June 18, 2018

June 18, 2018

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Fifth Circuit Affirms Exclusion of Expert Testimony Tying Gasoline to AML

The U.S. Court of Appeals for the Fifth Circuit upheld a trial court’s decision to exclude expert testimony that exposure to gasoline caused acute myeloid leukemia (“AML”) in a former gas station attendant and mechanic, highlighting the importance of the distinction between a product and its component parts in exposure cases.  See Burst v. Shell Oil Co., 2016 WL 2989261 (5th Cir. May 23, 2016). 

Plaintiff alleged that her late husband was exposed to benzene in gasoline during his work at various service stations from 1958 through 1971, and that such exposure caused his AML.  Plaintiff relied on expert reports and testimony from a medical doctor and an epidemiologist.  The trial court excluded the general causation testimony of both witnesses.  It found the medical doctor’s methodology unreliable because he did not demonstrate why studies specific to benzene exposure could reliably support his conclusion that gasoline exposure can cause AML.  It found the epidemiologist’s methodology unreliable because he also relied on benzene-exposure studies and otherwise relied on gasoline-exposure studies that provided an inadequate basis for his opinion.

On appeal, the Fifth Circuit affirmed.  The Court found the trial court’s opinion was “thorough and well-reasoned,” with specific and detailed findings as to the deficiencies in the experts’ testimony.  Id. at 1. Therefore, the Court held, the trial court did not abuse its discretion in excluding the experts’ opinions.

This article was written with the assistance of Brooklyn N. Hildebrandt.

© 2018 Beveridge & Diamond PC


About this Author

Daniel M. Krainin, Environmental Attorney, Beveridge Diamond Law Firm

Daniel M. Krainin is a Principal in the New York office of Beveridge & Diamond, P.C.  He was named to the 2011 and 2012 Super Lawyers list for the New York Metropolitan area, holds an AV Preeminent Peer Review Rating from Martindale-Hubbell, and serves as a Vice Chair of the ABA Environment Section's Environmental Litigation and Toxic Torts Committee.

212-702 5417
Graham C. Zorn, Environmental Law Attorney, Beveridge Diamond Law Firm

Graham C. Zorn is an Associate in the Washington, D.C. office of Beveridge & Diamond, P.C., with a general litigation, regulatory, and environmental practice.  Graham has represented individual businesses, trade associations, and municipalities in compliance, enforcement, and counseling matters involving the Clean Air Act, the Clean Water Act, CERCLA and other state and federal statutes.  He has worked extensively on a series of complex products liability and toxic tort cases related to alleged groundwater contamination involving a gasoline additive.  Graham has also counseled domestic and international clients on a variety of product compliance, market access, and enforcement matters.  Specifically, Graham is well versed in reporting requirements related to the use of conflict minerals in various electronics, medical devices, and consumer products.