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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.

© 2020 Beveridge & Diamond PC National Law Review, Volume VI, Number 218

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Daniel M. Krainin Environmental Litigation Attorney Beveridge & Diamond New York, NY
Principal

Dan deploys more than two decades of environmental litigation experience to resolve clients’ legal and business challenges.

Primarily focused on environmental and toxic tort litigation, Dan helps clients successfully resolve groundwater contamination, hazardous waste site remediation, natural resource damages, permit defense and product-related matters. He enjoys using his skills as a litigator to help clients solve environmental problems.

Among his many wins, Dan successfully led a team that defeated an emergency challenge to a permit that Dan’s client needed to continue its...

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Graham C. Zorn Environmental, Toxic Tort, Products Liability Litigation Attorney Beveridge & Diamond Washington, DC
Principal

Graham Zorn focuses his practice on environmental, toxic tort, and products liability litigation.

His representative experience includes extensive work on a series of complex products liability and toxic tort cases related to alleged groundwater, and litigation over lead in drinking water. He has represented individual businesses, trade associations, and municipalities in litigation, as well as in compliance, enforcement, and counseling matters involving the Clean Air Act, the Clean Water Act, CERCLA and other state and federal environmental statutes. He also counsels domestic and international clients on a variety of product compliance, market access, and enforcement matters. In particular, he is well versed in reporting requirements related to conflict mineral use in electronics, medical devices, and consumer products.

Graham obtained his law degree from Vermont Law School where he was a Head Notes Editor for the Vermont Law Review and a student clinician in the Environment and Natural Resources Law Clinic. During law school, he clerked at the Wisconsin Department of Justice in the Environmental Protection Unit where he assisted in defending state agencies in a citizen suit alleging Clean Air Act new source review violations.

Before law school, Graham worked on domestic social policy, with a focus on health care, and environment and energy policy for U.S. Senator Russ Feingold. He obtained his undergraduate degree from Carleton College with a major in Geology. 

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