NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0713n.06
Nos. 11-4369; 12-3995
FILED
UNITED STATES COURT OF APPEALS Aug 02, 2013
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
CAROLYN BAKER; DANIEL BROCKMAN, et al., )
)
Plaintiffs-Appellants, )
)
v. )
) ON APPEAL FROM THE
CHEVRON U.S.A. INC.; CHEVRON TEXACO ) UNITED STATES DISTRICT
CORPORATION; CHEVRON PIPELINE, INC.; ) COURT FOR THE SOUTHERN
CHEVRON ENERGY SOLUTIONS LP; CHEVRON ) DISTRICT OF OHIO
ENERGY SOLUTIONS MANAGEMENT LLC; )
CHEVRON ENVIRONMENTAL MANAGEMENT )
COMPANY; CHEVRON ENVIRONMENTAL )
SERVICES COMPANY, )
)
Defendants-Appellees. )
)
BEFORE: GRIFFIN and KETHLEDGE, Circuit Judges; and ZATKOFF, District Judge.*
GRIFFIN, Circuit Judge.
This case arises from defendant Chevron’s activities at its crude oil refinery near the Village
of Hooven in Hamilton County, Ohio.1 Chevron acknowledges that from 1931 to 1986, the refinery
was the source of considerable environmental contamination, including hazardous air emissions and
*
The Honorable Lawrence P. Zatkoff, Senior United States District Judge for the Eastern
District of Michigan, sitting by designation.
1
Although plaintiffs named seven different Chevron entities as defendants, there appears to
be no reason to distinguish between each of the separate entities because the parties collectively refer
to all defendants throughout their briefs simply as “Chevron.” We follow suit.
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a cumulative release of approximately eight million gallons of gasoline that gravitated through the
soil and formed a plume atop the groundwater under the refinery. By 1996, the plume had migrated
under a portion of the Village of Hooven.
Plaintiffs are approximately 200 former and current neighbors of the refinery who allege
claims for damages arising out of the refinery’s air emissions, the groundwater plume, and the “soil
vapors” arising from the plume that escape to the surface. Plaintiffs fall into three distinct
categories: (1) individuals who claim personal injury because of the air emissions; (2) individuals
who seek medical monitoring damages because their exposure to the plume and its soil vapors has
given them an increased risk of contracting a serious disease; and (3) individuals who claim property
damage because of the plume and its soil vapors.
The district court bifurcated the personal injury plaintiffs from the property damage plaintiffs
and selected bellwether plaintiffs from each group to determine the viability of each category of
claims. After excluding two of plaintiffs’ experts opinions as unreliable, the district court granted
summary judgment to Chevron on all claims. The district court also granted Chevron’s motion for
Rule 11 sanctions, ordering plaintiffs’ counsel to pay Chevron $250,000 in defense costs because
their positions regarding the legal and evidentiary basis for medical monitoring damages were
objectively unreasonable. Plaintiffs appealed the orders excluding their experts and granting
summary judgment to Chevron; plaintiffs’ counsel appealed the order granting Rule 11 sanctions to
Chevron. For the reasons that follow, we affirm.
I.
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A.
The Village of Hooven lies in the western part of Hamilton County, Ohio. State Route 128
demarcates Hooven’s eastern boundary. From approximately 1930 to 1985, Gulf Oil Company
(“Gulf”) operated a petroleum refinery next to Hooven, just across State Route 128. The refinery
produced gasoline, diesel fuel, jet fuel, heating oil, sulphur, and asphalt. The southwestern corner
of the refinery’s property line abuts the northeastern corner of Hooven. The refinery sits in the flood
plain of the Great Miami River, which establishes the eastern boundary of the refinery. Chevron
purchased the refinery from Gulf in 1985 and closed it in 1986. Chevron acknowledges that while
the refinery was operational, various hydrocarbon compounds escaped from refinery equipment into
the air as “fugitive emissions.”
In 1985, gasoline appeared to be seeping from the riverbank inside the refinery property line
into the Great Miami River. It was later determined that gasoline and diesel fuel, which had been
leaked or spilled at the refinery over the years, had gravitated through the soil and entered the
groundwater under the refinery. In total, about eight million gallons of fuel leaked into the
groundwater. The fuel settled on top of the groundwater, creating a light, non-aqueous phase liquid
(“LNAPL”) plume. Over time, the plume migrated from the refinery’s boundaries and entered at
least the eastern subterranean area of Hooven. The plume under the eastern portion of Hooven is
at a depth of anywhere from fifty to seventy feet below the surface. The principal chemical of
concern in the plume is benzene, which is a known carcinogen in sufficient doses. Benzene also
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originates from vehicle exhaust, cigarette smoke, and is present in common household products, such
as glue and paint.
As the level of the groundwater rises, so does the LNAPL plume floating atop the water.
When the groundwater falls, a “smear zone” of LNAPL-saturated soil is left behind. When the water
table does not encompass the smear zone, constituents from the plume remaining in the soil may
volatize into “soil vapors” which could potentially reach the surface, depending on, among other
things, the chemical properties of the particular constituent, the depth of the smear zone, and the
porosity of the soil. Under the right conditions, however, the soil vapors may biodegrade naturally.
Soon after Chevron discovered the seeping gasoline in 1985, it notified the Ohio
Environmental Protection Agency and began the process of installing groundwater monitoring and
recovery wells throughout the refinery to capture the contamination. Later, in 1993, Chevron and
the United States Environmental Protection Agency (“U.S. EPA”) entered into a consent order which
governs the remediation of the refinery site. Pursuant to the order, a number of monitoring wells
were installed to assist in determining the footprint of the plume, as well as provide a means to
conduct soil vapor testing. These efforts led Chevron to discover that the plume had migrated under
Hooven in 1997.
In 1999, to mitigate the risk of soil vapor intrusion from the plume, Chevron installed a
horizontal soil vapor extraction (“HSVE”) system in Hooven. The HSVE is a vacuum-type system
comprised of three horizontal extraction pipes located underneath Hooven’s main roadways that
intercepts soil vapors from the plume and sends them to a thermal oxidation unit for incineration.
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In 2006, the U.S. EPA reviewed Chevron’s monitoring well sampling data and concluded
that “there are no exposure pathways from Chevron’s contamination to the community residents, and
that Chevron’s contamination does not pose any current human health risks to the residents or
workers in the community.” An “exposure pathway” or “completed pathway” is a pathway by which
soil vapors from the plume can reach the surface and enter a building. The existence of a completed
pathway generally requires: (1) the observation that a particular chemical is present at all soil depths
and in the subject building’s indoor air; (2) confirmation that the specific chemical is present at
concentrations above background levels; and (3) confirmation that the measured concentrations did
not come from nonplume sources.
Also in 2006, using the same Chevron sampling data as did the U.S. EPA, the Ohio
Department of Health (“ODH”) prepared its own health risk analysis. The ODH found an
“indeterminate public health hazard” and requested additional sampling under a “wors[t] case
scenario.” To accommodate the ODH’s request, the U.S. EPA went into Hooven in 2008 and 2009
and collected several quarters of sub-slab and indoor vapor samples under what it deemed a “worst
case scenario,” that is, when the HSVE was turned off and when Chevron was engaged in high-grade
groundwater pumping which would lower the water table and expand the smear zone.
The ODH drew two conclusions from its “worst case scenario” study. First, “[t]he levels
of vapor-phase petroleum hydrocarbons detected in the indoor air of area residences and the Hooven
Elementary School during the [U.S. EPA] quarterly sampling did not pose a public health hazard to
residents, students or staff.” Second, a completed pathway for isopentane and trimethylpentane at
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concentrations above screening levels could be found in the subsurface near two monitoring wells
in the eastern portion of Hooven. Regarding this second conclusion, however, the ODH noted that,
although those hydrocarbons were detected in the subsurface, there was no health risk because the
indoor air concentrations of those chemicals “did not increase to above levels of concern,” even
under “worst case scenario” conditions. The ODH also observed that when Chevron reactivated the
HSVE, the vapor levels quickly and significantly decreased.
The ODH also released an ecological study titled “Cancer Incidence Among Residents of
Hooven, Hamilton County, Ohio, 1996-2003.” The ODH designed the study to compare the
incidence of cancer among Hooven’s 164 residents with national background rates. The study found
“significantly higher than expected numbers of cancer cases for the 25 observed cancers combined
and cancers of the female breast; lung and bronchus; and bladder.” The study concluded, however,
that the “types of cancer diagnosed among Hooven residents differ with respect to risk factors,
latency, course of disease and probability of survival. For this reason, it is not likely a specific point
source of exposure or single risk factor is playing a role in the increased cancer burden.” The ODH
later supplemented its study with data from 2004 to 2007, reporting seven additional cancer cases.
In this update, the ODH reaffirmed its earlier conclusion that “it is not likely that a common risk
factor is contributing to the development of these cancers.”
The 200 plus individual plaintiffs in this case, former and current neighbors of the refinery,
assert a litany of personal injury and property damage claims against Chevron under Ohio state law.
For case management purposes, the matter was bifurcated between personal injury plaintiffs and
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property damage plaintiffs. The district court also allowed the parties to select bellwether plaintiffs
for each trial group. The parties vigorously litigated whether the refinery damaged each category of
plaintiffs. In four separate opinions, the district court rejected all claims. A summary of each of
these rulings is necessary for the issues raised on appeal. We start with the bellwether property
damage plaintiffs.
B.
Of the sixty-one individual plaintiffs advancing property damage claims, there are fifteen
bellwether plaintiffs. These plaintiffs, whose properties were directly above the plume, alleged
property damage resulting from the plume’s contamination of the subsurface and groundwater, and
the soil vapors emanating from the plume that reach the surface. In support of these claims,
plaintiffs offered, inter alia, the expert opinion of Philip Bedient, Ph.D. Dr. Bedient broadly opined
that the “[p]roperties and residents of Hooven have been adversely impacted” by the plume. He also
stated that soil vapors from the plume were “the only way to explain” the presence of benzene,
toluene, xylene, and ethyl benzene in the shallow subsurface soils in and around Hooven.
Chevron filed a motion to exclude Dr. Bedient’s opinions under Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), and a motion for summary judgment. The district court
granted Chevron’s motions, holding that “the record fails to show that the hydrocarbon plume caused
any damage to Plaintiffs’ property or interfered with their property rights or with the use and
enjoyment of their properties.” The court first determined that:
[N]one of the bellwether Plaintiffs have demonstrated that the plume actually
interferes with their use of the subsurface. Plaintiffs do not use the groundwater for
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any purpose. Plaintiffs’ water supply does not come from ground wells; rather, they
have a municipal water source. Plaintiffs have not indicated that the plume has
caused them to abandon any particularized and non-speculative plans which require
drilling or excavation on their properties.
(Footnote omitted.)
The court next excluded Dr. Bedient’s opinions because he admitted he was not a soil vapor
expert and, even if he was, his opinions were unreliable, vague, and conclusory because he did not
perform any analysis to determine whether there is a completed soil vapor pathway from the plume
to the surface. The court went on to conclude that plaintiffs’ remaining evidence of soil vapor
intrusion—Chevron’s theoretical model of completed soil vapor pathways and plaintiffs’ deposition
testimony of gasoline odors in their homes and around their properties—was insufficient to create
a genuine issue of material fact on whether soil vapors from the plume caused compensable property
damage. All bellwether property damage plaintiffs appealed.
C.
The district court next addressed the bellwether claims of the personal injury plaintiffs. Of
the 200 plus plaintiffs in this case, only seven claimed personal injury from being exposed to
benzene contained in the refinery’s “fugitive emissions.” Of those seven, the parties selected four
as bellwether plaintiffs. These plaintiffs, and their respective injuries, are as follows: Mary Etta
Greener-Brown, Hodgkin’s disease and breast cancer; Carol Lipscomb, monoclonal
gammopathy/multiple myeloma; Jean Runck, monoclonal gammopathy/multiple myeloma; and
Michelle Schrader, acute myelogenous leukemia (“AML”).
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Plaintiffs offered three expert witnesses to prove that the refinery’s airborne benzene
emissions caused their injuries. First, Dr. Cheremisinoff, a chemical engineer, calculated a total
gross amount of benzene released from the refinery through emissions. Second, Dr. Rosenfeld, using
Dr. Cheremisinoff’s calculations, created an air flow model to calculate the cumulative dose of
benzene to which each plaintiff was exposed, a number expressed in micrograms. Dr. Garabrant,
Chevron’s expert, converted Dr. Rosenfeld’s microgram figures into the more conventional
expression of parts per million per years (“ppm-years”). Finally, Dr. Dahlgren, using Dr.
Rosenfeld’s dose estimates, opined in his First Report and untimely Second Report (filed in response
to Chevron’s motion to strike the First Report) that each plaintiff’s dose of benzene was sufficient
to cause her specific illness.
Chevron filed a motion to exclude Dr. Dahlgren’s causation opinions under Daubert and a
motion for summary judgment. Chevron based its motion for summary judgment on the asserted
inadmissibility of Dr. Dahlgren’s opinion. Plaintiffs responded by submitting Dr. Dahlgren’s Third
Report, a forty-nine page affidavit which purportedly clarified his first two reports. The district court
held a hearing at which Dr. Dahlgren testified. After the hearing, as a result of additional motion
practice, plaintiffs obtained discovery of some 270 documents that Chevron wrongly identified as
privileged. With leave of court, Dr. Dahlgren prepared a Fourth Report limited to the issues raised
in the newly discovered evidence, and the parties filed supplemental memoranda on Dr. Dahlgren’s
new opinion.
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In a forty-seven page order, the district court held that Dr. Dahlgren’s causation opinions
were not reliable under Daubert and therefore inadmissable. The court first determined that Dr.
Dahlgren’s First Report failed to comply with Rule 26(a)(2)(B) of the Federal Rules of Civil
Procedure because it did not provide the “how and why” of his opinion that each plaintiff’s
cumulative benzene exposure caused her specific illness. The court explained:
Dr. Dahlgren’s [First Report] on these Plaintiffs consists almost entirely of a
recitation of their family and medical histories. Each report concludes with a brief
“discussion” which apparently sets forth Dr. Dahlgren’s opinion that the Plaintiff’s
illness was caused by her exposure to benzene. Then, attached to each report is an
“Appendix on benzene toxicity,” which is essentially a bibliography and summary
of a number of articles and medical studies on illnesses purportedly caused by
benzene. With one exception, however, Dr. Dahlgren never explains in his report
how the bibliography supports his conclusion that a Plaintiff’s cumulative benzene
exposure was sufficient to cause her disease.
The “one exception” noted by the district court was Dr. Dahlgren’s opinion regarding
plaintiff Michelle Schrader, where he cited a 1948 report issued by the American Petroleum Institute
which states that there is no safe level of exposure to benzene. The court concluded, however, that
Dr. Dahlgren’s “no safe level” opinion was not a reliable causation theory under Daubert, noting that
“the one-hit theory could not be established because it would be just as likely that ambient benzene
was the cause of Plaintiffs’ illnesses.”
The court next determined that the Second Report— submitted nearly two months after the
expert report deadline and without leave of court— contained the same fatal flaw as the First Report:
Dr. Dahlgren made no effort to tether his causation theory to the medical literature attached to his
report.
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As for the Third Report, the district court observed that it “is arguably the only report from
Dr. Dahlgren which complies with the requirements of Rule 26(a)(2)[(B)] and yet Plaintiffs provided
no justification for providing this report five months late.” The court concluded that there was
nothing in the Third Report that could not have been included in the First Report and, therefore, the
Third Report must be excluded as an improper attempt to correct the weaknesses of Dr. Dahlgren’s
opinions that Chevron identified in its Daubert motion. The court further determined that submitting
the specifics of the expert’s opinion on the dispositive issue in the case more than five months late
was not harmless error. Because of these defects, the district court did not consider Dr. Dahlgren’s
Third Report.
The district court then addressed Dr. Dahlgren’s Fourth Report. Interestingly, the additional
discovery that plaintiffs obtained on the documents that Chevron had wrongly claimed as privileged
showed that the refinery’s benzene emissions were actually thirty percent lower than initially
believed. Nevertheless, Dr. Dahlgren maintained his original causation opinion and raised for the
first time the issue of short-term exposure. On this new issue, he opined that plaintiffs’ peak
exposures to benzene in excess of regulatory levels were worse than lower levels of exposure for a
longer period of time. Dr. Dahlgren also stated that in 1977, plaintiffs, and all Hooven residents,
should have been wearing air respirators when benzene emissions exceeded regulatory levels near
the refinery’s fence line with Hooven. Additionally, Dr. Dahlgren cited nine medical studies in
support of his Fourth Report.
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The district court rejected the Fourth Report as unreliable. The court found that Dr.
Dahlgren’s opinions were inadmissible to the extent he was relying on regulations on short-term
benzene exposures. Citing Nelson v. Tennessee Gas Pipeline Co., 243 F.3d 244, 252–53 (6th Cir.
2001), the court explained that the mere fact that plaintiffs were exposed to benzene in excess of
regulatory limits was insufficient to establish causation in a tort case. The court also found the
discussion of short-term benzene exposures in 1977 wholly irrelevant because Dr. Dahlgren failed
to account for the fact that “not only did none of the Plaintiffs live near the refinery fence line in
1977, none of the Plaintiffs even lived in Hooven in 1977.” The court then exhaustively analyzed
the medical studies Dr. Dahlgren offered in support of his opinion, ultimately concluding that “none
of these studies supports an opinion that benzene can cause the illnesses from which Plaintiffs suffer
at the extremely low doses or exposures experienced in this case.” Having excluded Dr. Dahlgren’s
opinions—plaintiffs’ only evidence of causation—the district court granted Chevron’s motion for
summary judgment. Greener-Brown, Schrader, and Lipscomb appealed; Runck did not.
D.
The remaining property damage plaintiffs attempted to meet the district court’s criticism of
the bellwether claims with new expert opinions from Matthew Hagemann, a former U.S. EPA
geologist, Dr. Cheremisinoff, and Dr. Bedient. Although Mr. Hagemann agreed with Chevron’s
assessment of the size of the smear zone, he broadly concluded that the plume and its soil vapors
could be found “in Hooven.” Dr. Cheremisinoff similarly opined, in nonspecific fashion, that soil
vapors intruded into basements and crawl spaces of the buildings “in Hooven.” Dr. Bedient
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disagreed with Mr. Hagemann over the size of the smear zone, stating that the smear zone boundaries
had been “misrepresented” and that further sampling was necessary “to determine the full extent of
the hydrocarbon contamination.”
Chevron moved for summary judgment; the district court granted the motion. Adopting Mr.
Hagemann’s opinion on the size of the smear zone, the court held that all property owners who were
not above the smear zone, or within 100 feet of its edges,2 had no property damage claims as a matter
of law. As for the claims involving the remaining properties, the court summarized its reasons for
rejecting those claims as follows:
Plaintiff[s’] claims fail because none of them pointed the [c]ourt to specific evidence
that his or her property had experienced [soil] vapor intrusion. Instead, as alluded to
earlier, Plaintiffs have approached this case as if the Village of Hooven is the real
party-in-interest in this case. But Hooven is not a plaintiff in this case and proof that
there was a completed pathway for vapor intrusion “in Hooven” does not suffice—to
take one example—to prove that there was or is a completed pathway at 113 Ohio
Avenue. Plaintiffs’ proof of vapor intrusion is simply at too general a level to create
a triable issue of fact on this issue.
(Emphasis removed.) All property damage plaintiffs appealed.
E.
One hundred eighteen plaintiffs requested medical monitoring damages because their alleged
exposure to the plume and its soil vapors put them at an “increased risk” of contracting a number of
serious diseases. Plaintiffs submitted a medical monitoring plan from Dr. Lockey designed to
“balance increased health risks of contracting injuries or diseases associated with the involuntary
2
The district court adopted the 100-foot limit based on U.S. EPA guidance regarding the
methodology of detecting soil vapors.
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environmental contamination of the soil and ground water of Hooven by Chevron hazardous
chemicals and help mitigate individual and community distress related to health outcome
uncertainties.” After reviewing Dr. Lockey’s plan, the district court ordered plaintiffs to show cause
why their claims should not be dismissed in light of Hirsch v. CSX Transp., Inc., 656 F.3d 359 (6th
Cir. 2011), a case in which this court addressed the evidentiary requirements for medical monitoring
damages under Ohio law.
After considering the parties’ briefing, the district court dismissed all claims for medical
monitoring damages with prejudice. The court offered three reasons for its ruling. First, plaintiffs
failed to specifically identify any disease or illness that they might have an increased risk of
contracting because of the plume and its soil vapors. Second, plaintiffs failed to show “not only that
he or she was exposed to a specific chemical, but also to quantify the exposure, i.e., provide a dose,
in some way that it can be reliably determined that he or she has a significantly increased risk of
contracting some disease or medical condition.” And third, Dr. Lockey’s plan was not designed to
address any disease that might be caused by the chemicals in the plume; rather, it was a general
wellness plan that supposedly would offset the deleterious health effects that may or may not have
been caused by the plume. The district court also commented that “[a]s was the case with the
property damage Plaintiffs, the medical monitoring Plaintiffs have apparently treated this lawsuit as
a class action. It is not, however.” All medical monitoring plaintiffs appealed.
F.
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After all property damage claims and bellwether personal injury claims were adjudicated, but
while the claims for medical monitoring damages were pending, Chevron filed a motion for Rule
11 sanctions against plaintiffs’ counsel. Chevron argued that it was entitled to defense costs and
attorney’s fees relating to those pending claims because plaintiffs’ counsel continued to prosecute
these claims after conceding at a discovery conference that they had no causation evidence under the
standards set by the district court.
The district court granted Chevron’s Rule 11 motion about two months after it dismissed the
claims for medical monitoring damages, holding that:
Plaintiffs’ counsel took objectively unreasonable positions with respect to both the
facts and the law and persisted in maintaining the medical monitoring claims despite
the absence of legal and factual support for the claims. These two problems are
intertwined in this case. It may be that counsel’s unreasonable view of the law
influenced the manner in which they attempted to develop evidentiary support for
these claims. Counsel’s conduct, nevertheless, was unreasonable.
The court identified the “most serious” problem with counsel’s conduct in further detail: “Because
it was so well-established . . . that a toxic tort claimant needed proof of specification causation, i.e.,
dose, counsel’s complete failure to adduce proof of dose had to be the product of a deliberate
decision and cannot be blamed on inadvertence or on a reasonable misinterpretation of the case law.”
The court subsequently awarded Chevron $250,000. Plaintiffs’ counsel appealed.
II.
It is undisputed that the LNAPL plume under a portion of Hooven originates from Chevron’s
refinery and that fugitive emissions escaped from the refinery while it was operational. It is fiercely
disputed whether these environmental hazards have caused any cognizable personal injury or
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property damage. On appeal, the parties have abandoned the bellwether distinctions used below and
have organized their arguments around the three categories of plaintiffs: (1) those claiming personal
injury damages from airborne benzene emissions; (2) those claiming property damage; and (3) those
claiming medical monitoring damages. We address each category in the order presented after
reciting the applicable standards of review.
We review a district court’s decision on a motion for summary judgment de novo. Savage
v. Gee, 665 F.3d 732, 737 (6th Cir. 2012). “The question on summary judgment is whether the
moving party has demonstrated that the evidence available to the court establishes no genuine issue
of material fact such that it is entitled to a judgment as a matter of law.” Dobrowski v. Jay Dee
Contractors, Inc., 571 F.3d 551, 554 (6th Cir. 2009) (citing Fed. R. Civ. P. 56(c)). In evaluating a
motion for summary judgment, we view the record in the light most favorable to the nonmoving
party. Id. “A mere scintilla of evidence is insufficient to create a material question of fact and defeat
a motion for summary judgment; ‘there must be evidence on which the jury could reasonably find
for the [non-movant].’” CareToLive v. FDA, 631 F.3d 336, 340 (6th Cir. 2011) (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).
“We ‘review the exclusion of expert testimony for abuse of discretion, even when the
exclusion results in the entry of summary judgment for the opposing party.’” Pluck v. BP Oil
Pipeline Co., 640 F.3d 671, 676 (6th Cir. 2011) (quoting Meridia Prods. Liab. Litig. v. Abbott Labs.,
447 F.3d 861, 868 (6th Cir. 2006)). “A district court abuses its discretion if it bases its ruling on an
erroneous view of the law or a clearly erroneous assessment of the evidence.” Ky. Speedway, LLC
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v. Nat’l Ass’n of Stock Car Auto Racing, Inc., 588 F.3d 908, 915 (6th Cir. 2009) (citation and
internal quotation marks omitted). Consequently, “we will not substitute our own judgment for that
of the district court and will reverse an evidentiary decision only where we are left with a definite
and firm conviction that [the district court] committed a clear error of judgment.” In re Scrap Metal
Antitrust Litig., 527 F.3d 517, 528 (6th Cir. 2008) (alteration in original) (citation and internal
quotation marks omitted).
III.
A.
Starting with the category of plaintiffs claiming personal injury damages from airborne
benzene emissions, the parties here dispute whether the district court properly excluded Dr.
Dahlgren’s expert opinion. Resolution of this issue controls whether the district court properly
granted summary judgment to Chevron because Dr. Dahlgren’s opinion is plaintiffs’ only evidence
of causation. And although whether Dr. Dahlgren was properly excluded is outcome determinative,
we nevertheless review the district court’s decision under the abuse of discretion standard. See
Newell Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521, 532 (6th Cir. 2012); Pluck, 640 F.3d at
676.
Plaintiffs argue that the district court erred because it did not “take into consideration the full
record presented” in excluding Dr. Dahlgren. Plaintiffs claim that the court ignored his Daubert
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hearing testimony, a slideshow that he prepared but did not present at that hearing,3 and a CD
containing numerous benzene-related scientific studies that he gave the court during the Daubert
hearing. Plaintiffs also criticize the district court for rejecting a number of studies that Dr. Dahlgren
relied on in his Fourth Report because those studies did not contain statistically significant findings.4
Chevron responds by first noting that plaintiffs do not specifically challenge the court’s
rulings that the First and Second Reports failed to comply with Rule 26(a)(2)(B) or that the Third
Report was procedurally improper. Chevron next asserts that the district court was not required to
consider Dr. Dahlgren’s testimony, his slideshow, or CD of studies because those materials related
to his Third Report, which the court correctly rejected as a prejudicially late, transparent effort to
reopen an opinion after its weaknesses had been exposed. Finally, Chevron provides five reasons
why Dr. Dahlgren’s causation opinion in the Fourth Report lacks a reliable scientific foundation:
(1) He never identified the dose of benzene from short-term bursts that he opined was causally
related to plaintiffs’ blood diseases; (2) he failed to proffer any specific information relating to the
short-term benzene bursts each plaintiff allegedly received; (3) he did not cite any scientific literature
establishing that short-term benzene exposure, of any intensity, was capable of causing plaintiffs’
injuries; (4) he relied on results of studies that contained statistically insignificant results; and (5)
3
Plaintiffs’ counsel apparently gave the district court a printed copy of Dr. Dahlgren’s
slideshow during the Daubert hearing.
4
“A study that is statistically significant has results that are unlikely to be the result of random
error[.]” Matrixx Initiatives, Inc. v. Siracusano, 131 S. Ct. 1309, 1319 n.6 (2011) (quoting Federal
Judicial Center, Reference Manual on Scientific Evidence 354 (2d ed. 2000)).
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Nos. 11-4369; 12-3995
Baker, et al., v. Chevron U.S.A. Inc., et al.
the Fourth Report did not reflect any differential diagnosis or other accepted scientific methodology
for ruling out non-benzene explanations for plaintiffs’ diseases.
Chevron’s arguments are well-taken, and we cannot conclude that the district court made a
clearly erroneous assessment of either Dr. Dahlgren’s opinion or the studies on which he relied.
Plaintiffs do not create a jury question on causation simply because Dr. Dahlgren opined that the
refinery’s airborne benzene emissions caused plaintiffs’ diseases. It is the district court’s duty to
ensure that all expert opinion evidence “rests on a reliable foundation.” Daubert, 509 U.S. at 597.
Federal Rule of Evidence 702 assigns the district courts a “gatekeeping role” in screening the
reliability of expert testimony. Id.; Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999).
“It is broadly accepted that the district court has considerable leeway in making these sorts of
determinations.” Davison v. Cole Sewell Corp., 231 F. App’x 444, 448 (6th Cir. 2007) (internal
quotation marks and brackets omitted).
In this case, the methodical analysis in the district court’s forty-seven page order shows that
it fully embraced its gatekeeper role and carefully considered, but ultimately rejected, the alleged
scientific foundation of Dr. Dahlgren’s expert opinion. First, we agree with Chevron that plaintiffs
do not argue that the court abused its discretion by excluding the First and Second Reports for failing
to comply with the requirements in Rule 26(a)(2)(B). These reports are therefore not considered in
our analysis.
Second, the court acted within its discretion when it refused to consider Dr. Dahlgren’s Third
Report and the information offered in support of that report. “We have recognized that ‘[d]istrict
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Nos. 11-4369; 12-3995
Baker, et al., v. Chevron U.S.A. Inc., et al.
courts have broad discretion to exclude untimely disclosed expert-witness testimony,’ particularly
when these reports serve as a ‘transparent attempt to reopen’ the Daubert inquiry after the
weaknesses in the expert’s prior testimony have been revealed.” Pluck, 640 F.3d at 681 (quoting
Pride v. BIC Corp., 218 F.3d 566, 578–79 (6th Cir. 2000)). Other than vaguely objecting to the
“procedural fairness” of the district court’s ruling, plaintiffs do not specifically challenge the court’s
conclusion that the untimely Third Report was an obvious attempt to bolster a deficient opinion.
Indeed, at the Daubert hearing, plaintiffs’ counsel all but admitted it intentionally held back on the
“how and why” of Dr. Dahlgren’s initial opinions because, according to counsel, it was purportedly
“unknown” how the district court would have liked that information presented.
Third, the court exhaustively reviewed the medical studies that Dr. Dahlgren offered in the
Fourth Report to support his opinion that a cumulative benzene exposure of 3.1 ppm-years can cause
Hodgkin’s disease (Brown); that 0.12 ppm-years can cause AML (Schrader); or that 2.2 ppm-years
can cause multiple myeloma (Lipscomb). The court’s primary criticism was that the subjects of the
cited studies generally had much higher exposures to benzene than the plaintiffs, and thus, “there
[was] simply too great an analytical gap between the data and the opinion proffered.” Gen. Elec. Co.
v. Joiner, 522 U.S. 136, 146 (1997). Based on a review of the district court’s comprehensive
analysis, we cannot say that its rejection of these studies was clearly erroneous. Relatedly, the
district court acted within its discretion when it discounted studies that contained statistically
insignificant results. See Pluck, 640 F.3d at 680 (affirming the district court’s exclusion of expert
evidence because, inter alia, the expert relied on studies containing statistically insignificant results).
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Nos. 11-4369; 12-3995
Baker, et al., v. Chevron U.S.A. Inc., et al.
Fourth, the court noted that there was no consistent support in the studies that benzene
exposure significantly increases the risk of developing plaintiffs’ various diseases. And although
it is medically accepted that benzene exposure can cause AML, the court also observed that Dr.
Dahlgren did not cite any study finding that a cumulative exposure of .12 ppm-years (Schrader)
significantly increases the risk of developing AML.
Finally, plaintiffs offer no response to Chevron’s argument that the Fourth Report does not
contain any differential diagnosis or other accepted scientific methodology for ruling out
non-benzene explanations for plaintiffs’ diseases. We have held previously that the absence of a
differential diagnosis is fatal to the admissibility of an expert’s opinion regarding disease causation
in cases involving hazardous substances. See Pluck, 640 F.3d at 678–80; Tamraz v. Lincoln Elec.
Co., 620 F.3d 665, 674–76 (6th Cir. 2010). After reviewing this record, we are not left with a
definite and firm conviction that the district court committed a clear error of judgment by excluding
Dr. Dahlgren’s expert opinion. Accordingly, we affirm the grant of summary judgment in favor of
Chevron.
B.
Turning now to the category of plaintiffs who claim property damage, the parties dispute the
legal thresholds of evidence necessary to establish two different types of property damage
claims—groundwater damage and indirect subsurface trespass—under Ohio law. They also dispute
whether the district court properly excluded Dr. Bedient’s expert opinion. We start with the
disagreements over the property damage claims.
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Nos. 11-4369; 12-3995
Baker, et al., v. Chevron U.S.A. Inc., et al.
First, plaintiffs claim that they have a viable groundwater damage claim under McNamara
v. Rittman, 838 N.E.2d 640 (Ohio 2005), because the plume has unreasonably interfered with their
groundwater rights. McNamara held that “[a] property owner has a potential cause of action against
anyone who unreasonably interferes with his property right in groundwater.” Id. at 644. Plaintiffs
argue that Chevron has unreasonably interfered with their groundwater rights because (1) the plume
has made the groundwater undrinkable for some 500 years, and (2) Hooven is subject to a village-
wide groundwater zoning use restriction because of the plume. Chevron responds that McNamara
is distinguishable because it addresses harm to groundwater resources that homeowners were
actually using at the time of the defendant’s alleged interference.
We agree with Chevron that plaintiffs have no groundwater claim under McNamara. An
Ohio landowner has a property right in groundwater only to the extent he actually uses that water;
he has no property interest in that water simply because it resides beneath his land. See Wood v. Am.
Aggregates Corp., 585 N.E.2d 970, 972 (Ohio Ct. App. 1990) (“One does not acquire title to
underground water but rather a right to use a reasonable amount so long as neighboring landowners
are not unduly prejudiced.”). Thus, under Ohio law, the property interest in groundwater is use-
based, not title-based. See Smith v. Summit Cnty., 721 N.E.2d 482, 486 (Ohio Ct. App. 1998) (“No
landowner in Ohio . . . has ever held title to ground water.”). And here, it is undisputed that
plaintiffs never used or planned to use the groundwater. Accordingly, Chevron did not
“unreasonably interfere” with the plaintiffs’ use of the groundwater under McNamara.
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Nos. 11-4369; 12-3995
Baker, et al., v. Chevron U.S.A. Inc., et al.
Second, plaintiffs challenge the district court’s holding that they had presented insufficient
evidence that the plume and its soil vapors indirectly trespassed into the subsurface of their
properties. The claim at issue here—an indirect subsurface trespass claim—was first recognized by
the Ohio courts in Chance v. B.P. Chemicals, Inc., 670 N.E.2d 985 (Ohio 1996). In Chance, BP had
a permit from the State of Ohio and the EPA to dispose of hazardous waste by injecting it into wells
drilled to a depth of some 2,600 feet below the ground surface. Id. at 986–87, 989. There, the
injectate mixed with the groundwater and migrated in some instances to nearly five miles away from
BP’s property. Id. at 987. Plaintiff landowners brought claims against BP for, inter alia, trespass
on the grounds that the injectate contaminated the groundwater beneath their properties. Id. at 986.
The Ohio Supreme Court held that plaintiffs had not demonstrated an unlawful entry on their
properties by BP. First, the court defined the limited nature of plaintiffs’ subsurface property rights,
finding that “subsurface rights in their properties include the right to exclude invasions of the
subsurface property that actually interfere with [their] reasonable and foreseeable use of the
subsurface.” Id. at 992. Second, the court explained “[e]ven assuming that the injectate had laterally
migrated to be in an offending concentration under some of the [plaintiffs’] properties, we find that
some type of physical damages or interference with use must have been demonstrated for [plaintiffs]
to recover for a trespass.” Id. at 993. The court further held that absent physical damage to, or
interference with their properties, the plaintiffs could not recover damages for loss in value of their
properties resulting from the stigma from the public perception that their properties were
contaminated. Id. In the end, given the limited nature of the plaintiffs subsurface rights, and no
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Nos. 11-4369; 12-3995
Baker, et al., v. Chevron U.S.A. Inc., et al.
proof of “physical damage” to the subsurface, the court determined that, as a matter of law, plaintiffs
had not shown unlawful entry. Id. at 993–94.
In Lueke v. Union Oil Co. of Cal., No. OT-00-008, 2000 WL 1545077 (Ohio Ct. App.
Oct. 20, 2000) (unpublished), the Ohio Court of Appeals interpreted and applied Chance. Faced
with a plaintiff advancing an indirect trespass claim for damages to a groundwater well that had been
contaminated with gasoline from a nearby leaky underground storage tank, the court stated: “In
cases of indirect trespass, damages are not presumed, and actual damages in the form of physical
damages or interference with use must be shown before the person suing for trespass can prevail.
Furthermore, the damages must be substantial.” Lueke, 2000 WL 1545077 at *7 (internal quotation
marks and citations omitted). The appellate court affirmed the trial court’s ruling that the plaintiff
had not suffered a substantial or unreasonable interference with the use and enjoyment of the
property because the defendant quickly remedied the problem by installing carbon filters to the
plaintiff’s water system. Id. at *8.
In this case, plaintiffs claim that the district court wrongly required them to establish
“physical damage” under Chance with proof that the soil vapors from the plume were found on their
properties at concentrations that were harmful to humans. They argue that the “physical damage”
prong of an indirect trespass claim is satisfied upon the “mere detection of constituents” on the
property, without regard to whether they are harmful. They argue that the presence of Chevron’s
contamination on plaintiffs’ properties ranging from above background to regulatory health threat
levels is sufficient injury to meet the property damage requirements of Chance. Chevron responds
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Nos. 11-4369; 12-3995
Baker, et al., v. Chevron U.S.A. Inc., et al.
that the “mere detection” of constituents is insufficient to constitute the physical property damage
under Chance.
We agree with Chevron that plaintiffs have to show something more than the “mere
detection” of soil vapors on their properties to establish the physical damage prong of an indirect
trespass claim. Under Chance, plaintiffs must produce evidence showing that (1) the plume or its
soil vapors have invaded their property, and (2) that invasion has caused either substantial physical
damage to the land or substantial interference with their reasonable and foreseeable use of the land.
These elements are plainly apparent in Chance because, as the court explained, even if it assumed
that BP’s injectate invaded the plaintiffs’ properties, the plaintiffs were still required to show that
the invasion physically damaged the property or interfered with their use and enjoyment of the
property. Chance, 670 N.E.2d at 993; see also Rini v. Dyer, No. 07CA3180, 2008 WL 3824790, *5
(Ohio Ct. App. Aug. 13, 2008) (unpublished) (“‘[W]here property owners are relying on a theory of
“indirect” trespass, there is no presumption of damages.’”) (quoting 88 Ohio Jur. 3d Trespass § 19);
Ramirez v. Akzo Nobel Coatings, Inc., 791 N.E.2d 1031, 1034 n.2 (Ohio Ct. App. 2003).
Plaintiffs unpersuasively criticize Lueke for adding the “substantial” qualifier to the second
element. In Merino v. Salem Hunting Club, No. 07 CO 16, 2008 WL 5124549 (Ohio Ct. App.
Dec. 4, 2008), plaintiffs explain, the court held that “if the plaintiff proves the elements of trespass,
he has a right to nominal damages without proof of actual damages.” Id. at *7. Merino does not
help plaintiffs because it is plainly distinguishable from Lueke: Merino involved a direct trespass
claim based on stray bullets entering the plaintiff’s property from a nearby shooting club; Lueke
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Nos. 11-4369; 12-3995
Baker, et al., v. Chevron U.S.A. Inc., et al.
involved an indirect subsurface trespass claim based on contaminant seepage. Moreover, in support
of the “substantial” qualifier, the Lueke court cited the indirect trespass cases of Williams v. Oeder,
659 N.E.2d 379, 383 (Ohio Ct. App. 1995) (“The trial court did not err in instructing the jury that
appellees were culpable in trespass for causing dust or dirt to fall on appellants’ property only if the
jury concluded that appellants had established ‘substantial damages.’”) and Brown v. Scioto Cty. Bd.
of Commrs., 622 N.E.2d 1153, 1161–62 (1993) (acknowledging that the modern view of indirect
trespass liability requires “substantial actual damage” to the property). See Lueke, 2000 WL
1545077 at *7. Having identified the essential elements of an indirect trespass claim under Ohio
law, we now examine whether plaintiffs’ proofs create a genuine issue of material fact on both
elements, starting with the first.
Because this is not a class action, the district court correctly required plaintiffs to offer
sufficient evidence showing the presence of subsurface contamination or soil vapors originating from
the plume on each and every property involved in this case. See Brown, 622 N.E.2d at 1161 (noting
that there cannot be a trespass unless some substance has entered the land itself). Plaintiffs claim
this is reversible error because it essentially amounts to a requirement that they install a monitoring
well on every property in Hooven. We do not agree that the district court required this exacting level
of specificity. Instead, it required something more than the speculative proof offered that Chevron’s
soil vapors were vaguely present “in Hooven.” Plaintiffs’ best evidence of soil vapor
intrusion—completed subsurface pathways for two hydrocarbons at two monitoring wells under the
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Nos. 11-4369; 12-3995
Baker, et al., v. Chevron U.S.A. Inc., et al.
ODH’s “worst case scenario” conditions— was simply insufficient to justify a trial for the sixty-one
property damage plaintiffs in this case.
This leads us to the question of whether the district court abused its discretion by excluding
Dr. Bedient’s opinion that the mere presence of benzene, toluene, xylene, and ethyl benzene in
varying concentrations in the soils of Hooven could only have originated from the plume. It did not.
Dr. Bedient is not a soil vapor expert, and he did not complete any vapor pathway analyses.
Likewise, Dr. Cheremisinoff did not undertake such an analysis. These evidentiary deficiencies
mean that plaintiffs have failed to create a genuine issue of material fact regarding whether the plume
and its soil vapors invaded their properties.
Even assuming arguendo that they had, plaintiffs cannot genuinely dispute whether that
invasion caused substantial physical damage or substantial interference with use and enjoyment.
Regarding the latter, plaintiffs claim that the odor of gasoline on and near their properties has caused
substantial use interference because plaintiffs have abandoned various home improvement plans and
refused to enter their basements. The district court correctly rejected this argument because the
alleged interference, based on a thorough review of plaintiffs’ depositions, was either de minimis or
irrational and, therefore, not compensable. See Banford v. Aldrich Chem. Co., Inc., 932 N.E.2d 313,
319 (Ohio 2010) (“Fear and emotional harm alone are insufficient for damages for annoyance and
discomfort.”).
As for “substantial physical damage,” it appears the district court interpreted this element to
mean that plaintiffs must demonstrate that the soil vapors found on the properties were harmful to
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Nos. 11-4369; 12-3995
Baker, et al., v. Chevron U.S.A. Inc., et al.
humans. Plaintiffs’ proofs on this matter are insufficient to create a genuine issue of material fact.
Their experts, Mr. Hagemann and Dr. Cheremisinoff—neither of which are medical doctors or health
experts—simply adopted ODH’s early position that the health risk from the plume was
“indeterminate.” And notably, the ODH later concluded, after conducting its “worst case scenario”
sampling, that the concentrations of vapor-phase petroleum hydrocarbons detected in the indoor air
of area residences and at the Hooven Elementary School “did not pose a public health hazard to
residents, students or staff.” Further, plaintiffs’ best evidence of a cancer risk—the EPA’s 2005
letters to certain property owners that sub-slab hydrocarbons posed an increased cancer risk of “8.0E-
5” (that is eight additional cases of cancer above the background cancer incidence rate) for every
100,000 individuals living in the basement for 24 hours, 365 days per year, for 70 years—is
insufficient to establish a substantial injury to the property because there is no evidence that any
Hooven resident will live under such circumstances. Accordingly, we affirm the grant of summary
judgment in favor of Chevron on the property damage claims.
C.
As for the final category of plaintiffs, the parties agree that in order to justify medical
monitoring damages under Ohio law, plaintiffs must demonstrate that they have been exposed to the
plume and its soil vapors and that this exposure has proximately resulted in a substantially “increased
risk” of contracting a serious disease to the extent that a reasonable physician would order a medical
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Nos. 11-4369; 12-3995
Baker, et al., v. Chevron U.S.A. Inc., et al.
monitoring program. The parties disagree, however, on whether plaintiffs’ evidence creates a
genuine issue of material fact on that question. We conclude it does not.5
As this court explained in Hirsch, in accordance with Day v. NLO, 851 F. Supp. 869 (S.D.
Ohio 1994) and Wilson v. Brush Wellman, Inc., 817 N.E.2d 59 (Ohio 2004), “medical monitoring”
is a remedy for being presently injured with an “increased risk of—and corresponding cost of
screening for—certain diseases that . . . are more likely to occur as a result of [a defendant’s tortious
conduct].” Hirsch, 656 F.3d at 363. And because “not every increased risk of disease warrants
increased medical scrutiny[,]” plaintiffs must offer “evidence that a reasonable physician would
order medical monitoring for them.” Id.
The claim for medical monitoring damages fails most acutely in this case because plaintiffs
lack individualized exposure data. “[I]t is well-settled that the mere existence of a toxin in the
environment is insufficient to establish causation without proof that the level of exposure could
cause the plaintiff’s symptoms[,]” the symptom being, in this case, a substantially “increased risk”
of contracting a number of serious diseases. Pluck, 640 F.3d at 679; see also McClain v. Metabolife
Int’l, Inc., 401 F.3d 1233, 1242 (11th Cir. 2005) (stating that causation “requires not simply proof
of exposure to the substance, but proof of enough exposure to cause the plaintiff’s specific illness”).
5
We apply the summary judgment standard of review to this category of claims because we
construe the district court’s order of dismissal with prejudice as an order granting summary judgment
to Chevron sua sponte. Although the district court did not expressly invoke Rule 56(f) in its order
to show cause why these claims should not be dismissed, it followed the notice procedures
contemplated therein and considered the evidence of record in reaching its decision. Additionally,
we note that the parties treat this order on appeal as if it were one granting summary judgment to
Chevron.
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Nos. 11-4369; 12-3995
Baker, et al., v. Chevron U.S.A. Inc., et al.
Plaintiffs’ medical expert, Dr. Lockey, admitted that he did not determine what exposure level to
what chemical caused an increased risk of what disease in each plaintiff. Without reliable,
individualized proof that each of the 118 plaintiffs were exposed to contaminants sufficient to cause
an increased risk of a specified disease, there is no evidence that a reasonable physician would order
medical monitoring because that doctor would have no idea which disease he would be screening
for or treating. Hirsch, 656 F.3d at 363; see also Ball v. Union Carbide Corp., 385 F.3d 713, 728
(6th Cir. 2004) (“[Medical monitoring damages are] necessarily proportional to [a plaintiff’s]
exposure to toxic emissions or waste.”).
Furthermore, Dr. Lockey drafted his plan “without regard to conditions potentially related
to environmental contaminant exposure.” (Emphasis added.) Such a plan undeniably fails to satisfy
the legal standard that plaintiffs must meet to prove they are entitled to medical monitoring, which
is that “monitoring must be directed toward the disease for which the tort victim is at risk, and will
only include procedures which are medically prudent in light of that risk as opposed to measures
aimed at general health.” Day, 851 F. Supp. at 881.
In sum, plaintiffs have not identified a specific chemical from the plume that can cause a
serious latent disease; they prepared no estimate of each plaintiff’s exposure to that specific
chemical; and they have no idea whether they face an increased health risk from the alleged
exposure. The district court rightfully observed that these evidentiary deficiencies mean that the
claims for medical monitoring damages fail as a matter of law.
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Nos. 11-4369; 12-3995
Baker, et al., v. Chevron U.S.A. Inc., et al.
Plaintiffs cannot escape this conclusion by offering the ODH’s cancer study incidence report
as a substitute for individualized exposure data. See Gates v. Rohm and Haas Co., 655 F.3d 255,
266 (3rd Cir. 2011) (“Averages or community-wide estimations would not be probative of any
individual’s [medical monitoring] claim because any one class member may have an exposure level
well above or below the average.”). Although this report, an ecological cancer study, found
“significantly higher than expected number of cancer cases,” it ultimately concluded that “it is not
likely a specific point source of exposure or single risk factor is playing a role in the increased cancer
burden.” Most importantly, it did not find that the plume or its soil vapors were the reasons for the
increased cancer rate in Hooven: “Information regarding the history of chemical and environmental
exposures . . . is not available to determine possible causes of each case of cancer.” Even plaintiffs
acknowledge the equivocal nature of the report: “Although courts do view ecological studies as
useful for establishing associations, they are relatively weak for establishing a conclusive or
definitive causal relationship between exposure and the disease in question.”
Finally, we agree with the district court that Hirsch compels dismissal. In Hirsch, this court
determined that the plaintiffs were not entitled to medical monitoring damages because they were
unable to meet their burden of establishing an increased risk of disease. Hirsch, 656 F.3d at 363–64.
Hirsch involved a derailment of a train carrying hazardous materials, leading to a serious fire and
the spread of hazardous dioxins into the plaintiffs’ neighborhood. Id. at 361. The Hirsch plaintiffs
presented only speculative individualized exposure data—they sampled dioxin levels at homes in
the area and used modeling to predict who in the community had been exposed to dioxins at
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Nos. 11-4369; 12-3995
Baker, et al., v. Chevron U.S.A. Inc., et al.
concentrations above the U.S. EPA action level. Id. Plaintiffs here have no individualized exposure
data. The Hirsch plaintiffs established only a legally insignificant increased risk, a
one-in-one-million increased risk of cancer. Id. at 364. Plaintiffs here have no evidence of a legally
significant increased risk. The Hirsch plaintiffs failed to establish that a reasonable physician would
order medical monitoring for such a de minimis risk of future harm. Id. Plaintiffs here have
produced a physician who crafted a medical monitoring plan “without regard” to individualized
exposure data. Thus, the district court correctly recognized that plaintiffs’ proofs in this case
compare less favorably to those of the plaintiffs in Hirsch. Accordingly, we affirm the dismissal of
the claims for medical monitoring damages.
IV.
In the sanctions appeal, plaintiffs’ counsel and Chevron dispute whether the district court
abused its discretion in imposing Rule 11 sanctions. “We review a district court’s decision to
impose sanctions under Rule 11 for abuse of discretion[,]” DiPonio Const. Co., Inc. v. Int’l Union
of Bricklayers & Allied Craftworkers, Local 9, 687 F.3d 744, 752 (6th Cir. 2012), and apply this
deferential standard of review to “all aspects of a district court’s Rule 11 determination.” Runfola
& Assoc., Inc. v. Spectrum Reporting II, Inc., 88 F.3d 368, 372 (6th Cir. 1996) (per curiam) (citation
and internal quotation marks omitted).
Rule 11 permits sanctions if “a reasonable inquiry discloses the pleading, motion, or paper
is (1) not well grounded in fact, (2) not warranted by existing law or a good faith argument for the
extension, modification or reversal of existing law, or (3) interposed for any improper purpose such
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Nos. 11-4369; 12-3995
Baker, et al., v. Chevron U.S.A. Inc., et al.
as harassment or delay.” Merritt v. Int’l Ass’n of Machinists and Aerospace Workers, 613 F.3d 609,
626 (6th Cir. 2010) (citation and internal quotation marks omitted). “Rule 11 sanctions are
warranted if the attorney’s conduct was unreasonable under the circumstances.” Andretti v. Borla
Performance Indus., Inc., 426 F.3d 824, 833 (6th Cir. 2005). Additionally, “it is important to review
the grant of sanctions in the context of the litigation history of th[e] action.” Merritt, 613 F.3d at
627.
Plaintiffs’ counsel argue that they did nothing more than zealously advocate for the medical
monitoring plaintiffs. Counsel also argues that the district court sanctioned them with the benefit
of hindsight and punished them for preserving their clients’ appellate rights, rather than voluntarily
dismissing their claims. Chevron responds that counsel unreasonably interpreted the elements of the
medical monitoring remedy, misrepresented their exposure evidence, and submitted a flawed
medical monitoring plan.
The parties’ positions reflect a fundamental disagreement over the quantity and quality of
exposure evidence needed to justify medical monitoring damages under Ohio law. This
disagreement has infected the entire case and how it was litigated. Under the circumstances of this
case, however, we conclude that the district court did not abuse its discretion in holding that
plaintiffs’ attorneys were objectively unreasonable in maintaining that (1) they need not show
individualized exposure data to obtain medical monitoring, and (2) plaintiffs need only show a
potential “increased risk” of contracting a serious disease, as opposed to a present “increased risk,”
in order to be entitled to medical monitoring.
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Nos. 11-4369; 12-3995
Baker, et al., v. Chevron U.S.A. Inc., et al.
Even in this appeal, plaintiffs’ attorneys continue to assert that “to justify medical
monitoring, all the Plaintiffs needed to do in this case was prove the elements of one of the
underlying torts pled in their complaint (negligence, nuisance, trespass and fraud)—nothing more
and nothing less.” This statement of the law is patently unreasonable. Claims for medical
monitoring damages must be supported with individualized exposure data that justifies the cost of
a defendant funding such a program. Hirsch, 656 F.3d at 363; see also In re Welding Fume Prods.
Liability Litig., 245 F.R.D. 279, 292 (N.D. Ohio 2007) (medical monitoring plaintiffs must offer
proof that an exposure to a defendant’s toxic substance caused an increased risk of serious disease);
Day, 851 F. Supp. at 881 (plaintiffs must show by “expert medical testimony that they have
increased risk of disease which would warrant a reasonable physician to order monitoring”).
Counsels’ position that medical monitoring is reasonable and appropriate without individualized
exposure data has absolutely no support in the case law. And we do not consider their insistence
otherwise a “good faith” argument to reverse, extend, or modify existing case law.
Counsels’ position that Chevron should provide medical monitoring to plaintiffs, who only
have a potential of suffering an “increased risk” of disease, but no present “increased risk,” is
likewise objectively unreasonable. Quite obviously, they are advancing claims that are not ripe in
an attempt to collect damages for nonexistent harm. Hirsch suggests that a medical monitoring
remedy potentially exists for plaintiffs who are presently injured with an “increased risk,” not for
those who might suffer the potential injury of an “increased risk.” See Hirsch, 656 F.3d at 363.
Contrary to their repeated assertions otherwise, counsel cannot seek medical monitoring damages
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Nos. 11-4369; 12-3995
Baker, et al., v. Chevron U.S.A. Inc., et al.
for clients who have yet to suffer an “increased risk” of contracting a serious disease. The district
court did not abuse its discretion by sanctioning counsel for continually perpetuating such an
“irrational” view of medical monitoring law, especially after counsel frankly admitted to the district
court they had no causation proofs under the district court’s standards.
Moreover, we do not agree with counsel that the district court imposed sanctions with the
“benefit of hindsight.” While the court awarded sanctions only after reviewing Dr. Lockey’s plan
and this court issued Hirsch, it obtained no “benefit of hindsight” from that review because counsel
conceded at a discovery conference—more than a year earlier—that they could not prove their
medical monitoring claims by the causation standards required by the district court, which Hirsch
did not alter. Thus, the court did not sanction counsel for litigating claims that were ultimately found
to be without merit; rather, it sanctioned them for continuing to litigate claims that were admittedly
meritless.
Finally, we are not persuaded that the district court punished counsel with sanctions because
their clients wanted to preserve their appeal rights, rather than voluntarily dismiss their claims. After
counsel admitted they had no causation proofs, the court suggested a Raceway dismissal6 so that
6
In Raceway Properties v. Emprise Corporation, the district court entered an interlocutory
order in a private antitrust case that made it impossible for the plaintiffs to prevail. 613 F.2d 656
(6th Cir. 1980) (per curiam). The plaintiffs requested, and the district court entered, a formal order
of dismissal with prejudice that would permit a challenge of the order on appeal. This court
subsequently affirmed that it had appellate jurisdiction over the matter because the plaintiffs’
“solicitation of the formal dismissal was designed only to expedite review of an order which had in
effect dismissed appellants’ complaint.” Id. at 657; see also Libbey-Owens-Ford Co. v. Blue Cross
and Blue Shield Mut. of Ohio, 982 F.2d 1031, 1034 (6th Cir. 1993) (describing the Raceway
dismissal).
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Nos. 11-4369; 12-3995
Baker, et al., v. Chevron U.S.A. Inc., et al.
counsel could challenge the court’s legal rulings on appeal; the parties agreed. Later, however,
counsel reneged because they wanted to dismiss the claims for medical monitoring and the non-
bellwether property damage claims, whereas Chevron wanted to adhere to the compromise struck
on the record and dismiss only the medical monitoring claims. In light of counsels’ admission
regarding their lack of evidence, Chevron subsequently sent counsel a Rule 11 safe-harbor letter
advising counsel to voluntarily dismiss or face the possibility of paying defense costs for the medical
monitoring claims going forward. Counsel refused to dismiss, believing that they were ethically
obligated to preserve the medical monitoring plaintiffs’ appellate rights. Counsel was mistaken.
Rule 11 sanctions are appropriate when an attorney refuses to dismiss a claim after becoming
aware that it lacks merit. See Merritt, 613 F.3d at 627 (“Rule 11 imposes a continual obligation on
attorneys to refrain from pursing meritless or frivolous claims at any stage of the proceedings . . . .”)
(citation and internal quotation marks omitted); Runfola, 88 F.3d at 373 (affirming Rule 11 sanctions
against counsel who failed to dismiss the action after becoming aware of their inability to assert any
evidence in support of their claims). Given the history of this case, the district court did not commit
a clear error of judgment by sanctioning counsel for continuing to litigate meritless claims. Further,
counsel’s false dilemma argument—either dismiss and lose appeal rights or litigate and pay costs—is
unpersuasive. The district court offered counsel a Raceway dismissal that would have allowed
counsel to promptly challenge the district court’s rulings in this court. Despite this offer, counsel
refused to dismiss only the claims of the medical monitoring plaintiffs and continued litigating under
the specter of Rule 11 at their own peril.
- 36 -
Nos. 11-4369; 12-3995
Baker, et al., v. Chevron U.S.A. Inc., et al.
V.
For these reasons, we affirm the judgment of the district court.
- 37 -
Carolyn Baker v. Chevron U.S.A. Inc.
Court: Court of Appeals for the Sixth Circuit
Date filed: 2013-08-02
Citations: 533 F. App'x 509
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