     Case: 09-31149     Document: 00511243092          Page: 1    Date Filed: 09/23/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                        September 23, 2010

                                       No. 09-31149                         Lyle W. Cayce
                                                                                 Clerk

VICTORIA RICHAUX LEBLANC, as Executrix of the Estate of Malcom Louis
LeBlanc, deceased; TIMOTHY L. LEBLANC; HEIDI M. LEBLANC,

                                                   Plaintiffs - Appellants
v.

CHEVRON USA, INC., formerly known as Gulf Oil Corporation; EXXON
MOBIL CORPORATION, formerly known as Exxon Corp.; MOBIL
CORPORATION; MURPHY OIL USA, INC.; SHELL OIL COMPANY; EL
PASO ENERGY, E.S.T. COMPANY, as Trustee for EPEC Oil Company
Liquidating Trust, EPEC Oil Company,

                                                   Defendants - Appellees




                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                             USDC No. 2:05-CV-5485


Before CLEMENT, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Victoria Richaux LeBlanc, the representative of the estate of Malcolm
LeBlanc; Timothy LeBlanc; and Heidi LeBlanc (the “LeBlanc family”) appeal the
district court’s exclusion of their proffered expert witness testimony on causation



        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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and consequent grant of summary judgment in their toxic tort case against
several oil and energy companies. Malcolm LeBlanc, a tanker truck driver, and
his family sued Chevron USA, Inc.; Exxon Mobil Corp.; Mobil Corp.; Murphy Oil
USA, Inc.; Shell Oil Co.; and El Paso Energy and its successor entities
(collectively, the “Energy Companies”), seeking damages for his myelofibrosis
with myeloid metaplasia. Mr. LeBlanc1 alleged that he contracted the disease
because of his exposure to benzene while loading and unloading pure benzene
as well as gasoline, jet fuel, and diesel fuel—all of which contain benzene—at
refineries owned or operated by the Energy Companies. The LeBlanc family
offered Dr. Frank Gardner as an expert medical causation witness to show a link
between benzene exposure and Mr. LeBlanc’s disease, as well as Professor
Tumulesh Solanky as a statistical expert witness to support Dr. Gardner’s
conclusion. After an extended series of proceedings before the district court and
this court, the district court ultimately granted the Energy Companies’ motion
to exclude Dr. Gardner’s and Prof. Solanky’s testimony. Without Dr. Gardner’s
testimony as to causation, the district court found—and the LeBlanc family
acknowledges—that summary judgment for the Energy Companies was
required. The LeBlanc family timely appealed the dispositive exclusion of Dr.
Gardner’s and Prof. Solanky’s respective testimony.
      We AFFIRM.
                       I. Facts & Procedural History
      From 1961 to 1991, Malcolm LeBlanc drove tanker trucks for Younger
Brothers, Inc., and Matlack Tank Lines, Inc. As a tanker truck driver, he
regularly loaded and unloaded pure benzene and benzene-containing fuel at
several refineries owned or operated by the Energy Companies. In November
of 2004, Mr. LeBlanc was diagnosed with myelofibrosis with myeloid metaplasia


      1
          Mr. LeBlanc died during the pendency of this appeal, and his executrix was
substituted in his place.

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(“MMM”), a very rare terminal disease of the bone marrow. On February 8,
2010, Mr. LeBlanc died.
      Prior to Mr. LeBlanc’s death, the LeBlanc family filed this suit as a
diversity action, seeking compensatory and exemplary damages for personal
injury and for loss of consortium and society on theories of negligence, products
liability, misrepresentation, and unjust enrichment.2 Prior to the first appeal of
this case, the Energy Companies moved to exclude the reports and testimony of
Dr. Gardner and Prof. Solanky. The district court excluded the two experts and
granted summary judgment in favor of the Energy Companies. LeBlanc v.
Chevron USA, Inc. (LeBlanc I), 513 F. Supp. 2d 641, 644 (E.D. La. 2007). In the
first appeal, we vacated the district court’s              order and remanded for
reconsideration in light of a report by the Federal Agency for Toxic Substances
and Disease Registry (“ATSDR”) finalized between the time of the district court’s
order and appellate oral argument. LeBlanc v. Chevron USA Inc. (LeBlanc II),
275 F. App’x 319, 321–22 (2008) (unpublished). That report suggested a link
between benzene and aplastic anemia, and then linked aplastic anemia to
myelofibrosis. Id. at 321 (“[I]n the report, the ATSDR concluded that ‘[b]enzene
also causes a life-threatening disorder called aplastic anemia in humans and
animals.’ The report also states that myelofibrosis (the disease with which
Appellant has been diagnosed) is a form of aplastic anemia.”).
      On remand, the district court excluded Dr. Gardner’s testimony and again
granted summary judgment in favor of the Energy Companies, concluding that
the scientific evidence did not support Dr. Gardner’s conclusions. LeBlanc v.
Chevron USA Inc. (LeBlanc III), Civ. No. 05-5485, 2009 U.S. Dist. LEXIS




      2
       The precise list of defendants has evolved since the original complaint; the Energy
Companies are the defendants named in the final judgment.

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106339, at *4–10 (E.D. La. Nov. 13, 2009).3 Again, without Dr. Gardner, the
LeBlanc family had no causation evidence. The court entered judgment for the
Energy Companies, and the LeBlanc family appealed.
                               II. Standard of Review
       “We review the district court’s determination of admissibility of expert
evidence . . . for abuse of discretion.” Knight v. Kirby Inland Marine Inc., 482
F.3d 347, 351 (5th Cir. 2007). In this context, as in others, “‘[a] trial court
abuses its discretion when its ruling is based on an erroneous view of the law or
a clearly erroneous assessment of the evidence.’” See id. (quoting Bocanegra v.
Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003)).
       The admissibility of expert witness testimony is governed by Federal Rule
of Evidence 702. Under that Rule,
       [i]f 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, if (1) the testimony is based upon
       sufficient facts or data, (2) the testimony is the product of reliable
       principles and methods, and (3) the witness has applied the
       principles and methods reliably to the facts of the case.
F ED. R. E VID. 702. The Supreme Court has explained that this Rule “imposes a
special obligation upon a trial judge to ‘ensure that any and all scientific
testimony . . . is not only relevant, but reliable.’” Kumho Tire Co. v. Carmichael,
526 U.S. 137, 147 (1999) (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S.
579, 589 (1993)). Summarizing Daubert, we have previously explained the
meaning of “reliable” and “relevant” in this context in these terms: “Reliability
is determined by assessing ‘whether the reasoning or methodology underlying



       3
           The court also excluded Prof. Solanky’s testimony because his work simply
established the statistical significance of studies underlying Dr. Gardner’s conclusions that
the court rejected as unreliable and irrelevant. Id. at *10–12.

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the testimony is scientifically valid.’ Relevance depends upon ‘whether [that]
reasoning or methodology properly can be applied to the facts in issue.’” Knight,
482 F.3d at 352 (quoting Daubert, 509 U.S. at 592–93) (alteration in original)
(internal citations omitted).4
                                        III. Analysis
        The district court excluded Dr. Gardner’s and Prof. Solanky’s testimony
pursuant to Federal Rule of Evidence 702. We discuss each expert in turn.
A.      Dr. Gardner
        The LeBlanc family’s theory of the Energy Companies’ liability depended
on the premise that benzene exposure caused Mr. LeBlanc’s MMM. The LeBlanc
family was therefore obligated to prove both a “general” and a “specific” causal
link between the benzene exposure and the onset of Mr. LeBlanc’s MMM—that
is, that benzene is capable of causing MMM in the general population and that
benzene specifically caused Mr. LeBlanc’s MMM in this case. See Knight, 482
F.3d at 351.5 The LeBlanc family proffered Dr. Gardner as an expert witness on
both causation questions. The district court excluded Dr. Gardner’s general
causation testimony and therefore did not reach the question of specific




       4
         We reject the LeBlanc family’s invitation to apply a different standard of review that
they have apparently devised by selectively quoting Kumho Tire. The LeBlanc family argues
that the relevant and reliable standard requires reversal of the district court’s decision to
exclude evidence if the testimony that the expert intends to give falls within “the range where
experts might reasonably differ,” 526 U.S. at 153, even if the evidence underlying the expert’s
testimony is “shaky.” Read properly in context, the language cited by the LeBlanc family
stands for the unremarkable proposition that it is not an abuse of discretion for a district court
to exclude an expert witness whose methods were sufficiently unreliable that they “fell outside
the range where experts might reasonably differ.” Id.
       5
          Our opinion in Knight succinctly describes the proof of causation required in toxic tort
cases: “‘General causation is whether a substance is capable of causing a particular injury in
the general population, while specific causation is whether a substance caused a particular
individual’s injury or condition.’” 482 F.3d at 351 (quoting Merrell Dow Pharms. v. Havner,
953 S.W.2d 706, 714 (Tex. 1997)).

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causation. See id. (“Evidence concerning specific causation in toxic tort cases is
admissible only as a follow-up to admissible general causation evidence.”).
      On the question of general causation, Dr. Gardner, whom the Energy
Companies concede is a highly-qualified hematologist, intended to testify that
it was his expert opinion that benzene can cause MMM. Dr. Gardner purported
to base this conclusion on his evaluation of several studies.           The Energy
Companies argued to the district court and argue on appeal that none of these
studies are relevant or reliable under Daubert and that Dr. Gardner’s
methodology in reaching his conclusion is therefore invalid. In both the final
order that preceded the LeBlanc family’s first appeal and the final order
appealed in this case, the district court agreed with the Energy Companies.
      Where, as here, the dispute between the parties concerns solely the
propriety of the district court’s exclusion of expert witness testimony because the
underlying studies cannot support the witness’s conclusion, the Supreme Court’s
decision in General Electric Co. v. Joiner, 522 U.S. 136 (1997), governs. In
Joiner, a toxic tort case in which the plaintiff sought to admit expert general
causation testimony, the Court found no abuse of discretion where “[t]he District
Court . . . concluded that the . . . epidemiological studies upon which [the
plaintiff] relied were not a sufficient basis for the experts’ opinions.” Id. at 145.
The Court explained that, while
      [t]rained experts commonly extrapolate from existing data[,]
      nothing in either Daubert or the Federal Rules of Evidence requires
      a district court to admit opinion evidence which is connected to
      existing data only by the ipse dixit of the expert. A court may
      conclude that there is simply too great an analytical gap between
      the data and the opinion proffered.
Id. at 146; see also Knight, 482 F.3d at 355 (“District courts must carefully
analyze the studies upon which experts rely for their opinions before admitting
their testimony.”). Applying Knight to the evidence before it, the district court



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here found that the gap between the data and Dr. Gardner’s opinion was indeed
too great. LeBlanc I, 513 F. Supp. 2d at 664; see also LeBlanc III, 2009 U.S. Dist.
LEXIS 106339, at *10–11 (adopting the findings made in LeBlanc I as to the
reliability of the studies considered there and rejecting the newly-proffered
studies).
       After our remand in LeBlanc II, there were two related avenues open to
the LeBlanc family to prove general causation: (1) to show that the disease from
which Mr. LeBlanc suffered was a form of aplastic anemia and that benzene
causes aplastic anemia, or (2) to otherwise convince the district court that
benzene causes MMM. See 275 F. App’x at 321 (citing U.S. D EP’T OF H EALTH &
H UMAN S ERVS., P UB. H EALTH S ERV., A GENCY FOR T OXIC S UBSTANCES & D ISEASE
R EGISTRY, T OXICOLOGICAL P ROFILE FOR B ENZENE (“ATSDR R EPORT”) 12, 13
(2007)).
       Dr. Gardner’s disputed testimony in the district court—along with the
testimony of other witnesses—attempted to show general causation through both
avenues. On appeal, the LeBlanc family only expressly addresses whether
benzene causes MMM, and we accordingly limit our review.6                     Dr. Gardner
purported to rely on both epidemiological studies and his “clinical experience”
in his expert opinion. The district court ruled that neither provided a sufficient
basis for his opinion.
       1.     Epidemiological Studies
       Simply put, the several studies and reports on which Dr. Gardner
purported to rely suffer from common deficiencies that this court in Knight and
the Supreme Court in Joiner have explained support a district court’s exclusion
of expert testimony.

       6
         To the extent that the LeBlanc family appeals the district court’s rejection of their
argument that Mr. LeBlanc suffered from a form of aplastic anemia, we find no abuse of
discretion; the evidence in the record—other than the conclusory testimony of witnesses
excluded in an unappealed order—was uniformly to the contrary.

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      First, some of the studies do not represent statistically significant results.
Joiner, 522 U.S. at 145 (holding that a study showing a statistically insignificant
increase in disease incidence following exposure to the alleged causal chemical
can properly be rejected by the district court as a foundation for the expert’s
opinion); see also David H. Kaye & David A. Freedman, Reference Guide on
Statistics, in R EFERENCE M ANUAL ON S CIENTIFIC E VIDENCE 83, 124 (Fed. Judicial
Ctr. ed., 2d ed. 2000) (“[S]ignificant differences are evidence that something
besides random error is at work . . . .”). The Hanis study, Nancy M. Hanis, et al.,
Epidemiologic Study of Refinery and Chemical Plant Workers, 24 J.
O CCUPATIONAL M EDICINE 203 (1982); Kaplan study, Samuel Kaplan, Update of
a Mortality Study of Workers in Petroleum Refineries, 28 J. O CCUPATIONAL M ED.
514 (1986); and Tondel report, Martin Tondel, Bodil Persson, & John
Carstensen, Myelofibrosis & Benzene Exposure, 45 O CCUPATIONAL M ED. 51
(1995), fall into this category.
      Second, some of the studies do not assess the relationship between
benzene exposure and myelofibrosis but rather only provide an arguable
inferential starting point for doing so.     The district court may permissibly
conclude that such studies do not support an expert’s conclusion. Knight, 482
F.3d at 353. Similarly, some of the studies note that the subjects were exposed
to a range of substances and then nonspecifically note increases in disease
incidence. Such studies also are not the type that compel a district court to
accept the expert’s reliance upon them. Joiner, 522 U.S. at 146. The Hanis
study; the Honda/Delzell studies, Yashushi Honda, Elizabeth Delzell, & Philip
Cole, An Updated Study of Mortality Among Workers at a Petroleum
Manufacturing Plant, 37 J. O CCUPATIONAL & E NVT’L M ED. 194 (1995), and
Elizabeth Delzell, Philip Cole, & Yashushi Honda, A Follow-Up Study of
Mortality and Cancer Incidence Among Workers at the Wood River
Manufacturing Complex (1992) (unpublished); the Zoloth study, Stephen R.

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Zoloth, et al., Patterns of Mortality Among Commercial Pressmen, 76 J. N AT’L
C ANCER I NST. 1047 (1986); and the Rushton study, L.R. Rushton & M.R.
Alderson, Epidemiological Survey of Oil Distribution Centres in Britain, 40 B RIT.
J. INDUS. M ED. 330 (1983), fall into this category.
       Third, some of the studies expressly disclaim the causal connection
between benzene and myelofibrosis that Dr. Gardner seeks to infer from the
studies. In Joiner, the Supreme Court found no abuse of discretion in the
district court’s refusal to consider probative a study whose authors “were
unwilling to say that . . . exposure [to the chemical at issue] had caused [the
plaintiff’s disease] among the workers they examined.” Id. at 145. The district
court properly rejected the studies as supporting causation because the authors
of the studies concluded that there was no proof of causation. The Kaplan study
and to some extent the Rushton study—whose authors later contradicted the
finding relied upon by Dr. Garder in a follow-up study with the same cohort—fall
into this category.
       Finally, some of the materials relied upon by Dr. Gardner are simply not
scientific evidence; that is, they are merely secondary literature that purports
to rely on scientific studies either not cited or that the district court properly
rejected on their own. They therefore cannot meet the reliability requirement
of Daubert. Cf. Moore v. Ashland Chem. Inc., 151 F.3d 269, 278 (5th Cir. 1998)
(en banc) (approving district court’s rejection of secondary material supporting
expert causation testimony where expert “admitted that he did not know what
tests [the secondary author] had conducted in generating the [secondary
material]” and reaching the conclusion proffered). The ATSDR Report and Shell
internal reports and correspondence fall into this category.7

       7
        The study and book chapter cited in the LeBlanc family’s Federal Rule of Appellate
Procedure 28(j) letter submission to the court, Brady L. Stein & Alison R. Moliterno, Primary
Myelofibrosis and the Myeloproliferative Neoplasms: The Role of Individual Variation, 303 J.
AM . MED . ASS ’N 2513 (2010), and J. Thiele et al., Primary Myelofibrosis, in WHO

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       None of the scientific evidence upon which Dr. Gardner purported to rely
was therefore sufficiently reliable as to render the district court’s exclusion of his
testimony an abuse of discretion.
       2.     Clinical Experience
       Finally, Dr. Gardner sought to testify on causation based upon his clinical
experience as a practitioner.        The LeBlanc family correctly notes that the
Supreme Court in both Kumho Tire, 526 U.S. at 148–49, and Daubert, 509 U.S.
at 592, endorsed expert witness testimony based on personal observation and
experience.     But personal observation is still subject to the relevancy and
reliability requirements of Daubert. Kumho Tire, 526 U.S. at 148–49.
       Even when an expert is extrapolating from personal experience as a
practitioner rather than from reviewing research undertaken by others, “nothing
in either Daubert or the Federal Rules of Evidence requires a district court to
admit opinion evidence which is connected to existing data only by the ipse dixit
of the expert.” Joiner, 522 U.S. at 146. In other words, even Dr. Gardner’s
clinical opinion that benzene causes myelofibrosis must have some demonstrable
and reliable basis in underlying facts.
       Here, the district court concluded that Dr. Gardner had no such basis, and
the LeBlanc family makes no argument on appeal that there was a factual basis
for Dr. Gardner’s opinion. Rather, they point only to his years of experience and
the fact that he worked with myelofibrosis patients. Merely having observed
myelofibrosis patients, without more, gives no basis for an expert opinion as to
the general causal connection between myelofibrosis and benzene—it is not a



CLASSIFICATION OF TUM OURS OF HAEM ATOPOIETIC AND LYM PHOID TISSUES 44 (Steven H.
Swerdlow et al., World Health Org., Int’l Agency for Research on Cancer, eds., 4th ed. 2008),
also suffer from this deficiency. Neither offers any primary scientific support for the
proposition that benzene causes myelofibrosis but merely recite the results found in other
studies or secondary literature. Moreover, we note that the appellants do not argue that Dr.
Gardner actually relied on these texts in generating his opinion.

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question as to which clinical experience is likely to provide insight. The Sixth
Circuit explained the proper realm of “clinical experience” testimony thus:
        [I]f one wanted to explain to a jury how a bumblebee is able to fly,
        an aeronautical engineer might be a helpful witness. Since flight
        principles have some universality, the expert could apply general
        principles to the case of the bumblebee. Conceivably, even if he had
        never seen a bumblebee, he still would be qualified to testify, as long
        as he was familiar with its component parts.
               On the other hand, if one wanted to prove that bumblebees
        always take off into the wind, a beekeeper with no scientific training
        at all would be an acceptable expert witness if a proper foundation
        were laid for his conclusions. The foundation would not relate to his
        formal training, but to his firsthand observations. In other words,
        the beekeeper does not know any more about flight principles than
        the jurors, but he has seen a lot more bumblebees than they have.
Berry v. City of Detroit, 25 F.3d 1342, 1349–50 (6th Cir. 1994). The inquiry
before Dr. Gardner here—whether benzene causes myelofibrosis—requires an
epidemiological, scientific basis and is more akin to the mechanisms underlying
a bumblebee’s ability to fly than to the fact that bumblebees take off into the
wind. It is not a question as to which a clinician’s firsthand observation of
patients offers much insight. The district court did not abuse its discretion in
declining to allow Dr. Gardner’s conclusion that benzene causes myelofibrosis
based on his clinical experience.
                                   *        *         *
        Even considering all of the possible sources that Dr. Gardner cites
together, there is simply insufficient support for the proposition that benzene
causes myelofibrosis. The district court therefore did not abuse its discretion in
refusing to allow Dr. Gardner to testify that benzene causes myelofibrosis.
B.      Prof. Solanky
        The district court excluded Prof. Solanky’s testimony because its
admissibility was derivative of the admissibility of Dr. Gardner’s testimony. The
sole function of Prof. Solanky’s expert testimony was to conduct statistical

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analyses of several of the studies underlying Dr. Gardner’s causation opinion so
as to assess the statistical significance of those studies’ results when not
reported in the studies themselves. Because we conclude that Dr. Gardner’s
testimony was properly excluded, Prof. Solanky’s testimony was irrelevant and
was also properly excluded under Daubert. See 509 U.S. at 591–92 (“Rule 702’s
‘helpfulness’ standard requires a valid scientific connection to the pertinent
inquiry as a precondition to admissibility.”).
                                IV. Conclusion
      For the reasons stated above, we hold that there was no abuse of discretion
in the district court’s exclusion of Dr. Gardner’s and Prof. Solanky’s testimony.
The ruling of the district court and its consequent grant of summary judgment
to the Energy Companies are therefore AFFIRMED.




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