# Petition for Writ of Certiorari — Cavallo v. Star Enterprise > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0448%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1998 - **Citation:** 522 U.S. 1044 ## Text Supreme Court, U.8. !) rina @ 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0448%3A1. Public record. Not legal advice.