Kinder Morgan Energy v. Claytor C/W 60667 ( 2014 )

 carcinogen that naturally occurs in gasoline. Lewis sued Kinder under
strict liability and negligence theories. Lewis subsequently died from
complications of his disease, and his estate representative and daughter
substituted in as plaintiffs. Before trial, the district court denied Kinder's
motion to exclude plaintiffs' experts, but granted Kinder's motion for
summary judgment on plaintiffs' request for punitive damages. The jury
found Kinder liable under both strict liability and negligence, and the
district court denied Kinder's renewed motion for judgment as a matter of
law and motion for new trial.
We begin with Kinder's assertion that the district court erred
in admitting plaintiffs' causation expert witness testimony because the
opinions were unreliable, a decision we review for an abuse of discretion.
Hallmark v. Eldridge, 124 Nev. 492, 498, 500-01, 189 P.3d 646, 650-52
(2008); NRS 50.275. Plaintiffs' three experts opined as to both general
causation, whether the substance at issue had the capacity to cause the
harm suffered by the injured person, and specific causation, whether the
injured person more likely than not suffered from the harm as a result of
exposure to the substance. See Holcomb v. Ga. Pac., LLC, 128 Nev.
n.5, 289 P.3d 188, 192 n.5 (2012). Important here, like in many other
toxic tort cases, is whether the experts presented a sufficiently reliable
estimate of Lewis's dose or some other measure of exposure, upon which
both specific and general causation may be reliably opined. See David L.
Faigman, et. al, Modern Scientific Evidence: The Law and Science of
Expert Testimony § 29:7 Causation—General Causation—Dosage (2014-15
ed.).
Here, Stephen Petty, plaintiffs' industrial hygienist expert,
estimated Lewis's exposure range. First, he estimated the level of benzene
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in the gasoline that ran through the terminal to be between .5 percent and
5 percent by considering historical literature reflecting gasoline benzene
content in various places. Based on that range, Petty extrapolated Lewis's
exposure upon each loading to be between .1 to 1.4 parts per million.
Finally, he estimated approximately how many times Lewis loaded his
truck. Given that the precise amount of benzene in the gasoline that ran
through the terminal was unknown, that no atmospheric testing was
conducted at the terminal while Lewis worked there, and that Lewis was
deceased and therefore could not assist in recreating his experience,
Petty's estimated exposure range was based on what other, secondary
evidence was available. Such expert estimates are sometimes necessary,
and can properly support an opinion as to specific causation. See Parker v.
Mobil Oil Corp., 857 N.E.2d 1114, 1120-21 (N.Y. 2006) ("[E]xposure can be
estimated through the use of mathematical modeling by taking a
plaintiffs work history into account to estimate the exposure to a toxin.").
But given the tenuous nature of the underlying literature and the
imprecise recreation of Lewis's actions and therefore his exposure here,
Petty's exposure estimation may not have been sufficient in and of itself to
support the other experts' opinions that it was more likely than not that
Lewis's exposure to benzene present in the gasoline that ran through the
terminal caused his MDS.
A distinctive aspect of this case, however, is that Lewis
experienced alterations to chromosomes 5 and 7. Toxicologist Martyn
Smith testified that such alterations indicate benzene exposure. Smith
further opined that these chromosomal alterations may occur with even a
very low level of benzene exposure, and would rarely develop in a 56 year
old who was not similarly exposed. This chromosomal evidence combined
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with Petty's estimated exposure range provided a sufficiently reliable
basis for the experts' conclusions that it was more probable than not that
Lewis's MDS was caused by his benzene exposure, and distinguish this
appeal from the case upon which Kinder relies, Henricksen v.
ConocoPhillips Co., 605 F. Supp. 2d 1142, 1149-50, 1177 (2009) (noting
that in addition to there being "no actual exposure measurements," there
was no evidence that the plaintiff had suffered chromosomal abnormality,
though AML, the plaintiffs disease, caused by exposure to toxic
substances had been shown to result in a higher level of chromosomal
aberrations than ANIL caused by something else).
As to the general causation testimony, Smith and Peter
Infante, plaintiffs' epidemiologist expert, relied upon epidemiological and
other studies to support their opinions that Lewis's exposure level was
capable of causing his disease. Though Kinder points to many decisions
wherein other courts have excluded similar general causation testimony
as unreliable, those courts excluded the evidence under the more exacting
Federal Rule of Evidence 702, as interpreted in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, (1993). See, e.g., Henricksen, 605
F. Supp. 2d at 1168-77. Governing our analysis here, however, is this
state's less rigid expert rule as outlined in NRS 50.275. See Higgs v. State,
126 Nev. 1, 16-18, 222 P.3d 648, 657-59 (2010). And under that governing
standard, the studies upon which plaintiffs' expert's relied sufficiently
supported their general causation conclusions to render those opinions
reliable enough for admittance.
As a final procedural note on this issue, the district court's
summary denial of Kinder's motion in limine and leaving the complex
reliability issues for resolution during trial is not the ideal exercise of a
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district court's gatekeeping role for expert testimony. However, given that
what each expert was to testify regarding, and the basis for such
testimony, was presented pre-trial in the expert reports, and that the
experts were able to more clearly articulate the basis for their opinions
during trial while facing no objection from Kinder, and given the
chromosomal damage, we defer to the district court's discretionary
decision to admit plaintiffs' expert testimony.
We next review the district court's denial of Kinder's renewed
motion for judgment as a matter of law as to plaintiffs' negligence claim.
We review this decision de novo and will uphold the jury's verdict if
supported by substantial evidence, as determined by viewing the evidence
in the light most favorable to the plaintiff. Allstate Ins. Co. v. Miller, 125
Nev. 300, 308, 212 P.3d 318, 324 (2009); Winchell v. Schiff, 124 Nev. 938,
947, 193 P.3d 946, 952 (2008). Kinder challenges whether the evidence
was sufficient to show general and specific causation, Holcomb, 128 Nev.
at n.5, 289 P.3d at 192 n.5, and to support that Lewis's injury
resulting from his exposure was foreseeable enough to establish proximate
cause and that Kinder breached its duty of reasonable care by failing to
warn. Yamaha Motor Co., U.S.A. v. Arnoult, 114 Nev. 233, 238, 955 P.2d
661, 664 (1998); Foster v. Costco Wholesale Corp., 128 Nev. „ 291
P.3d 150, 152, 156 (2012) ("[A] landowner owes a duty of reasonable care
to entrants for risks that exist on the landowner's property."). Considering
plaintiffs' expert testimony in the light most favorable to plaintiffs,
including the testimony recounted previously, sufficient evidence supports
the jury's determinations on general and specific causation. Furthermore,
though Kinder presented evidence that regulating agencies and other
scientific bodies did not label gasoline a carcinogen and did not universally
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agree that gasoline exposure was capable of causing leukemia, taking the
remaining evidence in plaintiffs' favor, such as plaintiffs' expert testimony
that there was a consensus that the benzene in gasoline is carcinogenic
and that low levels of sustained benzene exposure can cause leukemia,
substantial evidence supports the jury's findings that Lewis's injuries
were foreseeable enough to demonstrate breach and proximate cause. The
district court thus did not error in denying Kinder's renewed motion for
judgment as a matter of law.'
Kinder also challenges the district court's order denying its
motion for a new trial under NRCP 59(a) based on plaintiffs' counsel's
alleged trial misconduct that Kinder submits caused the jury to award
excessive damages. Whether misconduct occurred is a question of law we
review de novo, but the decision to deny a motion for a new trial rests
within the district court's sound discretion. Bayerische Motoren Werke
Aktiengesellschaft v. Roth, 127 Nev. , 252 P.3d 649, 656 (2011);
Nelson v. Heer, 123 Nev. 217, 223, 163 P.3d 420, 424-25 (2007). Turning
first to the objected-to conduct, which Kinder bore the burden of
demonstrating to the district court was so extreme that objection,
'As explained herein, we also affirm the district court's decision
precluding punitive damages. Therefore, because plaintiffs' recovery
under their negligence liability theory and alternative strict liability
theory was the same, we need not reach Kinder's challenge as to the
portion of the jury's verdict finding it strictly liable, nor the concerns
raised by amici Nevada Justice Association. See Countrywide Home
Loans, Inc. v. Thitchener, 124 Nev. 725, 733, 192 P.3d 243, 248 (2008)
("While plaintiffs are permitted to plead alternative or different theories of
relief based on the same facts, plaintiffs may not recover more than their
'total loss plus any punitive damages assessed.").
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admonishment, and curative instruction could not remove its effect,
Bayerische, 127 Nev. at , 252 P.3d at 656, Kinder argues that counsel's
statements in opening that Lewis's treating physician would testify as to
causation, and that physician's testimony that indeed touched upon
causation, violated the district court's order precluding that physician
from testifying on causation such as to require a new trial. However, after
the opening comment, the district court admonished plaintiffs' counsel in
front of the jury and instructed the jury to disregard the statement, and
instructed the jury at the end of the trial that in weighing the treating
physician's testimony the jury should disregard that physician's causation
conclusions, thus curing any prejudicial effect these errant causation
comments may have had. Krause Inc. v. Little, 117 Nev. 929, 937, 34 P.3d
566, 571 (2001).
As to the unobjected-to conduct, which may be reviewed only
for plain error, Lioce v. Cohen, 124 Nev. 1, 19, 174 P.3d 970, 981-82 (2008),
Kinder asserts that plaintiffs' counsel's comments during opening and
closing that called for jury nullification and misrepresented that Lewis's
treating physician was the only unpaid expert in the case plainly warrant
a new trial. Some of counsel's comments were misconduct, for example
counsel's comment in opening as to Kinder's size and wealth, see City of
Cleveland v. Peter Kiewit Sons' Co., 624 F.2d 749, 756-57 (6th Cir. 1980),
as well as the misrepresentation that Lewis's treating physician was not
paid for his time, of which Kinder was aware given the physician's
deposition testimony. But Kinder has not shown that these brief
statements made during the 11-day trial amounted to such irreparable
and fundamental error that but for the misconduct the verdict would have
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been different, especially in light of the evidence supporting plaintiffs'
negligence claim. Bayerische, 127 Nev. at , 252 P.3d at 657.
Finally, the damages awarded by the jury, though above
plaintiffs' estimates of medical and funeral expenses and lost earning
capacity, are supported by substantial evidence, as the district court's
factual findings demonstrate, and do not depart so greatly from the
estimated damages so as to indicate that the damages award may be
explained only by plaintiffs' counsels' misconduct. Compare DeJesus v.
Flick, 116 Nev. 812, 820 & n.5, 7 P.3d 459, 464-65 & n.5 (2000), overruled
on other grounds by Lioce v. Cohen, 124 Nev. 1, 174 P.3d 970 (2008).
Therefore, Kinder has not shown that the district court abused its
discretion in denying the motion for new trial
We next address plaintiffs' cross appeal, in which they argue
that the district court erred in granting summary judgment on their
punitive damages claim, a decision we review de novo and "through the
prism of the substantive evidentiary burden," which here is clear and
convincing evidence. NRS 42.005(1); Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 254 (1986); Wood v. Safeway, Inc., 121 Nev. 724, 731, 121 P.3d
1026, 1031 (2005) (adopting evidentiary standard set forth in Anderson v.
Liberty Lobby, 477 U.S. 242). Plaintiffs sought to recover punitive
damages on the theory that Kinder acted with malice, express or implied;
that is, that Kinder engaged in despicable conduct "with a conscious
disregard of the rights or safety of others." NRS 42.001(3); NRS 42.005(1).
A defendant acts with conscious disregard when it knows of the probable
harmful consequences of a wrongful act and willfully and deliberately fails
to act to avoid those consequences. NRS 42.001(1).
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Plaintiffs failed to raise an issue of fact that Kinder knew
Lewis's exposure to gasoline posed a probable risk of cancer and then
willfully and deliberately failed to take precautionary measures. Plaintiffs
presented evidence that Kinder's executives knew that ben zene was a
dangerous carcinogen but that Kinder did not monitor the atmospheric
benzene content at the Las Vegas terminal or estimate the daily
cumulative benzene exposure for a truck driver at the terminal. Plaintiffs
also presented evidence that Kinder had a Benzene Management Plan for
handling raw benzene at some of its other terminals but not at the Las
Vegas facility. Given the heightened burden of proof, this evidence is
insufficient to demonstrate a triable issue of fact that Kinder knew
exposure to the gasoline in its terminal, as opposed to raw benzene, posed
a probable risk of cancer and that it willfully and deliberately disregarded
that risk such as to submit the punitive damages issue to the jury.
Though plaintiffs' evidence may have supported the negligence verdict,
they• failed to show an issue of fact that Kinder's actions could support an
award of punitive damages. See Wyeth v. Rowatt, 126 Nev. , , 244
P.3d 765, 783 (2010) (to support punitive damages the defendant's conduct
must exceed even "recklessness or gross negligence").
Finally, as Kinder did not address its consolidated appeal of
the district court's order awarding plaintiffs costs, we find no error as to
that decision. NRAP 28 (a)(9); Maresca v. State, 103 Nev. 669, 673, 748
P.2d 3, 6 (1987) ("It is appellant's responsibility to present relevant
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authority and cogent argument; issues not so presented need not be
addressed by this court."). Accordingly, we
ORDER the judgment of the district court AFFIRMED.
Gibbons
Fice, Si c
A J.
Hardesty
, J.
Parraguirre
, J.
Cherry Saitta
cc: Hon. Nancy L. Allf, District Judge
Ara H. Shirinian, Settlement Judge
Fulbright & Jaworski, LLP/Houston
Lewis Roca Rothgerber LLP/Las Vegas
Holland & Hart LLP/Las Vegas
Cliff W. Marcek
Hutchison & Steffen, LLC
Schrader & Associates LLP
Thomas & Springberg, P.C.
Eighth District Court Clerk
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