Hickman v. Exxon Mobil Corp.
Hickman v. Exxon Mobil Corp.
Opinion of the Court
This is a tort suit wherein the plaintiffs seek to recover damages for the decedent's lung cancer and death allegedly caused in total or in part by his exposure to radioactive dust from cleaning oilfield pipes. A motion for summary judgment was granted in favor of the defendants dismissing the plaintiffs' claims with prejudice due to a lack of proof of medical causation because of the fact that the decedent was a lifelong smoker. The plaintiffs appeal the granting of the motion for summary judgment. Because there are genuine issues of material fact, the judgment of the district court is reversed and the matter is remanded for further proceedings.
FACTUAL AND PROCEDURAL HISTORY
After Riley Hickman developed lung cancer, he sued numerous oil and gas companies, two oilfield pipe-cleaning contractors, and a supervisor alleging liability based on his exposure to "naturally occurring radioactive material" (NORM) from his work cleaning oilfield pipes.
On October 21, 2015, Shell filed a motion for summary judgment regarding lack of proof of medical causation. Shell asserted that absent proof that it was more probable than not that Riley's lung cancer was caused by exposure to NORM based on medical evidence, the plaintiffs could not establish the requisite element of medical causation necessary to support a claim for damages. In its motion for summary judgment, Shell contended that Riley, a lifelong cigarette smoker, contracted lung cancer due to his smoking. It alleged that the testimony of Dr. Patricia M. Williams, a toxicologist, who determined that Riley's lung cancer was caused totally or partially by his exposure to the constituents of NORM pipe scale, could not provide medical causation. The motion for summary judgment was originally set for hearing on November 13, 2015.
On October 27, 2015, Shell filed a motion to exclude or limit the testimony, opinions, and expert report of Dr. Williams. Shell alleged that her opinions were unsupported, her testimony and report were filled with factual and scientific errors, and her methodology was unreliable under La. C.E. art. 702 and the requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc.,
The district court conducted the hearing on Shell's motion for summary judgment on November 9, 2015, the same day that the motion to exclude or limit Dr. Williams' testimony was scheduled to be heard. Apparently, Shell's motion to exclude Dr. Williams' testimony was not heard since the record does not contain a transcript of a hearing on the motion to exclude or limit Dr. Williams' testimony, nor does it contain a minute entry referencing that motion.
On appeal, the Hickmans raise three assignments of error: that the district *1101court erred by adding an additional requirement to causation to the actual damages under the duty/risk cause-in-fact element with proof of actual damages by medical evidence; that the district court erred because it inappropriately evaluated expert credibility and weighed expert opinion on a motion for summary judgment; and that the district court erred in disregarding the expert opinions of Dr. Williams without analyzing the reliability of her opinions in an evidentiary hearing.
DISCUSSION
We initially address the jurisdictional issues regarding this appeal. Due to the apparent untimeliness of the motion for new trial in this record, this court issued a rule to show cause regarding the timeliness of the appeal.
Next we address the motion to dismiss the appeal filed by Shell. Shell contends that because the Hickmans in their motion for appeal appeared to appeal the denial of their motion for new trial, rather than the granting of Shell's motion for summary judgment, the motion for appeal filed outside of the thirty-day period for seeking review of the denial of a motion for new trial is untimely and should be dismissed. A judgment denying a motion for new trial is an interlocutory order and is normally not appealable. See La. C.C.P. art. 2083(C). However, when a motion for appeal refers by date to the judgment denying a motion for new trial, but the circumstances indicate that the appellant actually intended to appeal from the final judgment on the merits, the appeal should be maintained as being taken from the judgment on the merits. See Smith v. Hartford Accident and Indemnity Company,
We reject Shell's contention that because the motion for appeal referring to the motion for new trial was filed outside the thirty-day delay required for writ applications, it was not timely and cannot be considered as a motion for appeal of the dismissal of the suit. The motion for appeal was filed within the applicable sixty-day devolutive appeal delay.
*1102Jones v. Zumo,
In considering the Hickmans' assignments of error, we pretermit the first assignment of error based on our finding that had the district court properly considered Dr. Williams' expert opinion, as well as the opinions of other medical doctors, it would have found that there was a genuine issue of material fact as to the medical causation of the decedent's illness.
A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Samaha v. Rau, 2007-1726 (La. 2/26/08),
The burden of proof to show that no material factual issue exists is on the mover. However, if the party moving for summary judgment will not bear the burden of proof at trial, the mover is not required to negate all essential elements of the adverse party's claim. Rather, the mover must point out to the trial court that there is an absence of factual support for one or more elements essential to the adverse party's claim. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(C)(2) ; Gaspard v. Safeway Ins. Co., 2014-1676 (La. App. 1 Cir. 6/5/15),
In granting the motion for summary judgment, the district court stated in its reasons for judgment:
*1103Although neither party is required to match, expert for expert, the other side's case, a party cannot create a genuine issue of fact merely by presenting an expert witness who is willing to express an unsupported opinion that favors the party's position. What is necessary is that the parties seeking to defeat summary judgment demonstrate the existence of a material issue of fact by presenting competent evidence thereon.
Plaintiffs suggest that the report and deposition testimony of their expert toxicologist, Patricia Williams, Ph.D., sufficiently establish a triable issue of fact on the question of injury causation. However, the particular nature of Mr. Hickman's illness and its relation or non-relation to his alleged occupational exposure to NORM is far beyond the vernacular of general knowledge of the average layman. The Court agrees with Shell that expert medical testimony is essential link the large cell neuroendocrine carcinoma from which Mr. Hickman expired to his alleged radiation exposure. Plaintiffs presented no competent medical evidence from any of Mr. Hickman's many treating physicians, which suggests that ionized radiation is, more likely than not, a cause or a contributing factor of his particular illness.
The district court conducted the hearing on Shell's motion for summary judgment on November 9, 2015, the same day that the motion to exclude or limit Dr. Williams' testimony was scheduled. At the hearing on the motion for summary judgment, Shell's counsel indicated that for the purposes of the summary judgment motion, Shell was not objecting to the admission of Dr. Williams' opinions, did not want the district court to conduct a La. C.C.P. art. 1425(F) hearing, and indicated that Dr. Williams could give her opinion that Riley was at an increased risk for lung cancer due to radiation exposure, but that her opinion was not enough to meet the Hickmans' burden of proof. Shell contended that the Hickmans had to prove with medical evidence that Riley's cancer was more probable than not caused by NORM.
At the hearing, Shell was unclear as to whether it was challenging the qualifications of Dr. Williams. Shell pointed out that Dr. Williams did not have an advanced graduate degree in toxicology or any degree in toxicology. In discussing case law, Shell cited a case wherein Dr. Williams testified and where the Fifth Circuit Court of Appeal found her incompetent to give causation testimony. Shell attacked Dr. Williams' methodology in its memoranda.
*1104A review of the record shows that the motion to exclude or limit Dr. Williams' testimony was never heard, nor was the request for a hearing waived.
Contrary to the district court's reasons, the opinion of Dr. Williams must be accepted as competent evidence. If a district court conducts no Daubert analysis of any kind, the exclusion of the expert's evidence without an evaluation of the relevant reliability factors is legal error. Robertson v. Doug Ashy Building Materials, Inc., 2010-1552 (La. App. 1 Cir. 10/4/11),
*1105In her report, Dr. Williams states that it is her opinion that Riley's radiation exposure increased his risk of lung cancer. Dr. Williams opinion is not contradicted by any medical doctor. Dr. Manly Jordan, a pulmonologist who treated Riley, opined that ionizing radiation could be a risk factor, but advised that he was unaware of any synergistic effect between smoking and substances other than asbestos. Dr. Baham Sabbaghiam, a specialist in general surgery who evaluated Riley's lung mass, also stated that he would need more particulars before he could opine whether the exposure to ionizing radiation could be a cause or contributing factor to Riley's cancer. Dr. Richard Edwards, a family practitioner who treated Riley, also recognized that smoking was "definitely a large risk factor", but that work history exposure would be another consideration.
The testimonies of the medical doctors along with the testimony of Dr. Williams creates a genuine issue of material fact as to whether the decedent's exposure to radioactive dust was a factor in causing his lung cancer. The Hickmans burden at summary judgment is not the same burden that is necessary for them to prevail at the trial on the merits. In order for the burden to shift to the plaintiff in a motion for summary judgment proceeding, the defendant must point out a lack of factual support for an essential element of the plaintiff's claim. See La. C.C.P. art. 966(C)(2). In this case, the opinion and testimony of Dr. William's, which must be accepted as competent testimony, as well as the testimonies of the medical doctors, establish factual support that there is a genuine issue of material fact regarding the medical causation of the decedent's illness. Since there is a material factual dispute created by the opinion of Dr. Williams and the testimonies of the medical doctors, the granting of the motion for summary judgment was improper. See Babin v. Winn-Dixie Louisiana, Inc., 2000-0078 (La. 6/30/00),
At trial, the trier of fact can determine whether the Hickmans have carried their burden of proving through competent medical evidence that Riley's cancer was more likely than not caused by his smoking and whether his exposure to the radioactive material was or was not also a cause of his cancer. However, at summary judgment, the standard is only whether there is a material factual dispute creating a genuine issue of material fact as to whether Riley's exposure to radioactive material was a cause of his cancer. See Babin,
CONCLUSION
For the foregoing reasons, we maintain the appeal, deny the motion to dismiss, and reverse the judgment of the district court granting the motion for summary judgment in favor of Shell Oil Company, Shell Offshore Inc., and SWEPI LP dismissing the suit of Deborah Hickman, Belinda Hickman, Daniella Hickman, and Samantha Hickman. We grant the unopposed motion to supplement the record and the second unopposed motion to supplement the record. We remand this matter for further proceedings. Costs of this appeal are assessed against Shell Oil Company, Shell Offshore Inc., and SWEPI LP.
APPEAL MAINTAINED; MOTION TO DISMISS DENIED; UNOPPOSED MOTION TO SUPPLEMENT RECORD GRANTED; SECOND UNOPPOSED MOTION TO SUPPLEMENT RECORD
*1106GRANTED; REVERSED AND REMANDED.
Most of the other defendants, if not all, have been dismissed from the suit.
For the purposes of this motion for summary judgment, it appears that Shell accepted the analysis and opinion of Dr. Williams and reserved the right to test her methodology and opinion in a La. C.C.P. art. 1425(F) motion.
The district court signed the judgment granting the motion for summary judgment and dismissing the Hickmans' suit on November 17, 2015; notice of the judgment of dismissal was mailed on November 23, 2015. The judgment denying the motion for new trial was signed on June 8, 2016, notice of the judgment was mailed on June 9, 2016, and the motion for appeal was filed on July 13, 2016.
We note that the Louisiana Code of Civil Procedure was amended by 2015 La. Acts, No. 422, § 1, effective January 1, 2016. Section 2 of the 2015 La. Acts, No. 422, provides that: "[t]he provisions of this Act shall not apply to any motion for summary judgment pending adjudication or appeal on the effective date of this Act." Here, the filing of the motion for summary judgment was filed before the effective date of 2015 La. Acts, No. 422. Thus, the former version of La. C.C.P. art. 966 applies to the instant matter.
A second unopposed motion to supplement the record was referred to this panel. The Hickmans sought to add Shell's reply to their memorandum in opposition to Shell's motion for summary judgment on medical causation and Shell's exhibits N-V to Shell's reply, both of which were filed in the district court, to the appellate record. We grant this unopposed motion.
See Footnote 2.
Louisiana Code of Civil Procedure article 1425(F)(2) provides that upon a timely filed and sufficiently alleged motion for a Daubert hearing, the court shall hold a contradictory hearing. At the hearing, the court shall consider the qualifications and methodologies of the proposed witness based upon the provisions of articles 104(A) and 702 through 705 of the Louisiana Code of Evidence. See Daubert,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.