Blanchard v. Goodyear Tire & Rubber Co., No. 837-12 -07 Wrcv (Eaton, J., June 28, 2010)

[The text of this Vermont trial court opinion is un official. It has been reformatted from the origina l. The accuracy of the text and the accompanying data included in the Vermont trial cou rt opinion database is not guaranteed.] S TATE OF V ERMONT

W INDSOR C OUNTY

, SS

│

Paul H. Blanchard │

Plaintiff │ │ S UPERIOR C OURT

v. │ Docket No. 837-12-07 Wrcv │

Goodyear Tire & Rubber Co.; │

Connecticut River Development │

Corp. │

Defendants │ │

DECISION ON MOTIONS FOR SUMMARY JUDGMENT

Plaintiff Paul Blanchard was diagnosed with a rare lymphoma in 2005. He attributes his injury to benzene exposure that alle gedly occurred between 1968 and 1973 while he was a teenager playing on a ballfield on t he grounds of the former Goodyear rubber manufacturing plant in Windsor, Vermont. He alleges that the field itself was polluted, and that there was a gully in the outfiel d that conveyed foul-smelling and oily stormwater discharge away from the manufacturing pl ant. He suspects that the discharge included gasoline or other petroleum products, of w hich benzene is a component. He further alleges that there is a causal link between his benzene exposure and his Primary CNS (central nervous system) Large B-cell lymphoma.

Defendant Goodyear Tire and Rubber Company (“Goody ear”) has filed a motion for summary judgment in which it contends that plai ntiff has failed to produce sufficient evidence of any exposure to benzene, much less expo sure to benzene in an amount that

could be considered harmful. See Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986) (explaining that summary judgment is appropriate wh ere plaintiff has failed to make a showing “sufficient to establish the existence of a n element essential to [his] case and on which [he] has the burden of proof at trial”). Def endant similarly contends that plaintiff has not presented any expert opinion on specific ca usation.

Defendant Connecticut River Development Corp. (“CR DC”) has also filed a motion for summary judgment in which it incorporate s Goodyear’s arguments, and further argues that it is not liable as a successor owner who did not employ the alleged causative agent in its operations.

Given that the motions for summary judgment challe nge the ability of plaintiff to meet his burden of production upon the elements of exposure and causation, the analysis for the court is whether plaintiff has come forward with sufficient evidence to create a genuine issue for trial. V.R.C.P. 56(e); Poplaski v. Lamphere , 152 Vt. 251, 254–55 (1989). In this analysis, the court views the evid ence in the light most favorable to2

plaintiff and gives plaintiff the benefit of all re asonable inferences supported by the

circumstantial evidence. Price v. Leland , 149 Vt. 518, 521 (1988).

I.

Here, the following facts are established for purp oses of summary judgment. From 1936 until 1986, Goodyear operated a manufactu ring facility in Windsor, Vermont. The site is approximately 17.4 acres adjacent to th e Connecticut River and is located at [address redacted] in Windsor. During its 50 years of operation Goodyear made rubber soles, heels and tubes at the site. In 1986, Goody ear closed the facility and sold the land to CRDC. Goodyear provided an indemnity agreement to CRDC, the scope or applicability of which is not before the Court at t his time.

While the plant was in operation, a portion of the 17.4 acres lying to the south of the manufacturing buildings was used as a ball fiel d by area children. It was referred to as the Goodyear field. There is no evidence that Good year objected to the use of the field for this purpose or sought to exclude children from entering on or using the field.

Plaintiff was born and raised in the town of Winds or, and his family lived in various homes near the Goodyear plant. In 1968, pl aintiff’s family moved to a home just south of the plant, at [address redacted]. Plainti ff was twelve years old at the time. Plaintiff spent a considerable amount of time over the next five years playing ball with other neighborhood children on the Goodyear field. He estimates that they spent thirty hours per week playing on the field during the summ er, and somewhat less during the school year.

One of the most memorable features of the field, a ccording to plaintiff, was a gully that ran through the outfield. Plaintiff rec alls that the gully was frequently, but not always, filled with water about six or eight inches deep. The water was “discolored” and it emanated a strong, pungent odor. Another neighb orhood child who played on the field

recalled that the water “stunk real bad” and that i t had an “odd metallic type color” resembling “an oil slick on top of water.” Plainti ff’s younger brother similarly recalled

that the water was “never clear,” and that it left an oily film on anything that went into

the water. Of course, from time to time, the ball did go into the water, and when that happened it became someone’s responsibility to fish it out.

Plaintiff and his friends also recall that the gra ss on the field was discolored. Rick Chambers, the aforementioned neighborhood child, de scribed the grass as having a “grayish hue” and said that “the discoloration of t he ground and the grass, plus the, you know, the pungent odor of the liquid in this little gully that ran through the outfield was always something that we noticed and talked about.” There are other recollections in the record to the effect that the rubber plant conducte d burns from time to time that resulted in clouds of black particulates settling across the neighborhood, including on the field.

As for the location of the gully in relation to th e plant, it is undisputed that it was basically to the south of the plant and that it car ried stormwater away from a few paved3

areas of the plant in a generally downhill and sout heasterly direction. It is also undisputed that there were no discharge pipes invol ved with the gully. However, the parties do disagree as to the extent to which diffe rent areas of the plant would have actually drained into the gully, i.e., whether the general groundwater flow across the plant

is to the southeast or whether it makes a turn to t he east-southeast at some point, whether it is feasible that groundwater from x location within the plant grounds could flow either as surface water or groundwater to y location outside the plant grounds, whether any of this has changed since 1973 due to changes in topog raphy, and so forth. None of these disputes are central to the summary-judgment decisi on, and the court has simply assumed for purposes of this decision that plaintiff is cor rect in his interpretation of the flow data.

Not much is known about any releases or contaminat ion that may have occurred during the operation of the rubber manufacturing pl ant. In 2006, the State of Vermont brought a clean-up action against Goodyear and CRDC concerning the site, and a cleanup agreement was reached in 2007. As part of the s ettlement, Goodyear paid for an environmental assessment of the plant site that was conducted by the Jacques Whitford Company. The project manager for the assessment wa s Robert Nicoloro, who has been disclosed as an expert by both Blanchard and Goodye ar in this litigation.

As part of the assessment, Whitford established nu merous monitoring wells and took numerous soil borings at various locations on the Goodyear site. No monitoring wells or soil borings were taken on the area which was once occupied by the ball field.

In connection with the assessment, Whitford prepar ed a site investigation report, which was completed in 2009 and is considered to be the most complete summary of the present environmental site conditions and the poten tial sources of contamination from historic operations at the plant. The report ident ified eleven “areas of interest” at the plant and listed corresponding contaminants of conc ern for each of those areas of interest.

Plaintiffs contend that at least five of these area s are within the general proximity of the drainage gully, including a manufacturing area, a s torage area, a loading dock, some transformers, and some aboveground and underground storage tanks. The contaminants of concern in these areas include lubricating oils, solvents, gasoline and other petroleum products, 1 sulfuric acids, PCBs, CVOCs, DEHP, DEHA, MEK, and other volatile organic compounds such as paint. See Plaintiff’s Ex. 2. M r. Nicoloro, who prepared the site investigation report, generally assumes that these contaminants were or could have been released into the environment at these areas by way of normal plant operations. For example, vehicles were refueled at the loading dock , so it is possible that some gasoline was spilled from time to time during refueling. Al though there is some detectable

evidence of contamination in these areas, there is no evidence of any specific releases occurring at these sites.

Mr. Nicoloro reports that even if there were some spills, there is no evidence to suggest any surface migration of benzene from the p lant to any areas south of the plant, such as the ballfield. However, his opinion on thi s point seems to be based upon a review

1 It is undisputed that benzene is a component of ga soline and the petroleum compounds involved

here.4

of certain drawings, which leads back to the disput ed issues of soil topography and groundwater flow. Moreover, it is not clear whethe r his opinion took into account the reports of contaminated water made by the children who played on the field. For these reasons, the court does not interpret Mr. Nicoloro’ s opinion as evidence that there was no benzene migration from the plant to the ballfield, but rather as a statement that he is not personally aware of any such migration. As such, t he court does not consider the statement to be important in light of the standard of review applicable here.

Mr. Nicoloro also sampled some of the soil and gro undwater on the site. He

detected low levels of benzene at some of the locat ions on the property, but he believes that these detections were mostly attributable to a n unspecified report of a recent off-site petroleum release somewhere to the west of the plan t property. He believes that the benzene mostly migrated to the plant property as pa rt of the general groundwater flow. Plaintiff disputes this opinion, but it does not se em to the court that the 2009 test results have anything to say one way or the other about whe ther the property was contaminated by benzene between 1968 and 1973. Any positive res ults could be explained by releases that occurred in the intervening years, and any neg ative results could be explained by the fact that benzene is highly volatile and mobile. M oreover, there are no test results at all for the ballfield; it was not sampled for the prese nce of benzene. 2 It is therefore presently

unknown whether the ballfield is contaminated or no t, and even if it was, there would be questions about whether present contamination is re levant to prove that the ballfield was contaminated by benzene in 1973. As a result, in l ight of the standard of review, the court has not drawn any inferences or otherwise bas ed its decision in any way upon the sampling results described in this paragraph.

CRDC has not used benzene at the site. Plaintiff does not claim CRDC was responsible for contamination of the site but argue s liability as successor owner of a

contraindicated site.

Plaintiff has produced two experts to testify as t o general causation and specific causation. The first expert is Dr. David Goldsmith , an epidemiologist who has provided an opinion that occupational exposure to benzene is generally associated with a risk of non-Hodgkin’s lymphoma, of which Primary CNS Large- B cell lymphoma is a subtype. The second expert is Dr. Camilo Fadul, a neuro-onco logist who testified that he has reviewed plaintiff’s medical records and come to th e conclusion that plaintiff’s cancer was not caused by an immunodeficiency disorder, whi ch is one of the known causes of plaintiff’s specific form of cancer.

At his deposition, Dr. Goldsmith admitted that pla intiff’s evidence of exposure was speculative. He stated that he had assumed tha t plaintiff was exposed to benzene on

2 There were some monitoring wells and soil samples taken between the southeast corner of the plant and the ball field. These samples did not sh ow the presence of benzene in any detectable amount s. In other words, sampling in the area between the place of detection of trace amounts of benzene and the b all field did not show any detectable benzene. Of cour se, as explained above, the court is not drawing an y inferences based upon this observation because it d oes not explain what the soil and water conditions on the ball field during the assumed period of exposure.5

the ballfield, but that “[t]he reality is that no o ne is going to be able to know if the groundwater, at the time he was there, contained so lvents or not.” He noted that it was

reasonable to infer that there was some chemical in the gully rather than just simple water, based on the reports of odors and discolorat ion, but that “[w]hat it was and what quantities, we just don’t know and probably will ne ver know.”

Even assuming that benzene was present in the gull y, Dr. Goldsmith explained that the amount of time that plaintiff spent playin g ball on the field “doesn’t say anything about his exposure to benzene,” but rather “says so mething about his playing time on that field.” Nevertheless, assuming that there was benz ene in the gully, and that plaintiff’s exposure to benzene was at a level equivalent to oc cupational exposure to benzene, Dr.

Goldsmith asserted that there was a causal associat ion between benzene exposure and non-Hodgkin’s lymphoma. His opinion was based on e pidemiological studies showing a

relative risk of more than 2.0, which means that oc cupational exposure to benzene essentially doubles the risk of developing non-Hodg kin’s lymphoma.

Dr. Fadul then testified at his deposition that on e of the leading known causes of plaintiff’s specific form of non-Hodgkin’s lymphoma was a deficiency with the immune system, but that plaintiff did not have any known p roblems with immune suppression. Dr. Fadul also testified that many cases of Primary CNS Large B-cell lymphoma are of unknown etiology. In essence, Dr. Fadul ruled out an immunological cause of plaintiff’s cancer, but his opinion did not go further than tha t.

In the end, therefore, plaintiff’s evidence of exp osure to benzene is limited to the inference to be drawn from the following evidence: (1) there was benzene present at the rubber manufacturing plant as a result of the stora ge and use of gasoline and other petroleum products; (2) gasoline presumably spilled from time to time during normal plant operations; (3) there was a gully conveying s tormwater runoff from the paved portions of the plant area to the ballfield and bey ond; (4) the stormwater in the gully looked and smelled oily; (5) the grass on the field was gray; and (6) by virtue of playing on the field, plaintiff was exposed to whatever was in the stormwater and the soil by

means of inhalation and dermal contact. See Plaint iff’s Opposition to Defendant’s Motion for Summary Judgment, filed Dec. 30, 2009, a t 25 (summarizing this evidence). And assuming he was exposed to benzene, plaintiff’s evidence of causation is that benzene can be ruled in as a potential cause of his non-Hodgkin’s lymphoma, and an immunological cause can be ruled out.

II.

It is generally well-established that causation in toxic tort cases requires plaintiffs to show that they were exposed to a specific substa nce, that the specific substance is generally capable of causing the injury that plaint iff suffered, and that the specific substance actually caused plaintiff’s injuries in t his case. Golden v. CH2M Hill Hanford Group, Inc. , 528 F.3d 681, 683 (9th Cir. 2008); Mancuso v. Consolidated Edison Co. of

New York, Inc. , 967 F.Supp. 1437, 1445–46 (S.D.N.Y. 1997). The f irst of these requirements—exposure—requires plaintiff to demonst rate the actual level of his6

exposure to a specific substance as well as the lev el of exposure that is generally hazardous to human beings. Westberry v. Gislaved Gummi AB , 178 F.3d 257, 264 (4th Cir. 1999). The requirement that the plaintiff dem onstrate exposure to a specific substance is important because it sets the table fo r a demonstration that exposure to that particular substance is generally capable of causin g plaintiff’s illness, and that it actually caused plaintiff’s illness in this case. But it is widely acknowledged that “it is impossible as a matter of practice to quantify with hard proof —such as the presence of the alleged toxic substance in the plaintiff’s blood or tissue— the precise amount of the toxic substance to which an individual plaintiff was expo sed.” Plourde v. Gladstone , 190 F.Supp.2d 708, 722 (D. Vt. 2002). Thus, it general ly suffices for exposure levels to be “roughly established through reliable circumstantia l evidence.” Id

.

Here, however, the circumstantial evidence is not sufficient to support an inference that plaintiff was exposed to benzene in any amount. The testimony from plaintiff and his childhood friends reasonably supp orts the inferences that there were chemicals present in the stormwater in the gully, a nd that the ballfield was contaminated by some substance. But there is no way of knowing without resort to speculation whether the chemicals in the stormwater were gasoline or so me other benzene-containing petroleum product as opposed to one of the other co ntaminants of concern that could have been released in the vicinity of the stormwate r gully, such as lubricating oils,

sulfuric acids, DEHP, DEHA, MEK, PCBs, CVOCs, other volatile organic compounds, other solvents, or some other chemical altogether. There is no evidence in the record that makes it probable that benzene was in the gully as opposed to any of these other chemicals. As plaintiff’s own expert testified, th ere is simply no way of knowing “[w]hat it was” that plaintiff was exposed to.

It is surely of little solace to say that plaintif f’s case fails because he was unable to establish that he was exposed to benzene as opposed to, say, DEHP or PCBs, since one might reasonably feel that human exposure to those chemicals is dangerous too. But it is important to his legal claim for damages that plain tiff establish a probability, as opposed to a mere possibility, that his injuries were cause d by exposure to benzene specifically.

Cf. White v. Dow Chemical Co. , 321 Fed. Appx. 266, 273–74 (4th Cir. 2009) (plain tiff must establish more than “mere possibility” of expo sure to specific chemical). The

reason for this is that causation in a toxic tort c ase requires expert opinion establishing an association between plaintiff’s illness and the che mical to which he was allegedly exposed, and here, plaintiff’s evidence of causatio n is limited to the association between

his illness and benzene. 3 Hence, if plaintiff was not exposed to benzene bu t rather some other chemical in the gully, then he has not proven a causal link between his exposure and his illness. Since plaintiff has not produced evidence here showing that it was probable, rather than merely possible, that he was exposed to benzene, defendant’s

3 The court does not address here the question of wh ether Dr. Goldsmith’s opinion ruled in toluene or other petroleum-related solvents as well. Dr. G oldsmith’s expert report is not in the record and h is deposition is unclear on this point. The larger is sue, however, is that there is no evidence of causa tion between plaintiff’s illness and many of the other c hemicals that could have been present in the stormw ater. Nor is there any evidence that makes it more likely than not, without resort to speculation, that benz ene was in the water as opposed to some other chemical.7

motion for summary judgment must be granted. Id .; see also Celotex Corp. v. Catrett

, 477 U.S. 317, 319–20 (1986) (explaining that summar y judgment is appropriate in toxictort cases when plaintiff has not produced evidence sufficient to prove that he was exposed to a particular chemical or product).

In reaching this conclusion, the court has kept in mind the standards of review applicable to summary-judgment motions—namely, that the evidence is to be viewed in the light most favorable to plaintiff and that all reasonable inferences are to be drawn in plaintiff’s favor. The court has accordingly grant ed plaintiff all of the inferences that can be reasonably drawn on the element of exposure base d on the evidence presented. The shortcoming identified above is that the circumstan tial evidence does not support an inference that there was benzene in the gully as op posed to some other chemical. Making that leap requires speculation, which is not permis sible at the summary-judgment stage.

See Richards v. Nowicki , 172 Vt. 142, 150 (2001) (explaining that opponent s of summary judgment cannot rely upon speculation or hypothetic al possibilities to meet their burden of production). Mr. Nicoloro’s report was that any of the contaminants of concern could have been spilled during normal plant operations, a nd he had no specific information about any actual releases. As such, all that can b e said is that it is possible that plaintiff was exposed to benzene, but there is nothing to sup port the conclusion that such exposure

was probable . See Estate of George v. Vermont League of Cities and To wns , 2010 VT 1, ¶ 42 (Dooley, J., concurring) (explaining that summ ary judgment is appropriate when evidence shows that “it is merely possible, rather than probable,” that claimant’s exposure caused his injury).

Nor is there any evidence to show the amount of ex posure to whatever chemical was in the stormwater gully. As explained above, a lthough evidence of the amount of exposure is important because it ensures that plain tiff was exposed to a chemical in an

amount sufficient to be hazardous to human health, it is not generally necessary to quantify the amount of exposure with hard proof, an d it is ordinarily sufficient to roughly establish the amount of exposure through circumstan tial evidence. Plourde v. Gladstone

, 190 F.Supp.2d 708, 722 (D. Vt. 2002). Here, howeve r, even assuming that there was some benzene in the gully, it is impossible to gues s at how much exposure occurred. Even plaintiff’s own expert admits that he is unabl e to make “any realistic quantifications” about the amount of benzene to whi ch plaintiff was exposed based on the evidence presented. As the expert explained, plain tiff’s testimony about the amount of time he spent on the ballfield “doesn’t say anythin g about his exposure to benzene,” but rather “says something about his playing time on th at field.” In other words, based on the evidence produced in the response to the summary ju dgment motion, it is pure speculation to say that plaintiff was exposed to be nzene (assuming it was benzene) in a

level sufficient to be hazardous to human health. See Mancuso v. Consolidated Edison Co. of New York, Inc. , 967 F.Supp. 1437, 1450–51 (S.D.N.Y. 1997) (explai ning that it is improper to assume that a plaintiff must have someh ow been exposed to a high enough dose to exceed the threshold necessary to cause the illness, because this is circular reasoning).8

Looking at the problem from a different angle, the re are many cases, as here, in which plaintiffs are unable to prove the precise am ount of their toxic exposure due to the passage of time or the lack of monitoring. In thes e cases, “courts have looked favorably on causation testimony that is primarily based on d ifferential diagnosis, a scientific analysis which entails the weighing of relevant evi dence, listing all likely causes of the patient’s observed symptoms or injury, then elimina ting all but one cause.” Plourde , 190 F.Supp.2d at 722. A differential diagnosis can pro vide evidence of causation because it “identifies the cause of a medical problem by elimi nating the likely causes until the most probable one is isolated.” Magistrini v. One Hour Martinizing Dry Cleaning , 180 F.Supp.2d 584, 609 (D.N.J. 2002). In proving causa tion through differential diagnosis, it is not necessary to rule out all possible causes, b ut the expert must rule out “obvious

alternative causes.” Heller v. Shaw Industries, Inc. , 167 F.3d 146, 156 (3d Cir. 1999) (quotation omitted).

Plaintiff contends that his experts have produced a differential diagnosis that is sufficient to submit the case to the jury, but it d oes not appear to the court that this is an accurate summation of the opinions his experts have provided. Dr. Goldsmith did not “rule in” all the potential causes of plaintiff’s d isease, but rather provided an opinion that occupational exposure to benzene is generally capab le of causing non-Hodgkin’s lymphoma. And Dr. Fadul did not “rule out” all oth er obvious alternative causes other than benzene exposure, but rather simply testified that plaintiff’s cancer was not caused by an immunological deficiency. Taken together, th ese opinions do not amount to a differential diagnosis, because they do not exclude other obvious alternative causes of his illness, such as exposure to a variety of other che micals on the ballfield or at other times in his life, or simply the possibility that the cau se of his cancer is unknown at this time (which Dr. Fadul testified is the conclusion in man y cases). See Pritchard v. Dow Agro

Sciences , 2010 WL 936767 at *19 (W.D. Pa. Mar. 11, 2010) (e xplaining that expert opinion on specific causation was lacking where it did not rule out possibility that plaintiff’s cancer was the result of an idiopathic or unknown cause). In other words, plaintiff’s evidence of causation is that his illne ss might have been caused by benzene, and definitely was not caused by an immunological d isorder. However, this is not sufficient to prove that it was probable, as oppose d to merely possible, that benzene exposure caused plaintiff’s illness, since “standin g alone, the presence of a known risk factor is not sufficient basis for ruling out idiop athic origin in a particular case, particularly where most cases of the disease have n o known cause.” Id . As a result, the court must conclude that plaintiff has failed to pr oduce sufficient evidence of specific causation, and summary judgment is appropriate on t his independent ground as well.

III.

In reaching the foregoing conclusions, the court h as kept in mind that there is tension between the need of the tort system to comp ensate those who have been injured by the wrongful acts of another with the limits of science in its ability to isolate and identify the causes of extremely complicated diseas es. The delicate balance is tested particularly in those cases where the causes of a d isease remain relatively unknown, and where the evidence of exposure reaches more than fo rty years into the past. In the end,9

however, there is the principle that “a defendant c annot be found liable for injury unless the preponderance of the evidence supports cause in fact.” Estate of George v. Vermont League of Cities and Towns , 2010 VT 1, ¶ 28 (quoting Merrell Dow Pharmaceuticals,

Inc. v. Havner , 953 S.W.2d 706, 718 (Tex. 1997)). It is for this reason that the balance must be measured by asking whether plaintiff’s evid ence is sufficient to prove, without resort to speculation or conjecture, that it is mor e likely than not that his injuries were caused by the alleged exposure. Here, for the reas ons explained in more detail above, plaintiff has not produced sufficient evidence to c ross that threshold.

It is also important to note that the court has re solved the motion for summary judgment as a matter of the sufficiency of the evid ence, e.g., Celotex Corp. v. Catrett

, 477 U.S. 317, 322 (1986), rather than by testing th e expert opinions under the standards set forth by V.R.E. 702 and Daubert v. Merrell Dow Pharmaceuticals , 509 U.S. 579, 589–95 (1993). The ruling is that plaintiff’s evid ence is not sufficient to survive summary judgment even when the expert opinions are assumed to be admissible and the circumstantial evidence is viewed in the light most favorable to plaintiff, with all reasonable inferences drawn accordingly.

Finally, plaintiff’s complaint also names CRDC as a defendant under a theory of successor liability. Given the court’s ruling that Goodyear is entitled to summary judgment, it follows that CRDC is entitled to an or der granting their motion for summary judgment as well.

ORDER

(1) Defendant Goodyear Tire & Rubber Company’s Mot ion for Summary Judgment (MPR #5), filed Nov. 24, 2009, is granted ;

(2) Defendant Connecticut River Development Corpor ation’s Motion for Summary Judgment (MPR #8), filed Dec. 8, 2009, is granted ; and

(3) A final judgment order shall issue separately.

Dated at Woodstock, Vermont this ____ day of _____ _____, 2010.

______________________________ Harold E. Eaton, Jr. Presiding Judge