                carcinogen that naturally occurs in gasoline. Lewis sued Kinder under
                strict liability and negligence theories. Lewis subsequently died from
                complications of his disease, and his estate representative and daughter
                substituted in as plaintiffs. Before trial, the district court denied Kinder's
                motion to exclude plaintiffs' experts, but granted Kinder's motion for
                summary judgment on plaintiffs' request for punitive damages. The jury
                found Kinder liable under both strict liability and negligence, and the
                district court denied Kinder's renewed motion for judgment as a matter of
                law and motion for new trial.
                            We begin with Kinder's assertion that the district court erred
                in admitting plaintiffs' causation expert witness testimony because the
                opinions were unreliable, a decision we review for an abuse of discretion.
                Hallmark v. Eldridge, 124 Nev. 492, 498, 500-01, 189 P.3d 646, 650-52
                (2008); NRS 50.275. Plaintiffs' three experts opined as to both general
                causation, whether the substance at issue had the capacity to cause the
                harm suffered by the injured person, and specific causation, whether the
                injured person more likely than not suffered from the harm as a result of
                exposure to the substance.      See Holcomb v. Ga. Pac., LLC, 128 Nev.
                    n.5, 289 P.3d 188, 192 n.5 (2012). Important here, like in many other
                toxic tort cases, is whether the experts presented a sufficiently reliable
                estimate of Lewis's dose or some other measure of exposure, upon which
                both specific and general causation may be reliably opined.      See David L.
                Faigman, et. al, Modern Scientific Evidence: The Law and Science of
                Expert Testimony § 29:7 Causation—General Causation—Dosage (2014-15
                ed.).
                            Here, Stephen Petty, plaintiffs' industrial hygienist expert,
                estimated Lewis's exposure range. First, he estimated the level of benzene

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                        in the gasoline that ran through the terminal to be between .5 percent and
                        5 percent by considering historical literature reflecting gasoline benzene
                        content in various places. Based on that range, Petty extrapolated Lewis's
                        exposure upon each loading to be between .1 to 1.4 parts per million.
                        Finally, he estimated approximately how many times Lewis loaded his
                        truck. Given that the precise amount of benzene in the gasoline that ran
                        through the terminal was unknown, that no atmospheric testing was
                        conducted at the terminal while Lewis worked there, and that Lewis was
                        deceased and therefore could not assist in recreating his experience,
                        Petty's estimated exposure range was based on what other, secondary
                        evidence was available. Such expert estimates are sometimes necessary,
                        and can properly support an opinion as to specific causation. See Parker v.
                        Mobil Oil Corp., 857 N.E.2d 1114, 1120-21 (N.Y. 2006) ("[E]xposure can be
                        estimated through the use of mathematical modeling by taking a
                        plaintiffs work history into account to estimate the exposure to a toxin.").
                        But given the tenuous nature of the underlying literature and the
                        imprecise recreation of Lewis's actions and therefore his exposure here,
                        Petty's exposure estimation may not have been sufficient in and of itself to
                        support the other experts' opinions that it was more likely than not that
                        Lewis's exposure to benzene present in the gasoline that ran through the
                        terminal caused his MDS.
                                    A distinctive aspect of this case, however, is that Lewis
                        experienced alterations to chromosomes 5 and 7. Toxicologist Martyn
                        Smith testified that such alterations indicate benzene exposure. Smith
                        further opined that these chromosomal alterations may occur with even a
                        very low level of benzene exposure, and would rarely develop in a 56 year
                        old who was not similarly exposed. This chromosomal evidence combined

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                with Petty's estimated exposure range provided a sufficiently reliable
                basis for the experts' conclusions that it was more probable than not that
                Lewis's MDS was caused by his benzene exposure, and distinguish this
                appeal from the case upon which Kinder relies,                Henricksen v.
                ConocoPhillips Co., 605 F. Supp. 2d 1142, 1149-50, 1177 (2009) (noting
                that in addition to there being "no actual exposure measurements," there
                was no evidence that the plaintiff had suffered chromosomal abnormality,
                though AML, the plaintiffs disease, caused by exposure to toxic
                substances had been shown to result in a higher level of chromosomal
                aberrations than ANIL caused by something else).
                            As to the general causation testimony, Smith and Peter
                Infante, plaintiffs' epidemiologist expert, relied upon epidemiological and
                other studies to support their opinions that Lewis's exposure level was
                capable of causing his disease. Though Kinder points to many decisions
                wherein other courts have excluded similar general causation testimony
                as unreliable, those courts excluded the evidence under the more exacting
                Federal Rule of Evidence 702, as interpreted in Daubert v. Merrell Dow
                Pharmaceuticals, Inc., 509 U.S. 579, (1993).      See, e.g., Henricksen, 605
                F. Supp. 2d at 1168-77. Governing our analysis here, however, is this
                state's less rigid expert rule as outlined in NRS 50.275. See Higgs v. State,
                126 Nev. 1, 16-18, 222 P.3d 648, 657-59 (2010). And under that governing
                standard, the studies upon which plaintiffs' expert's relied sufficiently
                supported their general causation conclusions to render those opinions
                reliable enough for admittance.
                            As a final procedural note on this issue, the district court's
                summary denial of Kinder's motion in limine and leaving the complex
                reliability issues for resolution during trial is not the ideal exercise of a

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                district court's gatekeeping role for expert testimony. However, given that
                what each expert was to testify regarding, and the basis for such
                testimony, was presented pre-trial in the expert reports, and that the
                experts were able to more clearly articulate the basis for their opinions
                during trial while facing no objection from Kinder, and given the
                chromosomal damage, we defer to the district court's discretionary
                decision to admit plaintiffs' expert testimony.
                            We next review the district court's denial of Kinder's renewed
                motion for judgment as a matter of law as to plaintiffs' negligence claim.
                We review this decision de novo and will uphold the jury's verdict if
                supported by substantial evidence, as determined by viewing the evidence
                in the light most favorable to the plaintiff. Allstate Ins. Co. v. Miller, 125
                Nev. 300, 308, 212 P.3d 318, 324 (2009); Winchell v. Schiff, 124 Nev. 938,
                947, 193 P.3d 946, 952 (2008). Kinder challenges whether the evidence
                was sufficient to show general and specific causation, Holcomb, 128 Nev.
                at n.5, 289 P.3d at 192 n.5, and to support that Lewis's injury
                resulting from his exposure was foreseeable enough to establish proximate
                cause and that Kinder breached its duty of reasonable care by failing to
                warn. Yamaha Motor Co., U.S.A. v. Arnoult,        114 Nev. 233, 238, 955 P.2d
                661, 664 (1998); Foster v. Costco Wholesale Corp., 128 Nev. „ 291
                P.3d 150, 152, 156 (2012) ("[A] landowner owes a duty of reasonable care
                to entrants for risks that exist on the landowner's property."). Considering
                plaintiffs' expert testimony in the light most favorable to plaintiffs,
                including the testimony recounted previously, sufficient evidence supports
                the jury's determinations on general and specific causation. Furthermore,
                though Kinder presented evidence that regulating agencies and other
                scientific bodies did not label gasoline a carcinogen and did not universally

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                agree that gasoline exposure was capable of causing leukemia, taking the
                remaining evidence in plaintiffs' favor, such as plaintiffs' expert testimony
                that there was a consensus that the benzene in gasoline is carcinogenic
                and that low levels of sustained benzene exposure can cause leukemia,
                substantial evidence supports the jury's findings that Lewis's injuries
                were foreseeable enough to demonstrate breach and proximate cause. The
                district court thus did not error in denying Kinder's renewed motion for
                judgment as a matter of law.'
                            Kinder also challenges the district court's order denying its
                motion for a new trial under NRCP 59(a) based on plaintiffs' counsel's
                alleged trial misconduct that Kinder submits caused the jury to award
                excessive damages. Whether misconduct occurred is a question of law we
                review de novo, but the decision to deny a motion for a new trial rests
                within the district court's sound discretion.    Bayerische Motoren Werke
                Aktiengesellschaft v. Roth,   127 Nev. , 252 P.3d 649, 656 (2011);
                Nelson v. Heer, 123 Nev. 217, 223, 163 P.3d 420, 424-25 (2007). Turning
                first to the objected-to conduct, which Kinder bore the burden of
                demonstrating to the district court was so extreme that objection,


                        'As explained herein, we also affirm the district court's decision
                precluding punitive damages. Therefore, because plaintiffs' recovery
                under their negligence liability theory and alternative strict liability
                theory was the same, we need not reach Kinder's challenge as to the
                portion of the jury's verdict finding it strictly liable, nor the concerns
                raised by amici Nevada Justice Association.         See Countrywide Home
                Loans, Inc. v. Thitchener, 124 Nev. 725, 733, 192 P.3d 243, 248 (2008)
                ("While plaintiffs are permitted to plead alternative or different theories of
                relief based on the same facts, plaintiffs may not recover more than their
                'total loss plus any punitive damages assessed.").



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                 admonishment, and curative instruction could not remove its effect,
                 Bayerische, 127 Nev. at , 252 P.3d at 656, Kinder argues that counsel's
                 statements in opening that Lewis's treating physician would testify as to
                 causation, and that physician's testimony that indeed touched upon
                 causation, violated the district court's order precluding that physician
                 from testifying on causation such as to require a new trial. However, after
                 the opening comment, the district court admonished plaintiffs' counsel in
                 front of the jury and instructed the jury to disregard the statement, and
                 instructed the jury at the end of the trial that in weighing the treating
                 physician's testimony the jury should disregard that physician's causation
                 conclusions, thus curing any prejudicial effect these errant causation
                 comments may have had. Krause Inc. v. Little, 117 Nev. 929, 937, 34 P.3d
                 566, 571 (2001).
                             As to the unobjected-to conduct, which may be reviewed only
                 for plain error, Lioce v. Cohen, 124 Nev. 1, 19, 174 P.3d 970, 981-82 (2008),
                 Kinder asserts that plaintiffs' counsel's comments during opening and
                 closing that called for jury nullification and misrepresented that Lewis's
                 treating physician was the only unpaid expert in the case plainly warrant
                 a new trial. Some of counsel's comments were misconduct, for example
                 counsel's comment in opening as to Kinder's size and wealth, see City of
                 Cleveland v. Peter Kiewit Sons' Co., 624 F.2d 749, 756-57 (6th Cir. 1980),
                 as well as the misrepresentation that Lewis's treating physician was not
                 paid for his time, of which Kinder was aware given the physician's
                 deposition testimony. But Kinder has not shown that these brief
                 statements made during the 11-day trial amounted to such irreparable
                 and fundamental error that but for the misconduct the verdict would have



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                been different, especially in light of the evidence supporting plaintiffs'
                negligence claim. Bayerische, 127 Nev. at        , 252 P.3d at 657.
                            Finally, the damages awarded by the jury, though above
                plaintiffs' estimates of medical and funeral expenses and lost earning
                capacity, are supported by substantial evidence, as the district court's
                factual findings demonstrate, and do not depart so greatly from the
                estimated damages so as to indicate that the damages award may be
                explained only by plaintiffs' counsels' misconduct.      Compare DeJesus v.
                Flick, 116 Nev. 812, 820 & n.5, 7 P.3d 459, 464-65 & n.5 (2000), overruled
                on other grounds by Lioce v. Cohen, 124 Nev. 1, 174 P.3d 970 (2008).
                Therefore, Kinder has not shown that the district court abused its
                discretion in denying the motion for new trial
                            We next address plaintiffs' cross appeal, in which they argue
                that the district court erred in granting summary judgment on their
                punitive damages claim, a decision we review de novo and "through the
                prism of the substantive evidentiary burden," which here is clear and
                convincing evidence. NRS 42.005(1); Anderson v. Liberty Lobby, Inc., 477
                U.S. 242, 254 (1986); Wood v. Safeway, Inc., 121 Nev. 724, 731, 121 P.3d
                1026, 1031 (2005) (adopting evidentiary standard set forth in Anderson v.
                Liberty Lobby,   477 U.S. 242). Plaintiffs sought to recover punitive
                damages on the theory that Kinder acted with malice, express or implied;
                that is, that Kinder engaged in despicable conduct "with a conscious
                disregard of the rights or safety of others." NRS 42.001(3); NRS 42.005(1).
                A defendant acts with conscious disregard when it knows of the probable
                harmful consequences of a wrongful act and willfully and deliberately fails
                to act to avoid those consequences. NRS 42.001(1).



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                                   Plaintiffs failed to raise an issue of fact that Kinder knew
                       Lewis's exposure to gasoline posed a probable risk of cancer and then
                       willfully and deliberately failed to take precautionary measures. Plaintiffs
                       presented evidence that Kinder's executives knew that ben zene was a
                       dangerous carcinogen but that Kinder did not monitor the atmospheric
                       benzene content at the Las Vegas terminal or estimate the daily
                       cumulative benzene exposure for a truck driver at the terminal. Plaintiffs
                       also presented evidence that Kinder had a Benzene Management Plan for
                       handling raw benzene at some of its other terminals but not at the Las
                       Vegas facility. Given the heightened burden of proof, this evidence is
                       insufficient to demonstrate a triable issue of fact that Kinder knew
                       exposure to the gasoline in its terminal, as opposed to raw benzene, posed
                       a probable risk of cancer and that it willfully and deliberately disregarded
                       that risk such as to submit the punitive damages issue to the jury.
                       Though plaintiffs' evidence may have supported the negligence verdict,
                       they• failed to show an issue of fact that Kinder's actions could support an
                       award of punitive damages.    See Wyeth v. Rowatt,   126 Nev. , , 244
                       P.3d 765, 783 (2010) (to support punitive damages the defendant's conduct
                       must exceed even "recklessness or gross negligence").
                                   Finally, as Kinder did not address its consolidated appeal of
                       the district court's order awarding plaintiffs costs, we find no error as to
                       that decision. NRAP 28 (a)(9); Maresca v. State, 103 Nev. 669, 673, 748
                       P.2d 3, 6 (1987) ("It is appellant's responsibility to present relevant




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                authority and cogent argument; issues not so presented need not be
                addressed by this court."). Accordingly, we
                              ORDER the judgment of the district court AFFIRMED.




                                         Gibbons


                                                              Fice, Si c
                                                                     A              J.
                                                          Hardesty


                                                                                   , J.
                Parraguirre


                                          ,   J.
                Cherry                                    Saitta


                cc: Hon. Nancy L. Allf, District Judge
                     Ara H. Shirinian, Settlement Judge
                     Fulbright & Jaworski, LLP/Houston
                     Lewis Roca Rothgerber LLP/Las Vegas
                     Holland & Hart LLP/Las Vegas
                     Cliff W. Marcek
                     Hutchison & Steffen, LLC
                     Schrader & Associates LLP
                     Thomas & Springberg, P.C.
                     Eighth District Court Clerk




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