Rhyne v. U.S. Steel Corp.

474 F.Supp.3d 733

Bruce RHYNE and Janice Rhyne, Plaintiffs,

v.UNITED STATES STEEL CORPORATION, Safety-Kleen Systems, Inc., and the Savogran Company, Defendants.

3:18-cv-00197-RJC-DSC

United States District Court, W.D. North Carolina, Charlotte Division.

Signed July 23, 2020

Andrew J. DuPont, Pro Hac Vice, Jennifer Lynne Emmons, Pro Hac Vice, Timothy A. Burke, Pro Hac Vice, Locks Law Firm, Philadelphia, PA, John S. Hughes, Wallace & Graham, P.A., Mark Philip Doby, Wallace & Graham, PA, William M. Graham, Wallace & Graham, Salisbury, NC, for Plaintiffs.

Christopher C. Lam, Jonathan Edward Schulz, Bradley Arant Boult Cummings LLP, Charlotte, NC, Matthew Cairone, Pro Hac Vice, The Cairone Law Firm PLLC, Canonsburg, PA, Patrice Pujol, Pro Hac Vice, Forman Watkins & Krutz, LLP, Houston, TX, Peri Berger, Harris Beach PLLC, New York, NY, Timothy Gray, Pro Hac Vice, Forman Watkins Krutz, LLP, New Orleans, LA, for Defendant United States Steel Corporation.

Brian Andrew Bender, Pro Hac Vice, Judi Abbott Curry, Pro Hac Vice, Peri Berger, Pro Hac Vice, Harris Beach PLLC, New York, NY, Christopher Coyne Palermo, Pro Hac Vice, Harris Beach, PLLC, White Plains, NY, Daniel Robert Strecker, Pro Hac Vice, Harris Beach, PLLC, Uniondale, NY, Eric G. Sauls, Lewis, Brisbois, Bisgaard & Smith, LLP, Raleigh, NC, for Defendant Safety-Kleen Systems, Inc.

Jeffrey Brandt Kuykendal, McAngus, Goudelock & Courie, LLC, Charotte, NC, John T. Jeffries, McAngus, Goudelock & Courie, PLLC, Charlotte, NC, for Defendant Kano Laboratories, Inc.

Brian M. Ledger, Pro Hac Vice, Gordon Rees Scully Mansukhani, LLP, San Diego, CA, Nicholas Damian Wilson, Gordon & Rees LLP, Robin Kenton Vinson, Gordon Rees Scully Mansukhani, LLP, Raleigh, NC, for Defendant The Savogran Company.

ORDER

Robert J. Conrad, Jr., United States District Judge

THIS MATTER comes before the Court on the parties' motions under Daubert and Federal Rule of Evidence 702 to exclude expert testimony and Plaintiffs' motions in limine to exclude certain evidence.

I. BACKGROUND

This is a toxic tort action brought by Bruce Rhyne and his wife, Janice Rhyne, arising out of Mr. Rhyne's diagnosis with acute myeloid leukemia ("AML"). Plaintiffs allege that Mr. Rhyne was diagnosed with AML as a result of his exposure to benzene in various products manufactured by Defendants. Nine of the twelve original Defendants have been dismissed pursuant to settlement or court order. As for the three remaining Defendants, Plaintiffs allege that Mr. Rhyne was exposed to benzene from using (a) Liquid Wrench containing raffinate supplied by Defendant United States Steel Corporation ("USS"), (b) 105 Solvent manufactured by Defendant Safety-Kleen Systems, Inc., and (c) Kutzit manufactured by Defendant The Savogran Company. Mr. Rhyne's alleged exposure to Defendants' benzene-containing products occurred performing non-occupational work at home from approximately 1970 to 1975, during his high school internship at an auto mechanic shop from approximately 1974 to 1975, and during his employment with Duke Energy as a pipefitter and maintenance mechanic from 1976 to 1998.¹

Before the Court are Defendants' motions to exclude the testimony of Plaintiffs' causation and exposure experts, Plaintiffs' motion to exclude the testimony of one defense expert, and Plaintiffs' motions in limine to exclude evidence of radiation exposure and a genetic defect as alternative causes of Mr. Rhyne's AML. The motions have been fully briefed and are ripe for adjudication.²

II. LEGAL FRAMEWORK

Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony. Rule 702 states:

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. "Courts have distilled the requirements of Rule 702 into two crucial inquiries: 1) whether the proposed expert's testimony is relevant; and 2) whether it is reliable." Yates v. Ford Motor Co., 113 F. Supp. 3d 841, 845 (E.D.N.C. 2015). "The Supreme Court has made clear that it is the trial court's duty to play a gatekeeping function in deciding whether to admit expert testimony: ‘The trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.’ " United States v. Crisp, 324 F.3d 261, 265 (4th Cir. 2003) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ).

In Daubert, the Supreme Court announced five factors that district courts may consider in assessing the relevance and reliability of expert testimony. 509 U.S. at 593–94, 113 S.Ct. 2786. Those factors are:

(1) whether the particular scientific theory "can be (and has been) tested"; (2) whether the theory "has been subjected to peer review and publication"; (3) the "known or potential rate of error"; (4) the "existence and maintenance of standards controlling the technique's operation"; and (5) whether the technique has achieved "general acceptance" in the relevant scientific or expert community.

Crisp, 324 F.3d at 266 (quoting Daubert, 509 U.S. at 593–94, 113 S.Ct. 2786 ). The Daubert factors, however, are neither definitive nor exhaustive. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150–51, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). "In determining whether proffered expert testimony is reliable, the district court has broad discretion to consider whatever factors bearing on validity that the court finds to be useful; the particular factors will depend upon the unique circumstances of the expert testimony involved." United States v. Hammoud, 381 F.3d 316, 337 (4th Cir. 2004) ; see also Kumho Tire, 526 U.S. at 142, 119 S.Ct. 1167 ("[T]he law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination."). "The inquiry to be undertaken by the district court is ‘a flexible one’ focusing on the ‘principles and methodology’ employed by the expert, not on the conclusions reached." Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999) (quoting Daubert, 509 U.S. at 594–95, 113 S.Ct. 2786 ). At the same time, "conclusions and methodology are not entirely distinct from one another," and "nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert." GE v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). In determining the admissibility of expert testimony, district courts "should be conscious of two guiding, and sometimes competing, principles: (1) that Rule 702 was intended to liberalize the introduction of relevant expert evidence; and (2) that due to the difficulty of evaluating their testimony, expert witnesses have the potential to be both powerful and quite misleading." Hammoud, 381 F.3d at 337 (quotation marks omitted).

To succeed on their claims, Plaintiffs must prove both general causation and specific causation. Dunn v. Sandoz Pharm. Corp., 275 F. Supp. 2d 672, 676 (M.D.N.C. 2003). General causation exists when exposure to an agent can cause the disease at issue, and specific causation exists when exposure to the agent in fact caused the disease in a particular individual. Doe v. Ortho-Clinical Diagnostics, Inc., 440 F. Supp. 2d 465, 471 (M.D.N.C. 2006). The Fourth Circuit has held that "[i]n order to carry the burden of proving a plaintiff's injury was caused by exposure to a specified substance, the plaintiff must demonstrate the levels of exposure that are hazardous to human beings generally as well as the plaintiff's actual level of exposure." Westberry, 178 F.3d at 263 (quotation marks omitted). Typically, expert testimony is necessary to prove general and specific causation. Zellars v. NexTech Northeast, LLC, 895 F. Supp. 2d 734, 739 (E.D. Va. 2012), aff'd, 533 F. App'x 192 (4th Cir. July 17, 2013).

It is well recognized that epidemiology usually provides the best evidence of general causation in toxic tort actions. Norris v. Baxter Healthcare Corp., 397 F.3d 878, 882 (10th Cir. 2005) ; Rider v. Sandoz Pharm. Corp., 295 F.3d 1194, 1198 (11th Cir. 2002) ; In re Lipitor (Atorvastatin Calcium) Mktg., Sales Practices & Prods. Liab. Litig., 174 F. Supp. 3d 911, 914 (D.S.C. 2016). "Epidemiology is the field of public health and medicine that studies the incidence, distribution, and etiology of disease in human populations." Michael D. Green et al., Reference Guide on Epidemiology, in Fed. Judicial Ctr., Reference Manual on Scientific Evidence 551 (3d ed. 2011) [hereinafter Reference Guide on Epidemiology ]. "Epidemiologic evidence identifies agents that are associated with an increased risk of disease in groups of individuals, quantifies the amount of excess disease that is associated with an agent, and provides a profile of the type of individual who is likely to contract a disease after being exposed to an agent." Id. at 552.

The ultimate question with which epidemiologists are concerned is whether a causal relationship exists between an agent and a disease. Id. at 566. To establish causation, epidemiological studies must first show an association between exposure to an agent and the disease. Id.; accord In re Lipitor, 174 F. Supp. 3d at 914. An association, however, is not equivalent to causation. Reference Guide on Epidemiology, at 552. "An association between exposure to an agent and disease exists when they occur together more frequently than one would expect by chance." Id. at 566. Epidemiological studies commonly...