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New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 14:15:08 2011.04.27
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2011-NMCA-032
Filing Date: February 24, 2011
Docket Nos. 29,136 and 29,336
(consolidated)
CONNIE LEA GIBSON ANDREWS,
Individually and as Personal Representative
of TOMMY LINDELL ANDREWS,
Deceased,
Plaintiff-Appellant,
v.
UNITED STATES STEEL CORPORATION,
CHEVRON U.S.A., INC., CONOCOPHILLIPS
COMPANY, and RADIATOR SPECIALTY
COMPANY,
Defendants-Appellees.
APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
Gary L. Clingman, District Judge
Tucker Law Firm, PC
Steven L. Tucker
Santa Fe, NM
Marion J. Craig, III PC
Marion J. Craig, III
Roswell, NM
Heard, Robins, Cloud & Black, LLP
J. Robert Black
Houston, TX
Daryl L. Moore, P.C.
Daryl L. Moore
Houston, TX
1
for Appellant
Hinkle, Hensley, Shanor & Martin, L.L.P.
Richard E. Olson
Rebecca Nichols Johnson
Roswell, NM
Forman, Perry Watkins Krutz & Tardy, L.L.P.
Phillip S. Sykes
Lea Ann Smith
Tim Gray
Jackson, MS
Coats Rose
James M. Riley, Jr.
Stacy K. Yates
Houston, TX
Abrams, Scott & Bickley, L.L.P.
Robert P. Scott
Houston, TX
for Appellees
OPINION
VIGIL, Judge.
{1} This is a toxic tort case. The district court granted Defendants’ motion to exclude the
testimony of Plaintiff’s experts pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993), and State v. Alberico, 116 N.M. 156, 861 P.2d 192 (1993), granted summary judgment
in favor of Defendants, and awarded Defendants expert witness fees and costs. We affirm.
BACKGROUND
Facts
{2} Decedent worked as a farmer and rancher for approximately twenty-four years, from 1947
through 1971. During this time, Decedent worked with equipment and machinery and various
products associated with the operation, cleaning, and maintenance of the equipment and machinery,
which included gasoline and a product known as Liquid Wrench. Decedent used the gasoline to
clean machinery parts in the field and in his shop, and he used the Liquid Wrench to loosen rusted
and frozen equipment parts. In November 2004, Decedent was diagnosed with Myelodysplastic
Syndrome (MDS), also known as acute mylegenous leukemia (AML), and he died on February 5,
2
2005. Plaintiff is the surviving widow of Decedent, and she sued Defendants, alleging that benzene
in the gasoline and Liquid Wrench they supplied or manufactured caused Decedent’s MDS and
death.
Summary Judgment Proceedings in the District Court
{3} Plaintiff designated Dr. Mark Nicas, an industrial hygienist, as her expert to estimate
Decedent’s exposure to benzene from Defendants’ products. In addition, Plaintiff designated Dr.
Frank Gardner, a hematologist, to testify that Decedent’s form of MDS was caused by his exposure
to the benzene.
{4} Defendants filed a motion to exclude the testimony of Dr. Nicas and a motion to exclude the
testimony of Dr. Gardner. These motions were supported by excerpts from depositions, exhibits
from depositions, affidavits of witnesses, and affidavits of experts, with references to pertinent
scientific literature, studies, and techniques. Plaintiff responded to these motions, supported in the
same way. After Defendants filed their reply in support of the motions, the district court held a
Daubert/Alberico evidentiary hearing at which the parties were given an opportunity to present
additional evidence in support of their respective positions. We commend the parties and the district
court for their full development of an intelligent and understandable record of the complex issues
presented.
{5} Defendants also filed a motion for summary judgment on causation alleging that the
methodology used by each expert was fatally flawed, and their opinions were therefore inadmissible
under Rule 11-702 NMRA. On this basis, Defendants contended they were entitled to summary
judgment because, “[o]nce the testimony of Plaintiff’s experts is excluded, there is no evidence to
support causation in this case.”
{6} The district court ruled that the testimony of Dr. Nicas and Dr. Gardner was inadmissible,
filed findings of fact and conclusions of law, and granted summary judgment in favor of Defendants.
On appeal, Plaintiff contends that the district court abused its discretion in striking the testimony of
Dr. Nicas and Dr. Gardner. Thus, Plaintiff asserts, genuine issues of material fact exist on diagnosis
and causation, and Defendants were not entitled to summary judgment. Plaintiff also challenges the
award of expert witness fees and costs.
DISCUSSION
{7} The primary issue in this case is whether Defendants were entitled to summary judgment.
In deciding this question, we must determine whether the district court abused its discretion in
striking the testimony of Dr. Nicas and Dr. Gardner under Daubert/Alberico, because without their
testimony, Plaintiff cannot establish a prima facie case. We also discuss whether the district court
abused its discretion in the award of expert witness fees and costs.
I. The Summary Judgment Award
{8} To determine whether summary judgment was proper, we discuss: (A) proof of causation
in a toxic tort case; (B) Rule 11-702 and the application of Daubert/Alberico; (C) our standard of
3
review of a district court order excluding expert witness testimony under Daubert/Alberico; (D) the
district court order excluding the testimony of Dr. Nicas; and (E) the district court order excluding
the testimony of Dr. Gardner.
A. Proof of Causation in a Toxic Tort Case
{9} “Scientific 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 v. Pa. Eng’g Corp., 102 F.3d 194, 199 (5th Cir. 1996). Therefore,
to establish cause in a toxic tort case, the evidence must show both “general causation” and “specific
causation.” See Norris v. Baxter Healthcare Corp., 397 F.3d 878, 881 (10th Cir. 2005) (discussing
causation in toxic tort cases in terms of general causation and specific causation). “General
causation is whether a substance is capable of causing a particular injury or condition in the general
population and specific causation is whether a substance caused a particular individual’s injury.”
Id. at 881; see also Federal Judicial Center, Reference Manual on Scientific Evidence, Reference
Guide on Medical Testimony, 481, 483 (2d. ed. 2000) (stating that “[g]eneral causation is established
by demonstrating (usually by reference to a scientific publication) that exposure to the substance in
question causes (or is capable of causing) disease” and that “[s]pecific, or individual, causation is
established by demonstrating that a given exposure is the cause of an individual’s disease”).
{10} These principles were enunciated by Dr. Richard D. Irons in an affidavit filed on behalf of
Defendants. As a toxicologist with an extensive background in hematology, he said: “[I]n order to
evaluate the potential risks of adverse health effects associated with exposure to a drug or chemical
one has to know the actual dose of the substance that is absorbed and compare that dose to those
shown to cause adverse health effects as well as to doses that have not been shown to result in
adverse health effects.”
B. Rule 11-702 NMRA and the Application of Daubert/Alberico
{11} The admission of all expert testimony in our courts is governed by Rule 11-702, which is
entitled: “Testimony by experts.” The rule states:
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 three prerequisites for the admission of expert testimony under the rule are: (1) the witness
must be qualified as an expert; (2) the specialized testimony must assist the trier of fact; and (3) the
expert witness testimony must be limited to scientific, technical, or other specialized knowledge in
which the witness is qualified. Alberico, 116 N.M. at 166, 861 P.2d at 202. The burden is on the
party offering the evidence to satisfy these requirements. State v. Morales, 2002-NMCA-052, ¶¶
21, 23, 132 N.M. 146, 45 P.3d 406.
{12} The parties do not dispute the qualifications of Dr. Nicas and Dr. Gardner, nor is there a
dispute that their testimony, if admissible, would assist the trier of fact. The dispute in this case
4
centers on whether the opinions of Dr. Nicas and Dr. Gardner are reliable and therefore admissible
as scientific knowledge under Alberico’s third prerequisite. See State v. Fuentes, 2010-NMCA-027,
¶ 23, 147 N.M. 761, 228 P.3d 1181, cert. denied, 2010-NMCERT-002, 147 N.M. 704, 228 P.3d 488
(stating that the reliability requirement for the admission of scientific evidence under Daubert
implicates the third prerequisite).
{13} Where expert testimony concerns scientific knowledge, the proponent of the testimony must
establish the reliability of the science and methodology on which it is based. In Alberico, 116 N.M.
at 165-68, 861 P.2d at 200-04, our Supreme Court abandoned the “general acceptance” test of Frye
v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923), in favor of the more flexible Daubert test for
determining if expert opinion evidence involving scientific knowledge is reliable and therefore
admissible under Rule 11-702. In adopting this test, our Supreme Court “established that it is error
to admit expert testimony involving scientific knowledge unless the party offering such testimony
first establishes the evidentiary reliability of the scientific knowledge.” State v. Torres, 1999-
NMSC-010, ¶ 24, 127 N.M. 20, 976 P.2d 20. The party proposing to introduce expert scientific
testimony into evidence must satisfy the threshold requirement for admissibility; namely, that the
testimony is reliable because it is grounded in established scientific principles or methods. See
Alberico, 116 N.M. at 167-68, 861 P.2d at 203-04 (discussing that our courts consider “whether the
scientific technique is based upon well-recognized scientific principle and whether it is capable of
supporting opinions based upon reasonable probability rather than conjecture”). “[I]n New Mexico,
evidentiary reliability is the hallmark for the admissibility of scientific knowledge.” Torres, 1999-
NMSC-010, ¶ 26.
{14} The proponent of the scientific evidence is required to establish by a preponderance of the
evidence that the testimony is reliable, and therefore admissible, but not that the testimony must be
believed. Moore v. Ashland Chem., Inc., 151 F.3d 269, 276 (5th Cir. 1998). To determine whether
the proposed expert testimony is reliable, the district court considers a non-exclusive list of factors.
These include: (1) whether the theory or technique can be, and has been, tested; (2) whether the
theory or technique has been subjected to peer review and publication; (3) the known potential rate
of error in using a particular scientific technique and the existence and maintenance of standards
controlling the technique’s operation; (4) whether the theory or technique has been generally
accepted in the particular scientific field; and (5) whether the scientific technique is based upon
well-recognized scientific principle and whether it is capable of supporting opinions based upon
reasonable probability rather than conjecture. State v. Anderson, 118 N.M. 284, 291, 881 P.2d 29,
36 (1994).
C. Standard of Review
{15} Whether evidence involves scientific knowledge, which must satisfy the standard of
evidentiary reliability set forth in Daubert/Alberico, presents a question of law that is reviewed de
novo. Torres, 1999-NMSC-010, ¶ 28. The district court’s application of the Daubert-Alberico
factors is reviewed for abuse of discretion. State v. Tollardo, 2003-NMCA-122, ¶ 16, 134 N.M. 430,
77 P.3d 1023. Moreover, when all the applicable factors are considered, the admission or exclusion
of the expert scientific testimony is within the discretion of the district court and will not be reversed
on appeal absent a showing of abuse of that discretion. Alberico, 116 N.M. at 169, 861 P.2d at 205.
5
D. Opinion of Dr. Nicas
{16} Plaintiff designated Dr. Mark Nicas, an industrial hygienist, as her expert to establish
Decedent’s level of benzene exposure. Dr. Nicas calculated both an inhalation and dermal exposure
for gasoline and Liquid Wrench. Inhalation exposure measures the amount of inhaled evaporated
benzene, while dermal exposure measures the amount of benzene absorbed through the skin. Dr.
Nicas calculated that Decedent had a total cumulative benzene exposure from gasoline and Liquid
Wrench of 55 parts per million-years (ppm-years). A ppm-year is the calculation of a dose
measurement used by industrial hygienists and health agencies that measures the amount of exposure
to a product over a period of time. Epidemiology studies report statistically significant elevations
AML at cumulative exposures to benzene of 45-200 ppm-years. In this case, the total 55 ppm-year
figure was arrived at by adding Decedent’s calculated inhaled exposure to benzene from gasoline
and Liquid Wrench of 2.23 ppm-years, (1.92 ppm-years from gasoline; 0.30 ppm-years from Liquid
Wrench) and his calculated dermal exposure to benzene from gasoline and Liquid Wrench of 52.75
ppm-years (45.3 ppm-years from gasoline and 7.45 ppm-years from Liquid Wrench).
{17} The methodology Dr. Nicas used to calculate Decedent’s inhaled exposure to benzene is not
challenged. We therefore turn to the methodology used to calculate Decedent’s dermal absorption
of benzene. Dr. Nicas used three parameters to calculate the amount of benzene absorbed by
Decedent through his skin: (1) the “flux rate” (or “flux parameter”) of benzene, (2) the surface area
of the skin exposed to benzene, and (3) the duration of the contact between the skin and benzene.
The “flux rate” refers to the estimated rate at which a substance is absorbed through the skin into
the bloodstream. Based upon deposition testimony that Decedent had “red and peely” skin rashes,
that Decedent’s hands were red and chapped from gasoline contact and working in the fields, and
that he did not wear gloves when cleaning with gasoline, Dr. Nicas calculated that Decedent
absorbed benzene at a rate five times greater (500%) than through healthy skin. The calculation then
used the average area of an adult male’s hands for the surface area of exposure. For the duration of
the contact, Dr. Nicas relied on an affidavit of Decedent’s son.
{18} The district court excluded Dr. Nicas’ opinion, concluding that the dermal absorption
methodology he utilized was not scientifically valid or reliable. In arriving at its conclusion, the
district court directed most of its criticism to the methodology Dr. Nicas used for calculating the flux
rate of benzene through live human skin. For example, the district court found: (1) flux rates for
benzene have no known error rate, reliability, or reproducibility; (2) there is no method for
calculating the absorption rate of benzene as a constituent part of a solvent mixture such as gasoline
and Liquid Wrench; (3) Dr. Nicas’ reliance on a study to increase the benzene absorption rate by
500% is flawed; (4) the dermal absorption of benzene cannot reliably be combined with inhalation
exposure to benzene for a total exposure estimate; and (5) the dermal flux model used by Dr. Nicas
to calculate the amount of benzene that was absorbed by Decedent has not been tested, has not been
validated or reproduced, and it is unreliable.
{19} It is not necessary for us to determine whether the district court properly excluded Dr. Nicas’
testimony pursuant to Daubert-Alberico on grounds that the methodology he used to calculate the
flux rate of benzene through live, human skin is not scientifically valid and reliable. It is not
necessary because a critical component of the analysis—the duration of the contact between
Decedent’s hands and gasoline—is unmistakably flawed and unreliable.
6
{20} In his report, describing the amount of time Decedent’s hands were in gasoline, Dr. Nicas
stated:
To estimate benzene exposure assuming high usage of gasoline, I relied on the
affidavit of Mr. Terry Andrews dated May 8, 2008. According to the affidavit,
[Decedent]: (i) used rags soaked with gasoline to clean equipment for 10 minutes
in the morning, six days a week; (ii) used rags soaked with gasoline to clean
equipment for 10 minutes in the afternoon, two days a week; (iii) cleaned parts with
a wire brush that were soaking in gasoline in a tray for 30 minutes once a week; and
(iv) cleaned parts in the field for 15 minutes, three times a week, by pouring gasoline
over the parts. According to the affidavit, [Decedent] did not wear gloves, and both
hands were wet with gasoline during the entire time these tasks were performed.
Therefore, I assumed the total time per week spent cleaning equipment with gasoline
was 155 minutes (60 + 20 + 30 + 45 = 155 min), and that these cleaning tasks were
done for 48 weeks per year. According to Mrs. Connie Andrews, the harvest
“season” lasted eleven months (page 240, Connie Andrews deposition, December 11,
2007); this included months when the fields were being prepared for planting. I
assumed that the entire skin surface of both hand[s] were wet with gasoline; Mr.
Terry Andrews did not say that only parts of the hands were wet.
Thus, the Nicas calculation depends on both of Decedent’s hands being immersed in gasoline
slightly over 2.5 hours per week, 48 weeks per year, for approximately 24 years. This does not
include Decedent’s use of Liquid Wrench. Dr. Nicas calculated that in addition to the gasoline,
Decedent’s hands were in contact with Liquid Wrench one hour per week, 48 weeks per year, for
approximately 24 years.
{21} In support of the motion to exclude Dr. Nicas’ testimony, Defendants offered the affidavit
of Dr. Irons. In his affidavit, supported by references to applicable literature and studies, Dr. Irons
addressed whether a human being could tolerate soaking hands in gasoline for 2.5 hours per week
over the period of time involved. He said that comparing Dr. Nicas’ estimated dermal dose of
benzene with that of other substances typically found in gasoline would result in a “reality check.”
The toluene, xylenes, and alkanes that are found in gasoline are present in concentrations “typically
50 times that of benzene.” Moreover:
The dermal flux of toluene through human skin has been determined to be 35-60
times faster than benzene, and that of xylene 11-23 times faster than benzene.
Assuming that these and other solvents are present in gasoline at concentrations 50
fold higher than benzene, and applying the same assumptions and conditions made
by Dr. Nicas, [Decedent] would absorb doses of toluene and xylenes alone that are
approximately 700 to 1000 times greater during the same 2.5 hr period. Similar
calculations can be made for other substituted benzenes and other solvents present
in gasoline. Because the acute effects of all these compounds on the central nervous
system are the same, the doses estimated for all of them are additive with respect to
effect. Analysis of straight chain alkanes present at much higher concentrations
would render much higher numbers and result, again, in acute central nervous system
toxicity. These comparisons lead to the inevitable conclusion that the conditions and
7
assumptions made in the benzene dermal absorption estimates by Dr. Nicas are not
consistent with repeated gasoline exposures that could be tolerated for 24 years of
chronic exposure.
Finally, Dr. Irons stated that no reliable scientific or medical evidence suggested that these other
materials found in gasoline are leukegenic or toxic to bone marrow.
{22} The foregoing evidence was undisputed, and Plaintiff made no effort to discredit or explain
it. Moreover, Dr. Nicas admitted he did not look for or locate any articles related to the flux factor
or dermal absorption of gasoline. While he may have seen a study in which the flux factor for
gasoline was analyzed or evaluated, he could not remember, and he did not know how the flux factor
for gasoline is measured. Dr. Nicas believes he has seen a study regarding the dermal absorption
of gasoline. However, he said he did not have a copy of the study in his papers because he did not
“believe it had information about the absorption of benzene.” Concerning what the article reported
was actually being absorbed by skin, Dr. Nicas could only say, “I don’t remember the paper enough
to tell you what was being absorbed.”
{23} Dr. Nicas further admitted that in making his calculations, he focused exclusively on benzene
and ignored the other toxic chemicals that are constituents of gasoline, although he conceded that
xylene and toluene in gasoline could be dermally absorbed at higher rates or lower rates than
benzene. Specifically, he does not know whether benzene or toluene would be absorbed through
the skin faster than the other from a mixture in which they are both present. He also did not factor
in whether alkanes that might be in gasoline would be dermally absorbed in the same manner and
at the same rates as aromatics that might be in gasoline. In fact, when asked if alkanes are dermally
absorbed if they are in gasoline, Dr. Nicas answered, “Some may be. I’m not really sure.” In order
to factor this variable into his calculations, he testified, “Someone would have to supply me the
exact constituents of gasoline and the exact permeation rates of gasoline.”
{24} Dr. Nicas also acknowledged he made no effort to see what the literature would disclose
about the acute effects to skin that was immersed in gasoline for 155 minutes per week. When asked
whether some constituents of gasoline cause skin to slough off with sufficient exposure, Dr. Nicas
answered, “I don’t know the exact effects of specific constituents of gasoline.” Finally, when he was
specifically asked whether a person can medically tolerate having their hands immersed in gasoline
for 155 minutes per week and in Liquid Wrench for one hour per week for many years, Dr. Nicas
said, “[I]t’s a question I’m not prepared to answer, because that’s not my area.”
{25} After considering the foregoing evidence, the district court made the following findings of
fact:
[1.] Gasoline contains concentrations of “substituted benzenes,” such as
toluene and xylene, as well as alkanes which are typically 50 times the concentration
of benzene in gasoline.
[2.] Studies which have been conducted on relative flux for benzene and
other chemicals have reported the dermal flux for toluene to be 30-60 times greater
8
than benzene and that of xylene 11-23 times greater than benzene, and Plaintiff has
offered no evidence to the contrary.
[3.] Using the 50 fold greater than benzene typical concentrations of
toluene, xylene and alkanes present in gasoline, and applying the same assumptions
and conditions made by Dr. Nicas, [Decedent] would have absorbed doses of toluene
and xylene alone at approximately 700 to 1000 times greater than his estimated
benzene absorption, during the same [2.5] hour period, which absorption at such
concentrations would have resulted in acute central nervous system toxicity that
could not have been tolerated for 24 years of chronic exposure.
In accordance with these findings, the district court concluded as a matter of law that, “The
methodology utilized by Dr. Nicas to arrive at his exposure estimates for [Decedent] is not
scientifically valid, or reliable, and is excluded.” Because Plaintiff relied exclusively on the opinion
of Dr. Nicas to establish Decedent’s exposure to benzene, the district court also concluded, “There
is insufficient evidence of the levels of benzene and frequency of exposure by [Decedent] to gasoline
and Liquid Wrench to support any claim that either one of these substances caused the disease that
caused his death.”
{26} The district court did not abuse its discretion in excluding the scientific testimony of Dr.
Nicas. Dr. Nicas’ calculation of Decedent’s dermal absorption from gasoline required Decedent’s
hands to be immersed in gasoline for 2.5 hours per week, 48 weeks per year, for 24 years. The
undisputed evidence is that such exposure would have resulted in Decedent’s death from acute
central nervous system toxicity due to the dermal absorption of other toxic constituents of gasoline
that are absorbed much faster (700 to 1000 times) than benzene in gasoline. See In re TMI
Litigation, 193 F.3d 613, 683, 687-88 (3d Cir. 1999) (concluding that the experts’ estimates of
radiation exposure were not reliable because they would have resulted in the death of half of the
region’s population, which did not occur); Castellow v. Chevron USA, 97 F. Supp. 2d 780, 788
(S.D.Tex. 2000) (noting that the expert’s report calculating the decedent’s exposure to benzene from
gasoline would have required the decedent to be exposed to gasoline in potentially lethal amounts);
Shatkin v. McDonnell Douglas Corp., 727 F.2d 202, 208 (2d Cir. 1984) (noting that generally,
expert testimony should be excluded if it is based on assumptions that “were so unrealistic and
contradictory as to suggest bad faith”).
{27} Scientific evidence offered by a party is reviewed by our trial courts pursuant to the factors
set forth in Daubert/Alberico to insure that the evidence is reliable. Thus, the reliability
determination itself is the overarching issue we review for an abuse of discretion. The calculations
in this case were shown without contradiction to be unreliable because they were based on
assumptions which would have resulted in Decedent’s demise from causes other than dermal
absorption of benzene from gasoline. The order of the district court excluding the opinions of Dr.
Nicas on this basis is affirmed. It is not necessary for us to analyze the additional reasons given by
the district court for excluding Dr. Nicas’ opinions.
E. Opinion of Dr. Frank Gardner
9
{28} Plaintiff offered the testimony of Dr. Frank Gardner, a hematologist, to testify that Plaintiff’s
form of MDS was caused by his exposure to benzene. The evidence before the district court is that
refractory anemia with ringed sideroblasts (RARS) and refractory anemia with excess blasts (RAEB)
are subtypes of myelodysplastic syndrome (MDS). Dr. Gardner concluded that Decedent had
RAEB.
{29} Defendants’ experts criticized Dr. Gardner’s methodology for concluding that Decedent had
RAEB. Moreover, they concluded that Decedent had RARS, and Benzene does not cause RARS.
On these grounds, Defendants contended, and the district court agreed, that Dr. Gardner’s opinions
should be excluded.
{30} It is not necessary for us to undertake an analysis of whether the district court abused its
discretion by excluding Dr. Gardner’s scientific testimony. Dr. Gardner testified that he does not
know what the threshold of exposure to benzene is to connect with a myelodysplasia, and he reached
no quantitative conclusions about the level of benzene exposure Decedent may have had. He relied
exclusively on the conclusions of Dr. Nicas about Decedent’s level of exposure to Benzene.
Without evidence that Decedent was exposed to sufficient quantities of Benzene to cause MDS, Dr.
Gardner’s opinions were not relevant. For this reason, we therefore conclude that the district court
did not abuse its discretion in excluding Dr. Gardner’s testimony.
II. Expert Witness Fees and Cost Bill
{31} After the district court granted summary judgment, Defendants filed a cost bill, to which
Plaintiff duly objected. Following a hearing, the district court entered its order awarding
Defendants’ costs, and Plaintiff appeals from this order as well.
{32} Rule 1-054(D) NMRA governs an award of costs in the district court. Whether the district
court properly interprets Rule 1-054(D) in making its award presents a question of law, which we
review de novo. H-B-S P’ship v. Aircoa Hospitality Servs., Inc., 2008-NMCA-013, ¶ 5, 143 N.M.
404, 176 P.3d 1136. On the other hand, the necessary and reasonable costs awarded by the district
court are reviewed for an abuse of discretion. Id. ¶ 24.
{33} Rule 1-054(D) directs that costs (other than attorney fees) “shall be allowed to the prevailing
party unless the court otherwise directs,” and that costs are recoverable “as allowed by statute,
Supreme Court rule and case law.” Rule 1-054(D)(1), (2). In pertinent part, the rule directs that the
cost of a deposition is generally recoverable:
(i) if any part is used at trial; [or]
(ii) in successful support or defense of a motion for summary
judgment pursuant to Rule 1-056 NMRA; or
(iii) when the court determines the deposition was reasonably
necessary to the litigation[.]
10
Rule 1-054(D)(2)(e) (emphasis added). In addition, “expert witness fees for services as provided
by Section 38-6-4(B) NMSA 1978 or when the court determines that the expert witness was
reasonably necessary to the litigation” are also generally recoverable. Rule 1-054(D)(2)(g)
(emphasis added). The language in the rule we have emphasized above was added by our Supreme
Court, effective May 23, 2008. Supreme Court Order No. 08-8300-011. The amendments apply
even though the complaint was filed before they came into effect. State v. Pieri, 2009-NMSC-019,
¶ 35, 146 N.M. 155, 207 P.3d 1132 (stating that when the Supreme Court changes its own rules, the
changes apply to pending cases in the absence of some affirmative act by the Supreme Court).
NMSA 1978, Section 38-6-4(B) (1983) provides that the district court
may order the payment of a reasonable fee, to be taxed as costs, . . . for any witness
who qualifies as an expert and who testifies in the cause in person or by deposition.
The additional compensation shall include a reasonable fee to compensate the
witness for the time required in preparation or investigation prior to the giving of the
witness’s testimony. The expert witness fee which may be allowed by the court shall
be limited to one expert regarding liability and one expert regarding damages unless
the court finds that additional expert testimony was reasonably necessary to the
prevailing party and the expert testimony was not cumulative.
{34} The district court awarded Defendants expert witness fees for Dr. Ethan A. Natelson, Mr.
John W. Spencer, and Dr. Irons, as well as the cost of the deposition for Dr. Irons. Plaintiff contends
the award of these costs was improper under Rule 1-054(D). We conclude that the award falls
within the ambit of Rule 1-054(D) and that the district court did not abuse its discretion in awarding
these costs.
{35} Dr. Natelson is a practicing hematologist oncologist and is certified by the American Board
of Medical Specialties in internal medicine and hematology. He provided an affidavit, supported
by references to applicable literature and studies, criticizing the methodology Dr. Gardner followed
in formulating his opinions. The affidavit was used by Defendants to support their memorandum
seeking summary judgment; by Plaintiff to support her memorandum in opposition to Defendants’
motion for summary judgment and her response to exclude the testimony of Dr. Gardner; and by
Defendants in their reply in support of the motion for summary judgment and the motion to exclude
the testimony of Dr. Gardner. Finally, Dr. Natelson appeared and testified on behalf of Defendants
at the Daubert/Alberico hearing, where Plaintiff was given an opportunity to cross examine him.
{36} Mr. Spencer has been an industrial hygienist for more than thirty-one years, and he is
certified as an industrial hygienist by the American Board of Industrial Hygiene. He was formerly
with the National Institute for Occupational Safety and Health (NIOSH) and led a group of industrial
hygienists conducting research for the National Occupational Exposure Survey. As an industrial
hygienist for the United States Coast Guard, he conducted thousands of exposure assessments which
included a wide range of products, including various benzene-containing solvents. Mr. Spencer
provided an affidavit, which was also supported by references to applicable literature and studies,
criticizing the methodology used by Dr. Nicas to calculate Decedent’s exposure to benzene from
gasoline and Liquid Wrench. The affidavit was used by Defendants in support of the motion to
exclude the testimony of Dr. Nicas, and Mr. Spencer also provided live testimony in support of the
motion at the Daubert/Alberico hearing, where Plaintiff was able to cross examine him.
11
{37} Dr. Irons is a toxicologist with an extensive background in hematology. He also provided
an affidavit supported by references to applicable literature and studies, criticizing the methodology
used by Dr. Gardner and Dr. Nicas in formulating their respective opinions. Dr. Iron’s affidavit was
used by Defendants to support the motion to exclude the testimony of Dr. Gardner and in their
memorandum in support of the motion for summary judgment. Moreover, Dr. Irons was deposed,
and portions of his deposition were used by Defendants in the reply in support of the motion for
summary judgment and to exclude the testimony of Dr. Nicas.
{38} The testimony given by these experts, whether by affidavit or by deposition, was material
to the award of summary judgment granted by the district court in favor of Defendants. We have
only addressed one basis on which the testimony of Dr. Nicas and Dr. Gardner was excluded.
Nevertheless, the district court excluded the testimony of Plaintiff’s experts on several grounds
pursuant to Daubert/Alberico, and the findings of fact and conclusions of law the district court
reflect that the testimony of each expert was used in granting the motion.
{39} Moreover, the district court demonstrated it exercised its discretion consistent with Rule 1-
054(D)(2). At the conclusion of the hearing on Plaintiff’s objections to Defendants’ cost bill, the
district court commented, “I think that in today’s practice, a Daubert hearing is the functional
equivalent of a motion for summary judgment.” In its order awarding costs, the district court made
a finding that “[t]he procedural effect and reality is . . . Defendant’s Daubert Motion was the basis
for Defendant’s Motion for Summary Judgment and became a part thereof.” We agree. In addition,
the district court made specific findings that the testimony at the Daubert/Alberico hearing consisted
of both the live testimony and the affidavit and deposition testimony of the experts; that the
testimony of the experts was not cumulative; and that the testimony of each expert was reasonably
necessary to Defendants’ success as the prevailing party. These findings are not challenged. We
find no abuse of discretion. See Gillingham v. Reliable Chevrolet, 1998-NMCA-143, ¶¶ 26-27, 126
N.M. 30, 966 P.2d 197 (concluding that consulting fees paid to physicians who qualified as experts
and testified at trial and consulting fees paid to two treating physicians listed as potential expert
witnesses by opposing party were properly taxed as costs; and noting that a separate finding as to
the reasonable necessity of each expert’s testimony is not required), overruled on other grounds by
Fernandez v. Espanola Pub. Sch. Dist., 2005-NMSC-026, ¶ 9, 138 N.M. 283, 119 P.3d 163.
CONCLUSION
{40} The district court is affirmed.
{41} IT IS SO ORDERED.
______________________________________
MICHAEL E. VIGIL, Judge
WE CONCUR:
______________________________________
MICHAEL D. BUSTAMANTE, Judge
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______________________________________
LINDA M. VANZI, Judge
Topic Index for Andrews v. U.S. Steel Corp., Docket Nos. 29,136/29,336
AE APPEAL AND ERROR
AE-SR Standard of Review
CP CIVIL PROCEDURE
CP-EX Expert Witnesses
CP-SJ Summary Judgment
EV EVIDENCE
EV-EW Expert Witness
EV-SC Scientific Evidence & Daubert Standard
TR TORTS
TR-TX Toxic Tort
TR-WD Wrongful Death
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