from the United States District Court for the Western
District of Oklahoma D.C. No. 5:14-CV-00670-HE
B. Aamodt of Indian & Environmental Law Group, PLLC,
Tulsa, Oklahoma (Krystina E. Phillips, Dallas L.D. Strimple,
of Indian & Environmental Law Group, PLLC, Tulsa,
Oklahoma; Trae Gray, Ryan Ellis, of LandownerFirm, PLLC,
Coalgate, Oklahoma; G. Steven Stidham of Levinson, Smith
& Huffman, P.C., Tulsa, Oklahoma, with him on the
briefs), for Plaintiff-Appellant.
J. Young (Joy M. Soloway, Katherine D. Mackillop, Devin
Wagner, with him on the brief), of Norton Rose Fulbright U.S.
LLP, Houston, Texas, for Defendants-Appellees.
BACHARACH, MURPHY, and McHUGH, Circuit Judges.
BACHARACH, CIRCUIT JUDGE.
appeal involves issues of causation and exclusion of expert
testimony. These issues arose in a suit by Ms. Samantha Hall
against Conoco Inc., ConocoPhillips Company, and Phillips 66
Company (collectively, "ConocoPhillips") on
theories of negligence, negligence per se, and strict
Hall was diagnosed with leukemia, and she attributes the
disease to a ConocoPhillips refinery's emissions of a
chemical known as benzene. Liability turned largely on
whether benzene emissions had caused Ms. Hall's leukemia.
On the issue of causation, the district court excluded
testimony from two of Ms. Hall's experts and granted
summary judgment to ConocoPhillips. We affirm because
. the district court did not abuse its
discretion in excluding the expert testimony and
. expert testimony was necessary to create a
genuine issue of material fact on causation because of the
length of time between the exposure to benzene and the onset
of Ms. Hall's disease.
child, Ms. Hall had lived near ConocoPhillips's refinery
in Ponca City, Oklahoma. Roughly two decades later, Ms. Hall
developed a form of leukemia known as "Acute Myeloid
Leukemia with Inversion 16." This disease, according to
Ms. Hall, resulted from her early exposure to the
refinery's emissions of benzene.
district court, Ms. Hall tried to prove this link through
three expert witnesses:
1. Dr. David Mitchell, an air modeler,
2. Dr. Steven Gore, an oncologist, and
3. Dr. Mary Calvey, an epidemiologist.
Dr. Mitchell created an air model to estimate benzene
concentrations near where Ms. Hall had lived. Based on Dr.
Mitchell's estimates, Dr. Gore
. calculated Ms. Hall's cumulative
exposure to benzene and
. used this calculation to opine that
benzene exposure had caused Ms. Hall's leukemia.
Dr. Calvey expressed a similar opinion.
. exclusion of opinion testimony by multiple
expert witnesses, including Dr. Gore and Dr. Calvey and
. summary judgment on the issue of
district court granted the motion to exclude the expert
testimony by Drs. Gore and Calvey. In the absence of their
testimony, the court also granted summary judgment to
ConocoPhillips, concluding that Ms. Hall had not presented
sufficient evidence linking her disease to benzene exposure.
Exclusion of Expert Testimony
Hall challenges the district court's exclusion of expert
testimony by Drs. Gore and Calvey. We reject this challenge.
Standard of Review
district court has "wide latitude" in deciding
whether to exclude expert testimony, and we review the manner
in which the district court exercises this gatekeeping
function for an abuse of discretion. Bitler v. A.O. Smith
Corp., 400 F.3d 1227, 1232 (10th Cir. 2005).
district court's exclusion of expert testimony is
governed by federal law. See Sims v. Great Am. Life
Ins., 469 F.3d 870, 879 (10th Cir. 2006). Under Federal
Rule of Evidence 702, a qualified expert witness may give
opinion testimony if
. the expert's scientific knowledge
would help the fact-finder understand the evidence,
. "the testimony is based on sufficient
facts or data, "
. "the testimony is the product of
reliable principles and methods, " and
. "the expert has reliably applied the
principles and methods to the facts of the case."
Fed. R. Evid. 702.
expert testimony can be admitted, the district court must
determine that the proposed testimony is reliable.
Daubert v. Merrell Dow Pharm., 509 U.S.
579, 589 (1993). The district court's assessment of
reliability is reviewed for an abuse of discretion.
Goebel v. Denver & Rio Grande W. Ry.,
346 F.3d 987, 990 (10th Cir. 2003). This review includes
consideration of whether "the reasoning and methodology
underlying the expert's opinion . . . is both
scientifically valid and applicable to a particular set of
facts." Id. at 991.
Dr. Gore's Testimony
Gore rendered a differential diagnosis on the cause of Ms.
Hall's leukemia. A differential diagnosis "rule[s]
in all scientifically plausible causes of the injury and then
rule[s] out the least plausible causes ...