubic meter cause sinusitis?
A.43
studies on which Dr. Monroe places primary reliance are the
Molhave study,'* the Koren study,’ the Bascom case report,”
and the Porter case report."
In the Molhave study, a group of 62 individuals who
were already sensitive to their indoor environments were
exposed for less than three hours to a mixture of 22 volatile
organic compounds ("VOCs"). The purpose of the study was
to examine indoor air quality and what has come to be known
as "sick building syndrome," and the individual VOCs used
were known to be indoor air pollutants. The study showed that
A: I believe that in the case of Mrs. Cavallo that
that is correct.
Q: I'm not sure I understand your answer, but let
me ask the question again. Can an exposure, a one-time
exposure to 61 milligrams per cubic meter cause
sinusitis?
A: Well, I haven't found sufficient data on which
to estimate a threshold for that effect, so I do not know.
Q: So you have no opinion, then, as to whether
Sinusitis can be caused by an exposure of 61 milligrams
per cubic meter, is that correct?
A: That's right.
(Monroe Tr., Vol. Il, at 49-50).
ae Lars Molhave et al., Human Reactions to Low Concentrations of
Volatile Organic Compounds, \2 Env't Int'l 167 (1986).
“ Hillel S. Koren et al., Exposure of Humans to a Volatile Organic
Mixtures III: Inflammatory Response, 47 Archives Envtl. Health 39 (1992).
" R. Bascom, Differential Responsiveness to Irritant Mixtures
Possible Mechanisms, 641 Ann. N.Y. Acad. Sci. 225 (1992).
‘s Henry O. Porter, Aviators Intoxicated by Inhalation of JP-5 Fuel
Vapors, 1990 Aviation, Space, & Envtl. Med. 654 (1990).
A.44
exposure to this combination of 22 VOCs for 2.75 hours at
concentrations of 5 and 25 mg/m° caused irritation in the
exposed individuals’ eyes, nose and throat. None of the
exposed individuals suffered lasting effects.
In the Koren study, which again focused on problems
associated with indoor air quality, the authors exposed 14
healthy individuals to almost the identical 22 VOCS used in
the Molhave study. The study noted increases in nose and
throat irritation after exposure to the mixture at a concentration
of 25 mg/m” for four hours. No lasting effects were observed.
Neither party submitted a copy of the Bascom article,
so review here is limited to the synopsis provided by Dr.
Monroe in his written report. According to Dr. Monroe, this
paper reports a case of severe irritant conjunctivitis from
exposure to VOCs emitted from new carpeting that was
installed at the patient's place of work. Symptoms resolved
during medical leave but recurred when she returned to work,
and she eventually had to resign from her job. (Monroe Rpt.
at 4). Unlike the Molhave and Koren studies, the Bascom
article is an anecdotal case report and does not reflect the
results of a pre-designed study in a controlled setting. '*
Finally, the Porter article, also anecdotal, reports on the
physical symptoms of two Navy aviators following an incident
where their cockpit accidentally became "overwhelmed" with
JP-5 fuel vapors.’ The aviators had detected fuel vapors
18 .
The findings of anecdotal case reports are generally afforded less
weight than the conclusions of designed and controlled studies. See Casey
v. Ohio Medical Prods., 877 F. Supp. 1380, 1385 (N.D. Cal. 1995) (stating
that "case reports are not reliable scientific evidence of causation, because
they simply describe reported phenomena without comparison to the rate at
which the phenomena occur in the general population or in a defined
control group; do not isolate and exclude potentially alternative causes; and
do not investigate or explain the mechanism of causation").
a The author explains that “military JP-5 fuel is composed of
straight chain hydrocarbons between C10 and C15. It is a high flash-point
kerosene-type aviation fuel mixture" with various additives. He also notes
A.45
throughout the one-hour flight, but the fumes suddenly
became "excessive," and an emergency landing was required.
Both pilots experienced burning sensations in their eyes, and
one developed a headache and nausea. One pilot recovered
completely within 24 hours, and the other had fully recovered
and returned to flight duty within four days. The author
concluded that exposure to the JP-5 fuel can cause a short-term
intoxicating effect in humans.””
The scientific basis for Dr. Monroe's reliance on these
studies is far from clear. In explaining why he believes the
results of the Molhave study are transferrable to the effects of
kerosene or AvJet, Dr. Monroe stated at one point in his
deposition testimony that it was due to "similarities in the
components in the mixture used by Molhave and components
in the volatile fractions of kerosene and avjet [sic].". (Monroe
Tr., Vol. II, at 45). Yet, he identified only seven of the 22
VOCs present in the Molhave study as being present also in
AvJet. In addition, he conceded that no one individual
chemical in AvJet was likely to have caused Ms Cavallo's
adverse reaction; rather, he stated, "it's the combination of the
components [of AvJet] that caused it." (Monroe Tr., Vol. 1. at
84). The authors of the Koren study made a _ similar
observation regarding the Molhave study:
that "there is little information on JP-5 toxicity in humans." Porter, supra
note 17, at 655.
es Porter also notes that “[s]everal cases of purposeful inhalation,
intoxication, and addiction to gasoline vapors have been reported.
Symptoms associated with cerebral intoxication caused by intentional
inhalation of gasoline vapors include: confusion, lack of self-control.
excitement, combativeness, blurred vision, incoordination, depression,
lethargy, headaches, roaring in the ears, trembling, nausea, burning in the
chest, constriction in the throat, and Staggering gait. Severe exposure
results in dyspnea, cyanosis, delirium, coma, seizures, and death." Porter.
supra note 17, at 655.
A.46
Seer re en
Because no single chemical would be expected
to cause a reaction, Molhave hypothesized that
the sum of all the VOCs present in the mixture,
rather than any single constituent chemical,
may be the cause of the effects observed in his
study.
Koren, supra note 15, at 41 (emphasis added). Thus, both the
authors of the studies and Dr. Monroe himself caution against
extrapolating the findings regarding the effects of one mixture
in assessing the effects of a substantially different mixture.
Furthermore, Dr. Monroe admits that the dose-response
relationships observed in the Molhave and Koren studies
would be dependent upon the combination of chemicals used,
and yet he concedes he does not know how the numbers would
be affected by changing the chemical components used in the
Studies to resemble those of AvJet or kerosene. (Monroe Tr.,
Vol. I, at 90-92, Vol. II, at 46). Finally, even if the chemicals
used in the Molhave and Koren studies were identical to
AvJet, Dr. Monroe does not explain why the short-term effects
noted there are consistent with the long-term effects claimed
here. While Rule 702 does not necessarily mandate that the
expert find a study linking the exact chemicals at the exact
exposure levels with the exact illnesses at issue. it does require
that the expert demonstrate a scientifically valid basis for
projecting the findings of a study identifying a different
chemical-illness relationship to the proffered causal theory.
Nowhere does Dr. Monroe explain why the dose-response
figures found in these studies and the ailments observed there
can reliably be transferred to the case at bar.
The Bascom report appears even less germane, as the
particular carpet fiber VOCs are not identified. and, as is
common with anecdotal case reports, no dose-response
relationship was established. Nor is Dr. Monroe's reliance on
the Porter case report explained in any organized or coherent
way. Although the chemicals found in JP-5 fuel presumably
A.47
bear a closer resemblance to AvJet than does the VOC mixture
of indoor air pollutants contained in the Molhave and Koren
studies, Dr. Monroe acknowledges that he does not
specifically know the differences between AvJet and JP-5.!
Nor is there any way of knowing the concentration of vapors
to which the aviators were exposed when their cockpit became
"overwhelmed" with ‘he fuel fumes.”* In addition, even at
this apparently high concentration level, the reported physical
effects were of brief duration. While the Porter study supports
the conclusion that at some level, fuels (as all chemicals) can
have some adverse health effects, it does little to satisfy the
second step in the methodology: consulting the published
scientific literature to identify the exposure level and duration
necessary to produce the given injuries.”
Dr. Monroe's conclusion that the AvJet spill caused
Ms. Cavallo to become "sensitized" to petroleum
hydrocarbons and various other chemicals finds even less
direct support in the literature. Because none of the previously
referenced studies reports any long-term effects from the
Porter indicates that JP-5 fuel contains numerous additives,
including “antioxidants, metal deactivators, corrosion inhibitors, fuel
system icing inhibitors, and an electrical conductivity additive," all of
which “individually or in combination, could have toxic effects on the
brain." Porter, supra note 17, at 2. By contrast, Dr. Monroe does not know
whether AvJet contains any such additives. (Monroe Tr., Vol. I, at 91).
While an exact concentration is unknown, the relatively small size
of a cockpit and the fact that the aviators were "overwhelmed" by fumes
suggests that the concentration of vapors to which the aviators were
exposed was significantly greater than the level alleged here.
>*
As noted earlier, the fact that the Bascom and Porter articles are
anecdotal case reports renders their findings less reliable in establising
causation. See supra note 18. The authors of the Koren study apparently
agree. Noting the scarcity of controlled research on the effects of various
VOCs, they stressed that it is "important to perform studies in which human
volunteers are exposed to known amounts of specific pollutants in a
controlled setting." Koren, supra note 15, at 40.
A.48
2 a ele yy il
various toxic exposures, Dr. Monroe relies upon a different
group of studies to support his "increased sensitivity"
diagnosis. Specifically, he relies heavily on studies regarding
the relatively recent and apparently quite controversial
syndrome of Multiple Chemical Sensitivity ("MCS"), as well
as on studies concerning Reactive Upper Airways Disease
("RUDS") and Reactive Airways Dysfunction Syndrome
("RADS").”" Although Dr. Monroe has not definitively
categorized Ms. Cavailo's "sensitivity" illness as one of these
syndromes, he seems to suggest that she may be suffering
from at least one of them.”°
Ms. Cavallo does not attach copies of these studies to
her legal memoranda, but Dr. Monroe provides summaries of
studies involving RUDS and MCS in his report. From these, it
appears that RUDS is a "persistent chronic rhinitis condition"
that may result from unidentified "chemical exposure".
(Monroe Rpt. at 3). According to Dr. Monroe, the "chief
complaint of patients with RUDS is chemical sensitivity," and
M4 ae , ; ee
See William J. Meggs, Neurogenic Inflammation and Sensitivity
to Environmental Chemicals, 101 Envtl. Health Perspective 234 (1993):
William J. Meggs, RADS and RUDS -- the Toxic Induction of Asthma and
Rhinitis, 32 Clinical Toxicology 487 (1994); William J. Meggs, et al.,
Rhinolaryngoscopic Examination of Patients with the Multiple Chemical
Sensitivity Syndrome, 48 Arch. Envtl. Health 14 (1993): J. E. Cone, et al.,
Patients with Multiple Chemical Sensitivities: Clinical Diagnostic Subsets
among an occupational Health Clinic Population, 2 Occup. Med. State of
the Art Reviews 721 (1987).
7 Dr. Monroe's testimony is somewhat unclear with respect to
whether he believes Ms. Cavallo suffers from one of these syndromes. At
one point, when asked whether Ms. Cavallo suffers from a condition
known as Solvent Intolerance, RUDS, PADS. or MCS, Dr. Monroe
responded "well, as expressed in my report, my opinion is that she's
suffering from the irritant effects of petroleum hydrocarbons. | really have
not attempted to classify her condition beyond that." (Monroe Tr.. Vol. II,
at 15). Yet, at other times, he opined that her condition was consistent with
RUDS, MCS, and to a lesser degree, Solvent Intolerance. (Monroe Tr..
Vol. Il, at 12-13).
A.49
he notes that in one study, 100% of the patients with RUDS
also had MCS. (Monroe Rpt. at 3). In describing a study of 10
patients with MCS, Dr. Monroe notes that "all the patients had
an initial chemical exposure, which was followed by multiple
physical and mental complaints in response to subsequent
exposure to a variety of odorous organic chemicals." (Monroe
Rpt., at 4). Both RUDS and MCS appear to be general terins
describing individual's sensitization to any number or type of
chemicals. None of the studies dealt with the effects of
exposure to AvJet, nor did they identify dose-response
relationships for any of the chemicals involved. Thus, the
missing link between the studies on MCS and RUDS and Dr.
Monroe's conclusion regarding Ms. Cavallo's heightened
sensitivity to petroleum hydrocarbons is a scientifically valid
basis for the conclusion that AvJet (as opposed to chemicals
generally) can cause these syndromes at an exposure of no
more than 61 mg/m" for a duration of no more than 30
minutes.
In this respect, these studies do little to further Dr.
Monroe's opinion, other than to support the view that there is
such an illness as chemical sensitivity that can be caused by
exposure to some chemicals. But even that view is
controversial. See, e.g., Bradley v. Brown, 852 F. Supp. 690,
699 (N.D. Ind.) (quoting Dr. Meggs, author of most of the
studies upon which Dr. Monroe relies, as acknowledging that
the etiology of MCS "is as controversial as the syndrome
itself" and that his etiological model is "speculative"), aff'd 42
F.3d 434 (7th Cir. 1994); Graham v. Canadian Nat'l Ry. Co.,
749 F. Supp. 1300, 1310-11 (D. Vt. 1990) (describing MCS as
"not clearly defined" and the "subject of disagreement in the
medical community"); see also (Rodricks Rpt., at 13 (stating
that "the majority of individuals in the medical and scientific
communities have great skepticism as to whether MCS is a
verifiable syndrome and whether it is caused by chemical
exposure")); (Witorsch”® Rpt., at 16-17 (noting "considerable
doubt in the scientific medical community regarding ‘he
legitimacy of MCS as a valid nosologic/diagnostic entity")).
Apparently cognizant of this weakness, Ms. Cavallo protests
that Dr. Monroe does not conclude that she suffers from MCS.
She writes:
The defendants attempt to mischaracterize the
opinions of both Dr. Bellanti and Dr. Monroe
as being based some how upon _ the
controversial theory of ‘Chemical sensitivity’.
Dr. Bellanti uses the term in an imniunological
sense and Dr. Monroe in an irritant sense Dr.
Monroe additional [sic] states in his deposition
that he made no attempt to classify Ardith
Cavallo's injuries as being attributable to
chemical sensitivity.
(Mem. in Opp. of Mot. for Sum. Jud., at 13 n. 36) (emphasis
added). Nor did Dr. Monroe categorize her condition as
RUDS. But while this disclaimer effectively avoids the pitfalls
of having to rely upon the questionable scientific validity of
MCS and RUDS, it also undermines Dr. Monroe's reliance on
the studies for his asserted purpose. If Dr. Monroe's
conclusion that Ms. Cavallo has been "sensitized" in an
“urritant sense" is different from a conclusion that she suffers
from MCS or RUDS, then it is hard to see how the MCS and
RUDS studies support his causation conclusion. The
incongruence of Ms. Cavallo's argument is readily apparent,
and her position is self-defeating. Without a better explanation,
or indeed, an explanation at all, of what Ms. Cavallo's
"increased sensitivity" illness is, how it is caused, and why
" Dr. Philip Witorsch is a pharmacologist and toxicologist. He was
retained by Star as an expert in this case.
A.51
MCS and RUDS literature supports it, Ms. Cavallo's position
is untenable.
The reliability of Dr. Monroe's opinion that the AvJet
spill caused Ms. Cavallo's chronic condition is further
undermined by the fact that the information that has been
gathered specifically on AvJet suggests that no ill effects
would be expected from exposure to AvJet for the duration
and at the concentration alleged in this case.*’ As described
by Dr. Rodricks in his report, Threshold Limit Values
("TLVs") have been established by the American Conference
of Governmental Industrial Hygienists for petroleum
compounds related to aviation fuel. These TLVs are based
upon "the best available information from" human and animal
studies as well as industrial experience, and “represent
airborne concentrations of substances to which nearly all
workers may be repeatedly exposed day after day without
adverse health effects." (Rodricks Rpt., 7-8). According to Dr.
Rodricks’ unrefuted assessment, the TLVs for aviation fuel.
“which are designed to protect workers exposed 8 hours [per]
day on a chronic basis," exceed the worst-case concentration to
which Ms. Cavallo may have been exposed (61 mg/m’) on one
evening by a factor of more than 10. (Rodricks Rpt., at 8).
Furthermore, Dr. Rodricks explained that he consulted the
toxicology literature to determine the "no observed effect
levels" ("NOELs") and "lowest observed effect levels"
(“LOELs") in humans for acute exposure to jet fuels, kerosene,
diesel, and gasoline. This consultation revealed that "the
At several points in her memoranda, Ms. Cavallo resorts to
evidence that AvJet is toxic, and that Star knew it to be so. in an effort to
support her experts’ opinions of causation. (Mem. in Opp. to Defs’ Mot. in
Lim., at 3-4 (citing EPA order)); (Supp. Mem. in opp. of Mot. for Sum
Jud., at 3-5 (citing Texaco Material safety Data Sheet)). Yet, as noted
earlier and as readily conceded by Star, there is no doubt that AvJet, as all
chemicals, can be toxic. As Paracelsus taught long ago, toxicity is a
function of dose. Thus, the question for causation purposes is: At what
levels of exposure do what kinds of harm occur?
A.52
Worst-case air concentration for Mrs. Cavallo's exposure
modeled by plaintiff's expert (61 mg/m* = 9ppm) was at least
[5 times lower than the NOELs and LOELs observed in
humans." (Rodricks Rpt., at 9).** While Ms. Cavallo contends
that these NOELs, LOELs, and TLVs are heavily biased
toward industry, a proposition that may well be true, she has
not Produced any alternative study, literature, or source that
supports her conclusion that exposure to 61 mg/m? of AvJet
for a relatively short duration could produce the chronic
illnesses from which she allegedly suffers. Cf. Conde. 24 F.3d
at 814 (stating that while the plaintiffs "cite published critiques
of [the defendants'] studies, the critiques only underscore the
need for further studies, and do not. . . establish causation").
3. Summary
In sum, Dr. Monroe's theory that Ms. Cavallo's
exposure for 5-30 minutes to a 6] mg/m°* concentration of
AvJet caused her chronic conjunctivitis and sinusitis, or her
"increased sensitivity" to petroleum hydrocarbons, lacks many
of the indicia of reliability listed in Daubert. Chiefly, there is
no support for this causation theory in the scientific literature.
And to the extent that it has been tested (through establishment
of TLVs, NOELs, and LOELs), the theory fails. Similarly,
there is no evidence that Dr. Monroe's causation theory is
supported in the scientific community. Because of this
deviation from the scientific method, which the Fourth Circuit
has defined as "subjecting testable hypotheses to the crucible
of experiment in an effort to disprove them," Dr. Monroe's
opinion cannot be deemed "scientific knowledge." United
States v. Bynum, 3 F.3d 769. 773 (4th Cir. 1993), cert. denied.
__ US. __, 1148. Ct. 1105 (1994),
28 7 , :
He went on to note that "the worst-case air concentration modeled
by Star's experts was at least 15,000 times lower than the NOELs and
LOELs observed in humans." (Rodricks Rpt., at 9).
A.53
Although Dr. Monroe found support in the literature
for a conclusion that exposure to similar levels of a different
mixture of volatile organic compounds produce somewhat
a similar substance produce different, short-term Wfects he is
unable to provide any scientifically valid basis to Support the
leap from those studies to his opinion in this case. Similarly,
the only literature arguably supporting such an illness as
chronic chemical sensitivity is of questionable scientific
validity and, more importantly, does not establish the link
between AvJet and these illnesses. Thus, while the
agreed-upon methodology appears to be scientifically valid, it
does not appear to have been faithfully applied. See Paoli R.R.,
35 F.3d at 745 (noting that "any step that renders the analysis
unreliable under the Daubert factors renders the expert's
testimony inadmissible. This is true whether the step
completely changes a_ reliable methodology or merely
misapplies that methodology") (emphasis in original). In other
words, like the circumstances in Chikovsky and Schmaltz,
there is a lack of "fit" between the studies relied upon and the
conclusion reached. Chikovsky, 832 F. Supp. at 346; Schmaltz.
878 F. Supp. at 1122. See also Bradley, 852 F. Supp. at 698
("scientific expert opinion testimony is allowed on_ the
rationale that the expert can tie the facts of a particular case to
tested scientific theory"); Casey v. Ohio Med. Prods, 877 F.
Supp. 1380, 1385 (N.D. Cal. 1995) (study showing causal link
between halothane and cirrhosis of the liver not scientific
evidence of causal link between halothane and chronic active
hepatitis). As a result, Dr. Monroe's opinion is not "scientific
knowledge" and must be excluded.
B. Dr. Bellanti
Dr. Bellanti is an immunologist. In his written report,
he concludes that "Mrs. Cavallo suffers from chronic sphenoid
sinusitis and pulmonary dysfunction as a direct and proximate
A.54
cause of her exposure to aviation jet fuel in December, 1991."
(Bellanti Rpt., at 4). He further concludes that the spill
"traumatized" and "sensitized" her "to various volatile organic
compounds including petroleum vapors and some household
chemicals." (Bellanti Rpt., at 4). Thus, like Dr. Monroe, Dr.
. These conclusions, which attribute Ms. Cavallo’s injuries to the
December 1991 spill, appear to differ somewhat from Dr. Bellatni’s
initial deposition testimony. During his first of three depositions, Dr.
Bellanti resisted attributing the cause of Ms. Cavallo’s ongoing illnesses
to one massive event rather than to an overall continuum of exposure.
For instance, with respect to whether the spill caused any long-term
effects in Ms. Cavallo, the following testimony occurred:
Q: Do you have any opinion, D:. Bellanti, on
whether Mrs. Cavallo sustained any loag-term damage
or injury as a result of the separate, discrete, alleged
exposure to petroleum products in December 1991?
A: The basis of my opinion was made on the
bases of the single exposure and the continuing
exposure. | do not know. | do not have any opinion or
I didn’t make any opinions on the basis of long-term
damage as a result of a single exposure.
(Bellanti Tr., at 21-22) (emphasis added).
Q: Now, as an expert witness in this case, can you
render an opinion on the question whether Mrs. Cavallo
sustained any lasting damage or injury as a result of the
one alleged event of exposure in December 1991?
A: Without knowing the details of intensity of
exposure, of duration of exposure, of the time of
exposure, concentration, | doin't -- you know, it would be
idle speculation for me to try to answer that question.
(Bellanti Tr., at 43-44) (emphasis added). Although it is possible that these
responses could be considered consistent with his opinion that she was
“sensitized” (as this implies newfound sensitivity to continued exposures
rather than chronic illnesses apart firom the continued exposures), Dr.
A.55
Bellanti opines that the AvJet spill caused Ms. Cavallo's
chronic conditions.
There is no question that Dr. Bellanti is qualified to
testify regarding the nature of Ms. Cavallo's illnesses: namely,
that she suffers from chronic sphenoid sinusitis and pulmonary
dysfunction. Rather, the focus of the dispute is whether his
opinion regarding the cause of these illnesses is scientifically
valid and therefore admissible under Daubert. As with Dr.
Monroe, resolution of this question necessarily requires an
analysis of the reliability of the methodology employed by Dr.
Bellanti, as well as careful scrutiny of his adherence to, and
application of, that methodology.
Bellanti’s initial repsonses to question regarding “sensitivity” are also
puzzling:
Q: Do you have any opinion of whether Mrs.
Cavallo was sensitized to petroleum products or any
other substances as a rseult of exposure in December
1991?
A: I have no evidence for that.
(Bellanti Tr., at 58).
Q: Is it fair to say that you have not in either your
treatment of Mrs. Cavallo or your review of her medical
records seen any evidence that she was sensitized as a
result of exposure to petroleum products?
A: I have never -- that’s never come into my thinking.
I have no evidence of that
(Bellati Tr., at 61). Nevertheless, the Court accepts the conclusions
contained in Dr. Bellanti’s report for purposes of these proceedings and
will presume either that Dr. Bellanti has modified his opinion since his
deposition or that he interpreted the above questions as using the word
“sensitized” in a different manner than intended in his report.
A.56
Although neither party clearly explains _ the
methodology applied by Dr. Bellanti,° it appears from a
review of his written report as well as his deposition testimony
that he primarily applied a methodology of differential
diagnosis.”" Thus, he determined from a review of Ms.
Cavallo's medical history, from her description of the spill
incident, from his initial examination of her, and from the
timing of the spill in relation to her development of symptoms,
that her exposure to the petroleum hydrocarbons could have
caused her chronic illnesses. Dr. Bellanti then examined other
- In its motion in limine, Star notes that Dr. Bellanti "did not even
attempt to follow the procedures of toxicology" in forming his opinion.
(Mem. in Sup. of Defs' Mot. in Lim., at 13). In her short response
concerning Dr. Bellanti, Ms. Cavallo does not clearly identify the
methodology he used, stating only in quite a conclusory fashion that:
[hJis independence, impartiality and lack of bias as an
expert in his field is [sic] unchallenged. He has examined
her innumerable times and conducted a vast number of
diagnostic tests and procedures to rule out other causes
of Mrs. Cavallo's medical condition. Dr. Bellanti did
evaluate and consider the chemicals or concentrations of
vapors to which plaintiff was allegedly exposed; he did
assess the likelihood that exposure to AvJet vapors at the
level plaintiff alleges could cause the specific illnesses
she alleges; and he cited scientific literature to support
his opinion that exposure to Av-Jet [sic] vapors could
have caused illnesses of the sort plaintiff alleges (See
Bellanti Exhibits 31-34).
(Mem. in opp. to Defs' Mot. in Lim., at 11). This passage appears to reflect
that Ms. Cavallo contends that Dr. Bellanti applied both 1) the toxicology
methodology previously discussed to determine whether the AvJet spill
could have caused her injuries and 2) a differential diagnosis to rule out
other possible causes.
4 Differential diagnosis describes “a process whereby medical
doctors experienced in diagnostic techniques provide testimony
countering other possible causes . . . of the injuries at issue.” Hines v.
Consolidates Rail Corp., 926 F.2d 262, 270 n.6 (3d Cir. 1991).
A.57
Possible causes of her symptoms (such as her history of
smoking 1.5 packs a day for at least 20 and as much as 40
years,” Possible allergies, possible MSG in the Chinese food
eaten on the night of the spill, and Ms. Cavallo's exposure to a
previous spill in 1960), and ruled out each one.”
The process of differential diagnosis is undoubtedly
important to the question of "specific causation". If other
possible causes of an injury cannot be ruled out, or at least the
probability of their contribution to causation minimized, then
the "more likely than not" threshold for proving causation may
not be met. But, it is also important to recognize that a
fundamental assumption underlying this method is that the
final, suspected "cause" remaining after this process of
elimination must actually be capable of causing the injury.
That is, the expert must "rule in" the suspected cause as well as
"rule out" other possible causes. And, of course, expert
opinion on this issue of "general causation" must be derived
from a scientifically valid methodology.
The methodology followed by toxicologists in
determining whether a particular chemical could have caused a
3?
The number of years that Ms. Cavallo smoked is variously
reported in the record as 20 and 40.
9 Unlike Dr. Bellanti, Dr. Witorsch, one of Star's medical experts,
concludes that Ms. Cavallo's chronic obstructive pulmonary disease is
"entirely consistent" with her history of cigarette smoking. He also believes
her sinusitis is consistent with common environmental allergens in the
Washington, D.C. metropolitan area, with her history of cigarette smoking,
and with congenital or developmental abnormalities involving her nose or
paranasal sinuses. (Witorsch Rpt., at 15).
" “General causation" refers to whether X can cause Y. Here, the
issue of general causation is whether exposure to AvJet vapors at the
asserted concentration and duration could have caused the alleged injuries.
On the other hand, “specific causation" refers to whether X did cause Y in a
given case. See Casey, 877 F. Supp. at 1383. It is in determining specific
causation that differential diagnosis is helpful.
A.58
yy
given injury has been previously discussed in reference to Dr.
Monroe. See supra 2 § II.A.2. Although Dr. Bellanti is not
himself a toxicologist, he must nonetheless apply the
principles and methods of toxicology if he is to give an
opinion on an issue relating to that specialty. Cf Wade-Greaux
v. Whitehall Lab., Inc., 874 F. Supp. 1441, 1478 (D.V.1.)
(stating that "[a]lthough Plaintiff's expert witnesses purport to
hail from different disciplines, such as _ toxicology,
pharmacology and Pediatric pathology, each is offering an
opinion with respect to human birth defects and their causes --
i.e., the field of teratology" and therefore "the methodologies
they employ must be compared with the methodology
generally accepted by the community of teratologists"), aff'd
46 F.3d 1120 (3d Cir. 1994). And despite Ms. Cavallo's
suggestions to the contrary, see supra note 30, Dr. Bellanti did
not do so.
With respect to the level of Ms. Cavallo's exposure,
Dr. Bellanti concluded only that she sustained a "massive
exposure" (Bellanti Tr., at 231). He candidly acknowledged
that in forming his opinion, he was unaware of the duration
and intensity of exposure.” In addition, he repeatedly
35 . ° .
Like Dr. Monroe, see supra note 12, Dr. Bellanti's reasoning
process with respect to causation at times appeared somewhat circular.
Having indicated that he did not know the details of duration and intensity
of exposure, he nonetheless concluded:
I know that she was exposed for a sufficiently long time,
and I do know from the Texaco report and from
information that has been provided to me that there was
a spill and that there was significant amounts of
hydrocarbon in the atmosphere. Now, whether or not
that was documented or not, that's -- we could look at
that later, | suppose, but that [sic] there was sufficient
exposure to cause her to develop symptomatology.
(Bellanti Tr., at 44) (emphasis added).
A.59
qualified his responses to deposition questions regarding levels
of exposure and dose-response relationships with the reminder
that he was not a toxicologist.””
Even assuming that he was aware of and considered
the alleged 61 mg/m’ level of exposure, Dr. Bellanti could cite
no studies or published literature to support adverse effects
from that level of exposure to AvJet. Although Dr. Bellanti
cited no literature at all in his report, he referenced in his
deposition testimony an article in which 286 asthmatic women
were clinically evaluated.’ While only 15.5% of those who
improved clinically had come into contact with kerosene,
43.9% of those who did not improve used kerosene as a
cooking fuel. For 16 of the women, their asthma developed
soon after they began using kerosene.® The authors
For instance, the following question and answer are reported:
Assume, please, that one were exposed to vapors from
jet fuel or filtered kerosene for 15 minutes or less, what
concentration or intensity of vapors would be
necessary in those circumstances to cause lasting
respiratory injury?
[objection omitted]
A: Again, this is a question that is best posed to a
toxicologist. This is beyond my level of expertise. |
cannot answer that question.
(Bellanti Tr., at 54)
Rodriguez de la Vega et al., Kerosene-induced Asthma, 64 Annals
of Allergy 362 (1990).
™ Because neither party submitted a copy of this article, and Dr.
Bellanti did not describe the article in his report, these figures are taken
from the summary of the article provided in Dr. Monroe's written report.
While Dr. Monroe cited this article in his long list of references, he did not
include it in his deposition testimony among the articles upon which he
chiefly relied in forming his opinion
A.60
concluded that exposure to kerosene can cause asthma. While
this article involves kerosene, which is substantially similar to
AvJet, Dr. Bellanti acknowledged that it provided no
information regarding the levels of kerosene to which these
women were exposed. Nor does it lend support for the notion
that one brief encounter with a given level of kerosene, rather
than repeated exposures over a lengthy period, can produce the
sort of chronic illnesses from which Ms. Cavallo suffers.
Prior to his third deposition, Dr. Bellanti reviewed
various literature pertaining to the disease RADS.*’ He then
cited these studies in his deposition testimony for the general
proposition that "a single [chemical] insult can cause damage
which can be permanent and long lasting." (Bellanti Tr., at
328). Yet significantly, Dr. Bellanti was only willing to say
that Ms. Cavallo "could" have RADS, a facially speculative
diagnosis. (Bellanti Tr., at 331-30). Furthermore, even if Dr.
Bellanti had definitively diagnosed RADS, none of the studies
cited dealt with the effects of AvJet or kerosene, nor did they
establish dose response relationships for the chemicals that
The cited studies are:
I, Olav Axelson & Christer Hogstedt, The Health Effects of
Solvents, in Occupational Medicine 764 (3d ed. 1994).
2. Stuart M. Brooks et al., Reactive Airways Dysfunction
Syndrome (RADS): Persistent Asthma Syndrome afier High Level Irritant
Exposures, 88 CHEST 376 (1985).
3. David G. Kern, Outbreak of the Reactive Airways
Dysfunction Syndrome after a Spill of Glacial Acetic Acid, 144 Amer. Rev.
Resp. Diseases 1058 (1991),
4, Denyse Gautrin et al., /s Reactive Airways Dysfunction
Syndrome a Variant of Occupational Asthma?, 93 J. Allergy & Clinical
Immunology 12 (1994).
A.61
were involved.*” Only the Kern article attempted to quantify
the ievel of exposure to a chemical necessary to develop
RADS, and that article involved exposure to glacial acetic
acid. Even Dr. Bellanti admitted that the figures in this study
"may not be completely extrapolable [sic]" to the case at bar.
(Bellanti Tr., at 333).
Thus, it is clear that Dr. Bellanti did not follow the
accepted toxicology methodology in formulating his opinion
of causation in this case. At bottom, his opinion is founded
primarily on the temporal connection between the spill and the
development of Ms. Cavallo's symptoms,” as well as on his
subjective, unverified, belief that AvJet can cause the types of
injuries from which Ms. Cavallo suffers. This is not the
method of science. See Schmaltz, 878 F. Supp. at 1122 (stating
that "[i]t is well settled that a causation opinion based solely
on a temporal relationship is not derived from the scientific
” At oral argument, the attorneys for Ms. Cavallo cited the
Hudnell study, which does not deal with PADS, as providing dose-
response figures that support Dr. Bellanti’s opinion. H. Kenneth Hudnell
et al., Exposure of Humans to Volatile Organic Mixture Il; Sensory, 47
Archives Envtl. Health 31 (1992). This study involved virtually the
identical combinsation of 22 BOCs used in the Molhave and Koren
studies, see supra notes 14-15, and, like the others, was designed to
analyze sick building syndrome. Sixty-six health males were exposed to
a corcentration of 25 mg/m of the 22 BOC mixture for 2.75 hour
periods, during which increases in eye and throat irritation, headache,
and drowsiness were observed. Like the other studies, no long-term
effects were reported. Just as Dr. Monroe failed to demonstrate any
scientifically valid basis for transferring the Molhave and Koren data to
Ms. Cavallo’s exposure to AvJet, supra, Dr. Bellanti has not provided a
sufficient explanation for his purported reliance on the Hudnell study.
- Dr. Bellanti essentially admits that the temporal relationship
between the exposure and her symptoms is a principal factor underlying his
opinion. (Bellanti Tr., at 76) (stating that "I think the fact that the history
suggests that things took a turn for the worse after '91 is one of the major
aspects in my assessment that there was a causal relationship to the
exposure and her present condition").
A.62
LEAL SSL TOLUENE BEL LIE LIE SLE TALES SERCO NN
Sint eS ace DARE mate BE | A.
method and is therefore insufficient to satisfy the requirements
of [Rule] 702"). Because, like Dr. Monroe, Dr. Bellanti
significantly departed from the appropriate methodology, his
opinion is not based on the scientific method and _ is
inadmissible under Rule 702.
C. Summary
In sum, neither Dr. Monroe nor Dr. Bellanti
sufficiently adhered to the established toxicology methodology
in forming their conclusions that Ms. Cavallo's exposure to
AvJet vapors from the December 1991 spill caused her various
chronie illnesses. Their testimony, therefore is not "supported
by appropriate validation" as required by Daubert, U.S. __
at __, 113 S. Ct. at 2795, and is ultimately unreliable. In the
final analysis, the opinions of Drs. Monroe and Bellanti are
based largely on hypothesis and speculation. This is not to say
that the doctors are insincere in their opinions, or that their
opinions may not some day be validated through scientific
research and experiment.” It may well be that the AvJet spill
forever "sensitized" Ms. Cavallo to petroleum vapors and
various other househo!d chemicals. But the published
scientific literature and test results simply do not support that
conclusion at this time.’ And _ the price paid for this
seemingly stringent standard of reliability is that, unavoidably,
some legitimate injuries will be left unredressed. See Daubert,
° Nor are the general qualifications of Dr. Monroe and Dr. Bellanti
questioned here. Both men possess impressive credentials and have
substantial experience in their respective fields.
x This is often true in “the growing field of hazardous-substance
litigation, where the causal relationship between exposure to a hazardous
substance and subsequent symptoms may be hypothesized, but not yet
tested and proven to the legally required degree of certitude." Bradley, 852
F. Supp. at 696 (citing Daubert, U.S.__ at__, 113 S. Ct. at 2796-99).
A.63
__ US. __ at __, 113 S. Ct. at 2798-99 (recognizing that "in
practice, a gatekeeping role for the judge, no matter how
flexible, ineviiably on occasion will prevent the jury from
learning of authentic insights and innovations").
Also worth emphasizing is that the circumstances of
each case are unique, and the absence of scientific validation
through published studies and tested hypotheses is not always
fatal to an expert's opinion. Specifically, there may be
instances where the temporal connection between exposure to
a given chemical and subsequent injury is so compelling as to
dispense with the need for reliance on standard methods of
toxicology. Thus, if a person were doused with chemical X
and immediately thereafter developed symptom Y, the need
for published literature showing a correlation between the two
may be lessened. Similarly, statistical evidence can be
persuasive in certain contexts. For instance, if a known
chemical is accidentally introduced into a company's
ventilation system, and all of the workers exposed
immediately develop the same adverse reaction, then the
episode itself may be sufficiently indicative of causation. This,
however, is not such a case,” and the failure to adhere to the
applicable methodology renders inadmissible the expert
opinions proffered here.
" That Ms. Cavallo's initial consultations with physicians failed to
disclose any significant injury, and that her chronic sinusitis and pulmonary
disease were diagnosed only one and a half years after the spill, renders the
temporal relationship between the spill and her injuries less than
compelling. Furthermore, there is no evidence that a substantial number of
others who were exposed to vapors from the spill are experiencing similar
effects. While it appears that some firemen (who dealt directly with
clean-up efforts and were presumably exposed to much greater
concentrations of AvJet vapors) experienced some initial adverse effects,
there is no evidence in the record that any of them suffered permanent
injury.
A.64
II], Summary Judgment Motion
It follows from the exclusion of the expert testimony
of Drs. Monroe and Bellanti that summary judgment must be
granted in favor of Star. Even assuming Star's negligence in
permitting the AvJet spill, and even assuming that Ms. Cavallo
suffers from the chronic illnesses she alleges, there is
insufficient evidence of causation to create a triable issue of
fact for the jury.
In general, expert testimony is required to prove that
exposure to a toxic substance caused a certain injury or
illness.*° Without reliable expert testimony iinking Ms.
Cavallo's exposure to AvJet fumes from the spill to her
subsequent development of chronic respiratory problems, the
jury could only speculate, based on a loose temporal
relationship and not scientific fact, that a causal relationship
exists. Such an inference would be impermissible, even apart
from the evidence that the TLVs, NOELs, and LOELs for
AvJet all substantially exceed the maximum, “wo,st-case"
concentration to which Ms. Cavallo was exposed on the night
of the spill. Therefore, summary judgment is appropriate.”
™ See, e.g., Rohrbough by Rohrbough v. Wyeth Lab., Inc., 719 F.
Supp. 470, 473 (N.D. W. Va. 1989) (because of “high degree of scientific
complexity" in proving that vaccine caused plaintiffs injuries, expert
testimony was required to prove causation), aff'd 916 F.2d 970 (4th Cir.
1990); Porter, 9 F.3d at 612 (expert testimony required to establish link
between ibuprofen and renal failure); Bradley, 852 F. Supp. at 697 (stating
that “plaintiffs may not make out causation vis-&-vis MCS merely by
reliance upon the temporal congruity of the [exposure] and the onset of
their symptoms").
- Summary judgment is appropriate with respect to Ms. Cavallo's
claim for chronic illness, which is, it appears, the only claim she is making.
See supra note 7. Should Ms. Cavallo consider that her complaint also
encompasses the immediate and temporary effects of irritated eyes and
runny nose on the night of the spill, then she may seek reconsideration, for
the Court has not addressed that issue.
A.65
Prior to Daubert, courts presented with this situation
may have been more inclined to admit the expert testimony
and allow the jury, aided by vigorous cross-examination, to
sort out the relative reliability of opposing expert opinions.
But Daubert recognized the danger in this approach. By
definition, experts testify to matters beyond the common
understanding of the jury, and, as a consequence, their
opinions can carry great weight. Given this, Daubert assigned
district courts a more vigorous role to play in ferreting out
expert opinion not based on the scientific method. At the same
time, however, courts must be cautious to avoid weighing the
relative merits of opinions that are derived from scientifically
valid methodology or assuming the role of amateur scientist.
In granting the motion in limine, thereby paving the way for
summary judgment, the Court scrupulously attempted to walk
this fine line: analyzing the experts’ adherence to the scientific
methodology, while declining to weigh the evidence before it.
Significantly, nothing in the Court's review and analysis of this
issue required any scientific training.” Rather, the Court did
nothing more than use the customary legal tools of logical
reasoning’® to carry out its gatekeeping function.
IV. Conclusion
For the foregoing reasons, the motion in limine and the
motion for summary judgment are granted.
47 . ° :
While I have an undergraduate degree in science, almost 35 years
has passed since I have had any professional involvement with science.
Moreover, the Court's clerks are both blissfully innocent of any scientific
training. Proper application of Daubert simply does not require that district
judges be trained scientists.
. Although the Court's application of these customary legal tools
may ultimately be deemed erroneous, the error would stem from flawed
legal reasoning and not from lack of scientific training
A.66
Tats ua Nzsitis di adi cominie eas Salaaes dee es eadioe Ee Eee Le
Se ER IES OREN fn a yA
*
feataame
An appropriate order has already issued with respect to
the motion in limine, and an order reflecting the disposition of
the summary judgment motion will issue forthwith.
/s/ T.S. Ellis, I]
T. S. Ellis, I]
United States District Judge
Alex:.adria, Va.
July 10, 1995
A.67
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
ARDITH CAVALLO,
Plaintiff,
v.
STAR ENTERPRISE, et al.
Defendants.
Civil Action No. 94-1499-A
Entered: July 10, 1995
ORDER
This matter comes before the Court on Defendants’
motion for summary judgment. For the reasons stated in the
accompanying Memorandum Opinion, The motion is
GRANTED. Should Plaintiff wish to seek reconsideration
pursuant to footnote 46 in the Memorandum Opinion, she
has 10 days from the date of this Order to do so. Fed. R.
Civ. P. 59(e).
The Clerk is directed to send copies of this Order and
the accompanying Memoranaum Opinion to all counsel of
record.
/s/ T. S. Ellis, I]
T.S. Ellis, II
United States District Judge
Alexandria, Virginia
July 10, 1995
A.68
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT IF VIRGINIA
ALEXANDRIA DIVISION
ARDITH CAVALLO and LAWRENCE Cavallo,
Plaintiffs,
v.
STAR ENTERPRISE, et, ai.,
Defendants.
CIVIL ACTION NO. 94-1499-A
Entered: January 20, 1995
MEMORANDUM OPINION AND ORDER
This matter comes before the court on a motion to
dismiss certain claims and counts in the amended complaint,
pursuant to Fed. R. Civ.P. 12(b) (6), and on the plaintiffs’
motion to exclude certain matters not contained in the
pleadings from the court’s consideration of the defendants’
motion. Upon consideration of the pleadings, memoranda,
and appropriate exhibits of the parties, the court overrules the
plaintiffs’ motion and sustains the defendants’ motion, and
accordingly will dismiss all but the first count of the
amended complaint.
This action arises out of discharges of petroleum
products from the defendants’ petroleum distribution
terminal (“Star facility”) in Fairfax County. The allegations
are that the plaintiffs are owners of a_ residence
approximately one-half mile east of the Star facility. In
September or October of 1990, local officials determined and
defendants acknowledged that a “petroleum release” had
occurred at the facility, resulting in the discharge of toxic
A.69
substances into the local waterways, the subsurface, and the
air. On the evening of December 9, 1991, while leaving a
restaurant adjacent to the facility, Ardith Cavallo was
directly exposed to airborne petroleum contaminates traced
to a particular discharge at the facility, called the “Av-Jet
Spill,” which occurred at the Star facility on or about the
same day. This reaction allegedly triggered in Ardith
Cavallo a continuing and severe sensitivity to petroleum
vapors. The plaintiffs allege that the contamination
discovered in 1990, the subsequent Av-Jet spill, and
subsequent activities of the defendants at the Star facility
contributed and contribute to total hydrocarbon
concentrations in the air at and around the plaintiffs’
property. the presence of these concentrations continues to
impair Ardith Cavallo’s health, cause her to incur medical
expenses, and limit her daily activities and her enjoyment of
the plaintiffs’ property.
The plaintiffs seek compensatory and trespass
damages in four counts. The defendants argue that the
claims contained in counts II, III, and IV are barred for one
or more of the following reasons: the expiration of the
applicable one- or two- year Virginia statutes of limitations;
federal preemption of certain claims in courts II-IV; and
failure to state a claim under the Virginia State Water
Control Law, Va. Code § 62.1-44.2, et seq., in count IV.
: + Limitati
This complaint was filed on November 14, 1994,
pursuant to tolling agreements wherein the defendants agreed
not to plead limitations arising after December 8, 1993. The
plaintiffs concede that the applicable statute of limitations for
the personal injuries of Ardith Cavallo is two years and the
applicable statute of limitations for the trespass and statutory
claims is one year. Therefore, the negligence causes of
action in counts I and II are only barred to the extent that
A.70
a a
they accrued prior to December 8, 1991, and the trespass and
statutory causes of action in counts III and IV are only barred
to the extent that they accrued prior to December 8, 1992.
Although the defendants argue that the cause of
action in counts II is based in part on the petroleum
contamination discovered in 1990, the court treats all the
allegations in counts | and II as stating claims for Ardith
Cavallo’s injuries arising out of the Av-Jet spill on
December 9, 1991.' The prior contamination is only
relevant insofar as it contributes to the conditions in the
atmosphere to which Ardith Cavallo is exposed. The
inclusion of allegations regarding the prior contamination
does not time-bar the claims in counts I and II. As to counts
III and IV, the court finds that the allegations of continuing
discharges sufficiently state cause of action accruing after
December 8, 1992.
Federal Preemption
While the court finds that none of the counts of the amended
complaint are wholly time-barred, the plaintiffs’ claims must
accordingly be based on discharges that occurred within the
limitations periods defined above. However, the defendants
argue that any damage claims resulting from discharges
released from the Star facility in compliance with
administrative orders of the Environmental Protection
Agency (“EPA Orders”) are barred under the doctrine of
preemption. Feikema v. Texaco, Inc., 16 F.3d 1408 (4th Cir.
1994). The plaintiffs argue that the court may not take
judicial notice of the EPA Orders on the defendants’ motion
to dismiss, and further argue that, under Feikema, the EPA
Orders do not preempt a state law claim for damages.
é, The court notes that the claims for relief in counts I and II are
identical.
A.7]
The court finds that it is appropriate to take judicial
notice of the EPA Orders for consideration of the defendants’
motion to dismiss. These orders are a matter of public
record. Contrary to the plaintiffs’ motion to exclude, the
orders are not relied on for the EPA’s factual findings
regarding the defendants’ activities at the Star facility.
Rather, they are relied upon solely to show the scope and
legal authority of the federal government’s control of
remediation efforts at the site. Furthermore, the complaint
itself alleges that the EPA took control of activities
conducted at and around the Star facility relating to
identifying, controlling and stabilizing the petroleum release.
For these reasons, the plaintiffs’ motion to exclude will be
denied.
The
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