Date: 02-02-2004

Case Style: Lockheed Litigation Cases

Case Number: B159011

Judge: Kitching

Court: California Court of Appeals, Second District

Plaintiff's Attorney:

Girardi and Keese, Thomas V. Girardi, Robert W. Finnerty and Carrie J. Rognlien for Plaintiffs and Appellants.

Rose, Klein & Marias and David A. Rosen for Consumer Attorneys of California as Amicus Curiae on behalf of Plaintiffs and Appellants.

Defendant's Attorney:

Horvitz & Levy, Ellis J. Horvitz, David M. Axelrad and Mary-Christine Sungaila for Defendants and Respondents ExxonMobil Corporation and Union Oil Company of California.

Steptoe & Johnson, Laurence F. Janssen, Lawrence P. Riff and Kevin C. Mayer for Defendant and Respondent ExxonMobil Corporation.

Morgan, Lewis & Bockius, V. Thomas Meador III and Deanne L. Miller for Defendant and Respondent Union Oil Company of California.

Description:

Juanita Barnett Boyd and 101 other plaintiffs (collectively Plaintiffs) appeal a summary judgment in favor of ExxonMobil Corporation (Exxon) and Union Oil Company of California (Union Oil). Plaintiffs seek damages for wrongful death allegedly caused by exposure to toxic chemicals. Plaintiffs contend the exclusion of their expert's declaration on causation was error. We conclude that an expert opinion must be based on matter that provides a reasonable basis for the opinion and that the trial court did not err by excluding a declaration that did not comply with this rule. We therefore affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Former and current employees of Lockheed Corporation (Lockheed) sued Lockheed and manufacturers and suppliers of chemicals, seeking damages for personal injuries allegedly caused by occupational exposure to chemicals. The actions were coordinated in Lockheed Litigation Cases, Judicial Council Coordination Proceeding No. 2967. The coordinated actions have been tried in groups of plaintiffs. The Court of Appeal has decided appeals arising from six prior trials.

Plaintiffs in this appeal, known as Group 6B, seek damages for wrongful death allegedly caused by exposure to acetone, toluene, methyl ethyl ketone (MEK), and isopropyl alcohol supplied by Exxon, and exposure to MEK and super high flash naptha supplied by Union Oil.

The trial court on its own motion ordered hearings to determine whether Plaintiffs' expert's opinion on the issue of causation was admissible, and posed three questions:

(1) "For general causation, what is the standard of admissibility under California law for an expert opinion (what standard must evidence satisfy in order for an expert to reasonably rely upon that evidence in forming his or her opinions)?"

(2) "Do the proffered experts' opinions for the wrongful death cases satisfy the standard of admissibility under California law? (Are the studies the expert purports to rely upon of the type that California deems permissible and sufficient for the expert to reasonably rely upon to form the basis of an admissible expert opinion?)"

(3) "Do the defendants have the right to challenge general causation on the chemicals already adjudicated or is general causation the law of the case regarding those chemicals?"

After briefing by the parties, the trial court expressed its tentative opinion that an expert reasonably can rely on an epidemiological study to support an opinion on causation only if the study shows a relative risk of greater than 2.0, meaning that the incidence of disease among exposed persons is more than two times greater than that among unexposed persons. The court stated that it would make a final ruling on the admissibility of Plaintiffs' expert testimony only after the submission of evidence.

Plaintiffs then submitted a declaration on causation by Dr. Daniel Teitelbaum. Dr. Teitelbaum based his opinion on a study by the International Agency for Research Against Cancer published in 1989. The study analyzed prior epidemiological studies of painters' exposure to dozens of chemicals, including acetone, toluene, and MEK, and concluded that the painters experienced a 40 percent greater incidence of lung cancer and a 20 percent greater incidence of various other types of cancer than did the general population.

The court determined that the study did not provide a reasonable basis for Dr. Teitelbaum's opinion and excluded his expert testimony. The court concluded in an order dated June 15, 2001, that (1) the study did not support the conclusion that the chemicals at issue here can cause cancer; and (2) as a matter of law, an expert reasonably can rely on an epidemiological study to support an opinion on causation only if the study shows a relative risk of greater than 2.0.

Exxon and Union Oil moved for summary judgment on the ground that Plaintiffs could not establish the element of causation. The court excluded Dr. Teitelbaum's declaration, concluded that there was no admissible evidence to establish causation, and granted summary judgment.

Outcome: The judgment is affirmed. Exxon and Union Oil are entitled to costs on appeal.

Plaintiff's Experts: Dr. Daniel Teitelbaum, epidemiologist

Defendant's Experts: Unknown

Comments: None