     Case: 15-30592          Document: 00513516686         Page: 1     Date Filed: 05/23/2016




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

                                                                                   FILED
                                                                                May 23, 2016
                                         No. 15-30592
                                                                               Lyle W. Cayce
                                                                                    Clerk
YOLANDE BURST, Individually, and as the Legal Representative of Bernard
Ernest Burst, Jr.,

                 Plaintiff - Appellant

v.

SHELL OIL COMPANY; CHEVRON USA, INCORPORATED; TEXACO,
INCORPORATED,

                 Defendants - Appellees




                      Appeal from the United States District Court
                         for the Eastern District of Louisiana
                                USDC No. 2:14-CV-109


Before SOUTHWICK and COSTA, Circuit Judges, and OZERDEN*, District
Judge.
PER CURIAM:**




       *   District Judge of the Southern District of Mississippi, sitting by designation.
       ** Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th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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                                  No. 15-30592
      Yolande Burst, proceeding both individually and as the legal
representative of Bernard Ernest Burst, Jr., appeals the district court’s
orders excluding her general causation experts, Dr. Robert Harrison and Dr.
Peter Infante, and granting summary judgment in favor of Defendants. We
AFFIRM.
                              I. BACKGROUND
      Yolande Burst (“Plaintiff”) alleges that her late husband, Bernard
Ernest Burst, Jr. (“Mr. Burst”), worked at various gas stations from 1958
through 1971, during which time he regularly used products manufactured,
supplied, distributed, and sold by Defendants Shell Oil Company, Chevron
USA, Inc., and Texaco, Inc. (collectively, “Defendants”). Specifically, Plaintiff
alleges that her husband regularly came into contact with gasoline
containing benzene.    In June 2013, physicians diagnosed Mr. Burst with
acute myeloid leukemia (“AML”).       He passed away as a result of AML on
December 21, 2013.
      Plaintiff claims that her husband’s regular exposure to gasoline
containing benzene during the years he worked as a gas station attendant
and mechanic caused his AML.        She asserts that Defendants negligently
manufactured and sold products containing benzene and that they
negligently failed to warn foreseeable users about the health hazards
associated with these products.
      The district court found that the question of whether exposure to
gasoline and/or benzene could cause leukemia was not “common knowledge,”
thus expert testimony was required to resolve the issue of general causation.
The district court further concluded that the proper general causation inquiry
was whether exposure to gasoline containing benzene can cause AML, not
whether exposure simply to benzene can cause AML, because the substance
to which Mr. Burst was allegedly exposed was gasoline, not pure benzene.
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                                No. 15-30592
      During the course of discovery, Plaintiff designated Dr. Robert
Harrison (“Dr. Harrison”) and Dr. Peter Infante (“Dr. Infante”) as expert
witnesses. Dr. Harrison is a medical doctor certified in occupational and
internal medicine, and Dr. Infante is an epidemiologist.
      On February 10-11, 2015, the district court conducted Daubert hearings
on the general causation opinions of Dr. Infante and Defendants’ experts, Dr.
Ethan Natelson and Dr. David Pyatt. On June 9, 2015, the district court
granted Defendants’ Motion to Exclude the testimony of Dr. Harrison on the
issue of AML caused by exposure to benzene because his general causation
opinions were unreliable. In a thorough and well-reasoned 45-page opinion
entered on June 16, 2015, the district court also granted Defendants’ Motion
to Exclude the testimony of Dr. Infante on the issue of general causation on
grounds that his opinions were based upon an unreliable methodology.
      Based upon the exclusion of Plaintiff’s general causation experts, the
district court granted summary judgment in favor of Defendants on June 29,
2015, and entered its Judgment dismissing the case with prejudice on July 2,
2015. The present appeal followed. Plaintiff contends that the district court
abused its discretion in striking her experts, Dr. Harrison and Dr. Infante,
and as a result erred in granting summary judgment.
                               II. DISCUSSION
A. Standard of Review
      “We review a grant of summary judgment de novo, applying the same
standard as the district court and viewing the evidence in the light most
favorable to the non-moving party.” Am. Family Life Assur. Co. of Columbus
v. Biles, 714 F.3d 887, 895 (5th Cir. 2013) (citation omitted). Summary
judgment is proper “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a).
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                                  No. 15-30592
      We review a district court’s evidentiary rulings under Federal Rule of
Civil Procedure 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993), for abuse of discretion. Johnson v. Arkema, Inc., 685 F.3d
452, 458 (5th Cir. 2012).    A district court “abuses its discretion when its
ruling is based on an erroneous view of the law or a clearly erroneous
assessment of the evidence.” Id. (quotation omitted). Under Rule 702 and
Daubert, the district court has broad discretion to determine whether a body
of evidence relied upon by an expert is sufficient to support that expert’s
opinion, and has considerable leeway in deciding both how to test the
reliability of evidence and then in making that determination. Id. at 458-59.
      “[T]here is a two-step process in examining the admissibility of
causation evidence in toxic tort cases.”    Knight v. Kirby Inland Marine Inc.,
482 F.3d 347, 351 (5th Cir. 2007). The district court must first determine
whether there has been a showing of general causation, which “is whether a
substance is capable of causing a particular injury or condition in the general
population . . . .” Id. (quotation omitted). If the district court “concludes that
there is admissible general-causation evidence, [it] must determine whether
there is admissible specific-causation evidence.”          Id. (citation omitted).
“[S]pecific causation is whether a substance caused a particular individual’s
injury.” Id. (quotation omitted). Here, the district court did not reach the
issue of specific causation because it found that Plaintiff failed to establish
general causation.
B. Analysis
      1. Dr. Harrison
      The district court excluded Dr. Harrison’s general causation report and
testimony because, in its view, Dr. Harrison’s opinions left too great an
analytical gap between the data upon which he relied and the opinions he
proffered, making his opinions unreliable. The district court found that: (1)
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                                  No. 15-30592
Dr. Harrison made no attempt to demonstrate why benzene-specific studies
could reliably support his conclusion that gasoline can cause AML, or to
explain or demonstrate how he extrapolated his findings with respect to
gasoline from benzene studies; (2) Dr. Harrison failed to cite to any gasoline-
specific literature; and (3) Dr. Harrison’s “me too” approach in relying on Dr.
Infante’s report lacked any independent analysis and was therefore
unreliable.
      While “[t]rained experts commonly extrapolate from existing data,” the
Supreme Court has held that “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.” General Elec.
Co. v. Joiner, 522 U.S. 136, 146 (1997). In such a situation, “[a] court may
conclude that there is simply too great an analytical gap between the data
and the opinion proffered.” Id.
      We cannot say that it was an abuse of discretion for the district court to
conclude that Dr. Harrison’s opinions were unreliable. As the district court
noted, the scientific literature Dr. Harrison relied upon in preparing his
report considered benzene, rather than gasoline containing benzene. Dr.
Harrison made no attempt to demonstrate how benzene-specific studies could
reliably support his conclusion that gasoline containing benzene can cause
AML, or to explain or demonstrate how he extrapolated his findings with
respect to gasoline from the benzene studies. Further, Dr. Harrison did not
refer to any gasoline-specific literature. The district court made specific and
detailed findings with respect to these and other deficiencies in Dr.
Harrison’s opinions, and we cannot conclude from our review of the record
that the district court’s conclusions in this regard were an abuse of discretion.
The district court’s exclusion of Dr. Harrison’s report and testimony will be
affirmed.
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                                      No. 15-30592
       2. Dr. Infante
       The district court struck Dr. Infante’s general causation report and
testimony on grounds that Dr. Infante’s opinions were based on an unreliable
methodology and left too great an analytical gap between the underlying data
and his opinions. The district court reasoned that: (1) Dr. Infante relied on
studies of benzene, a known carcinogen, for the proposition that exposure to
benzene can cause AML, when the relevant issue in the case was whether
exposure to gasoline containing benzene can cause AML; 1 and (2) Dr.
Infante’s methodology failed as to those gasoline-specific studies upon which
he did rely because he: (a) relied on studies that did not isolate gasoline
exposure or that did not provide exposure metrics; (b) relied on studies that
did not exhibit statistically significant results; (c) relied on studies that did
not examine AML; and (d) cherry-picked data from studies and failed to
explain contrary results that belied the reliability of his methodology.
       Dr. Infante testified at the Daubert hearing. Following the hearing, the
district court issued a lengthy Order containing an extremely thorough and
well-reasoned analysis detailing its reasons for striking Dr. Infante’s
testimony.      The district court did not question Dr. Infante’s expert
qualifications, but found that Dr. Infante’s general causation opinions were
not grounded in a reliable methodology because he relied on multiple studies
that did not reliably support his conclusions. The district court ultimately
determined that there was too great an analytical gap between the



       1  Dr. Infante’s assumption in his report was that “Mr. Burst was exposed to gasoline
containing an average of 2.0% benzene between 1958 and 1971.” R. at 7158. In granting
Defendants’ Motion to exclude Dr. Infante, the district court found that the benzene
concentration of gasoline to which Mr. Burst could have been exposed “may have ranged
from under 1% to as high as 4% or 5% between 1958 and 1971.” R. at 8031. These low
levels of concentration support a finding that it was not an abuse of discretion for the
district court to distinguish between exposure to gasoline containing benzene and exposure
to pure benzene.
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                                 No. 15-30592
underlying data and the opinions offered by Dr. Infante. The district court
did not abuse its discretion in this regard.
      We recognize that this Court does not require “an expert [to] back his
or her opinion with published studies that unequivocally support his or her
conclusions.” Knight, 482 F.3d at 354 (citations omitted). “Nonetheless, the
expert’s testimony must be reliable at each and every step or else it is
inadmissible.” Id. at 354-55.     “District courts must carefully analyze the
studies on which experts rely for their opinions before admitting their
testimony.” Id. at 355 (citing Joiner, 522 U.S. at 146-47).
      Here, it was within the district court’s discretion to conclude that the
body of evidence upon which Dr. Infante relied was not sufficient to support
his general causation opinions.     The majority of Dr. Infante’s report was
devoted to benzene exposure, rather than gasoline exposure.              As for the
gasoline-specific literature upon which Dr. Infante did rely, the district court
noted that a number of the studies did not isolate exposure to gasoline or did
not provide the exposure metrics, did not exhibit statistically significant
results or indicate a positive association between gasoline exposure and AML,
and did not specifically examine AML as opposed to other forms of leukemia.
      We cannot say that the district court’s assessment of the evidence in
this respect was clearly erroneous. Nor can we conclude that the district
court abused its discretion in determining that the studies relied upon by Dr.
Infante were insufficient to support his conclusion that benzene-containing
gasoline, which Plaintiff alleges caused Mr. Burst’s injury, would cause the
same particular injury in the general population. For the reasons stated by
the district court, we affirm the exclusion of Dr. Infante’s opinions.
      3. Summary Judgment
      Plaintiff acknowledges that resolution of her contention that the
district court erred in granting summary judgment turns entirely upon our
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                                       No. 15-30592
resolution of her appeal on the issue of the exclusion of Dr. Harrison and Dr.
Infante’s general causation opinions. 2 Plaintiff does not appear to dispute
that, without expert general causation testimony, summary judgment was
proper. We agree. Because we find that the district court did not abuse its
discretion in excluding the opinions of Plaintiff’s general causation experts,
Dr. Harrison and Dr. Infante, we affirm the district court’s grant of summary
judgment in Defendants’ favor.
                                  III. CONCLUSION
       The judgment of the district court is AFFIRMED.




       2 In her briefs and at oral argument, Plaintiff asserted that the district court failed
to address her position that evidence of alleged chromosomal abnormalities suffered by Mr.
Burst provided support for the general causation opinions of Dr. Harrison and Dr. Infante.
Even assuming this evidence could lend support to a general causation theory as opposed to
a specific causation theory, given the totality of the evidence before the district court and
the breadth and depth of the district court’s analysis, we cannot conclude that any failure to
address Mr. Burst’s alleged chromosomal abnormalities would by itself be enough to
support a finding that the district court abused its discretion.
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