Burst v. Shell Oil Co.
Burst v. Shell Oil Co.
Opinion of the Court
ORDER AND REASONS
Defendants She'll Oil Company, Chevron U.S.A. Inc., and Texaco, Inc. move to exclude plaintiffs expert, Richard Miller.
1. BACKGROUND
Plaintiff Yolande Burst filed this products liability action against defendants Shell, Chevron- (as successor to Gulf Oil Corporation), and Texaco.
On June 20, 2018, physicians diagnosed Mr. Burst with acute myeloid leukemia (AML).
Plaintiff alleges that her husband’s regular exposure to gasoline containing benzene during the years he worked as a gas station attendant and mechanic caused his leukemia.
As evidence of Mr. Burst’s exposure to benzene through his use of defendants’ products, plaintiff relies on an expert report from Richard Miller, an industrial hygienist. In the report, Miller provides an estimate of Mr. Burst’s cumulative exposure to benzene from gasoline while working at a Gulf Oil gas station over a one-year period between 1966 and 1968. Defendants now move to exclude Miller’s opinions on the ground that they are unreliable and irrelevant.
II. LEGAL STANDARD
A district court has considerable discretion to admit or exclude expert testimony under Federal Rule of Evidence 702. See General Elec. Co. v. Joiner, 522 U.S. 136, 138-39, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997); Seatrax, Inc. v. Sonbeck Int’l, Inc., 200 F.3d 358, 371 (5th Cir. 2000). Federal Rule of Evidence 702, which governs the admissibility of expert witness testimony, provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.
Fed.R.Evid. 702.
In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court held that Rule 702 requires the district court to act as a gatekeeper to ensure that “any and all scientific testimony or evidence admitted is not only relevant, but reliable.” 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (clarifying that the Daubert gatekeeping function applies to all forms of expert testimony). The Court’s gatekeeping function thus involves a two-part inquiry into reliability and relevance.
First, the Court must determine whether the proffered expert testimony is reliable. The party offering the testimony bears the burden of establishing its relia
A district court’s gatekeeper function does not replace the traditional adversary system or the role, of the jury within this system. See Daubert, 509 U.S. at 596, 113 S.Ct. 2786. As the Supreme Court noted in Daubert: “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.” Id. The Fifth Circuit has held that, in determining the admissibility of expert testimony, district courts must accord proper deference, to “the jury’s role as the proper arbiter of disputes between conflicting opinions. As a general rule, questions relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for. the jury’s consideration.” United States v. 14.38 Acres of Land, More or Less Situated in Leflore Cnty., Miss., 80 F.3d 1074, 1077 (5th Cir. 1996) (quoting Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987)) (internal quotation marks omitted). Nonetheless, expert testimony “must be reliable at each and every step or else it is inadmissible. The reliability analysis applies to all aspects of an expert’s testimony: the methodology, the facts underlying the expert’s opinion, the link between the, facts and the conclusion, et alia.” Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 355 (5th Cir. 2007) (internal quotation marks omitted). “Where the expert’s opinion is based on insufficient information, the analysis is unreliable.” Paz v. Brush Engineered Materials, Inc., 555 F.3d 383, 388 (5th Cir. 2009).
Second, the Court must determine whether the expert’s reasoning or methodology is relevant. The question here is whether the reasoning or methodology “fits” the facts of the case and will thereby assist the trier of fact to understand the evidence. See Daubert, 509 U.S. at 591, 113 S.Ct. 2786.
III. DISCUSSION
. Richard Miller is an industrial hygienist retained by plaintiff. Miller attempts to reconstruct Mr. Burst’s work'duties during a one-year period during which Mr. Burst worked at a Gulf Oil gas station between 1966 and 1968, almost 50 years ago, and then to estimate, based on various models, Mr. Burst’s exposure to benzene as a component of gasoline. Notably, because Mr. Burst passed away before the filing of this case, Miller’s reconstruction relies On the testimony of other witnesses. Yolande Burst, Mr. Burst’s wife, Frank Simpson, a co-worker at the Gulf Oil gas station, and Charles Bernard, the former owner of the Gulf Oil gas station, provided testimony on. which Miller relies in establishing Mr. Burst’s work hours, work duties, and, ultimately, his exposure to benzene as a component of gasoline.
The witness testimony indicates that Mr. Burst refueled cars and worked as a mé-chanic at a Gulf Oil gas station. Both Mr. Simpson and Mr. Bernard testified that, during refueling, gasoline spills exposed attendants to gasoline. Mr. Bernard stated that attendants could even be “bathed” in gasoline as a result of spills. Ms. Burst, Mr.'Simpson, and Mr. Bernard also testified that Mr. Burst, as part of his mechanic duties, frequently washed his hands and parts in a bucket of gasoline located inside the station’s garage. This caused Mr. Burst’s hands to become wet with gasoline. On occasions when Ms. Burst observed Mr. Burst washing his hands and parts inside the garage, she testified that the fumes caused her to become lightheaded within 15 minutes. According to Ms. Burst, the garage smelled strongly of gasoline in the winter months when the garage’s bay doors remained closed. Ms. Burst also testified that Mr. Burst smelled strongly of gasoline when he returned home from work.
Relying on the witness testimony, Miller calculated Mr. Burst’s exposure to benzene from gasoline from four separate sources. First, Miller calculated Mr. Burst’s cumulative one-year exposure to benzene from inhaling vapors that evaporated from the parts-washing bucket during the winter months when the garage’s bay doors remained closed. Second, Miller calculated Mr. Burst’s cumulative one-year dermal exposure to benzene from washing parts in gasoline. Third, Miller calculated Mr. Burst’s cumulative one-year dermal exposure to benzene- resulting from gasoline that soaked parts of Mr. Burst’s clothing. Finally,. Miller calculated Mr. Burst’s cumulative one-year exposure to benzene from inhaling vapors while washing parts in gasoline.
Miller calculates that Mr. Burst was exposed to 5.499 ppm-years
Defendants now attack both Miller’s inhalation and dermal exposure assessments. Defendants contend that Miller’s estimate for background inhalation exposure from the parts-washing bucket is unreliable because the gasoline vapor levels required to expose a person to that much benzene would bé so high that it would be lethal within a matter of minutes. Defendants also contend that Miller’s estimate for inhalation exposure during parts washing is unreliable because Miller, in reaching his conclusion, ignored relevant data from over 14 peer-reviewed publications and relied solely on the self-reported symptoms of Ms. Burst.' As to Miller’s estimate of Mr. Burst’s dermal exposure from parts washing, defendants contend that the estimate is unreliable because Miller failed to account for the evaporation of gasoline from Mr. Burst’s hands, and because he did not consider the acute damage to Mr. Burst’s hands that would have likely occurred had his hands been wet with gasoline for a substantial part of the day. Defendants -also’ point out that Miller has never performed a dermal exposure assessment outside the context of litigation.
A. Miller’s Estimate of Mr. Burst’s Benzéne Exposure from Inhaling Gasoline Evaporated from the Parts-Washing Bucket
Miller’s estimate of Mr. Burst’s benzene exposure from inhaling gasoline evaporated from the parts-washing. bucket is unreliable becaúse he failed to validate his results against studies, including at least one cited in his own report, showing that the corresponding gasoline vapor levels required to expose a person to that much benzene would be so high as to be lethal within a matter of minutes.
The record includes conflicting testimony as to the size and amount of gasoline contained in the, parts-washing bucket. Frank Simpson testified that he' and Mr. Burst used a two-gallon bucket, about halfway full of gasoline, to clean various parts.
Citing monthly average high and low temperatures in New Orleans, Louisiana, Miller assumed that the bay doors remained closed throughout December and January.
Assuming that the bucket contained one gallon of gasoline during the workday, and that the gasoline contained 1% benzene, Miller calculated that evaporation of all benzene available for evaporation into the closed bay of the garage produced a concentration of 50.9 ppm benzene.
Defendants contend that Miller’s estimate is unreliable because it is based on Miller’s calculation that the garage contained 50.9 ppm benzene, which could have been possible only with lethal levels of gasoline vapor. Defendants cite Miller’s own report, in which he refers to a study showing that the total gasoline vapor level for gasoline containing 1% benzene is 166.67 times greater than the benzene vapor level. Using this ratio, defendants calculate that a concentration of 50.9 ppm benzene would require a gasoline concentration of 8449 ppm. At his deposition, Miller described defendants’ calculation as “absolutely fair.”
Even though Miller has now withdrawn his calculation, that he chose this methodology and included the findings in his report remains relevant because it informs the Court about Miller’s overall approach to choosing and analyzing data. See Knight, 482 F.3d at 355 (The expert’s report “must be reliable at each and every step or else it is inadmissible.”); see also Castellow v. Chevron USA, 97 F.Supp.2d 780, 788, 791 (S.D.Tex. 2000) (excluding expert’s exposure assessment opinion in part because one of his calculations necessitated a lethal level of gasoline even though the expert later withdrew the opinion). Miller made his calculations in a vacuum without any attempt to validate his results against reality. Specifically, until defense counsel pointed out his error, Miller failed to recognize that the evidence, which provided no indication Mr. Burst or his co-workers sustained acute overexposure to gasoline, was not consistent with his result. Moreover, Miller also failed to validate his results against existing scientific literature, including a study on which he relied elsewhere in his report, that demonstrated why his result had to be wrong. These failings speak to a lack of intellectual rigor in Miller’s approach to the issues under discussion.
Miller now tries to rationalize his approach by stating that three components of gasoline' would have evaporated faster than benzene, but that benzene evaporates faster than “most” other components of gasoline, which he does not identify. But Miller cannot deny that the . other components of gasoline would have evaporated at some rate.
B. Miller’s Estimate of Mr. Burst’s Benzene Exposure from Dermal Exposure during Parts and Hands Washing
Several witnesses have testified that Mr. Burst frequently washed his hands and parts in a bucket of gasoline during the workday. For example, Ms. Burst testified that Mr. Burst would “remove a part that was soaking in gasoline from a bucket with his bare hands, and then wipe the part with a shop rag to remove the grease from the part.”
Miller sought to calculate Mr. Burst’s cumulative dermal exposure — how much benzene Mr. Burst absorbed through his skin — from washing parts and his hands in gasoline over the course of one year. At his deposition, Miller concedéd that he has never calculated a dermal dose outside of the context of litigation.
Despite the divergent testimony as to the ’ size and amount of gasoline in the parts-washing bucket,
With these figures, Miller ran two “Monte Carlo” simulations. , A Monte Carlo simulation is “a risk assessment model that accounts for variability and uncertainty in risk factors,” such as the variation in the time of Mr. Burst’s dermal exposure to
Miller’s first simulation included two uncertain variables, and thus included two ranges: (1) the number of hours Mr. Burst’s forearms and hands' experienced dermal exposure to benzene from parts washing, and (2) the flux rate of benzene.
The Court finds Miller’s estimate of Mr. Burst’s dermal exposure to benzene from washing parts unreliable because Miller’s assumption that Mr. Burst’s hands and forearms were wet with gasoline for a minimum of 1.25 hours per day and a maximum of 10.5 hours per day is inconsistent with the factual record and failed to account for evaporation.
First, the Court finds Miller’s methodology unreliable because Miller’s assumption regarding the minimum and maximum time that Mr. Burst’s hands and forearms could have been wet with gasoline is not supported by the factual record. See Moore v. International Paint, L.L.C., 547 Fed.Appx. 513, 515 (5th Cir. 2013) (“When an expert’s testimony is ‘not based upon the facts in the record but on altered facts and speculation designed to bolster [a party’s] position,’ the trial court should exclude it.”) (quoting Guillory v. Domtar Indus., Inc., 95 F.3d 1320, 1331 (5th Cir. 1996)). Contrary to Miller’s assumption, the witness testimony demonstrates that Mr. Burst’s hands were wet with gasoline far less than 10.5 hours per day, and, on some days, were not exposed to gasoline through parts washing at all. Mr. Simpson testified that he personally spent only 15% to 20% of his day washing parts. Similarly, Mr. Bernard testified that Mr. Burst would have needed to utilize the parts-washing bucket to wash his hands on most days, not on all days. There is no testimony indicating how long Mr. Burst submerged his hands and forearms in gasoline while cleaning parts. The only piece of evidence that could possibly support the inference that Mr. Burst’s hands were wet with gasoline all day is Mr. Simpson’s testimony that, for him, hand washing was a “constant process” because he had to run in and out of the mechanic’s area between refueling cars, although he stated that he probably washed his hands more than Mr. Burst. In his unsworn affidavit, Miller explained that he interpreted this testimony to mean that the “skin exposure was intermittent, but repeated each time a car entered the pump area — making the exposure essentially continuous.”
By the same token, Miller’s selection of 1.25 hours as Mr. Burst’s minimum daily exposure is suspect. Mr. Bernard testified that Mr. Burst would have experienced this exposure on most days, not on all days. Given that a Monte Carlo simulation attempts to gauge all possibilities within a range of all potential periods of exposure, Miller inexplicably failed to account for zero hours as the minimum of the range.
Second, Miller’s opinion is unreliable because his report does not account for the effect of evaporation in assuming that Mr. Burst’s hands could have been wet with gasoline for a minimum of 1.25 hours per day and a maximum of 10.5 hours per day. Jennifer Sahmel, defendants’ expert industrial hygienist, opines that, as a result of evaporation, Mr. Burst would have had much shorter lengths of dermal exposure to gasoline than estimated by Miller.
Miller’s failure to treat evaporation in this segment of his report is telling because Miller discusses and even accounts for evaporation elsewhere in his report. For example, Miller stated that “both gasoline and benzene evaporate into the surrounding environment.”
The Court has considered the explanation that Miller supplied in his deposition that the Monte Carlo simulation accounts for uncertainties like evaporation. As the Court understands Miller’s explanation, Miller asserts that because he used a range (1.25 hours/day to 10.5 hours/day) and because the Monte Carlo simulation randomly chooses a point within this range during each trial, the Monte Carlo simulation accounted for days when exposure would have been less, such as when evaporation caused Mr. Burst’s time of exposure to be lower. Nevertheless, it cannot be denied that Miller did not consider the effects of evaporation when establishing the range, and that the scope of the range impacts the final result. For example, Miller’s assumption that Mr. Burst’s hands and forearms were wet with gasoline for a minimum of 1.25 hours per day did not account for evaporation. Had Miller considered the effect of evaporation, he likely would have selected a lower minimum input, which would have reduced the final exposure estimate.
C. Miller Estimate for Inhalation Exposure from Washing Parts
Miller’s estimate for Mr. Burst’s benzene exposure from inhaling gasoline vapors while washing parts is unreliable because Miller relied solely on the self-reported symptoms from Ms. Burst from almost 50 years ago while failing to show that this is a reliable methodology, and failed’to validate his results against scientific literature measuring actual exposure levels.
To calculate Mr. Burst’s inhalation exposure from washing parts, -Miller started by determining the concentration of gasoline vapors present during this activity. Miller relied on Ms. Burst’s testimony that she watched Mr. Burst wash parts on approximately two days per week, and that she became “lightheaded from the gasoline vapor in the room” after fifteen minutes.
Miller then calculated how often Mr. Burst experienced this exposure. Mr. Simpson testified that he and Mr. Burst spent 40% of their time performing mechanic work, and .that he spent 15% to 20% of the time cleaning parts.
Defendants assert that this estimate is unreliable because Miller ignored the relevant data from the scientific literature, and instead relied on the self-reported symptoms of Ms. Burst 'to calculate exposure. In her critique of Miller, Sahmel states that the “effect threshold of gasoline,” especially as reported by Ms. Burst, a secondary source, not Mr. Burst himself, is not a reliable indicator of the airborne concentration of gasoline/benzene.
Mr. Miller’s use of a second party’s reported symptoms of lightheadedness or dizziness recalled from an exposure that occurred decades earlier to the spouse of the worker to estimate the inhalation exposure to benzene during washing parts with gasoline is not an appropriate exposure assessment methodology. Odor and irritation thresholds are also not recognized in the field of industrial hygiene or risk assessment as reliable methods of estimating exposure to airborne chemicals in the workplace. This type of approach is considered unreliable because there is significant intra-*788 and inter-human variability in detection and perception of odors at different concentration levels (AIHA 1989; Keller 2007). Research has shown that the presence of an odor can result in self-reported symptoms unrelated to the chemical itself, such as reports of irritation following exposure to . phenylethyl alcohol (PEA), which has a detectable odor, but no ability to cause irritation (Dalton 2001). Williams and Lees-Haley (1997) have shown in a volunteer survey that the stated presence or absence of a gasoline odor is likely to influence people’s assumptions about causality. The authors concluded that when an odor is present, “headache, sore throats, sleeplessness, and other minor preexisting conditions could be attributed erroneously to toxic exposure, especially if uncertainty surrounded the initial consideration of etiology (p. 416).” (Williams 1997).69
She asserts that Miller should have instead relied on collection of air concentration data, an evaluation of published literature on measured airborne chemical concentrations, or estimation of chemical exposure concentrations based on accepted models or calculations.
In response, Miller does not cite any source indicating that his methodology is accepted or any study that utilized his methodology. When asked whether OSHA endorses his methodology, Miller stated that “OSHA has nothing to say about it one way or the other.”
Plaintiff cites Curtis v. M & S Petroleum, Inc., 174 F.3d 661 (5th Cir. 1999), for the proposition that reliance on self-reported symptoms is an accepted methodology,
Miller’s methodology is also unreliable because he failed to validate his result against any study that measured actual exposure levels. While validation against such studies is likely not necessary in every case, other courts have recognized that in the presence of comparable scientific data measuring actual exposures, an expert, at the very least, should validate an exposure assessment based on modeling against the scientific literature. See, e.g., Castellow, 97 F.Supp.2d at 791 (excluding an expert’s exposure assessment partially because he failed to validate his modeling assessment with comparable monitoring data from the scientific literature). Miller himself states that “peer reviewed papers and articles should augment and elucidate eyewitness testimony and data associated with specific occupational activity_”
Again, Miller asserts that “published literature was used: Tironi — which in turn referenced Ruriion’s papers which in turn referenced various exposure scenarios involving dizziness within 15 minutes.”
E. Conclusion
After a' review of Miller’s report, the witness testimony, and the parties’ exhibits and briefing, the Court concludes that Miller’s opinions on the nature of Mr. Burst’s exposures are undermined by their reliance on speculation. Miller’s opinions are not based on adequate data and instead demonstrate an effort to produce particular results and support a causation opinion without a rehable basis. While Miller relies on witness testimony, in significant instances he does so unreasonably and in a manner intended to raise his exposure assessment. Moreover, Miller makes significant assumptions in some instances without any factual basis for doing so. He ignores evaporation when it is harmful to his assessment, but accounts for it when it is' helpful: Compounding Miller’s unreasonable and often unfounded assumptions is Miller’s failure to engage in any critical evaluation of his modeling results against empirical scientific literature measuring actual exposure levels. Instead, Miller accepts witness testimony outright and only selectively chooses when to rely on scientific literature. Cumulatively, Miller’s methodology produces an exposure assessment that is likely artificially high and that is not reasonábly based on the factual record but instead on speculation. For all of these reasons, the Court finds that Miller’s opinion as to Mr. Burst’s exposure to benzene from defendants’ products is unreliable and is therefore inadmissible.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS defendants’ motion to exclude the report and the testimony of Richard Miller.
. R. Doc. 87.
. R. Doc. 1.
. Id. at 3.
. R. Doc. 28-5 at 18.
. R. Doc. 28-6.
.R. Doc. 1 at 5.
. Id. at 9.
. Id. at 10.
. "Expressing dose in ppm-years is easily understood. If a person was exposed to I ppm
. R. Doc. 87, Ex. A at 37.
. Id.
. R. Doc. 105, Ex. 4 at 35.
. R. Doc. 87, Ex. A at 23.
. Id. at 21.
. R. Doc. 105, Ex. 4 at 35.
. R. Doc. 87, Ex. A at 20.
. R. Doc. 105, Ex. 15 at 2.
. R. Doc. 87, Ex. A at 24.
. Id.
. Id.
. R. Doc. 87, Ex. A at 25.
. Plaintiff has since withdrawn this estimate. See R. Doc. 105 at 4.
. R. Doc. 87, Ex. B at 108.
. Id. at 111.
. Id.
. In his report, Miller assumes that "two or possibly three gallons of gasoline-benzene mixture may have evaporated [from the parts-washing bucket] over the course of a day.” R. Doc. 87, Ex. A at 25.
. Id.
. Id. at 18.
. Id. at 27.
. Id. at 20. Miller noted that Mr. Simpson and Ms. Burst testified that the bucket contained one gallon of gasoline. Id.
. Id.
. Id.
. Id.
. Id. at 19..
. Id. át 28.
. R. Doc. 87, Ex. B at 8.
. R. Doc. '87, Ex. A at 28. It is unclear whether the flux rate of pure benzene is comparable to the flux rate of benzene as a component of gasoline.
. In support of his decision to increase the flux rate, Miller relied on a paper, Maibach, HI, et at, Percutaneous Penetration of Benzene and Benzene Contained in Solvents Used in the Rubber Industry. 36 ARCH ENVIRON HEALTH 256 (1981), showing that the flux rate of pure benzene through the artificially damaged skin of Rhesus monkeys increases significantly. :In this study, the researchers stripped away the stratum corneum from the monkeys' skin before applying benzene and measuring its flux rate.
. R., Doc. 105, Ex. 4 at 35 (deposition of Mr. Simpson) (stating that they used a two-gallon bucket halfway or 30% full of gasoline); R. Doc. 87, Ex. A at 20 (testimony of Mr. Bernard) (stating that they used a pail with the diameter of a five-gallon bucket that was six inches high with three or four inches of gasoline in it); R. Doc. 105, Ex. 15 at 2 (testimony of Ms. Burst) (stating that the bucket was either two or five gallons and was filled halfway with gas).
. R. Doc. 87, Ex. A at 29.
. See id.
. For example, if an analyst were to use a Monte Carlo analysis to estimate the range of possibilities of the time of completion of a project, the analyst would establish a range using the predicted minimum and maximum amount of time it will take to complete the project.
. R. Doc. 87, Ex. A at 30.
. Id.
.Q: You assumed that Mr. Burst’s hands, on the high end of your Monte Carlo, were wet on average from the second he walked in the door until the second he left?
A: Yes.
Q: All 10.5 hours?
A: Yes.
R. Doc. 105, Ex. 2 at 60 (deposition of Richard Miller).
. R. Doc. 87, Ex. A at 30.
. Id. at 30.
. Id. at 31. This means that in an individual trial, it is expected that these results will occur 55% of the time.
. R. Doc. 105, Ex. 3 at 5.
. R. Doc. 87, Ex. A at 26.
. R. Doc. 87, Ex. C at 88.
. Id.
. R. Doc. 87, Ex. B at 34.
. R. Doc. 87, Ex. A at 13.
. Id. at 17.
. Id. at 22.
.See R. Doc. 87, Ex. C at 89 where Sahmel notes that “it is contradictory to assume that all benzene evaporated when considering inhalation exposure, but to completely ignore evaporation when considering dermal exposure.”
. Likewise, had Miller considered Mr. Bernard’s testimony that Mr. Burst cleaned his hands and parts on most days, not on all days, he likely would have selected a lower minimum input.
. R. Doc. 87, Ex. A at 18.
. Id.
. Id.
. Id. at 19. This translates to a 166.67:1 ratio between gasoline and benzene.
. Id. Because 3000 divided by 300 is 10, Miller multiplied the study’s figure, 1.8 ppm, by 10 to reach 18 ppm. At his deposition, Miller explained that he could extrapolate the data from this study because the ratio of gasoline to benzene when the benzene concentration is 1% is linear. In doing so, Miller assumed that the gasoline to which Mr. Burst was exposed contained 1% benzene.
. Id. at 19-20.
. Id. at 19.
. Id. at 20.
. Id. at 21. Assuming Mr. Burst cleaned parts for 20% of the day, Miller estimated a cumulative inhalation exposure from parts washing of 5.45 ppm-years. Id.
. R. Doc: 87, Ex. C at 80.
. Id. at 81.
. Id. at 82.
. R. Doc. 105, Ex. 2 at 119.
. "And OSHA does not cite [ ] an estimated exposure by somebody who said I have watery eyes in styrene; it's 300 parts per million. OSHA is not going to cite that, but as an industrial hygienist, you have to pay attention to it.” Id. at 119-20 (deposition of Richard Miller).
. Id.
. Id. at 122.
. Id. at 123.
. Plaintiff also cites Arabie v. CITGO Petroleum Corp., 89 So.3d 307, 321 (La. 2012), to support her argument that Miller's sole reliance on Ms. Burst’s self-reported symptoms is reliable. In Arabie, however, the issue of whether an expert’s reliance on self-reported symptoms is a reliable methodology was not before that court.
. R. Doc. 105, Ex. 3 at 4.
. See R. Doc. 87, Ex. C at 83 where Sahmel states that Miller failed "to consider full data sets cited in his own report indicating that the benzene exposure concentration during gasoline parts washing is most likely less than 1 ppm. The Runion (1975) study that he cited stated that ‘Limited tests in an enclosed room indicated that when such work was being done, 100 ppm total hydrocarbons would be reached frequently in the breathing zone in the absence of positive ventilation p. 340.’ Specifically, Gulf No-Nox gasoline was found to contain 1.10% benzene by volume (Runion 1975). It was also found that the benzene volume percentage in the vapor phase for Gulf No-Nox gasoline was 0.37%. Assuming that 100 ppm was the total gasoline vapor concentration during parts cleaning, the benzene concentration during parts cleaning would be approximately 0.37 ppm, not 18 ppm as estimated by Mr. Miller based on reported symptoms of dizziness from Mrs. Burst when she visited the garage at the end of the work day.” Neither Miller nor plaintiff challenge this opinion.
. R. Doc. 105, Ex. 3 at 6.
Reference
- Full Case Name
- Yolande BURST, individually and as the legal representative of Bernard Ernest Burst, Jr. v. SHELL OIL COMPANY
- Cited By
- 1 case
- Status
- Published