Curtis v. M&S Petroleum, Inc.

Revised May 20, 1999

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

___________________________

No. 97-60685
___________________________

MIKE CURTIS, ET AL.,

Plaintiffs,

MICHAEL CRAFT; TROY LUSTER; BOB HARRIS; TERRY NEVELS; LARRY
OAKES,

Plaintiffs - Counter Defendants - Appellants,

CYNTHIA CRAFT; JEANETTE LUSTER; SHARI NEVELS,

Plaintiffs - Appellants,

VERSUS

M & S PETROLEUM, INC.; DONALD MULLINS,

Defendants - Counter Claimants - Appellees,

BARRETT REFINING CORPORATION; E.I. DUPONT DE NEMOURS AND COMPANY,
doing business as DuPont Speciality Chemicals,

Defendants - Appellees.
___________________________________________________

Appeal from the United States District Court
for the Southern District of Mississippi
___________________________________________________
May 13, 1999

Before DAVIS, SMITH, and WIENER, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

In this toxic tort case, Plaintiffs, a number of refinery

workers and their wives, allege that they were exposed to excessive

amounts of benzene due to the intentional and negligent actions of

Defendants and that this exposure caused numerous health problems.
The district court excluded the testimony of Plaintiffs’ expert

witness that was proffered to establish the causal link between

Plaintiffs’ health problems and exposure to excessive amounts of

benzene. The court ruled that this testimony did not meet the

requirements of Daubert.1 The district court then granted judgment

as a matter of law in favor of Defendants primarily because

Plaintiffs failed to establish the necessary causal link between

their exposure to benzene and their illnesses.

In this appeal, Plaintiffs challenge: (1) the district court’s

exclusion of Plaintiffs’ expert witness on the issue of medical

causation; (2) the district court’s exclusion of the proffered

testimony of Mississippi Department of Environmental Quality

personnel; and (3) the district court’s refusal to allow Plaintiffs

to introduce evidence that Defendant Barrett Refining Corporation’s

corporate representative invoked his Fifth Amendment privilege at

his deposition.

For the following reasons, we vacate the district court’s

dismissal of the refinery workers’ suits and remand for trial. We

affirm the dismissal of the suits of the refinery workers’ wives.

I. Background

Defendant Barrett Refining Corporation (“BRC”) owns a refinery

located in Vicksburg, Mississippi. Plaintiffs Michael Craft, Troy

Luster, Bob Harris, and Larry Oakes (the “refinery workers”) were

employed by BRC as workers at the refinery. The refinery had been

1
Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113
S.Ct. 2786, 125 L.Ed.2d 469 (1993).

2
built in 1978 by Vicksburg Refinery, Inc. for the purpose of

processing light sweet crude oil into naptha (a light distillate

used for gasoline manufacturing), diesel (a fuel oil for

machinery), and residual oil products. BRC purchased the refinery

in 1991 and, after making several structural changes to the

refinery, began to process light sweet crude oil into jet fuel.

BRC was successful in its operations but eventually had to shut

down the refinery in the fall of 1994.

In April 1995, BRC entered into a three-year operating lease

agreement with Defendants M&S Petroleum, Inc. (“M&S”) and Donald

Mullins, one of M&S’s owners, under which M&S would lease and

operate the refinery. Rather than continuing to process light

sweet crude oil, however, M&S planned to process Heavy Aromatic

Distillate (“HAD”), a product manufactured by Defendant E.I. DuPont

De Nemours and Company (“DuPont”). M&S proposed to produce a

gasoline blend stock and a marine diesel oil blend stock from HAD.

HAD, a co-product of DuPont’s ethylene process, is composed of

a number of toxic and hazardous chemicals, the most prevalent being

benzene, which makes up 25-35 percent of HAD. Because of HAD’s

toxicity, particularly the benzene component, DuPont informed M&S

by letter of May 1, 1995, that it would be “providing product

stewardship support” before DuPont made any shipments of HAD to

M&S. Attached to this letter was a summary of the OSHA benzene

standard, 29 C.F.R. § 1910.1028, providing that the permissible

level of exposure to benzene is one part of benzene per million

parts of air (1 ppm) as an 8-hour time-weighted average. The

3
summary also provided instructions for exposure monitoring,

employee notification, methods of compliance, respiratory

protection, medical surveillance, and communications.

In compliance with this letter, DuPont dispatched Brad

Kulesza, a Senior Technical Service Engineer, to the Vicksburg

refinery on May 3, 1995. The purpose of the visit was to explain

how to handle HAD safely, to review the OSHA benzene standard, to

perform a quick walk-through of the HAD barge unloading and storage

areas, and to answer any questions concerning HAD.

After his visit, Mr. Kulesza promptly wrote a letter to M&S

reiterating the dangers of benzene and identifying six safety items

that M&S would have to complete before DuPont would deliver HAD to

the refinery. These items included providing benzene awareness

training to the operators and mechanics responsible for unloading

and processing HAD; developing procedures for unloading and

processing HAD; providing safety showers and eyewash facilities at

the barge unloading area; making available and using proper

protective equipment; providing employee benzene exposure

monitoring; and providing temporary or permanent benzene warning

signs. Mr. Kulesza also stated in this letter that he would visit

the refinery again in the future and follow up on his

recommendations.

Mr. Kulesza did not indicate to M&S the proper permits it

needed to process HAD nor did he inquire whether BRC or M&S had

obtained these permits. At trial, however, Mr. Kulesza testified

that during his visit to the refinery, he mentioned the need to

4
obtain the proper permits.

DuPont also wrote a letter dated May 23, 1995, to Mr. Mullins,

providing safe handling literature for HAD, specifically DuPont’s

Material Safety Data Sheet (“MSDS”) on HAD. The MSDS provided the

components of HAD and the potential health effects due to exposure

to HAD. It warned that skin contact with HAD could cause skin

irritation with discomfort or rash and that inhalation could cause

nausea, headache, weakness, loss of appetite, or temporary nervous

system depression.2 Mr. Mullins acknowledged in writing that he

had received the safe handling literature and that he agreed to

instruct his employees and any others who might handle HAD in the

safe handling procedures. Upon receipt of Mr. Mullins’

acknowledgment, and without further inspection of the refinery,

DuPont began shipping HAD to the refinery.

M&S began processing HAD at the refinery in mid-June 1995 and

immediately encountered serious problems. HAD caused the pump

strainers to become clogged daily and caused leaks in the heat

exchangers and in the fin fan. When the refinery workers attempted

to fix these mechanical problems, they became soaked in HAD.

Additionally, due to the clogging of the strainers and the leaks in

the heat exchangers and the fin fan, HAD would collect in the

American Petroleum Institute open air separator system, or oily

water separator, the refinery’s recovery system. Because HAD is

lighter than water, HAD would sit on top of the water in the

2
See infra note 6.

5
separator. On a daily basis, the refinery workers had to transfer

HAD from the separator into a recovery tank. This process would

take approximately one hour to complete, during which time the

refinery workers were continuously exposed to HAD fumes that had a

very distinct and strong odor.

Contemporaneously with the attempts to process HAD, the

refinery workers began to experience headaches, nausea, dizziness,

diarrhea, and a lack of energy. Plaintiffs Cynthia Craft and

Jeanette Luster, the wives of Michael Craft and Troy Luster,

respectively, also began to experience these same symptoms when

exposed to their husbands’ skin and clothes.

On July 4, 1995, Larry Oakes, one of the refinery workers,

called BRC headquarters in Oklahoma and informed BRC Vice-President

Paul Nicholson that the refinery workers were becoming ill and that

HAD was destroying the refinery. Mr. Nicholson instructed Mr.

Oakes to shut down the refinery and to send him a sample of HAD for

analysis. However, John Barrett, the president of BRC, telephoned

Mr. Oakes a week later and advised him to restart the refinery.

At the beginning of August 1995, M&S hired Plaintiff Terry

Nevels3 to manage quality control and to act as safety manager at

the refinery. Soon after beginning his employment at the refinery,

Mr. Nevels began to experience diarrhea, disorientation, dizziness,

and a lack of energy, the same symptoms as those of the other

refinery workers. Plaintiff Shari Nevels, Mr. Nevels’ wife, also

3
Mr. Nevels is hereinafter included in the term “refinery
workers.”

6
began to experience these symptoms when exposed to her husband’s

skin and work clothes. Mr. Nevels became concerned and consulted

the MSDS provided by DuPont. Alarmed by the components of HAD,

specifically benzene, Mr. Nevels began to conduct research on

benzene and obtained the Code of Federal Regulations on the OSHA

benzene standard, 29 C.F.R. § 1910.1028. He found that the

symptoms he and the other refinery workers were experiencing were

consistent with those of overexposure to benzene.4 Although Mr.

Nevels showed the Code of Federal Regulations to Mr. Mullins, Mr.

Mullins informed Mr. Nevels that the Code did not pertain to the

refinery. In response to Mr. Nevels’ concern over his and the

others’ symptoms, Mr. Mullins began purchasing milk, which he

encouraged everyone at the refinery to drink in order to relieve

their symptoms.

Mr. Nevels remained concerned about the symptoms that he and

the other refinery workers were experiencing. Through his

research, he concluded that he needed to perform air monitoring in

the refinery. Mr. Nevels requested an order of Draeger tubes, pump

devices used to monitor benzene levels in the air. The specific

Draeger tubes ordered were only able to monitor a maximum of ten

parts of benzene per million parts of air (10 ppm). The

instructions for the Draeger tubes stated that the tubes needed to

be pumped twenty times in order to get an accurate reading of the

benzene in the air. However, when Mr. Nevels operated the Draeger

4
See infra note 7.

7
tubes in several areas of the refinery, after only two pumps, the

tubes became saturated, registering the maximum reading of 10 ppm.

Based upon the Draeger tube tests, Mr. Nevels concluded that the

air in the refinery contained benzene of at least 10 ppm, exceeding

the permissible exposure level of 1 ppm as provided in the MSDS and

in the OSHA benzene standard.

Additionally, Mr. Nevels requested that blood tests be

performed on the workers at the refinery. Mr. Mullins arranged for

a qualified medical person from the Vicksburg Clinic to visit the

refinery and to take blood samples from the workers. Mr. Nevels

received the results of the blood tests, which proved to be normal.

In the meantime, the people in the Vicksburg community began

to complain about the smell emanating from the refinery. In

response, the Mississippi Department of Environmental Quality

(“MDEQ”) visited the refinery on Friday, September 29, 1995, and

met with Mr. Nevels, Mr. Oakes, Mr. Craft, and Mr. Harris. At this

time, the refinery was not in operation due to mechanical problems.

On Monday, October 2, 1995, Mr. Mullins instructed that the

refinery be restarted. The refinery workers refused to restart the

refinery due to their concerns about processing HAD and walked off

the job. They immediately consulted Dr. John Barnes, a family

physician at the Street Clinic in Vicksburg, who performed

additional blood tests. These blood tests also proved to be within

normal limits.

In October 1995, Michael Craft, Troy Luster, Bob Harris, Larry

Oakes, Terry Nevels, Cynthia Craft, Jeanette Luster, and Shari

8
Nevels filed suit in Mississippi state court against BRC, M&S,

Donald Mullins, and DuPont, alleging that Defendants’ intentional

and negligent actions had caused them to become exposed to benzene,

resulting in numerous health problems and emotional distress

related to their fear of contracting cancer or other catastrophic

diseases. The suit was removed to federal District Court

approximately one year later. Following lengthy discovery, BRC

filed a motion for summary judgment seeking dismissal under the

exclusivity provision of the Mississippi Workers’ Compensation Act.

This motion was granted with respect to the claims of Michael

Craft, Troy Luster, Bob Harris, and Larry Oakes, the employees of

BRC.

Shortly before trial, Defendants moved to exclude the

testimony of Plaintiffs’ expert Dr. Frank Stevens. After

conducting a hearing in limine, during which the district judge

heard the proffered testimony of Dr. Stevens and that of the

defense experts, Dr. William Rock and Dr. Robert Andrew Budinsky,

the district judge excluded the testimony of Dr. Stevens.

In response to other motions by Defendants, the district judge

ruled that Plaintiffs could not introduce the testimony of the MDEQ

representative. The district court also ruled that it would not

instruct the jury that it could draw an adverse inference from the

BRC corporate representative’s invocation of his Fifth Amendment

privilege at his deposition.

The case was tried before a jury beginning in August 1997. At

the close of Plaintiffs’ case, Defendants moved for judgment as a

9
matter of law under Fed.R.Civ.P. 50(a). The district court granted

the motion as to all Defendants, holding that Plaintiffs had failed

to make out a prima facie case and that Defendant DuPont had

violated no legal duty to Plaintiffs. This appeal followed.

II. Evidentiary Rulings

A. Standard of Review

We must first review the trial court’s evidentiary rulings

under an abuse of discretion standard. General Electric Co. v.

Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). Then,

with the record defined, we must review de novo the order granting

judgment as a matter of law. Allen v. Pennsylvania Engineering

Corp., 102 F.3d 194, 196 (5th Cir. 1996) (citing Christophersen v.

Allied-Signal Corp., 939 F.2d 1106, 1109 (5th Cir. 1991) (en banc),

cert. denied, 503 U.S. 912, 112 S.Ct. 1280, 117 L.Ed.2d 506

(1992)).

B. Admissibility of Dr. Frank Stevens’s Testimony

We first address the district court’s evidentiary ruling

excluding Dr. Frank Stevens’s expert testimony on medical

causation. Plaintiffs sought to introduce the testimony of Dr.

Stevens, an industrial hygienist. Dr. Stevens received his Ph.D.

in Environmental Science in 1984 and has considerable experience in

the areas of industrial hygiene, occupational safety and hazard,

and toxicology. The district judge conducted a Daubert hearing

outside of the presence of the jury wherein he heard the proffered

testimony of Dr. Stevens concerning the medical causation between

10
Plaintiffs’ exposure to benzene and the onset of their symptoms.

His conclusion was that exposure to benzene caused the symptoms

experienced by Plaintiffs and that this exposure subjected them to

known long-term health problems. After reviewing Dr. Stevens’s

report and listening to the in limine testimony, the district court

excluded Dr. Stevens’s causation opinion on the grounds that it did

not satisfy the requirements set forth in Daubert.

The admissibility of expert testimony is governed by

Fed.R.Evid. 702, which provides:

If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise.

The Supreme Court interpreted Rule 702 in Daubert. The Court

explained that Rule 702 assigns to the district judge a gatekeeping

role to ensure that scientific testimony is both reliable and

relevant. Daubert, 509 U.S. at 597, 113 S.Ct. at 2799.5 This role

requires the district judge to undertake a two-part analysis. The

district judge must first determine whether the proffered testimony

is reliable, requiring an assessment of whether the reasoning or

methodology underlying the testimony is scientifically valid.

5
In Kumho Tire Co. v. Carmichael, __ U.S. __, 119 S.Ct.
1167, 1171 (1999), the Court held that Rule 702 and the Daubert
principles extend beyond scientific testimony. Kumho does not
affect the result here, because the instant case involves what is
undeniably scientific evidence. Although Kumho was decided after
briefing and argument in this case, we have taken it into account
in our discussion of the Daubert factors.

11
Second, the district judge must determine whether that reasoning or

methodology can be properly applied to the facts in issue; that is,

whether it is relevant. Id. at 592-93, 113 S.Ct. at 2796.

The first part of the analysis concerns whether the challenged

testimony is reliable. In order to be reliable, the subject of the

testimony must be “scientific ... knowledge.” Id. at 590, 113

S.Ct. at 2795. This requirement implies that the testimony must be

grounded in the methods and procedures of science and must be more

than unsupported speculation or subjective belief. Id. “[T]he

party seeking to have the district court admit expert testimony

must demonstrate that the expert’s findings and conclusions are

based on the scientific method, and therefore, are reliable.”

Moore v. Ashland Chemical, Inc., 151 F.3d 269, 276 (5th Cir. 1998)

(en banc). The Supreme Court set out four non-exclusive factors to

aid in the determination of whether the methodology is reliable.

They are:

(1) whether the theory or technique has been tested; (2)
whether the theory or technique has been subjected to peer
review and publication; (3) the known or potential rate of
error of the method used and the existence and maintenance of
standards controlling the technique’s operation; and (4)
whether the theory or method has been generally accepted by
the scientific community.

Daubert, 509 U.S. at 593-94, 113 S.Ct. at 2796-97.

In accord with the principles set forth above, Dr. Stevens

provided generous support for his general causation theory that

exposure to excessive levels of benzene will cause harm such as

Plaintiffs experienced. At the Daubert hearing and in his report,

12
he recited several scientific studies in support of this premise.

Dr. Stevens stated that he relied on the MSDS provided by DuPont6

and the OSHA standard on benzene, 29 C.F.R. § 1910.1028 (1998),7

6
The MSDS provided, in part, as follows:

HUMAN HEALTH EFFECTS:

Skin contact may cause skin irritation with discomfort or rash;
defatting of the skin resulting in skin irritation with discomfort
or rash. Prolonged contact may cause drying of the skin with
discomfort, itching, burning sensation, blister formation, or rash.
Evidence suggests that skin permeation can occur in amounts capable
of producing systemic toxicity. ... Inhalation may cause irritation
of upper respiratory passages, with coughing and discomfort; or
nausea, headache, weakness, or loss of appetite; or temporary
nervous system depression with anesthetic effects such as
dizziness, headache, confusion, incoordination, and loss of
consciousness.

...

Higher or prolonged exposure to benzene may cause reduced white
blood cell production; aplastic anemia or leukemia with symptoms of
lightheadedness, loss of appetite, abdominal discomfort, blurring
of vision, shortness of breath, pale skin, easy bruising, nose
bleeds, bleeding from gums and excessive menstrual flow; temporary
lung irritation with cough, discomfort, difficulty breathing, or
shortness of breath; temporary alteration of the heart’s electrical
activity with irregular pulse, palpitations, or inadequate
circulation; pulmonary edema (body fluid in the lungs) with cough,
wheezing, abnormal lung sounds, possibly progressing to severe
shortness of breath and bluish discoloration of the skin; decreased
pulse rate and blood pressure; abnormal liver or kidney function;
or temporary nervous system depression with dizziness, headache,
confusion, incoordination, and loss of consciousness; or
neurological impairment such as decreased reaction time and visual
disturbances. Symptoms may be delayed. Fatality may occur from
gross overexposure.
7
29 C.F.R. § 1910.1028 (1998), Appendix A, provides in part:

II. Health Hazard Data

A. Ways in which benzene affects your health. Benzene can
affect your health if you inhale it, or if it comes in contact with
your skin or eyes. Benzene is also harmful if you swallow it.
B. Effects of overexposure. 1. Short-term (acute)

13
both of which showed that the hazardous effects of inhalation of

benzene and of dermal contact with benzene are consistent with the

symptoms experienced by Plaintiffs. He noted that the MSDS is a

valid and accurate portrayal of the hazards of benzene because

material safety data sheets are prepared to have all of the

information regarding health and environmental hazards, and because

the manufacturer is required to research the best, peer-reviewed

scientific literature to form these material safety data sheets.

Dr. Stevens also referred to a document called the

toxicological profile for benzene, which was published by the U.S.

Department of Health and Human Services, the Public Health Service,

Agency for Toxic Substance and Disease Registry. This document

contains all of the knowledge as of 1995 from the standpoint of

epidemiological studies and toxicological animal studies regarding

the toxicity of benzene and its adverse health effects. Dr.

Stevens referred to several of these studies in discussing the

effects of overexposure to benzene. He also stated that he

reviewed the Supreme Court case of Industrial Union v. American

Petroleum Institute, in which the Supreme Court discussed several

overexposure: If you are overexposed to high concentrations of
benzene, well above the levels where its odor is first
recognizable, you may feel breathless, irritable, euphoric, or
giddy; you may experience irritation in eyes, nose, and respiratory
tract. You may develop a headache, feel dizzy, nauseated, or
intoxicated. Severe exposures may lead to convulsions and loss of
consciousness.
2. Long-term (chronic) exposure. Repeated or prolonged
exposure to benzene, even at relatively low concentrations, may
result in various blood disorders, ranging from anemia to leukemia,
an irreversible, fatal disease. Many blood disorders associated
with benzene exposure may occur without symptoms.

14
studies regarding the hazardous effects of benzene and the exposure

levels at which these effects occur.8

In addition to the scientific literature establishing a

connection between benzene and the symptoms experienced by

Plaintiffs, Dr. Stevens pointed to the strong temporal connection

between the refinery workers’ exposure to benzene and the onset of

their symptoms. The refinery workers developed their symptoms

contemporaneously with the first attempts to process HAD, and their

symptoms subsided within two weeks after they left the refinery.

A temporal connection standing alone is entitled to little weight

in determining causation. Moore, 151 F.3d at 278. However, a

temporal connection is entitled to greater weight when there is an

established scientific connection between exposure and illness or

other circumstantial evidence supporting the causal link. See

Cavallo v. Star Enter., 892 F.Supp. 756, 774 (E.D. Va. 1995),

aff’d. in part, 100 F.3d 1150 (4th Cir. 1996), cert. denied, __

U.S. __, 118 S.Ct. 684, 139 L.Ed.2d 631 (1998). In the present

case, both scientific literature and strong circumstantial evidence

support the causal connection.

8
Industrial Union v. American Petrol. Inst., 448 U.S. 607,
100 S.Ct. 2844, 65 L.Ed.2d 1010 (1980). "Exposure to high
concentrations [of benzene] produces an almost immediate effect on
the central nervous system. Inhalation of concentrations of 20,000
ppm can be fatal within minutes; exposures in the range of 250 to
500 ppm can cause vertigo, nausea, and other symptoms of mild
poisoning. ... Persistent exposures at levels above 25-40 ppm may
lead to blood deficiencies and diseases of the blood-forming
organs, including aplastic anemia, which is generally fatal.” Id.
at 617, 100 S.Ct. at 2851 (citing 43 Fed. Reg. 5921 (1978)).

15
 We conclude that the district court correctly determined that

Dr. Stevens had adequate support for his general causation opinion

that exposure to benzene at levels of 200-300 ppm would cause the

injuries suffered by Plaintiffs. Indeed, Defendants do not

seriously challenge this conclusion.

The district court excluded Dr. Stevens’s testimony for a

related but separate reason. The court found that Dr. Stevens’s

ultimate conclusion that Plaintiffs’ symptoms were caused by their

exposure to benzene was not reliable because they failed to

demonstrate with sufficient certainty the amount of benzene to

which they were exposed. In addition, the district court found

that Dr. Stevens did not eliminate other possible causes of the

symptoms; in other words, he did not perform a “differential

diagnosis.”

We recognize that “[s]cientific knowledge of the harmful level

of exposure to a chemical, plus knowledge that the plaintiff was

exposed to such quantities, are minimal facts necessary to sustain

the plaintiffs’ burden in a toxic tort case.” Allen, 102 F.3d at

199. In Moore, this Court discussed the admissibility of the

proffered testimony of the plaintiff’s expert on causation. After

finding that the expert offered no scientific support for his

general theory that exposure to Toluene solution at any level would

cause Reactive Airways Dysfunction Syndrome, the Court stated:

Given the paucity of facts Dr. Jenkins had available about
the level of Moore’s exposure to the Toluene solution, his
causation opinion would have been suspect even if he had
scientific support for the position that the Toluene solution
could cause RADS in a worker exposed to some minor level of

16
 the solution. Under Daubert, “any step that renders the
analysis unreliable ... renders the expert’s testimony
inadmissible. This is true whether the step completely
changes a reliable methodology or merely misapplies that
methodology.” In re Paoli R.R. Yard PCB Litigation, 35 F.3d
717, 745 (3d Cir. 1994) (emphasis in original).

Moore, 151 F.3d at 279 n. 10. Thus, if Dr. Stevens’s causation

opinion was not based on sufficient information of the level of

benzene to which Plaintiffs were exposed, his methodology would not

be reliable, rendering his causation opinion inadmissible.

However, the law does not require Plaintiffs to show the precise

level of benzene to which they were exposed. Lakie v. Smithkline

Beecham, 965 F.Supp. 49, 58 (D. D.C. 1997). Based upon the

evidence elicited at the Daubert hearing and at the trial, we

conclude that Plaintiffs presented facts that adequately supported

Dr. Stevens’s finding of the level of benzene to which the refinery

workers were exposed.9 Dr. Stevens testified that the refinery

workers were exposed to levels of benzene that were several hundred

times above the permissible exposure level of 1 ppm. He relied

upon several facts in reaching this conclusion. First, Dr. Stevens

found the symptoms experienced by the refinery workers to be

extremely important. He testified that the cluster of symptoms

that the refinery workers began experiencing shortly after HAD was

introduced into the refinery - headache, nausea, disorientation,

9
Dr. Stevens did not reach a conclusion as to the level of
benzene to which Cynthia Craft, Jeannette Luster, and Shari Nevels,
the refinery workers’ wives, were exposed. His causation opinion
as to these Plaintiffs is therefore unreliable and inadmissible.

17
and fatigue - are well-known symptoms of overexposure to benzene.

He concluded that these symptoms were all indications of exposure

to benzene at levels of at least 200-300 ppm.

Dr. Stevens also relied upon the results of the Draeger tube

tests performed by the refinery workers. The particular Draeger

tubes used were designed to measure a maximum of 10 ppm based on

twenty pumps. Because these tubes were only pumped twice before

becoming saturated, measuring the maximum of 10 ppm, Dr. Stevens

calculated that the refinery workers were exposed to at least 100

ppm.

Additionally, Dr. Stevens relied upon the work practices at

the refinery. The refinery workers were required to clean the

strainers and the oily water separator, and gauge the tanks on a

daily basis. All of these functions made exposure to high levels

of benzene likely. Dr. Stevens was particularly impressed with the

testimony of the refinery workers that they often became soaked in

HAD when required to perform this work.10

10
At trial, Troy Luster testified:
Q. Okay. How do you pull the strainer out, Mr. Luster?
A. You’d reach in with your hand and pull it out.
Q. All right. And did you come in contact with liquid benzene --
or liquid HAD when you pulled the strainer?
A. Yes, but we were supplied with gloves. We previously --Barrett
-- gloves from Barrett we already had. But you would have to
actually stick your hand off into the pipe.
Q. In that process would your skin actually come into contact with
the feedstock?
A. Yes, it would, because when you pulled the strainer out you
would weigh some of the debris in the bottom of the pipe, and you
would have to get your hand in there and rake it out.
(Tr., Vol. VI, at 304).

. . .

18
 Finally, Dr. Stevens relied on the design of the refinery.

Dr. Stevens testified during the in limine hearing and stated in

his report that the refinery was not designed to process highly

toxic chemicals such as benzene. Dr. Stevens testified that

refineries that process benzene and other toxic chemicals are

completely enclosed to eliminate the possibility that these toxic

chemicals can escape into the environment. In contrast, at this

Q. All right. Would you inevitably get wet with HAD when you
would fix the fin fan?
A. Yes, even though we had, you know, slicker suits, rubber boots
or gloves. But we had to test the tubes to find the leak, and we
-- that pressure, you would get some on you. If it was up your
sleeve or around your neck, you got some on you.
(Tr., Vol. VI, at 307).

Bob Harris testified:

Q. Okay. And what action did you have to take to remedy those in
terms of coming in direct contact with the material?
A. You had to get in there and if something was plugged, you had
to unplug it.
Q. Did it get on you when this occurred?
A. Yes, because this plant is not a very big plant. Things are
not scattered out. When you get in confined areas, when you get in
these confined areas and you start working with, like I say, the
heat exchangers, pulling, you know, bolts out of it and all that
kind of stuff, you try to drain everything out of it. But you
still get product on you because you’re right up against areas, you
know. You can’t -- You can’t hardly keep it off of you in an area
like that.
(Tr., Vol. VI, at 368).

Mike Craft testified:

Q. All right. And what about any actual contact with the product
to your skin?
A. You had it. There was no way to avoid it. If you were running
your arm up in that six-inch pipe digging packing out and liquid
was still coming down the pipe, whether you had a slicker suit on
or what, it would get in your sleeves, running down your arms, down
your legs while you were digging that out. There was no way to
avoid it.
(Tr., Vol. VI, at 550).

19
refinery, the storage tanks had floating roofs, which vented

directly to the atmosphere. Additionally, the oily water separator

was not designed to handle highly toxic chemicals as it was an open

air separator and had no secondary control devices. Dr. Stevens

found it important that the refinery had been designed to process

crude oil, which contains only trace amounts of benzene, rather

than to process highly toxic chemicals. According to Dr. Stevens

it was not unexpected that the refinery - designed to process sweet

crude oil - exposed the workers to excessive levels of benzene when

it attempted to process HAD.

The above evidence amply supports Dr. Stevens’s finding that

the refinery workers were exposed to benzene at levels several

hundred times the permissible exposure level of 1 ppm. Unlike the

expert in Moore, Dr. Stevens had more than a “paucity of facts”

about the level of benzene to which the refinery workers were

exposed. Because Dr. Stevens’s causation opinion was based on

scientific knowledge that would assist the trier of fact as

required by Rule 702, his testimony is admissible. The district

court, therefore, abused its discretion in excluding the testimony

of Dr. Stevens on medical causation.11

11
We note that Plaintiffs have also offered Dr. Stevens as
an expert on industry standards for handling benzene. Although
this testimony was not at issue in the Daubert hearing, the
district court later found that there was nothing in Dr. Stevens’s
report that would be of probative value. However, the district
court stated that “If I received [Dr. Stevens’s] analyses into
evidence, that would be a different matter.” (Tr., Vol. VIII, at
1051). Because we have concluded that Dr. Stevens’s testimony as
to medical causation is admissible, we trust that the district
court will reconsider its exclusion of Dr. Stevens’s proffered

20
 C. Admissibility of MDEQ Evidence

We next address the ruling by the district court excluding the

proffered testimony of MDEQ personnel. Plaintiffs sought to

introduce MDEQ reports concerning violations by BRC and M&S of

environmental regulations as evidence of negligence or negligence

per se. Specifically, the reports would have shown that the

original operating permit for the refinery was to refine crude oil

but that an inspection by the MDEQ on September 29, 1995, showed

that the refinery was processing HAD. As a result of the

inspection, the MDEQ became concerned that the refinery was not

operating in compliance with its air operating permit and expressed

this concern to Mr. Mullins and later to John Barrett of BRC. The

MDEQ also advised that the New Source Performance Standards and the

National Emission Standards for Hazardous Air Pollutants, federal

regulations applicable to certain air emissions, had probably been

violated. After several more inspections, the MDEQ recommended

that the refinery cease operating to determine whether the refinery

was operating within the permits it held.

After hearing oral argument on this issue, the district court

excluded the proffered testimony under Fed.R.Evid. 403, because the

probative value of the evidence was outweighed by its potential for

prejudice. It found that the MDEQ evidence was cumulative and had

very little probative value; therefore, the risk of admitting the

evidence outweighed the beneficial effects.

testimony on industry standards.

21
 We have held that Rule 403 determinations will not be

disturbed on appeal absent a showing of “‘clear abuse.’” Sprankle

v. Bower Ammonia & Chemical Co., 824 F.2d 409, 417 (5th Cir. 1987)

(quoting Shipp v. General Motors Corp., 750 F.2d 418, 427 (5th Cir.

1985)). Plaintiffs have failed to make this showing.

The district court was entitled to conclude that the MDEQ

evidence was cumulative. Plaintiffs sought to introduce this

evidence to show that the refinery was not equipped to process HAD

and that BRC and M&S did not have the proper permits to process

HAD. However, Plaintiffs introduced other evidence of the

refinery’s deficiencies in its ability to process HAD and of BRC’s

and M&S’s lack of knowledge concerning the proper permits necessary

to process HAD. See Sprankle, 824 F.2d at 417. Plaintiffs have

failed to point to anything in the record to show that the district

court abused its discretion in excluding the MDEQ evidence as

cumulative.

Additionally, in Sprankle, this Court affirmed a district

court’s order excluding evidence of OSHA regulations and sanctions

imposed by OSHA for violations of those regulations. Relying on

Rule 403, the district court found that the danger that the jury

would place undue emphasis on the OSHA regulations substantially

outweighed their probative value, stating that “the jury would

undoubtedly place great weight upon the fact that OSHA is a

government agency which follows government regulations.” Id. at

417 n. 10.

22
 Similarly, in the present case, the district court was

entitled to conclude that the MDEQ evidence of likely violations of

environmental regulations would have been unduly prejudicial due to

its apparent official nature. See Fowler v. Firestone Tire &

Rubber Co., 92 F.R.D. 1, 2 (N.D. Miss. 1980). We therefore

conclude that the district court did not abuse its discretion in

excluding the MDEQ evidence.

D. Admissibility of Invocation of the Fifth Amendment

1.

Plaintiffs argue next that the district court erred by

refusing to allow them to introduce evidence that John Barrett, the

corporate representative and President of BRC, declined to respond

to questions at his deposition on grounds that the Fifth Amendment

did not require him to incriminate himself. Because a corporation

cannot assert a Fifth Amendment privilege, Mr. Barrett asserted the

privilege in his individual capacity. See Braswell v. United

States, 487 U.S. 99, 102, 108 S.Ct. 2284, 2287, 101 L.Ed.2d 98

(1988). The district court found that this evidence had little or

no probative value because it did not reveal anything about

Plaintiffs’ alleged exposure to benzene or the symptoms experienced

by Plaintiffs. Rather, the district court found that the evidence

would be unduly prejudicial under Fed.R.Evid. 403 as it would allow

the jury to draw an adverse inference against the corporate

defendant BRC, although Mr. Barrett asserted the privilege in his

individual capacity.

23
 Plaintiffs argue that under Mississippi law, they are entitled

to receive an instruction from the district court that the jury is

permitted to make an adverse inference from such refusal to testify

in a civil suit. In Morgan v. United States Fidelity & Guaranty

Co., 222 So.2d 820, 828 (Miss.), cert. denied, 396 U.S. 842, 90

S.Ct. 106, 24 L.Ed.2d 93 (1969), the Mississippi Supreme Court

stated that an adverse inference can be drawn from a defendant’s

refusal to testify in a civil case. We have similarly held that

while a person may refuse to testify during civil proceedings on

the grounds that his testimony might incriminate him, his refusal

to testify may be used against him in a civil suit. See Farace v.

Independent Fire Insurance Co., 699 F.2d 204, 210 (5th Cir. 1983)

(citing Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.

810 (1976)). See also Harrell v. DCS Equipment Leasing Corp., 951

F.2d 1453, 1464 (5th Cir. 1992) (stating that “there is no

constitutional reason to exclude an earlier invocation of the Fifth

Amendment in a civil case”).

Therefore, in the present case, Plaintiffs were entitled to an

instruction from the court permitting the jury to draw an adverse

inference from Mr. Barrett’s refusal to testify. We are not

persuaded that Mr. Barrett’s invocation of his Fifth Amendment

privilege in his individual capacity would be unduly prejudicial to

the corporate defendant BRC. Upon being served with discovery

requests, a corporation must appoint agents who can, without fear

of self-incrimination, furnish relevant information available to

24
the corporation. Craig Peyton Gaumer & Charles L. Nail, Jr., Truth

or Consequences: The Dilemma of Asserting the Fifth Amendment

Privilege Against Self-Incrimination in Bankruptcy Proceedings, 76

Neb. L. Rev. 497, 519 (1997). “‘It would indeed be incongruous to

permit a corporation to select an individual to verify the

corporation’s answers, who because he fears self-incrimination may

thus secure for the corporation the benefits of a privilege it does

not have.’ Such a result would effectively permit the corporation

to assert on its own behalf the personal privilege of its

individual agents.” Id. (quoting Slone-Stiver v.Kossoff, 188 B.R.

954, 957 (Bankr. S.D. Ohio 1995)).

BRC designated Mr. Barrett as its corporate representative.

When Plaintiffs attempted to depose Mr. Barrett, he invoked his

Fifth Amendment privilege in his individual capacity and refused to

answer any questions posed to him. BRC cannot reap the benefit of

its corporate representative’s invocation of the Fifth Amendment in

his individual capacity, circumventing the Supreme Court precedent

that corporate entities may not assert a Fifth Amendment privilege.

See Braswell, supra.

BRC points to two cases that hold that the district court has

wide discretion under Rule 403 to exclude this evidence even though

the Fifth Amendment does not forbid adverse inferences against

parties to civil actions when they refuse to testify in response to

probative evidence offered against them. See Farace, 699 F.2d at

210; Harrell, 951 F.2d at 1464. Those cases are easily

25
distinguishable from today’s case.

In Farace, the plaintiff refused to cooperate with the fire

marshal’s investigation, invoking the Fifth Amendment. However,

the plaintiff later fully cooperated with the defendant insurance

company in its investigation. The district court and this Court

found this subsequent cooperation to be a persuasive factor in

excluding evidence of the plaintiff’s initial refusal to cooperate

with the fire marshal.

In Harrell, a defendant invoked the Fifth Amendment at his

initial deposition, but at a later deposition, answered all

questions posed to him. The trial court excluded the evidence of

the defendant’s failure to testify, finding that the possible

prejudice greatly outweighed any probative value. This Court

noted, however, the district court’s statement that it was willing

to reconsider the ruling if the plaintiffs could show that the

evidence was more probative, “for example, if [the defendant]

refused to answer questions at trial or answered questions

differently at trial.” Id. at 1465. This Court affirmed the

district court’s ruling, stating that the potential probative value

of the defendant’s invocation of the Fifth Amendment was “further

reduced by the fact that he subsequently answered all of the

questions.” Id.

In contrast, in the present case, Mr. Barrett never cooperated

with Plaintiffs. Plaintiffs did not request another deposition,

nor did Mr. Barrett appear at trial. The district court therefore

26
abused its discretion in excluding the evidence of Mr. Barrett’s

invocation of his Fifth Amendment privilege.

2.

Relatedly, Plaintiffs also argue that the district court erred

in granting summary judgment in favor of BRC against the refinery

workers employed by BRC, finding that the claims were barred by the

exclusivity provision of the Mississippi Workers’ Compensation Act.

Relying on Royal Oil Co., Inc. v. Wells, 500 So.2d 439 (Miss.

1986), Plaintiffs argue that because Mr. Barrett invoked his

privilege under the Fifth Amendment, the inference under the law is

that all of BRC’s actions were intentional and workers’

compensation benefits are therefore not the workers’ exclusive

remedy.

We do not agree with this contention. In State Farm Life

Insurance Co. v. Gutterman, 896 F.2d 116, 119 (5th Cir. 1990), we

held that the adverse inference from a party’s refusal to answer

questions was not enough to create an issue of fact to avoid

summary judgment. Similarly, in the present case, Plaintiffs have

presented no other evidence that BRC’s actions were intentional.

Without more, the adverse inference from Mr. Barrett’s refusal to

answer questions at his deposition will not preclude summary

judgment. The district court therefore correctly granted summary

judgment in favor of BRC as to Michael Craft, Troy Luster, Bob

Harris, and Larry Oakes, the refinery workers employed by BRC.

III. Judgment as a Matter of Law

27
 With the record now defined, we turn to the district court’s

order granting Defendants’ Motion for Judgment as a Matter of Law.

The district court granted the motion as to all Defendants, finding

that Plaintiffs had not presented sufficient evidence that exposure

to benzene caused their injuries. As to DuPont, the district court

concluded that DuPont did not breach any duty to Plaintiffs.

Turning first to the district court’s dismissal of DuPont,

Plaintiffs argue that DuPont, as a manufacturer of a toxic

chemical, breached its duty to warn them of the dangers of its

product. In response, DuPont relies upon the “learned

intermediary” defense, which allows a manufacturer to discharge its

duty to warn by providing “information to a third person upon whom

it can reasonably rely to communicate the information to the

ultimate users of the product or those who will be exposed to its

hazardous effects.” Swan v. I.P., Inc., 613 So.2d 846, 851 (Miss.

1993) (en banc).

The learned intermediary defense stems from the Restatement

(Second) of Torts § 388, and Comment “n” under § 388. Section 388

requires a manufacturer to provide adequate warnings of the dangers

of its product. Comment “n” to § 388 then allows the manufacturer

to discharge its duty to warn by providing necessary information

about the dangers of the product to a third person upon whom it can

reasonably rely to communicate the information to the ultimate

users of the product.

Plaintiffs rely heavily on Swan, in which a schoolteacher was

injured when she was exposed to fumes and spray of polyurethane

28
roofing materials being used to re-roof the school where she

worked. The manufacturer of the polyurethane coating filed a

Motion for Summary Judgment based on the learned intermediary

defense, which was granted by the district court. The Mississippi

Supreme Court reversed the grant of summary judgment in favor of

the manufacturer. The Court reasoned that the learned intermediary

defense requires the manufacturer to rely reasonably on an

intermediary to convey the information to the ultimate users of the

product or those who will be exposed to its hazardous effects.

Although the intermediary was an experienced applicator of

polyurethane roofing products, it was unclear whether the

manufacturer had ever provided information on the product to the

intermediary. Therefore, material issues of fact were presented as

to whether the manufacturer reasonably relied upon the

intermediary.

As the Mississippi Supreme Court stated in Swan, the

penultimate question is the reasonableness of the manufacturer in

relying on the intermediary to convey the warning to the ultimate

users of the product. In contrast with Swan, however, where it was

unclear whether the manufacturer ever provided the intermediary

with information on the product, in today’s case, DuPont provided

M&S and Donald Mullins with extensive information on the dangers of

HAD and benzene.

DuPont wrote M&S that it would be providing product

stewardship before it made any shipments of HAD to M&S. DuPont

attached a summary of the benzene OSHA standard. Brad Kulesza, a

29
DuPont representative, met with Mr. Mullins at the refinery to

explain safe handling procedures for HAD, to review the benzene

OSHA standard, and to answer any questions concerning HAD. DuPont

later wrote to M&S and identified six safety items that M&S would

have to complete before DuPont would deliver HAD to the refinery.

Finally, DuPont wrote yet another letter to M&S providing safe

handling literature for HAD, including the MSDS on HAD. Mr.

Mullins responded to this final letter by acknowledging in writing

that he had received the safe handling literature and that he would

instruct his employees and any others who might handle HAD in the

safe handling procedures.

These facts are similar to those in Adams v. Union Carbide

Corp., 737 F.2d 1453 (6th Cir.), cert. denied, 469 U.S. 1062, 105

S.Ct. 545, 83 L.Ed.2d 432 (1984), cited with approval in Swan. In

Adams, the plaintiff, an employee of General Motors, filed suit

against Union Carbide alleging that she was injured as a result of

Union Carbide’s failure to warn the employees of General Motors of

the hazards associated with toluene diisocyanate, which Union

Carbide manufactured and supplied to General Motors. Union Carbide

had provided a manual to General Motors that addressed the hazards

associated with the product and included information on the safe

use and handling of the product and a chemical safety data sheet.

Officials from Union Carbide also met with General Motors to

discuss the handling of the product to minimize personnel exposure.

The court found that Union Carbide had fulfilled its duty to warn

30
by providing this information to General Motors, who in turn had a

duty to its employees to provide them with a safe place to work.

It was therefore reasonable for Union Carbide to rely upon General

Motors to convey the information about the product to its

employees.

Like the manufacturer in Adams, DuPont discharged its duty to

warn about the hazards of its product by giving this warning to

Donald Mullins and M&S, an independent intermediary. The district

court correctly granted DuPont’s Motion for Judgment as a Matter of

Law.

We next address the district court’s order granting judgment

as a matter of law in favor of BRC, M&S, and Donald Mullins. As

discussed above, we conclude that the district court erred in

excluding the testimony of Dr. Frank Stevens and the evidence that

Mr. Barrett invoked his Fifth Amendment privilege. Once we include

this evidence, the record is sufficient to raise jury issues as to

the liability of M&S and Donald Mullins for the illnesses of

Michael Craft, Troy Luster, Bob Harris, Terry Nevels, and Larry

Oakes, and also jury issues as to the liability of BRC to Terry

Nevels. Therefore, we vacate the district court’s grant of

judgment as a matter of law in favor of M&S and Donald Mullins on

the claims of Michael Craft, Troy Luster, Bob Harris, Terry Nevels,

and Larry Oakes, and the district court’s grant of judgment as a

matter of law in favor of BRC on the claims of Terry Nevels.

However, we affirm the district court’s grant of judgment as

a matter of law with respect to the claims of Cynthia Craft,

31
Jeanette Luster, and Shari Nevels. Because Dr. Stevens did not

express a reliable opinion as to the cause of these Plaintiffs’

illnesses, the critical causation element is not supported by

credible evidence. Therefore, judgment as a matter of law in favor

of Defendants was proper as to these Plaintiffs.

The judgment of the district court is therefore

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER

PROCEEDINGS CONSISTENT WITH THIS OPINION.

32