NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0713n.06 Nos. 11-4369; 12- 3995 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

CAROL YN BA KER; DANI EL BROCKMAN, et al., Plaintiffs-Appellants,

v. CHEVRON U.S.A. I

NC.; CHEVRON TEXACO CORPOR ATI ON; CH EVRON PI PEL I NE, I NC.; CHEVRON ENERGY SOL UTI ONS L P; CH E V RON ENERGY SOL UTI ONS MANAGEMEN T L L C; CHEVRON ENVI RONME NTAL MANAGEMEN T C O M P A N Y ; C H E VR ON E NV I R ON M E N T A L SERVI CES C OMPANY, Def endants-A

ppellees. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) O N A P P E A L F R O M T H E UNI TED STATES DI STRI CT COURT FOR THE SOUTHERN DI STRI CT OF OH I O

BEF ORE: GRI FF I

N and KE THL EDGE, Circuit Judges; and Z ATKOF F, District Judge

. * GRI FF I N, Circuit J udg e. This case arises from defe ndant Chevron’s activities at its crude oil ref inery near the Villag e of Hooven in Hamilton County , Ohio. Chevron acknow ledg es that from 1931 to 1986, the ref inery 1

was the source of considera ble environmenta l contamination, including hazardous air emissions and

T h e Ho n o ra b le L awr ence P. Z atkoff, Senior United States District J udg e for the Easter n * District of Michig an, sitting by desig nation. Although plaintiffs named seven differ ent Chevron entities as defe ndants, there appea rs to 1 be no rea son to distinguish betwee n eac h of the separ ate entities beca use the parties collectively ref er to all defe ndants throug hout their brief s simply as “Chevr on.” We follow suit.Nos. 11-4369; 12-3995

Bake r, et al., v. Chevron U .S.A. Inc., e t al.

a cumulative rele ase of approximately eig ht million g allons of g asoline that g ravitate d throug h the soil and formed a plume atop the g roundwa ter under the ref inery

. By 1996, the plume had migr ated under a portion of the Villag e of H ooven. P l ai ntiffs are approximately 200 former and curr ent neig hbors of the ref inery who al l ege claims for damag es arising out of the ref inery ’s air emissions, the g roundwa ter plume, and the “soil vapors” arising from the plume that esca pe to the surfa ce. Plaintiffs fall int o three distinct
cate g ories: (1) individuals who claim persona l injury beca use of the air emissions; (2) individuals who seek medical monitoring damag es beca use their exposure to the plume and its soil vapors has g iven them an incre ased risk of contra cting a serious disease; and (3) individuals who claim proper ty damag e bec ause of

the plume and its soil vapors. The district court bifurca

ted the persona l injury plaintiffs from the proper ty damag e plaintiffs and selec ted bellwether plaintiffs from eac h g roup to deter mine the viability o f ea ch cate g ory of claims. After excluding two of pl aint iffs’ ex perts opini ons as unreliable, t he dis trict court gra nted summary judgme nt to Chevron on all claims. The district court also g rante d Chevron’s motion for Rule 11 sanctions, ordering plaintiffs’ counsel to pay Chevron $ 2 50,000 in defe nse costs beca use their positions reg arding the leg al and evidentiar y basis for medical monitoring d am age s wer e objectively unrea sonable. Plaintiffs appea led the order s excluding their experts and g ranting summary judgme nt to Chevron; plaintiffs’ counsel appea led the order g ranting Rule 11 sanctions to Chevron. F or the re asons that follow, we aff irm. I

.
- 2 -Nos. 11-4369; 12-3995

Bake r, et al., v. Chevron U .S.A. Inc., e t al.

A. The Villag e of Hooven lies in the wester n part of Hamilton County , Ohio. State Route 128 demar cate s Hooven’ s easte rn boundary

. Fr om approximately 1930 to 1985, Gulf Oil Com p any (“G ulf”) opera ted a petroleum ref inery next to Hooven, just acr oss State Route 128. The refiner y produce d g asoline, diesel f uel, jet fuel, heating oil, sulphur, and asphalt. The southweste rn cor ner of the ref inery ’s proper

ty line abuts the northea stern corne r of Hooven. The ref inery sits in the flood p l ai n o f t h e Gre at Miami River, which establishes the easte rn boundary of the ref inery

. Chev ro n purcha sed the ref

inery from Gulf in 1985 and closed it in 1986. Chevron acknow ledg es that while the ref inery was opera

tional, various hy droca

rbon compounds esca

ped from ref

inery equipment into the air a s “fug itive emissions.” I n 1985, g asoline appea

red to be seeping from the riverba nk inside the ref

inery proper

ty line into the Grea t Miami Ri ver. I t was later deter mined that g asoline and diesel fuel, which had been leake d or spilled at t h e re fi n er y o v er the y ear s, had g ravitate d throug h the soil and enter ed the g roundwa ter under the re fi n er y . I n total, about eig ht milli on g allons of fuel leake d into the g roundwa ter. The fuel settled on top of the g roundwa ter, cre ating a light, non-aque ous phase liquid (“L NAPL ”) plume. Over time, the plume migr ated from the ref inery ’s boundarie s and enter ed at least t he eastern subterrane an area of Hooven. The p l u m e u n der the easte rn portion of Hooven is
at a depth of any

wher e from fifty to seventy fee t below the s u rf ac e. T he principal chemica l of

conce rn in t h e p l u m e i s b enz ene, which is a known car cinog en in sufficie nt doses. Be nzene also

- 3 -Nos. 11-4369; 12-3995

Bake r, et al., v. Chevron U .S.A. Inc., e t al. orig inates from vehicle exhaust, cig are tte smoke, and is prese nt in c o mm o n h o u s e h o ld p r oducts, such as g lue and pa int. As the level of the gro u n d wa t er ri ses, so does the L NAPL plume floating atop the water

. When the g roundwa ter falls, a “smea r zone” of L

NAPL -satura ted soil is left behind. When the water table does not encompa ss the smear zone, constituents from th e plume rema ining in the soil may volatize into “soil vapors” which could potential l y re ac h the surfa ce, depending on, among other
t h i n gs , t he chemica l proper ties of the particula

r constituent, the depth of the smear zone, and t h e porosity of the soil. Under the rig ht conditions, howeve r, the soil vapors may biodeg rade natura lly

. Soon afte r Chevron discovere d the seep ing g asoline in 1985, it notified the Ohio Environmental Protection Ag ency and beg an the proce ss of installing g roundwa ter monitoring and

rec overy wells throug hout the ref

inery to capture the contamination. L ater , in 1993, Chevron and the United States Environmental Protection Ag ency (“U .S. EPA”) enter ed into a c o n s e n t o r d e r which g overns the reme diation of the ref inery site. Pursuant to the order , a n umber of monitoring wells

wer e installed to assist in deter mining the footprint of the plu m e, as we l l as provide a means to conduct soil vapor testing. These eff orts led Chevron to discover that the plume had migr ated under Hooven in 1997. I n 1999 , t o m i tiga

te the risk of soil vapor intrusion from the plume, Chevron installed a horizontal soil vapor extraction (“H SVE”) sy stem in Hooven. The HSVE is a vacuum- ty pe sy stem comprised of three horizontal extraction pipes l o ca ted underne ath Hooven’ s main roadw ay s that interce pts soil vapors from the plume a nd sends them to a thermal ox idation unit for incinera tion.

- 4 -Nos. 11-4369; 12-3995

Bake r, et al., v. Chevron U .S.A. Inc., e t al.

I n 2006, the U.S

. EPA revie wed Chevron’s m onitoring well sampling dat a an d co n cluded that “ther e are no exposure pathway s from Che v r on’s contamination to the community residents, and
t hat Chevron’s contamination does not pose any curr ent human health risks to the re s i d en t s o r worke rs in the community .” An “exposure pathway ” or “complete d pathway ” is a pathway by which soil vapors from the plume can rea ch the surfa ce and enter a building. The exis tence of a completed pathway g ener ally require s: (1) the observa tion that a particula r chemica l is prese nt at all soil depths

an d i n the subject building’s indoor air; (2) confirma tion that the specific chemica l is prese nt at

conce ntrations above backg round levels; and (3) confirma tion that the measure d conce ntrations did not come fr om nonplume sources. Also in 2006, using the same Chev ro n s am p l i n g data as did the U.S. EPA, the Ohio Depa rtment of Hea lth (“O DH”) prepa red its own health risk analy sis. The ODH found an “indeter minate public h ea l th hazard” and reque sted additional sampling under a “wor s[t ] case

scena rio.” To acc ommodate the ODH’ s reque st, the U.S. EPA went into Hooven in 2008 and 2009 and collecte d sever al quarte rs of sub-slab and indoor vapor samples under what it deeme d a “wor st

case scena

rio,” that is, when the HSVE was turned off and when Chevron was eng ag ed in high- g rade g roundwa ter pumping which would lower the wate r table a

nd expand the smear zone. The ODH drew two conclusions from its “wor st case scena rio” study

. First, “[t] he levels of vapor- phase petroleum hy droca rbons detec ted in the indoor air of are a residenc es and the Hooven Elementar

y School during the [U.S

. EPA] quarte rly sampling did not pose a public health hazard to residents, students or staff.” Second, a completed pathway for isopentane and trimethy lpentane at

- 5 -Nos. 11-4369; 12-3995

Bake r, et al., v. Chevron U .S.A. Inc., e t al.

conce ntrations above scre ening levels could be found in the subsurfac e near two monitoring wells in the easte rn portion of Hooven. Reg arding this second conclusion, howeve r, the ODH noted that, althoug h those hy droca

rbons wer e detec ted in the subsurface , there was no health risk beca use the indoor air conce ntrations of those chemica ls “did not incr ea s e to above levels of conce rn,” even under “wor st case scena

rio” conditions. The ODH also observe d that when Chevron rea ctivated the HSVE, the vapor

levels quickly

and sig nificantly

decr ease d. The ODH also rele ased an ecolog ical study titled “Canc er I ncidenc e Among Residents of Hooven, Hamilton County , Ohio, 1996-2003.” The ODH desig ned the study to compar e the incidence of canc er among Hooven’ s 164 residents with national backg round rate s. The study found “sig nificantly highe r than expected numbers of canc er case s for the 25 observe d canc ers combined and canc ers of the fema le brea st; lung and bronchus; and bladder .” The study conclude d, howeve r, that the “ty

pes of canc er diag nosed among Hooven residents differ with re s p ect to risk fac tors, latency , course of disease and probability of survival. For this rea son, it is not likely a specific point

source of exposure or single risk fac tor is play ing a role in the incre ased canc er burden.” The ODH later supplemented its study with data from 2004 to 2007, repor ting seven additional canc er case s. I n this update, the ODH rea ffirme d its earl i er conclusion that “it is not likely that a common risk fac tor is contributing to the de velopment of these canc ers.” The 200 plus individual plaintiffs in this case , former and curr ent neig hbors of the ref inery ,
asser t a litany of persona l injury and proper ty damag e claims ag ainst Chevron under Ohio state law. For case manag ement purposes, t h e m atter was bifurcated betwee n persona l injury plaintiffs and

- 6 -Nos. 11-4369; 12-3995

Bake r, et al., v. Chevron U .S.A. Inc., e t al.

proper ty damag e plaintiffs. The district court also allowed the parties to selec t bellwether plaintiffs for eac h trial g roup. The parties vigor ously litigated whether the ref inery damag ed eac h cate g ory of plaintiffs. I n four separ ate opinions, the district court reje cted all claims. A summary of eac h of these ru l i ng s is nece ssary for the issues raised on appea l. We start with the bellwether proper ty damag e plaintiffs. B. Of the six ty -one i n d i v i dual plaintiffs advanc ing proper ty damag e claims, there are fiftee n bellwether plaintiffs. These plaintiffs, whose proper ties wer e direc t l y ab ove the plume, alleg ed proper ty damag e resulting from the plume’s contamination of the subsurfac e and g roundwa ter, and the soil vapors emana ting from the plume that rea ch the surfa ce . I n support of these claims, plaintiffs offe red, inter alia, the expert opinion of Phili p Be dient, Ph.D. Dr. Be dient broadly opined that the “[p] roper

ties and residents of Hooven have been adver sely impacted” by the plume. He also stated that soil vapors from the plume wer e “the only way to explain” t h e p re sence of benzene, toluene, xy lene, a

nd ethy l benzene in the shallow subsurf ace soils in and around Hoove n. Chevron filed a motion to exclude Dr. Be d i en t ’s o pinions under Daubert v. Merre ll Dow Pharmace uticals, Inc. , 509 U.S. 579 (1993), and a motion for summary judgme nt. The district court g rante d Chevron’s motions, holding that “the rec ord fails to show that the hy dro c arbon plume cause d any damag e to Plaintiffs’ proper ty or interfe red with their p ro p er t y ri gh t s or with the use and enjoy ment of their pr operties.” The c ourt first deter mined that: [N] one of the bellwether Plaintiffs have demonstrated that the plume actua lly interfe res with their use of the subsurfac e. Plaintiffs do not use the g roundwa ter for - 7 -Nos. 11-4369; 12-3995

Bake r, et al., v. Chevron U .S.A. Inc., e t al.

any purpose. Plaintiffs’ water supply does not come from g round wells; rathe r, they have a m u nicipal water source . Plaintiffs have not indicated that the plume has cause d them to abandon any particula rized and non-spec ulative plans which require drilling or e x cava

tion on their proper

ties. (F ootnote omitted.) The court next excluded Dr. Be dient’s opinions beca use he admitted he was not a soil vapor expert and, even if he was, his opinions wer e unreliable , vague, and conclusory beca use he did not perf orm any analy sis to deter

mine whether there is a completed soil vapor pathway from the plume
to the surfa ce. Th e co u rt we nt on to conclude that plaintiffs’ rema ining evidenc e of soil vapor intrusion—Chevron’s theoret ic a l model of completed soil vapor pathway s and plaintiffs’ deposition testimony of g asoline odors in their homes a nd around the ir proper

ties—was insufficient to c rea te

a g enuine issue of materia l fac t on whether soil vapors from the plume cause d compensa ble proper

ty damag e. All bellwethe r prope rty damag e plaintiffs a

ppeale d. C. The district court next addre ssed the bellwether claims of the persona l injury plaintiffs. Of the 200 plus plaintiffs in this case , only seven cl ai m ed p ersonal injury from being exposed to benzene c ontained in the re finery ’s “fug itive e missions .” Of those seven, the parties selec ted four

as b ellwether plaintiffs. These plaintiffs, and their respe ctive injuries, are as follows: Mary Etta Gre ener -B rown, Hodg kin’s di s ea se and brea st canc er; Carol L ipscomb, monoclonal g ammopathy

/multi ple my eloma; J ean Runck, monoclonal g ammopathy /multi ple my eloma; and Michelle Schra der, a cute my elog enous leuke mia (“A ML ”).

- 8 -Nos. 11-4369; 12-3995

Bake r, et al., v. Chevron U .S.A. Inc., e t al.

Plaintiff s o ff er ed three expert witnesses to prove that the ref inery ’s airborne benzene emiss i o n s ca u s ed their injuries. First, Dr. Cheremisinoff, a chemica l eng ineer , calc ulated a total g ross amount of benzene rele ased from the r e f in e r y thr oug h emissions. Second, Dr. Rosenfeld, using Dr. Cheremisinoff’ s calc ulations, cre ated an air flow model to calc ulate the cumul at i v e dose of benzene to which each plaintiff was ex posed, a number ex presse d in microg rams. Dr. Garabr ant, Chevron’s expert, conver t ed Dr

. Rosenfeld’s microg ram fig ures into the more conventional expression of p ar t s p er milli on per y ear s (“ppm-y ear s”). Finally , Dr. Dahlg ren, using Dr. Rosenfeld’s dose estimates, opined in his First Report and untimely Second Report (filed in response to Che vron’s motion to strike the Fir st Repor t) that eac h plaintiff’s dose of benzene was sufficie nt to cause her spe cific illness. Chevron filed a motion to exclude Dr. Dahlg ren’ s causa tion opinions under Daubert and a motion for summ ary judgme nt. Chevron based its motion for summ ary j u d gm en t o n the asserted inadmissibil ity of Dr. Dahlg ren’ s opinion. Plaintiffs responde d by submitt ing Dr. Dahlg ren’ s Third Report, a forty -nine pag e aff idavit which purportedly clar ified his first two repor ts. The district court held a hear ing at which Dr. Dahlg ren testified. After t h e h ea ring , as a result of additional motion prac tice, plaintiffs obtaine d discovery of some 270 docume nts that Chevron wrong ly identified as privileg ed. Wit h leave of court, Dr. Dahlg ren prepa red a Four

th Report limit ed to the issues raised in the newly discovere d evidenc e, and the parties filed supplemental memoranda on Dr. Dahlg ren’ s new opinion.

- 9 -Nos. 11-4369; 12-3995

Bake r, et al., v. Chevron U .S.A. Inc., e t al.

I n a forty -seve n page o rder , the district court held that Dr. Dahlg ren’ s causa tion opinions

wer e not reliable under Daubert and there fore inadmissable. The court first deter mined that Dr. Dahlg ren’ s First Report failed to comply with Rule 26(a) (2)( B) of the Fe dera l Rules of Civil P ro ce d ure beca

use it did not provide the “how and why ” of his opinion that eac h plaintiff’s cumulative benzene exposure cause d her spe cific illness. The c ourt explained: Dr. Dah l g ren’ s [First Report] on these Plaintiffs consists almost entirely of a rec itation of their fa mily

and medica l histories. Eac h repor t concludes w ith a brief “discussion” which appar ently sets forth Dr. Dahlg ren’ s opinion that the Plaintiff’s illness was caused by her e x posure to benzene . Then, a ttached to e ach report is an “Appe ndix on benzene tox icity ,” which is essentially a bibl iogr aphy an d s ummary o f a n umber of article s and medical studies on illnesses purportedly cause d b y benzene. Wit h on e ex ce p t ion, howeve r, Dr. Dahlg ren never explains in his repor t how the bibliogr aphy

supports his c onclusion that a Plaintiff’s cumulative benzene exposure was suff

icient to cause her disea se. The “one exception” noted by the district court was Dr. Dahlg ren’ s opinion rega rd i n g plaintiff Michelle Schrade r, wher e he cited a 1948 repor t issued by the Americ an Petroleum I nstitut e which states that there is no safe level of exposure to benzene. The court conclude d, howeve r, that Dr. Dahlg ren’ s “no safe level” opinion was not a reliable causa tion theory under Daubert , noting that “the one-hit theory could not be established beca use it would be just as likely that ambient benzene was the c ause of

Plaintiffs’ illnesses.” The court next deter

mined that the Second Report— submitt ed near ly two months afte r the expert repor

t deadline and without leave of court— contained the same fata l flaw as the First Report: Dr. Dahlg ren made no eff ort to tether his ca

usation theory

to the medical lit era ture attached to his repor t.

- 10 -Nos. 11-4369; 12-3995

Bake r, et al., v. Chevron U .S.A. Inc., e t al.

As for the Third Report, the district court observe d that it “is arg uably the only repor

t f rom Dr. D a h lg ren which complies with the require ments of Rule 26(a) (2)[(B )] and y et Plaintiffs provided

no justification for providing this repor t five months late.” The court conclude d that t here was nothing in the Third Report that could not have been included in the First Report and, there fore , the Third Report must be excluded as an improper attempt to corr ect the wea knesses of Dr. Dahlg ren’ s

o p in ions that Chevron identified in its Daubert motion. The court further deter mined that submitt ing the specific s of the expert’s opinion on the dispositi ve issue in the case more than five months late

was not harmless err or. Be cause of these defe cts, the district court did not consider Dr. Dahlg ren’ s Third Report. The district court then addre ssed Dr. Dahlg ren’ s Four th Report. I ntere stingly , the additional discovery that plaintiffs obtained on the documents that Chevron had wrong ly claimed as privileg ed showed that the ref

in er y ’s benzene emissions wer e actua lly thirty perc ent lower than initially believed. N ever

theless, Dr. D ahlg ren maintained his origina l causa tion opinion and raised for the first time the is s u e o f short-term exposure. On this new issue, he opined that plaintiffs’ peak exposures to benzene in excess of reg ulatory levels wer e worse than lower levels of exposure for a longe r period of time. Dr. Dahlg ren also stated that in 1977, plaintiffs, and all Hooven residents, should have been wea

ring air respira tors when benzene emissions exceede d reg ulatory levels near t h e re fi n ery ’s fenc e line with Hooven. Additionally , Dr. Dahlg ren cited nine medical studies in support of his Four

th Report.

- 11 -Nos. 11-4369; 12-3995

Bake r, et al., v. Chevron U .S.A. Inc., e t al.

The district court reje cted t h e Fourth Report as unreliable

. The court found that Dr. Dahlg ren’ s opinions wer e inadmissible to the extent he was rely ing on reg ulations on s h o rt -term benzene exposures. Citi ng Nelson v

. Tennessee Gas Pipeline Co. , 243 F.3d 244, 252–53 (6th Cir. 2001), t h e co u rt ex p l ained that the mere fac t that plaintiffs wer e exposed to benzene in excess of reg ulatory limit s was i n sufficie nt to establish causa tion in a tort case . The court also found the discussion of short-term benzene exposures in 1977 wholly irrele vant beca use Dr. Dahlg ren failed
to ac count for the fac t that “not only did none of the Plaintiffs live near the ref inery fenc e line in 1977, none of the Plaintiffs even lived in Hoove n in 1977.” The court then exhaustively analy zed the medical studies Dr. Dahlg ren offe red in support of his opinion, ultimately concluding that “none of these studies supports an opinion that benzene can cause the illnesses from which Plaintiffs suffe r at the extremely low doses or exposures experience d in this case .” Having excluded Dr. Dahlg ren’ s opinions—plainti ffs’ only evidenc e of c ausation—the dist rict court g rante d Chevron’s motion for summary judgme nt. Gree ner- Br own, Schra der, a nd L ipscomb appea led; Runck did not. D. The rema ining proper

ty damag e plaintiffs attempted to meet the district court’s criticism of the bellwether claims with new expert opinions from Matthew Hag emann, a former U.S. EPA g eolog ist, Dr. Cheremisinoff, and Dr. Be dient. Although Mr. Hag em an n agreed with Chevron’s
assessment of the siz e of the smear zo ne, he broadly conclude d that the plume and its soil vapors could be found “in Hooven.” Dr. Cheremisinoff simil arly opined, in nonspe cific fashion, that soil vapors intruded into bas em en ts and cra wl space s of the buildings “in Hooven.” Dr. Be dient

- 12 -Nos. 11-4369; 12-3995

Bake r, et al., v. Chevron U .S.A. Inc., e t al. disag ree d with Mr. Hag emann over the siz e of the smear zone, stating that the smear zone boundarie s had been “misrepr esente d” and that further sampling was nece ssary “to deter mine the full extent of the hy droca

rbon conta mination.” Chevron moved for summary judgme nt; the district court g rante d the motion. Adopting Mr. Hag emann’ s opinion on the siz e of the smear zone, the court held that all proper ty owner s who wer e not above the smear zone, or within 100 fee t of its edg es, had no proper ty damag e claims as a matter 2 of law. As for the claims involving the rema ining proper ties, the court summarized its rea sons for reje cting those claims as follows: Plaintiff[ s’] claims fail beca use none of them pointed the [c] ourt to specific evidenc e that his or her proper

ty had experience d [soi l] vapor intrusion. I nstead, as alluded to ear lier, P laintiffs have approa ched this case as if the Villag e of Hooven is the rea l party -in-intere st 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 o n e ex am ple—to prove that there was or is a completed pathway at 113 Ohio Avenue

. Plaintiffs’ proof of vapor intrusion is simply at too g ener al a level to cre ate a triable issue of fa ct on this issue. (Emphasis re moved.) All prope rty damag e plaintiffs a

ppeale d. E. One hundred eig hteen plaintiffs reque sted me d ic a l mo n it o r ing damag es beca use their alleg ed exposure to the plume and its soil vapors put them at an “incr ease d risk” of contra cting a number of serious diseases. Plaintiffs submitt ed a medical monitoring pl an fr o m Dr. L ockey desig ned to “bala nce incre ased health risks of cont ra ct i n g injuries or diseases associate d with the involuntary

The district court adopted the 100-foot limit based on U.S. EPA g uidance reg arding the 2 methodology

of dete cting soil vapors. - 13 -Nos. 11-4369; 12-3995

Bake r, et al., v. Chevron U .S.A. Inc., e t al.

environmen t al contamination of the soil and g round water of Hooven by Chevron hazardous chemica ls and help mitigate individual and community distress rela ted t o health outcome

uncer tainties.” After revie wing Dr. L ockey ’s plan, the district court order ed plaintiffs to show cause why their claims should not be dismiss ed in light of Hirsch v. CSX Transp., Inc. , 656 F.3d 359 (6th Cir. 2011), a case in which this court addre ssed the evidentiar y require ments for medical monitoring damag es under

Ohio law. After considering the parties’ briefin g, t h e d i strict court dismiss ed all claims for medical monitoring damag es with prejudice

. The court offe red three rea sons for its ruling

. First, plaintiffs failed to specific ally identify any disease or illness that they might have an incre as ed risk of
contra cting beca

use of the plume and its soil vapors. Second, plaintiffs failed to show “not only that he or she was exposed to a specific chemica l, but also to quantify the exposure, i.e., provide a dose, i n some way that it can be reliably deter mined that he or she has a signific antly incre as ed ri s k o f
contra cting some disease or medical condition.” And third, Dr. L ockey ’s plan was not desig ned to addre ss any diseas e t h at m i gh t be cause d by the chemica ls in the plume; rathe r, it was a g ener al wellness plan that supposedly would offse t the deleter ious he alth eff ects that may or may not have been cause d by the plume. The district court also commented that “[a]s was the ca s e wi t h t he proper ty damag e Plaintiffs, the medical monitoring Plaintiffs have appar ently trea ted this lawsuit as a cla ss action. I t is not, however.” All medical monitoring plaintiffs appe aled. F.

- 14 -Nos. 11-4369; 12-3995

Bake r, et al., v. Chevron U .S.A. Inc., e t al.

A fter all proper

ty damag e claims and bellwether persona l injury claims wer e adjudicate d, but while t he claims for medical m on i t o ri n g damag es were pending, Chevron fil ed a motion for Rul e 11 sanctions ag ainst plaintiffs’ counsel. Chevron arg ued that it was entitled to defe nse costs and attorney ’s fe es re lating to those pe nding c laims beca use plaintiffs’ counsel continued to prose cute these claims afte r conce ding at a discovery confe renc e that they had no causa tion evidenc e under the standards se t by

the district court. The district court g rante d Chevron’s Rule 11 motion about two months afte r it dismiss ed the claims for me dical monitoring damag es, holding that: Plaintiffs’ counsel took objec tively unrea sonable positions with respec t to both the fac ts and the law and persisted in maintaining the medical monitoring claims despite the absenc e o f l egal and fac tual support for the claims. These two problems are intertwined in this case . I t may be that counsel’s u n rea sonable view of the law influenced t h e m anner in which they attempted to develop evidentiar y support for these c laims. Counsel’s conduct, neve rtheless, wa s unrea sonable. The court identified the “most serious” problem with counsel’s conduct in further detail: “B eca use it was so well-e stablished

. . . that a tox ic tort claimant neede d proof of specific ation causa tion, i.e., dose, counsel’s complete failure to adduce proof o f d o se had to be the product of a delibera te decision and cannot b e b la med on inadver

tence or on a rea sonable misint erpr etation of the case law.” The c ourt subsequently

awa rded Chevr on $250,000. Plaintiffs’ counsel a ppeale d. I I

. I t is undisputed that the L

NAPL plume under a portion of Hooven orig inates from Chevron’s ref inery and that fug itive emissions esca ped from the ref

inery while it was opera tional. I t is fierc ely disputed whether these environmenta l hazards have ca used any cog nizable persona l injury or - 15 -Nos. 11-4369; 12-3995

Bake r, et al., v. Chevron U .S.A. Inc., e t al.

proper ty damag e. On appea l, the parties have abandone d the bellwether distinctions used below and have org anized their arg uments around the three cate g ories of plaintiffs: (1) those claiming persona l injury damag es from airborne benzene emissions; (2) those claiming proper ty damag e; and (3) those cl aim ing medical monitoring damag es. We addre ss eac h cate g ory in the order prese nted afte r

rec iting the a

pplicable standa

rds of re view. We r eview a district court’s decision on a motion for summary judgme nt de novo. Savage

v. Gee , 665 F.3d 732, 737 (6th Cir. 2 0 1 2 ). “T h e q u estion on summary judgme nt is whether the moving party has demonstrated that the evidenc e available to the court establishes no g enuine issue of materia l fac t such that it is entitled to a judgme nt as a matter of law.” Dobrowski v. Jay Dee Contractors, Inc

. , 571 F.3d 551, 554 (6th Cir. 2009) (citing Fe d. R. Civ. P. 56( c))

. I n evalua ting a motion for summary judgme nt, we view the rec ord in the light m o s t fa v o ra b l e to the nonmoving party

. Id. “A mere scintilla of evidenc e is insufficient to cre ate a materia l question of fac t and defe at a motion for summary

judgme nt; ‘there must be evidenc e on which the jury could re asonably

find for the [non-movant] .’” CareToLi ve v. FDA , 631 F.3d 336, 340 (6th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc

. , 477 U.S. 242, 252 (1986)). “W e ‘re view the exclusion of expert testimony for abuse of discretion, even when t h e exclusion results in the entry of summ ar y j u d gm ent for the opposing party .’” Pluck v. BP Oil Pipeline Co. , 640 F.3d 671, 676 (6th Cir. 2011) (quoting Meridia Prods. Liab. Liti g. v. Abbott Labs. , 447 F.3d 861, 868 (6th Cir. 2006)). “A district court abuses its discretion if it bases its ruling on an

err oneous view of the law or a clea rly err oneous assessment of the evidenc e.” Ky. Speedway , LLC

- 16 -Nos. 11-4369; 12-3995

Bake r, et al., v. Chevron U .S.A. Inc., e t al.

v. Nat’l Ass’n of Stock Car Auto Racing, Inc. , 588 F.3d 9 0 8 , 915 (6th Cir. 2009) (citation and internal quotation marks omitted). Consequently , “we will not substitut e our own judgme nt for that of t he dis trict court and will rever se an e videntiary decision only wher e we are left wit h a definite and firm conviction that [t he district court] committed a clea r err or of judgme nt.” In re Scrap Metal Antitrust Liti

g. , 52 7 F.3d 517, 528 (6th Cir. 2008) (alter ation in orig inal) (citation and internal quotation marks omitted). I I I

. A. Starting with the cate g ory of plaintiffs claiming persona l injury damage s fr o m airborne benzene emi ssions, the parties here dispute whether the district court proper ly excluded Dr. Dahlg ren’ s expert opinion. Resolut i o n of this issue controls whether the district court proper ly g rante d summary judgme nt to Chevron beca use Dr. Dahlg ren’ s opinion is plaintiffs’ only evidenc e of causa tion. And althoug h whether Dr. Dahlg ren was proper ly excluded is outcome deter minative,

we never theless revie w the district court’s decision under the ab u s e o f discretion standard. See Newell Rubbermaid, Inc. v. Raymond Corp. , 676 F.3d 521, 532 (6th Cir. 2012); Pluck , 640 F.3d at 676. Plaintiffs arg ue that the district court err ed beca use it did not “take into consideration the full

rec ord prese nted” in excluding Dr. Dahl gre n . P l aintiffs claim that the court ignor ed his Daubert

- 17 -Nos. 11-4369; 12-3995

Bake r, et al., v. Chevron U .S.A. Inc., e t al.

hear ing testimony , a slideshow that he prepa red but did n o t p re s en t at that hear ing, and a CD 3 containing numerous benzene- rela ted scientific studies that he g ave the court during the Daubert hear ing. Plaintiffs also criticize the district court for reje cting a number of studies that Dr. Dahlg ren relied on in his Four

th Report beca

use those studies did not contain statistically signific ant finding s. 4 Chevron responds by first noting that plaintiffs do not specific ally challeng e the co u rt’s ruling s that the First and S econd Reports failed to comply with Rule 26(a) (2)( B) or t hat t he Third Report was proce durally improper. Chevron next asser ts that the district c ourt was not r equire d to consider Dr. Dahlg ren’ s testimony , his slideshow, or CD of studies beca use those materia ls rela ted
to his Third Report , which the court corr ectly reje cted as a prejudi cially late, transpar ent eff ort to reope n an opinion afte r its weakne sses had be en exposed. Finally , Chevron provides five re asons why Dr. Dahlg ren’ s causa tion opinion in the Four

th Report l acks a reliable scientific foundation: (1) He never identifi ed t h e d o se of benzene from short-term bursts that he opined was causa lly rela ted to pla intiffs’ blood dise ases; (2) he failed to proff er any specific information rela ting to the short-term benzene bursts eac h plaintiff alleg edly rec eived; (3) he did not cite any scientific literature establi shing that short-term benzene ex posure, of any intensity , was capable of causing plaintiffs’ injuries; (4) he relied on results of s t u d i es t h at contained statistically insignifica nt results; and (5)

Plaintiffs’ counsel appar ently g ave the district court a printed co py of Dr. Dahlg ren’ s 3 slideshow during the Daubert hear ing. “A study that is statistically signific ant has results that are unlikely to be the result of random 4 err or[.] ” Matrixx Initiatives, Inc. v. Siracusano , 131 S. Ct. 1309, 1319 n.6 (2011) (quoting Fe dera l J udicial Center, Re fer ence Manual on Scientific E vidence 354 (2d ed. 2000) ). - 18 -Nos. 11-4369; 12-3995

Bake r, et al., v. Chevron U .S.A. Inc., e t al.

the Four th Report did not ref

lect any differ ential diag nosis or other acc epted scientific methodology for r uling out non-be nzene explanations for plaintiffs’ disea ses. Chevron’s arg

uments are well-take n, and we cannot conclude that the district court made a clea rly err oneous assessment of ei t h er Dr

. Da hlgr en’s opinion or the studies on which he relied. Plaintiffs do not cre ate a jury question on causa tion simply beca use Dr. Dahlgre n opined that the ref inery ’s airborne benzene emissions cause d plaintiffs’ diseases. I t is t h e d i s t ri ct court’s duty to

ensure that all expert opinion evidenc e “re sts on a reliable foundation.” Daubert , 509 U.S. at 597. Fe dera l Rule of E v i d en ce 7 0 2 assig ns the district courts a “g ateke eping role” in scre ening the reliability of expert testimony

. Id. ; Kumho Tire Co., Ltd. v. Carmichael , 526 U.S. 137, 152 (1999). “I t is broadly acc epted that the district court has considera ble leewa y in making these sorts of deter minations.” Davison v. C o l e S ew ell Corp. , 231 F. App’x 444, 448 (6th Cir. 2007) (interna l quotation marks and br acke ts omit ted). I n this case , the methodical analy sis in the district court’s forty -seve n pag e order shows that it fully embra ced i t s gatekeeper role and car efully considere d, but ultimately reje cted, the alleg ed scientific foundation of Dr. Dahlg ren’ s expert opinion. First, we ag ree with Chevron that plaintiffs do not arg ue that the court abused its discretion by excluding the First and Second Reports for failing
to comply with the require ments in Rule 26(a) (2)( B)

. These repor ts are there fore not considere d in

our ana ly sis. Second, the court acte d within its discretion when it ref used to consider Dr. Dahlg ren’ s Third Report and the i nformation offere d in support of t hat report. “We have rec og nized that ‘[d] ist ri ct

- 19 -Nos. 11-4369; 12-3995

Bake r, et al., v. Chevron U .S.A. Inc., e t al.

courts have broad discretion to e x clude untimely disclosed expert-witness testimony ,’ particula rly when these repor

ts serve as a ‘transpa

rent attempt to reope n’ the Daubert i n q uiry afte r the

weaknesses in t h e ex p er t ’s prior testi mony have been revea led.” Pluck , 640 F.3d at 681 (quoting Pride v. BIC Corp. , 218 F.3d 566, 578–79 (6th Cir. 2000)). Other than vag uely obj ec t i n g to the “proc edura l fairne ss” of the district court’s ruling , plaintiffs do not specific ally challeng e the court’s conclusion that the u ntimely Third Report was an obvious attempt to bolster a defic ient opinion. I ndeed, at the Daubert hear ing, plaintiffs’ counsel all but admitted it intentionally held back on the “how and why ” of Dr. Dahlg ren’ s initial opinions beca use, acc ording to counsel, it was purportedly “unknown” how the district cour t would have liked that infor mation presente d. Third, the court exhaustively revie wed the medical studies tha t D r. Dahlg ren offe red in the Four th Report to support his opinion that a cumulative benzene exposure of 3.1 ppm-y ear s can cause Hodg kin’s disease (B rown); that 0.12 ppm-y ear s can cause AML (Schra der) ; or that 2.2 ppm-y ear s

can cause multipl e my eloma (L ipscomb). The court’s primary criticism was that the subjects of the cited st udies gen er al l y h ad much hi g her ex posures to benzene than the pl aintiffs, and thus, “ther e [was] simply too g rea t an analy tical g ap betwee n the data and the opinion proff ere d.” Gen. Elec. Co.

v. Joiner , 522 U.S. 136, 146 (1997). Ba sed on a revie w of the district court’s co m p re h en sive analy sis, we cannot say that its reject i o n of these studies was clea rly err oneous. Relatedly , the district court acte d within its discretion when it discounted studies that con t ai n ed statistically insignifica

nt r esults. See P luck , 640 F.3d a t 680 (aff irming the district c ourt’s exclusion of expert evidenc e beca

use, inter alia, the expert relied on studies containing statisti c a ll y in s ignif icant results).

- 20 -Nos. 11-4369; 12-3995

Bake r, et al., v. Chevron U .S.A. Inc., e t al.

Four th, the court noted that there was no consistent support in the studies t h at b en z en e expos u re s i g nificantly incre ases the risk of developing plaintiffs’ various dis ease s. And although it is medically acc epted that benzene exposure can cause AM L , the court also observe d that Dr. Dahlg ren did n o t ci t e any study finding that a cumulative exposure of .12 ppm-y ear s (Schra der) signific antly

incre ases the r isk of developing AML

. Finally , plaintiffs offe r no response to Chevron’s arg ument that the Four th Report does not contain any dif

fe re n t i al diag nosis or other acc epted scientific methodology for ruling out non-ben z en e ex p l anations for plaintiffs’ diseases. We have held previously that the absenc e of a differ ential diag nosis is fata l to the admissibili ty of an expert’s opinion reg arding disease causa tion in case s involving hazardous substances. See Pluck , 640 F.3d a t 678–80; Tamraz v. Lincoln Elec. Co. , 620 F.3d 665, 674–7 6 (6 t h C i r. 2010). After revie wing this rec ord, we are not left with a definite and firm conviction that the district court committed a clea r err or of judgme nt by excluding Dr. Dahlg ren’ s expert opinion. Acc ording ly , we aff irm the g rant of summary judgme nt in favor of Chevron. B. Turning now to the cate g ory of plaintiffs who claim proper ty damag e, the parties dispute the leg al thresholds of evidenc e nece ss ar y t o establish two differ ent ty pes of proper

ty damag e claims—g roundwa ter damag e and indirect subsurfac e trespass—unde r Ohio law. They also dispute whether the district court proper ly excluded Dr. Be dient’s expert opinion. We start with the disag ree ments over the pr operty damag e cla ims.

- 21 -Nos. 11-4369; 12-3995

Bake r, et al., v. Chevron U .S.A. Inc., e t al. First, plaintiffs c laim that they have a viable g roundwa ter damag e claim under McNamara

v. Rittman , 838 N.E.2d 640 (Ohio 2005), beca use the plume has unrea sonably interfe red with their g roundwa ter rig hts. McNamara held that “[a] proper ty owner has a potential cause of action ag ainst any one who unrea sonably interfe res with his proper ty rig ht in g roundwa ter.” Id. at 644. Plaintiffs arg ue that Chevron has unrea sonably interfe red with their g roundwa ter rig hts beca use (1) the plume has made the g roundwa ter undrinkable for some 500 y ear s, and (2) Hooven is subject to a villag ewide g roundwa ter zoning use restric tion beca use of the plume. Chevron responds that McNamara is distinguishable beca

use it addre sses harm to g roundwa ter resour ces t h at h o m eowners wer e actually using

at the time of the de fenda nt’s alleg ed interf

ere nce. We ag ree with Chevron that plaintiffs have no g roundwa t er cl ai m under McNamara

. An Ohio landowner

has a pr operty

rig ht in gr oundwater

only to the extent he actually

uses that wate r; he has no proper

ty interest in that water simply beca use it resides beneath his land. See W ood v. Am. A g g regates Corp. , 585 N.E.2d 970, 972 (Ohio Ct. App. 1990) (“O ne does not acquir e t i t l e t o underg round water but rathe r a rig ht to use a rea sonable amount so long as neig hboring landowner s

are not u n d u l y prejudice d.”). Thus, under Ohio law, the proper ty interest in g roundwa

ter is usebased, not title-based. See Smith v. Summit Cnty. , 721 N.E.2d 482, 486 (Ohio Ct. App. 1998) (“N o landowner in Ohio

. . . has ever held title to g round water.”). And here , it is undisputed that plaintiffs never used or planned to use the g roundwa ter. Acc ording ly , Chevron did no t “unre asonably

interfe re” with the plaintiffs’ use of the g roundwa ter unde r McNamara

.

- 22 -Nos. 11-4369; 12-3995

Bake r, et al., v. Chevron U .S.A. Inc., e t al. Second, plaintiffs challeng e the district court’s holding that they had prese nted insufficient evidenc e th at t h e p l u m e and its soil vapors indirectly trespasse d into the subsurfac e of their proper ties. The claim at issue here —an indirect subsurfac e trespass claim—was first rec og nized by the Ohio courts in Chance v. B.P. Chemicals, Inc. , 670 N.E.2d 985 (Ohio 1996). I n 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 fee t below the g round surfa ce. Id. at 986–87, 989. There , the injectate mix ed with the g roundwa ter and migr ated in some instances to near ly five miles awa y from BP’s property

. Id. at 987. Plaintiff landowner s broug ht claims ag ai n st BP for, inter alia, trespass

on the g rounds that the injectate contaminated the g roundwa ter benea th their proper

ties. Id. at 986. The Ohio Supreme Court held that plaintiffs had not demonstrated an unlawful entry on their proper ties by BP. First, the court define d the limit ed nature of plaintiffs’ subsurfac e proper ty rig hts, finding that “subsurfa ce rig hts in their proper ties include the rig ht to excl u d e i n v as i ons of the subsurfac e proper

ty that actua lly interfe re with [t heir] rea sonable an d fo re s eea ble use of the subsurfac e.” Id. at 992. Second, the court explained “[e]ven assuming that the injectate had latera lly migr ated to be in an offe nding conce ntration under some of the [pl aintiffs’] proper ties, we find that

some ty pe of phy sical damag es or interfe renc e with use must have been demonstrated for [pl aintiffs]
to rec over for a trespass.” Id. at 993. The court further held that absent phy s ical damag e to, or interfe renc e with their proper ties, the plaintiffs could not rec over damag es for loss in value of their proper ties resulting from the stigma from the public percep t i o n t h at their proper ties wer e contaminated. Id. I n the end, g iven the limit ed nature of the plaintiffs subsurfac e rig hts, and no

- 23 -Nos. 11-4369; 12-3995

Bake r, et al., v. Chevron U .S.A. Inc., e t al. proof of “phy sical damag e” to the subsurfac e, the court deter mined that, as a matter of law, plaintiffs had not shown unlawf

ul entry

. Id. at 993–94. I n Lueke v. Union Oil Co. of Cal. , No. OT-00- 008, 2000 WL 154 5 0 7 7 (Ohio Ct. App. Oct. 20, 2000 ) (unpubl ished), the Ohio Court of Appea ls interpre ted and applied Chance

. Fa ced with a plaintiff advanc ing an indirect trespass claim for damag es to a g roundwa ter well that had been contaminated with g asoline from a near by leaky underg round storag e tank, the cou rt s t ated: “I n

ca s es of indirect trespass, damag es are not presumed, and actua l damag es in the form of phy si ca l damag es or inter fer ence with use must be shown befor e the person suing for trespass c an pre vail. Fur thermore , the damag es must be substantial.” Lueke , 2000 WL 1545077 at *7 (interna l quotation marks and citations omitted). The appellate court aff irmed the trial court’s ruling that the plaintiff had not suffe red a s u b s t an t i al or unrea sonable interfe renc e with the use and enjoy ment of the proper ty beca use the defe ndant quickly reme died the problem by install i n g ca rb o n filters to the plaintiff’s wa ter sy stem. Id. at *8. I n this case , p laintiffs claim that the district court wrong ly require d them to establish “phy sical damag e” under Chance with proof that the soil vapors from the plume wer e found on their proper ties at conc entra tions that were ha rmful to humans. They

arg ue that the “phy sical dama g e” p ro n g of an indirect trespass claim is satisfied upon the “mer e detec tion of constituents” on t h e p ro p erty , without reg ard to whether they are harmful. They arg ue that the prese nce of Chevron’s contamination on plaintiffs’ pr operties r ang ing f rom above backg round to reg ulatory health thre at levels is sufficie nt injury to meet the proper ty damag e require ments of Chance

. Chevron responds

- 24 -Nos. 11-4369; 12-3995

Bake r, et al., v. Chevron U .S.A. Inc., e t al.

that the “mer e dete ction” of c onstituents is insufficient to constitute the phy sical prope rty damag e under Chance

. We ag ree with Chevron that plaintiffs have to show something m o re t han the “mer e detec tion” of soil vapors on their proper ties to establish the phy sical damag e pro n g o f an indirect trespass c laim. Under Chance , plaintiffs must produce evidenc e showing that (1) the plume or its soil vapors have invaded their proper ty , and (2) that invasion has cause d either substantial phy sical damag e to the land or substantial interfe renc e with their rea sonable and fore seea ble use of the land. These e lements are plainly appar ent in Chance beca use, as the c ourt explained, e ven if it assumed that BP’s inj ecta

te i nvaded the plaintiffs’ properties, t he plainti ffs were stil l require d to show that the invasion phy sic al l y d am aged the proper ty or interfe red with their use and enjoy ment of the proper ty

. Chance , 670 N.E.2d at 993; see also Rini v. Dye r , No. 07CA3180, 2008 WL 3824790, *5 (Ohio Ct. App. Aug

. 13, 2008) (unpublished) (“‘ [W ]here proper ty owner s are rely

ing on a theory of “indirec t” trespass, there is no presumption of damag es.’” ) (quoting 88 Ohio J ur. 3d Trespa ss § 19); Ramirez v. Ak

zo Nobel Coati ngs, Inc. , 791 N.E.2d 1031, 1034 n.2 (Ohio Ct. App. 2003). Plaintiffs unpersua sively criticize Lueke for adding the “substantial” qualifier to the second element. I n Merino v. Salem Hunting Club , No. 07 CO 16, 2008 WL 5124 5 4 9 (O h i o C t

. App. Dec

. 4, 2008), plaintiffs explain, the court held that “if the plaintiff proves the elements of trespass, h e h as a rig ht to nominal damag es without proof of actua l damag es.” Id. at *7. Merino does not help plaintiffs bec ause it is plainly distinguishable from Lueke : Merino involved a dire ct trespa ss claim based on stray bull et s en t ering the plaintiff’s proper ty from a near

by shooting club; Lueke

- 25 -Nos. 11-4369; 12-3995

Bake r, et al., v. Chevron U .S.A. Inc., e t al.

involved an indirect subsurfac e trespass claim based on contaminant seepa g e. Moreove r, in support of the “substantial” qualifier, the Lueke court cited the indirect trespass case s of W illiams v. Oede r , 659 N.E.2d 379, 383 (Ohio Ct. App. 1995) (“The trial court did not err in instructing the jury that appellee s wer e culpable in trespass for causing dust or dirt to fall on appellants’ proper ty only if the jury conclude d that appellants had established ‘substantial damag es.’” ) and Brown v. Scioto Cty. Bd. of Commrs. , 622 N. E

. 2 d 1 153, 1161–62 (1993) (ac knowledg ing that the modern view of indirect trespass liability require s “substantial actua l damag e” to the p ro p er t y ). See Lueke , 2000 WL 154507 7 at *7. Having identified the essential elements of an indirect trespass claim under Ohio law, we now examine whether plaintiffs’ proofs cre ate a g enuine i s s u e of materia l fac t on both elements, star

ting with the f

irst. Be cause this is not a class action, the district court corr ectly re q u i re d plaintiffs to offe r sufficie nt evidenc e showing the prese nce of s u b s u r f a c e c o n ta mi n a tion or soil vapors orig inating from the plume on eac h and ever y proper ty involved in this case . See Brown , 622 N.E.2d at 1161 (noting that there cannot be a trespass unless some substance has enter ed the land i tself). Plaintiffs claim this is reve rsible err or beca use it essentially amounts to a require ment that they install a monitoring well on ever

y proper ty in Hooven. We do not ag ree that the district court require d this exacting level of specific ity

. I nstead, it require d something more than the specula tive proof offe red that Chevron’s soil vapors wer e vag uely prese nt “in Hooven.” Plaintiffs’ best evidenc e of soil vapor intrusion—completed subsurfac e pathway s for two hy droca rbons at two monitoring wells under the

- 26 -Nos. 11-4369; 12-3995

Bake r, et al., v. Chevron U .S.A. Inc., e t al.

ODH’ s “wor st case scena

rio” conditions— was simply insufficient to justify a trial for the six ty -one proper ty damag e plaintiffs in this case

. This leads us to the question of whether the district court abused its discretion by excluding Dr. Be dient’s o p i n i o n t h at the mere prese nce of benzene, toluene, x y lene, and ethy l benzene in vary ing conce ntrations in the soils of Hooven could only have orig inated from the plume. I t did not. Dr. Be dient is not a soil vapor expert, and he did not complete any vapor path wa y analy ses. L ikewise, Dr. Cheremisinoff di d not underta ke such an analy sis. These evidentiar y defic iencies

mean that plaintiffs have failed to cre ate a g enuine issue of materia l fac t reg arding whether the plume and its soil vapors invaded their proper ties. Even as s u m i ng arg

uendo that they had, plaintiffs cannot g enuinely dispute whether that invasion cause d substantial phy sical damag e or substantial interfe renc e with u se and enjoy ment. Reg arding the latter, plaintiffs claim that the odor of g asoline on and near their proper ties has cause d substantial use interf

ere nce beca

use plaintiffs have abandone d various home improvement plans and ref used to enter t h ei r b aseme nts. The district court corr ectly reje cted this arg ument beca use the alleg ed interfe renc e, based on a thoroug h revie w of plaintiffs’ depositions, was either de minimis or irrational and, there fore , not compensa ble. See Banford v. Aldrich Chem. Co., Inc. , 932 N.E.2d 313, 319 (Ohio 2010) ( “F ear

and emotional har

m alone ar e insufficient for damag es for annoy ance and discomfort.”)

. As for “substantial phy sical damag e,” it appea rs the district court interpre ted this element to

mean that plaintiffs must demonstrate that the soil vapors found on the proper ties wer e harmful to

- 27 -Nos. 11-4369; 12-3995

Bake r, et al., v. Chevron U .S.A. Inc., e t al.

humans. Plaintiffs’ proofs on this matter are insufficient to cre ate a g enuine issue of materia l fac t. Their experts, Mr. Hag emann and Dr. Cheremisinoff—ne ither of whic h a r e me d ic a l d o c tor s or health experts—simpl y adopted ODH’ s ear ly position that the health ris k fr o m t h e plume was “indeter minate.” And notably , the ODH later conclude d, afte r conducting its “wor st case scena rio” sampling, that the conce ntrations of vapor- phase petroleum hy droca rbons detec ted in the indoor air of are a residence s and at the Hooven Elementar y School “did not pose a public health hazard to residents, students or staff.” Fu rt h er , plaintiffs’ best evidenc e of a canc er risk—the EPA’s 2005 letters to cer

tain proper

ty owner s th a

t s u b -slab hy droca

rbons posed an incre ased canc er risk of “8.0E5” (that is ei gh t ad d i t ional case s of canc er above the backg round canc er incidence rate ) for ever y 100,000 individuals living in the baseme nt for 24 h o urs, 365 day s per y ear , for 70 y ear s—is insufficie n t t o es t ab lish a substantial injury to the proper ty beca use there is no evidenc e that any Hooven resident will live under such circ umstances. Acc ording ly , we aff irm the g rant of summary judgme nt in favor of

Chevron on the pr operty damag e cla ims. C. As for the final cate g ory of plaintiffs, the part i es ag ree that in order to justify medical monitoring damag es under Ohio law, plaintiffs must demonstrate that they have been exposed to the plume and its soil vapors and that this exposure has proxi mately resulted in a substantially “incr ease d risk” of contra cting a serious disease to the extent that a rea sonable phy sician would order a medical

- 28 -Nos. 11-4369; 12-3995

Bake r, et al., v. Chevron U .S.A. Inc., e t al. monitoring prog ram. The parties disag ree , howeve r, on whether plaintiffs’ ev i dence cre ates a g enuine issue of

materia l fac t on that question. W e conc lude it does not. 5 As this court explained in Hirsch , in acc ordanc e with Day v . NLO , 851 F. Supp. 869 (S.D. Ohio 1994) and W

ilson v. Brush W

ellman , Inc. , 817 N.E.2d 59 (Ohio 2004), “medica l monitoring” is a reme dy for being pres en t l y i njured with an “incr ease d risk of—and corr esponding cost of

scre ening for—c erta in diseases that

. . . are more likely to occur as a result of [a defe ndant’s tortious conduct].” Hirsch , 656 F.3d at 3 6 3

. And beca use “not ever

y incre ased risk of disease war rants incre ased medical scrutiny [,] ” plaintiffs m ust offe r “evide nce that a rea sonable phy sician would order medical monitoring for them.” Id. The claim for medical monitoring damag es fails most acute ly in this case beca use plaintiffs lack individualiz ed exposure data. “[I ]t is well-settled that the mere exis tence of a tox in in the environment is insufficient to establish causa tion without proof that the leve l o f ex p o sure could

cause the plaintiff’s sy

mptoms[ ,]” the sy

mptom being , in this case , a substantially “incr ease d risk” of contra cting 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 causa tion “require s not simply proof of exposure to the substance, but proof of enoug h exposure to cause the plaintiff’s specific illness”).

We apply the summary judgme nt standard of revie w to this cate g ory of claims beca use we 5 construe the d is trict court’s order of dismiss al with prejudice as an order g ranting summary judgme nt to Che vron sua sponte
. Although the district court did not expressly invoke Rule 56(f) in its order to show cause why these claims should not b e dismiss ed, it followed the notice proce dures contemplated there in and considere d the evidenc e of rec ord in rea ching its decision. Additionally , we note that the parties trea t this order on appea l as if it wer e o n e g ranting summary judgme nt to Chevron. - 29 -Nos. 11-4369; 12-3995

Bake r, et al., v. Chevron U .S.A. Inc., e t al.

Pla i n t i ffs’ medical expert, Dr. L ockey , admitted that he did not deter mine what exposure level to what chemica l cause d an incre ased risk of what disease in eac h plaintiff. Wit hout reliable , individualiz ed proof that eac h of the 118 plaintiffs wer e exposed to contaminants sufficie nt to cause

an incre ased risk of a specifie d disease, there is no evidenc e that a rea sonable phy sician would order medical monit oring beca

use t hat doctor would have no idea which disease he would be screening for or trea ting. Hirsch , 656 F.3d a t 363; see also Ball v. Union Carbide Corp. , 385 F.3d 713, 728 (6th Cir. 2004) (“[Medica l monitoring damag es are ] nece ssarily p ro p o rt i o nal to [a plaintiff’s] exposure to tox ic emissions or waste.” ). Fur thermore , Dr. L ockey

draf ted his plan “ without regard to conditions potentially

rela ted
to environmenta l contaminant exposure.” (Emphasis added.) Such a plan undeniably fails to satisfy the leg al standard that plaintiffs must meet to prove they are entitled to medical monitoring, which is that “monitoring must be direc ted toward the disease for which the tort victim is at risk, and will only include proce dures which are medically prudent in light of that ri s k as opposed to measure s aimed at g ener al hea lth.” Day , 851 F. Supp. at 881. I n sum, plain t i ff

s h av e n o t identified a specific chemica l from the plume that can cause a serious latent disease; they prepa red no estimate of eac h plaint i ff ’s ex p o s ure to that specific chemica l; and they have no idea whether they fac e an incre ased hea l t h ri sk from the alleg ed exposure. The district court rig htfully observe d that these evidentiar y defic iencies mean that the claims for me dical monitoring damag es fa il as a matter of law.

- 30 -Nos. 11-4369; 12-3995

Bake r, et al., v. Chevron U .S.A. Inc., e t al.

Plaintiffs cannot esca

pe this conclusion by offe ring the ODH’ s canc er study incidence repor t

as a substitut e for individualiz ed ex posure data. See Gates v. Rohm and Haas Co. , 655 F.3d 255, 266 (3rd Cir. 2011) (“A vera g es or community -wide estimations wo u l d n o t b e probative of any individual’s [m edica l monitoring] claim beca use any one class member may have an exposure level well above or below the av er age . ”)

. Although this repor t, an ecolog ical canc er study , found “sig nificantly

highe r than expected number of canc er case s,” it ultimately conclude d that “it is not likely a specific point source of exposure or single risk fac tor is play ing a role in the incre ased canc er burden.” Most importantly , it did not find that the plume or its soil vapors wer e the rea sons for the incre ased canc er rate in Hooven: “I nformation reg arding the history of chemica l and environmenta l exposures . . . is not available to deter mine possible cause s of eac h case of canc er.” Even plaintiffs acknow ledg e the equivocal n at u re of the repor t: “Althoug h courts do view ecolog ical studies as useful for establishing associations, they are rela tively wea k for est ab l i s hing a conclusive or definitive ca

usal rela tionship between e x posure a nd the disease in question.” Finally , we ag ree with the district court that Hirsch compels dismiss al. I n Hirsch , this court deter mined that the pl aintiffs were not entitled to medica l monitoring damag es because they wer e unable to meet their burden of establishing an incre ased risk of disease. Hirsch , 656 F.3d at 363–64. Hirsch involved a derailment of a train carry ing hazardous m ater ials, leading to a serious fire and the sprea d of hazardous diox ins into the plaintiffs’ neig hborhood. Id. at 361. The Hirsch plaintiffs prese nted onl y specula tive individualiz ed ex posure data—they sampled di ox in l ev els at hom es i n the ar ea an d u s ed modeling to predic t who in the community had been exposed to diox ins at

- 31 -Nos. 11-4369; 12-3995

Bake r, et al., v. Chevron U .S.A. Inc., e t al.

conce ntrations above the U.S. EPA action level. Id. Plaintiffs here have no individualiz ed exposure data. The Hirsch plaintiffs established only a leg ally insignifica nt i n cr ea s ed risk, a one-in-one -million incre ased risk of canc er. Id. at 364. Plaintiffs here have no evidenc e of a leg ally signific ant incre ased risk. The Hirsch plaintiffs failed to establish that a rea sonable phy sician would order medical monitoring for such a de minimis risk of future h ar m . Id

. Plaintiffs here have produce d a phy sician who cra fted a medical mon i t o ri n g p l an “without reg ard” to individualiz ed exposure data. Thus, the dis t ri ct court corr ectly rec og nized that plaintiffs’ proofs in this case compar e less favor ably to those of the plaintiffs in Hirsch

. Acc ording ly , we aff irm the dismiss al of the claims for

medical monitoring damag es. I V. I n the sanction s appea l, plaintiffs’ counsel and Chevron dispute whether the district court abused its discretion in imposing Rule 11 sanctions. “We revie w a dis t ri ct co urt’s decision to impose sanctions under Rule 11 for abuse of discretion[,] ” DiPonio Const. Co., Inc. v. Int’l Union of Bricklaye rs & A l l ied Craftw orkers, Local 9 , 687 F.3d 744, 752 (6th Cir. 2012), and apply this defe rential standard of revie w to “ all aspec ts of a district c ourt’s Rule 11 deter mination.” Runfola & Assoc., Inc. v. Spectrum Reporting II, Inc. , 88 F.3d 368, 372 (6th Cir. 1996) (per curia m) (citation and interna l quotation marks omitted). Rule 11 permits sanctions if “a rea sonable inquiry discloses the pleading , motion, or pa per is ( 1) not well g rounded in fa ct, (2) not wa rra nted by exis ting law or a g ood faith arg ument for the extension, modification or reve rsal of exis ting law, or (3) interposed for any improper purpose such

- 32 -Nos. 11-4369; 12-3995

Bake r, et al., v. Chevron U .S.A. Inc., e t al.

as hara ssment or delay .” Merritt v. Int’l Ass’n of Machinists and Aerospace W orkers , 613 F.3d 609, 626 (6th Cir. 2010) (citation and internal quotation m ar k s omitted). “Rule 11 sanctions are

war rante d if the attorney ’s conduct wa s unrea sonable unde r the c ircumstance s.” Andretti v

. Borla Performance Indus., Inc. , 426 F.3d 824, 833 (6th Cir. 2005). Additionally , “it is important to revie w the gra nt of sa n ct i o n s i n t he contex t of t he li tiga tion history of t h[e] action.” Merritt , 613 F.3d at 627. Plaintiffs’ counsel arg ue that they did nothing more than zealously advocate for the medical monitoring plainti ffs. Counsel also arg ues t hat t he dis trict court sanctioned t hem with the benefit of hindsight and punished them for prese rving their clients’ appellate rig hts, rathe r than voluntarily dismiss ing their claims. Chevron responds that counsel unrea sonably interpre ted the elements of the medical monitor i n g re m edy , misrepre sented their exposure evidenc e, and submitt ed a flawe d medical monitoring plan. The parties’ positions ref lect a fundame ntal disag ree ment over the quantity and q u al i t y of exposure evidenc e neede d to j u s t i fy medical monitoring damag es under Ohio law. This disag ree ment has infec ted the entire case and how it was litigated. Under the circ umstances of this

case , howeve r, we conclude that the district court did not abuse its discretion in holding that plaintiffs’ attorney s wer e objectively unrea sonable in maintaining that (1 ) t h ey n eed not show individualiz ed exposure data t o obtain medical monitoring, and (2) plaintiffs need only show a potential “incr ease d risk” of contra cting a serious disease, as opposed to a present “incr ease d risk,” in order to be entitled to medical monitoring

.
- 33 -Nos. 11-4369; 12-3995

Bake r, et al., v. Chevron U .S.A. Inc., e t al.

Even in this appea l, plaintif fs ’ attorney s continue to asser t that “to justify medical monitoring, all the Plaintiffs neede d to do in this case was prove the elements of one of the underly ing torts pled i n their complaint (neg lige nce, nuisance, trespass and fraud) —nothing more

an d n o t h ing less.” This statement of the law is patently unrea sonable. Claims for medical monitoring da mag es must be supported with individualized exposure data that justifies the cost of

a defe ndant funding such a prog ram. Hirsch , 656 F.3d at 363; see also In re W elding Fume Prods. L i a b i l i ty Liti

g. , 245 F.R.D. 279, 292 (N.D. Ohio 2007) (medica l monitoring plaintiffs must off er proof that an exposure to a defe ndant’s tox ic substance cause d an incre ased risk of serious disease) ; Day , 851 F. Supp. at 881 (plaintiffs m u s t show by “expert medical testimony that they have incre ased risk of disease which would war rant a rea sonable phy sician to order monitoring” ). Counsels’ position that m edica l monitoring is rea sonable and appropr iate without individualiz ed exposure data has absolutely no support in the case law. And we do not consi d er their insistence otherwise a

“g ood faith” a

rg ument to reve rse, e x tend, or modify exis ting c ase la

w. Counsels’ position that Chevron should provide medical monitoring to plaintiffs, who only have a po t en t i a l o f s uffe ring an “incr ease d risk” of disease, but no present “incr ease d risk,” is likewise objectively unrea sonable. Quite obviously , they are advanc ing c laims that a re not r ipe in

an attempt to collect damag es for nonexis tent harm. Hirsch sug g ests that a m ed i cal monitoring

reme dy potentially exis ts for plaintiffs who are prese ntly in jured with an “incr ease d risk,” not for those who might suff

er t h e p o t ential injury of an “incr ease d risk.” See Hirsch , 656 F.3d at 363. Contrary to their repeate d asser tions otherwise, counsel c annot s eek medical moni toring damag es

- 34 -Nos. 11-4369; 12-3995

Bake r, et al., v. Chevron U .S.A. Inc., e t al.

for c lients who have y et to suffe r an “ incre ased r isk” of contr acting a ser ious disease. The district
court did n o t abuse its discretion by sanctioning counsel for continually perpe tuating such an “irrational” view of medical monitoring law, espec ially afte r counsel fra nkly admitted to the district court they had no ca

usation proofs under

the district court’s standa rds. Moreove r, we do not ag re e wi t h co unsel that the di strict court im posed sanctions with the “bene fit of hindsight.” Whil e the c ourt awa rded sa nctions only

afte r re viewing Dr. L ockey ’s plan and this court issued Hirsch , it obtained no “bene fit of hindsight” from that revie w beca use counsel

conce ded at a discovery confe renc e— m o re t h an a y ear ear lier—that they could not prove their medical monit oring claims by the ca usation standards r equire d by the di strict court, which Hirsch did not alter. Thus, the court did not sanction counsel for litigating claims that wer e ultimately found
to be without merit; rathe r, it sanctioned them for continuing to litigate claims that wer e admittedly meritless. Finally , we are not persua ded that the district court punished counsel with sanctions beca use their clients wanted to prese rve their appea l rig hts, rathe r than voluntarily dismiss their claims. After counsel admitted t h ey had no causa tion proofs, the court sug g ested a Race way dismiss al so that 6

I n Race way Properties v. Emprise Corporation , the district court e ntere d an interloc utory 6 order in a private antitr u s t ca s e that made it impossibl e for the pl aintiffs t o preva il. 613 F.2d 656 (6th Cir. 1980) (per curia m). The plaintiffs reque sted, and the district court enter ed, a formal order of d ismiss al with prejudice that would permit a challeng e of the order on appea l. This court subsequently aff

irmed that it h ad ap p ellate jurisdiction over the matter beca use the plaintiffs’ “solicitation of the formal dismiss al was desig ned only to expedite revie w of an order which had in eff ect dismiss ed appellants’ complaint.” Id. at 657; see also Libbey-Owens- Ford Co. v. Blue Cross and Blue Sh i el d Mu t

. of Ohio , 982 F.2d 1031, 1034 (6th Cir. 1993) (desc ribing the Race way dismiss al). - 35 -Nos. 11-4369; 12-3995

Bake r, et al., v. Chevron U .S.A. Inc., e t al.

coun s el co u ld challeng e the court’s leg al ruling s on appea l; the parties ag ree d. L ater , howeve r, counsel rene g ed beca

use they want ed t o d i smiss the claims for medical monitoring and the nonbellwether proper

ty damag e claims, wher eas Chevron wanted to adher e to the compromise struc k

on the rec ord an d d i s m i s s only the medical monitoring claims. I n light of counsels’ admission reg ard i n g t h ei r lack of evidenc e, Chevron subsequently sent counsel a Rule 11 safe -har bor letter advising counsel to voluntarily dismiss or fac e the possibili ty of pay ing defe nse costs for the medical monitoring claims g oing forwa rd. Counsel ref

used to dismiss , believing that they wer e ethical l y obliga ted to prese rve the medical monitoring plaintiffs’ appe llate rig hts. Counsel was mistaken. Rule 11 sanctions are appropr iate when an attorney ref uses to dismiss a claim afte r becoming

awa re that it lacks merit. See Merritt , 613 F.3d at 627 (“Rule 11 imposes a continual obliga tion on attorney s to ref

rain from pursing meritless or frivolous claims at any stag e of the proce eding s . . . .”) (citation and internal quotation marks omitted); Runfola , 88 F.3d at 373 (af firming Rule 11 sanctions ag ainst counsel who failed to dismiss the action afte r becoming awa re of their inability to asser t any evidenc e in support of their claims). Given the history of this case , the district court did not commit

a clea r err or of judgme nt by sanctioning counsel for continuing to litigate meritless claims. Fur ther, counsel’s false dilemma arg ument—either dis mi s s a n d lo s e a p p e a l rig hts or litigate and pay costs—is unpersua sive. The district court offered counsel a Race way dismiss al that would have allowed counsel to promptly challeng e the district court’s ruling s in this court. Despite thi s offe r, counsel ref used to dismiss only the claims of the medical monitoring plaintiffs and continued litigating under the spec ter of Rule 11 a t their own per il.

- 36 -Nos. 11-4369; 12-3995

Bake r, et al., v. Chevron U .S.A. Inc., e t al.

V. For these re asons, we a ffirm the judg ment of the district cour t.

- 37 -