1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JUDITH A. HENDRIAN, Individually and Case No. 08-CV-14371

as Personal Representative of the Estate of

HOWARD G. HENDRIAN, Deceased, Hon. Julian Abele Cook

Plaintiff,

v

SAFETY-KLEEN SYSTEMS, INC.,

Defendant.

__________________________________________________________________

Donald A. Krispin (P32281) Daniel J. Scully, Jr. (P36530)

Duane C. Marsden (P54922) Cynthia M. Filipovich (P53173)

Jaques Admiralty Law Firm, P.C. Clark Hill PLC

645 Griswold, Suite 1370 500 Woodward Ave., Suite 3500

Detroit, MI 48226 Detroit, MI 48226

(313)961-1080 (313)965-8300

Attorneys for Plaintiff Attorneys for Defendant

_________________________________________________________________

DEFENDANT SAFETY-KLEEN SYSTEMS, INC.’S

MOTION IN LIMINE TO PRECLUDE THE TESTIMONY, OPINIONS AND

REPORT OF MELVYN KOPSTEIN, Ph.D.

DEFENDANT SAFETY-KLEEN SYSTEMS, INC. (hereinafter

“Defendant” or “Safety-Kleen” ), by and through its counsel, Clark Hill, PLC and

Jones Carr McGoldrick, LLP, moves in limine, pursuant to Fed. R. Evid. 104, 401,

402, 403, 702 and 703, to exclude the testimony, opinions and report of Plaintiff’s

expert witness Melvyn Kopstein, Ph.D. (“Kopstein”), on the grounds that the

opinion evidence proffered by Kopstein concerning Howard G. Hendrian’s alleged

exposure to Safety-Kleen’s 105 Solvent, an organic, mineral-spirits-based solvent,

Case 2:08-cv-14371-VAR-MKM ECF No. 118, PageID.4139 Filed 10/28/13 Page 1 of 37
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as well as Safety-Kleen’s product warnings and analytical testing method, is

flawed and unsupported by accepted methodologies, scientifically invalid, and

precluded under Daubert, its progeny and the Federal Rules of Evidence. As such,

Kopstein’s opinions are inadmissible and Defendant requests that this Honorable

Court exclude the testimony, opinions and report of Kopstein, as well as any and

all references to such materials at the trial of this matter.

In support of this Motion, Defendant will respectfully show the Court as

follows:

1. Plaintiff Judith Hendrian (“Plaintiff”) claims benzene exposure from

occupational use of Safety-Kleen 105 Solvent (“SK 105”) at Ford’s facilities in

Livonia, Michigan, caused Decedent Howard Hendrian (“Hendrian”) to develop

myelodysplastic syndrome (“MDS”) and other related leukemic complications,

including acute myelogenous leukemia (“AML”).

2. Plaintiff designated Melvyn Kopstein to opine as to (1) the alleged benzene

content of SK 105; (2) Hendrian’s alleged inhalation exposures to benzene from

alleged use of SK 105; (3) the adequacy of Safety-Kleen’s warnings, instructions

and labels provided with the solvent; (4) the “scientific merit” of Safety-Kleen’s

Method 9211; and (5) Safety-Kleen’s compliance with Ford’s requirements for

product information.

3. In offering his opinions about the benzene content of SK 105, Kopstein

ignores all relevant real-world benzene testing of SK 105 and instead substitutes

Case 2:08-cv-14371-VAR-MKM ECF No. 118, PageID.4140 Filed 10/28/13 Page 2 of 37
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outdated and irrelevant data related to other products. He selectively decided

which data to consider for benzene content and, in so doing, completely ignored a

proper application of the scientific method. Kopstein relies on outdated literature

related to a broad category of mineral spirits—and, notably, not a single reference

to SK 105. Moreover, Kopstein’s sources do not disclose the analytical methods

used and as such cannot be appropriately verified. Without such information, even

according to Kopstein’s own recognized standards applicable to analytical

methods, the accuracy of the benzene content estimates Kopstein provides cannot

be determined.

4. In calculating Hendrian’s alleged benzene exposures, Kopstein uses a flawed

exposure model and fails to validate his findings by comparison to any other data.

Kopstein’s “methodology” ignores all available empirical exposure data specific to

the machine and solvent at issue. Kopstein’s “methodology” is the application of

an oversimplified and arbitrary ratio between benzene in hydrocarbon solutions

and airborne emissions as reported in a single exposure simulation, without

consideration of the many factors necessary in calculating past benzene exposures

in specific circumstances. Moreover, air monitoring is presently the only method

accepted by OSHA, NIOSH or the ACGIH for determination of employee

exposures and then evaluating and comparing those exposures with occupation

health standards. In forming his opinion here, Kopstein broke with reliable and

relevant scientific practices and ignored numerous air monitoring studies regarding

Case 2:08-cv-14371-VAR-MKM ECF No. 118, PageID.4141 Filed 10/28/13 Page 3 of 37
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the sink-on-a-drum parts washer at issue and SK 105.

5. Kopstein’s ipse dixit has been previously excluded because his unreliable

exposure assessment lacks either validation or general acceptance in the scientific

community. Another court, applying Daubert, rebuffed Kopstein’s attempts at

“self-acclamation” of his own methodologies, noting that “nothing in either

Daubert or the Federal Rules of Evidence requires a district court to admit opinion

evidence that is connected to existing data only by the ipse dixit of the expert.”

Specifically, the Court took issue with the assumptions Kopstein made, the data he

relied upon in applying his “textbook models” to the facts of the case, and his

“intermingling of well-established formulae in order to reach a particular

conclusion.” Moreover, the Court found no indication in the record that

Kopstein’s approach of applying his “formula or combination of formulae” was in

fact followed by other experts in the industry; nor were there any references to

articles or papers that validated his approach of applying the formula to the

exposures at issue in that particular case.

6. Kopstein is not qualified to offer opinions on Safety-Kleen’s analytical

testing method or the contents of its warnings and labels. Nothing in Kopstein’s

education, experience or background qualifies him to offer expert testimony

regarding analytical chemistry testing methods. Kopstein describes himself as a

“forensic chemical engineer.” His degree is simply in chemical engineering and

the entirety of his work experience, prior to becoming a professional expert

Case 2:08-cv-14371-VAR-MKM ECF No. 118, PageID.4142 Filed 10/28/13 Page 4 of 37
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witness, is limited solely to chemical engineering. Similarly, he has no

qualifications or skills to offer opinions on Safety-Kleen’s Material Safety Data

Sheets and warning labels. Kopstein has never created, nor has it ever been his job

to create, a MSDS or warning label for any product or material. And, he admits

that he is neither an expert in industrial hygiene nor human factors.

7. Kopstein’s allegations regarding materials submitted to Ford are based

solely upon speculation and conjecture. He claims Safety-Kleen violated Ford

policies regarding product information, alleging that Safety-Kleen failed to

disclose the presence of benzene in SK 105 during Ford’s product approval

process. However, Kopstein admits he doesn’t know what information may have

been provided to Ford. Despite requests for the information, Ford was unable to

produce the materials Safety-Kleen submitted when SK 105 was approved for use

so the record is silent on this issue. As such, Kopstein’s opinions on this issue are

pure speculation.

WHEREFORE, Safety-Kleen Systems, Inc. respectfully requests that this

Honorable Court grant its Motion in limine and preclude any testimony, opinions

and report of Kopstein, as well as any and all references to such materials at the

trial of this matter.

Case 2:08-cv-14371-VAR-MKM ECF No. 118, PageID.4143 Filed 10/28/13 Page 5 of 37
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CERTIFICATE OF CONFERENCE

I hereby certify that, pursuant to E.D. Mich. L.R. 7.1(a)(1), there was a

conference between counsel for the parties during which the movant explained the

nature of the motion and its legal basis and requested, but did not obtain,

concurrence in the relief sought.

Respectfully submitted,

JONES CARR M

CGOLDRICK, L.L.P.

/s/ Wesley S. Alost

______________________________

James J. McGoldrick

james.mcgoldrick@jcmfirm.com

Texas State Bar No. 00797044

Wesley S. Alost

wes.alost@jcmfirm.com

Texas State Bar No. 24027192

Amanda M. Koch

amanda.koch@jcmfirm.com

Texas State Bar No. 24051089

Miranda A. Wilson

miranda.wilson@jcmfirm.com

Texas State Bar No. 24058344

5910 N. Central Expressway, Suite 1700

Dallas, TX 75206

(214) 828-9200 (Telephone)

(214) 828-9229 (Facsimile)

-andDaniel J. Scully, Jr.

dscully@clarkhill.com

Michigan State Bar No. P36530

Cynthia M. Filipovich

cfilipovich@clarkhill.com

Michigan State Bar No. P53173

Case 2:08-cv-14371-VAR-MKM ECF No. 118, PageID.4144 Filed 10/28/13 Page 6 of 37
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CLARK HILL PLC

500 Woodward Ave., Suite 3500

Detroit, MI 48226

(313) 965-8300 (Telephone)

(313) 965-8252 (Facsimile)

ATTORNEYS FOR DEFENDANT

SAFETY-KLEEN SYSTEMS, INC.

Date: October 28, 2013

Case 2:08-cv-14371-VAR-MKM ECF No. 118, PageID.4145 Filed 10/28/13 Page 7 of 37
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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JUDITH A. HENDRIAN, Individually and Case No. 08-CV-14371

as Personal Representative of the Estate of

HOWARD G. HENDRIAN, Deceased, Hon. Julian Abele Cook

Plaintiff,

v

SAFETY-KLEEN SYSTEMS, INC.,

Defendant.

__________________________________________________________________

Donald A. Krispin (P32281) Daniel J. Scully, Jr. (P36530)

Duane C. Marsden (P54922) Cynthia M. Filipovich (P53173)

Jaques Admiralty Law Firm, P.C. Clark Hill PLC

645 Griswold, Suite 1370 500 Woodward Ave., Suite 3500

Detroit, MI 48226 Detroit, MI 48226

(313)961-1080 (313)965-8300

Attorneys for Plaintiff Attorneys for Defendant

__________________________________________________________________

DEFENDANT SAFETY-KLEEN SYSTEMS, INC.’S BRIEF IN SUPPORT OF

ITS MOTION IN LIMINE TO PRECLUDE THE TESTIMONY, OPINIONS

AND REPORT OF MELVYN KOPSTEIN, Ph.D.

Case 2:08-cv-14371-VAR-MKM ECF No. 118, PageID.4146 Filed 10/28/13 Page 8 of 37
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STATEMENT OF THE ISSUES PRESENTED

I. Whether the testimony, opinions and report of Melvyn Kopstein, Ph.D.,

regarding Safety-Kleen’s analytical testing methods and its product

warnings require preclusion because Kopstein lacks the appropriate

education, experience, training, and specialized knowledge relevant to those

topics to support his opinions under Fed. R. Evid. 702, Daubert and its

progeny?

II. Whether the testimony, opinions and report of Melvyn Kopstein, Ph.D.

pertaining to the alleged benzene content of the 105 Solvent require

preclusion as they ignore all real-world testing data regarding the solvent

and are based upon outdated and irrelevant data related to other products?

III. Whether the testimony, opinions and report of Melvyn Kopstein, Ph.D.

pertaining to Hendrian’s alleged benzene exposures require preclusion as

they are based upon a flawed methodology not validated by science, ignore

all real-world testing data regarding the solvent and parts-washing machine

at issue, and amount to nothing more than ipse dixit of the expert?

IV. Whether the testimony, opinions and report of Melvyn Kopstein, Ph.D.

pertaining to Safety-Kleen’s alleged failure to comply with Ford policies

regarding product information require preclusion because they are based on

pure speculation and conjecture and do not aid the jury in any fact

determination?

Case 2:08-cv-14371-VAR-MKM ECF No. 118, PageID.4147 Filed 10/28/13 Page 9 of 37
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CONTROLLING AUTHORITY

Pursuant to E.D. Mich. L.R. 7.1(d)(2), the following is the controlling or

most appropriate authority for the relief sought by Defendant:

Rules

1. Fed. R. Evid. 104

2. Fed. R. Evid. 401

3. Fed. R. Evid. 402

4. Fed. R. Evid. 403

5. Fed. R. Evid. 702

6. Fed. R. Evid. 703

Cases

1. Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993)

2. Pluck v. BP Oil Pipeline Co., 640 F.3d 671 (6th Cir. 2011)

3. Sterling v. Velsicol Chem. Corp., 855 F.2d 1188 (6th Cir. 1988)

4. Bonner v. ISP Techs. Inc., 259 F.3d 924 (8th Cir. 2001)

5. Kelley v. American Heyer-Schulte Corp., 957 F. Supp. 873 (W.D. Tex.

1997)

6. Baker v. Chevron, 680 F. Supp. 2d 865 (S.D. Ohio 2010)

7. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999)

8. Thomas v. City of Chattanooga, 398 F.3d 426, 432 (6th Cir. 2005)

9. United States v. Bonds, 12 F.3d 540, 555 (6th Cir. 1993)

10. Greenwell v. Boatwright, 184 F.3d 492, 496 (6th Cir. 1999)

11. In re Paoli R.R. Yard PCB Litig., 35 F.3d 717 (3d Cir. 1994)

12. Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549 (D.C. Cir. 1993)

13. Smelser v. Norfolk S. R.R. Co., 105 F.3d 299 (6th Cir. 1997), cert. denied,

522 U.S. 817 (1997)

14. Berry v. Crown Equip. Corp., 108 F. Supp. 2d 743 (E.D. Mich. 2000)

15. Cicero v. Borg-Warner Auto, Inc., 163 F. Supp. 2d 743 (E.D. Mich. 2001)

16. Johnson v. Manitowoc Boom Trucks, Inc., 484 F.3d 426 (6th Cir. 2007)

Case 2:08-cv-14371-VAR-MKM ECF No. 118, PageID.4148 Filed 10/28/13 Page 10 of 37
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17. Mike’s Train House, Inc. v. Lionel, L.L.C., 472 F.3d 398 (6th Cir. 2006).

18. Mohney v. USA Hockey, Inc., 138 Fed.Appx. 804 (6th Cir. 2005)

19. Lippe v. Bairnco, 288 B.R. 678 (S.D.N.Y. 2003)

20. In re Rezulin Prods. Liab. Litig., 309 F. Supp. 2d 531 (S.D.N.Y. 2004)

21. In re Propulsid Products Liability Litigation, 261 F. Supp. 2d 603 (E.D.

La. 2003)

22. Nelson v. Tennessee Gas Pipeline, No. 95-1112, 1998 WL 1297690 at *7

(W.D. Tenn. Aug. 31, 1998), aff’d 243 F.3d 244 (6th Cir. 2001)

23. Downs v. Perstorp Components, Inc., 126 F. Supp. 2d 1090 (E.D. Tenn.

1999)

24. General Electric Co. v. Joiner, 522 U.S. 136 (1997)

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

26. Attorney General of Okla. v. Tyson Foods, Inc., 565 F.3d 769 (10th Cir.

2009)

27. Meemic Ins. Co. v. Hewlett-Packard Co., 717 F. Supp. 2d 752 ( E.D. Mich.

2010)

28. Clay v. Ford Motor Co., 215 F.3d 663 (6th Cir. 2000)

29. Castellow v. Chevron USA, 97 F. Supp. 2d 780 (S.D. Tex. 2000)

30. Edwards v. Safety-Kleen Corp., 61 F. Supp. 2d 1354 (S.D. Fla. 1999)

31. Firestone v. Fla. Power & Light Co., 272 Fed. Appx. 761 (11th Cir. 2008)

32. Allen v. Pa. Eng’g Corp., 102 F.3d 194 (5th Cir. 1996)

33. Freeport-McMoran Res. Partners Ltd. P’ship, 56 F. Supp. 2d 823 (E.D.

Mich. 1999)

34. McLean v. 988011 Ontario, Ltd., 224 F.3d 797 (6th Cir. 2000)

Regulations

1. 29 CFR § 1910.1200

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MATTER BEFORE THE COURT

Plaintiff Judith Hendrian (“Plaintiff”) alleges that Howard “Gary”

Hendrian’s (“Hendrian”) workplace exposure to Defendant’s organic partswashing solvent caused the development of his myelodysplastic syndrome and

other leukemic complications (“MDS-leukemia”) and subsequent death. In an

effort to satisfy her burden of proof that Safety-Kleen’s 105 Solvent (“SK 105”)

specifically caused Hendrian’s disease process, Plaintiff proffers the expert

testimony of Melvyn Kopstein, Ph.D. (“Kopstein”), who opines regarding the

alleged benzene content of the solvent, purports to quantify Hendrian’s alleged

exposure thereto, and postulates regarding Safety-Kleen’s product warnings and

analytical testing methods. Because Kopstein is unqualified to offer a number of

his opinions, and because his opinions are the result of a deeply flawed, unvalidated methodology or are based upon pure speculation, Safety-Kleen moves in

limine to exclude his testimony, opinions and report under Daubert, its progeny

and the Federal Rules of Evidence.

FACTUAL BACKGROUND

A. PLAINTIFF’S ALLEGATIONS

Plaintiff seeks damages from Safety-Kleen in connection with her late

husband’s alleged development of MDS-leukemia and subsequent death as a result

of his claimed exposure to SK 105, an organic, mineral-spirits-based parts washing

Case 2:08-cv-14371-VAR-MKM ECF No. 118, PageID.4150 Filed 10/28/13 Page 12 of 37
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solvent.1 Hendrian served as a senior technician in the New Product Center

(“ATNPC”) of Ford’s Automatic Transmission Plant in Livonia, Michigan, where

he worked in the Flexible Machining Systems (“FMS”) department beginning in

May 1991.2Plaintiff claims that Hendrian used SK 105 in a parts washing device

provided by Safety-Kleen during his tenure in the FMS Department, and that he

developed MDS-leukemia as a result of his occupational exposure to benzene

allegedly present in SK 105.3

B. SAFETY-KLEEN 105 SOLVENT

SK 105 is an organic, parts-washing solvent primarily comprised of a

refined petroleum distillate, commonly referred to as mineral spirits or Stoddard

solvent, which Safety-Kleen historically acquired from major petroleum refiners.4

SK 105 is delivered to industrial customers for use in degreasing or parts washing

operations, typically with a parts-washing device. Used, or “spent,” solvent is

periodically collected, recycled through Safety-Kleen’s distillation process and

ultimately redistributed.5

Mineral spirits, such as SK 105, contain various hydrocarbon components,

1

See Plaintiff’s Complaint, on file herein (Doc. No. 1-3); see also, e.g., July 12, 2011 Report of Nachman

Brautbar, M.D. (hereinafter “Brautbar Report”) at 64, on file herein (Doc. No. 18-1).

2

See Nov. 15, 2012 Report of Melvyn Kopstein, Ph.D., attached hereto as Exhibit A, at ¶¶ 25.

3

See, e.g., Brautbar Report at 64. Plaintiff seeks recovery against Safety-Kleen on theories of negligence and

products strict liability. Although Plaintiff styles her claim as one under “strict liability,” the Court construed her

claim as one sounding in products liability in a previous Order (Doc. No. 57). Each of Plaintiff’s causes of action

is founded upon Safety-Kleen’s alleged failure to adequately warn Hendrian of the purported risks of organic

solvent exposure. See Plaintiff’s Complaint at ¶¶ 17-19, 24 and 28-29. Safety-Kleen denies Plaintiff’s claims.

4

See May 20, 2011 Report of James Breece, Ph.D., attached hereto as Exhibit B, at 3; see also Ex. A at 7-8.

5

See Ex. B at 3-4.

Case 2:08-cv-14371-VAR-MKM ECF No. 118, PageID.4151 Filed 10/28/13 Page 13 of 37
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of which benzene may be a naturally-occurring, trace contaminant.6 Occupational

Safety and Health (“OSHA”) regulations identify benzene as a potential air

contaminant and set forth both labeling standards and exposure limits for benzene.7

Notably, mineral spirits have been extensively studied and no industry or

governmental organization has identified them as a carcinogen.8 As with any

petroleum distillate, there can be substantial differences in chemical composition

of various mineral spirits or Stoddard solvents.9

Safety-Kleen actively sought to verify that the benzene content of SK 105, if

any, remained well within applicable regulatory limits – initially through testing by

outside laboratories and later by internal testing at a state-of-the-art facility using a

testing methodology that Safety-Kleen developed.10 That methodology, SK

Method 9211, was based upon an EPA standard testing method and was used to

determine the benzene content of solvent that Safety-Kleen obtained from vendors,

6

See May 18, 2011 Report of John Spencer, attached hereto as Exhibit C, at 3; Ex. B at 11.

7

See Ex. C at 4. Specifically, OSHA’s Hazard Communication Standard (“HazCom”) requires that benzene

be listed on a product’s Material Safety Data Sheet (“MSDS”) if the product contains 0.1% (or 1,000 ppm) or

more benzene or if it is likely to be released into the workplace at concentrations that would exceed

occupational exposure standards or present a health hazard at those concentrations. 29 CFR §

1910.1200(g)(2)(i)(C)(2). OSHA concluded that 1,000 ppm is the appropriate action level because it gives “a

high degree of confidence” that resulting airborne concentrations would be below the airborne action level.

See, Ex. C at 4-5.

8

See Ex. C at 3; see also Ex. B at 12.

9

See, e.g., Agency for Toxic Substances and Disease Registry, Toxicological Profile for Stoddard Solvent,

June 1995, attached as Exhibit D (pertinent sections only). Stoddard solvent is a “mixture of chemicals,” Id. at

p. 2, and can contain different hydrocarbons, such as benzene, in different amounts. Id. at Table 3-3, p. 84. See

also, International Agency for Research on Cancer (IARC): Some organic solvents, resin monomers and

related compounds, pigments, and occupational exposures in paint manufacture and painting. IARC

Monographs on the Evaluation of Carcinogenic Risk of Chemicals to Humans, Vol. 47. Lyon, France: IARC

1989, attached as Exhibit E (relevant portions only).

10 See May 18, 2011Report of Anne O’Donnell, attached hereto as Exhibit F, at 2. Solvent obtained from

vendors was known as “virgin” solvent. Solvent processed after customer use was known as “recycled”

solvent. Id.

Case 2:08-cv-14371-VAR-MKM ECF No. 118, PageID.4152 Filed 10/28/13 Page 14 of 37
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as well as the solvent it recycled.11

Numerous published and unpublished studies assess benzene emissions from

Safety-Kleen parts washers using SK 105, including NIOSH Health Hazard

Evaluations (“HHEs”), the Fedoruk simulation referenced by Kopstein, and testing

conducted both internally and by third-parties at Safety-Kleen’s request, among

others.12 In many cases, benzene was not even detected in personal breathing zone

samples. In other studies, the solvent was spiked with pure benzene to evaluate

worst-case scenarios, and, overall, the results of these studies, including the spiked

solvent studies, indicated that personal exposures to benzene associated with the

use of SK 105 under normal conditions were well below OSHA limits.13

C. KOPSTEIN’S OPINIONS

Kopstein opines as to (1) the alleged benzene content of SK 105; (2)

Hendrian’s alleged inhalation exposures to benzene from alleged use of SK 105;

(3) the adequacy of Safety-Kleen’s warnings, instructions and labels provided with

the solvent; (4) the “scientific merit” of Safety-Kleen’s Method 9211; and (5)

11 Id. In 1991 - during the time frame of Hendrian’s alleged exposure - Safety-Kleen’s Technical Center

commenced a comprehensive survey of both virgin and recycled SK 105 and collected samples of every

product delivery at all Safety-Kleen branches and recycle centers across the country for the next two (2) years.

During that same period, recycle centers sent weekly composite samples of all recycled 105 Solvent batches

for testing, as well. Id. From over 1,500 samples analyzed, the average benzene content was determined to be

20 mg/L for virgin SK 105 and 27 mg/L for recycled SK 105. Id. For comparison purposes, benzene units in

mg/L are substantially equivalent to units in parts per million (or “ppm”), given the molecular density of the

liquids at issue. Relevant to the instant case, the SK 105 provided to Ford’s ATNPC facility was recycled at

Safety-Kleen’s Recycle Center in Dolton, Illinois, and showed an average benzene content of 15.7 ppm to 19

ppm, depending on the timeframe at issue. See Ex. B at 3; see also Ex. F at 2; see also Ex. C at 3.

Importantly, this is approximately 1/50th of the 1,000 ppm OSHA HazCom requires to be present in a solution

like SK 105 for benzene warnings to be placed on a MSDS. See Ex. B at 12.

12 See Ex. C at 6-7. These studies are all set forth in detail on pages 6 through 10 of Mr. Spencer’s report.

13 See Ex. C at 6-10.

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Safety-Kleen’s compliance with Ford’s requirements for product information.14

Kopstein lacks practical experience in hazard communication and analytical

chemistry - topics about which he proposes to testify. His opinions regarding the

benzene content of SK 105 are based solely upon data from a single 1975 study of

an unknown Stoddard solvent, rather than the specific solvent at issue, SK 105.

Kopstein’s opinions contradict his previous testimony and, in “calculating”

Hendrian’s alleged benzene exposure from SK 105, Kopstein employs an

unreliable methodology without making any effort to verify his results with other

data. Finally, his opinions pertaining to Ford’s chemical information requirements

are based upon sheer speculation. As such, Safety-Kleen respectfully requests that

his report, testimony and the opinions contained therein be excluded from this

case, pursuant to Federal Rule of Evidence 702 and Daubert v. Merrill Dow

Pharmaceuticals, 509 U.S. 579 (1993) and its progeny.

LAW AND ARGUMENT

I. LEGAL FRAMEWORK FOR PLAINTIFF’S EXPERT OPINIONS

A. Plaintiff’s experts must establish both general and specific

causation.

In a toxic tort case, the plaintiff must establish both general and specific

causation through proof that the alleged toxic substance is capable of causing, and

did in fact cause, the plaintiff's alleged injury. Pluck v. BP Oil Pipeline Co., 640

14 See Ex. A at 2.

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F.3d 671, 677 (6th Cir. 2011); Sterling v. Velsicol Chem. Corp., 855 F.2d 1188

(6th Cir. 1988); Bonner v. ISP Techs. Inc., 259 F.3d 924, 928 (8th Cir. 2001). As

to specific causation, the plaintiff must show exposure to the toxic substance and

that the level of exposure was sufficient to induce the complained-of medical

condition - this is commonly called a “dose-response relationship.” Pluck, 640

F.3d at 677; see also Kelley v. American Heyer-Schulte Corp., 957 F. Supp. 873,

875 (W.D. Tex. 1997). Both causation inquiries involve scientific assessments that

must be established through expert testimony. Pluck, 640 F.3d at 677; Baker v.

Chevron, 680 F.Supp.2d 865, 874 (S.D. Ohio 2010).15

Thus, Plaintiff must show that (1) exposure to SK 105 was capable of

causing MDS-leukemia in general and (2) that Hendrian’s exposure to SK 105

specifically caused his MDS-leukemia. Id. Kopstein purports to calculate

Hendrian’s exposure as part of Plaintiff’s causation analysis. For the reasons set

forth herein, Kopstein’s opinions must be excluded.

B. A trial court’s gatekeeping duty under Fed. R. Evid. 702.

The United States Supreme Court charged trial courts to act as

“gatekeepers,” explaining that Federal Rule of Evidence 702 “clearly contemplates

some degree of regulation of the subjects and theories about which an expert may

15 “Scientific knowledge of the harmful level of exposure to [an agent], plus knowledge that the plaintiff was

exposed to such quantities, are minimal facts necessary to sustain the plaintiff's burden in a toxic tort case.”

Cano v. Everest Minerals Corp., 362 F. Supp. 2d 814, 837 (W.D. Tex., 2005), quoting Allen v. Pennsylvania

Engineering Corp., 102 F.3d 194, 199 (5th Cir. 1996); see also McClain v. Metabolife Internat'l, Inc., 401 F.3d

1233, 1241 (11th Cir. 2005). Without this testimony, “a plaintiff's toxic tort claim will fail.” Pluck, 640 F.3d at

677; Baker, 680 F.Supp.2d at 874.

Case 2:08-cv-14371-VAR-MKM ECF No. 118, PageID.4155 Filed 10/28/13 Page 17 of 37
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testify.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993). In light

of Rule 702's mandate, expert scientific evidence must be both “reliable” and

“relevant.” Id; Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999).

Daubert and its progeny require the party proffering the evidence to

establish the testimony’s “evidentiary reliability” or trustworthiness. See Daubert ̧

509 U.S. at 592 n. 10.16 In other words, “[t]he trial court's gatekeeping function

requires more than simply ‘taking the expert's word for it.”’ Thomas v. City of

Chattanooga, 398 F.3d 426, 432 (6th Cir. 2005).

Relevance requires an appropriate “fit” and scientific testimony is only

relevant if the expert’s “reasoning or methodology properly can be applied to the

facts in issue.” Daubert, 509 U.S. at 591, 593; United States v. Bonds, 12 F.3d 540,

555 (6th Cir. 1993); see also Greenwell v. Boatwright, 184 F.3d 492, 496 (6th Cir.

1999). The inquiry focuses “solely on principles and methodology, not on the

conclusions that they generate.” Daubert, 509 U.S. at 595. “Any step that renders

the analysis unreliable... renders the expert's testimony inadmissible.” In re Paoli

R.R. Yard PCB Litig., 35 F.3d 717, 745 (3d Cir. 1994). “This is true whether the

step completely changes a reliable methodology or merely misapplies that

methodology.” Id. Thus, courts must “resist the temptation to answer objections

to receipt of expert testimony with the shorthand remark that the jury will give it

16 The well-known Daubert factors include: (1) whether the scientific theory or technique can be (and has

been) tested; (2) whether the theory or technique has been subjected to peer review and publication; (3)

whether there is a known or potential error rate; and (4) whether the theory or technique is generally accepted

within the relevant scientific community. Daubert, 509 U.S. at 592-94.

Case 2:08-cv-14371-VAR-MKM ECF No. 118, PageID.4156 Filed 10/28/13 Page 18 of 37
8

the weight it deserves.” Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549, 569

(D.C. Cir. 1993).

II. KOPSTEIN’S OPINIONS ARE UNRELIABLE AND SHOULD BE EXCLUDED

UNDER DAUBERT AND THE FEDERAL RULES OF EVIDENCE

A. Kopstein is not qualified to offer opinions on Defendant’s analytical

testing method or the contents of its warnings and labels.

Kopstein begins his “analysis” by attacking Safety-Kleen’s analytical

method, Method 9211, in a blatant attempt to discount the results of Defendant’s

analytical benzene testing. Kopstein opines, in part, that Safety-Kleen’s Method

9211 lacks scientific merit because it is an unpublished and non-peer-reviewed

testing method that has purportedly not undergone inter-laboratory testing and is

not based upon EPA testing methods.17 He also claims – incorrectly – that Method

9211 does not utilize a pure standard or use a mixture obtained from mixing pure

standards in known amounts and thus did not involve valid calibration.18

Ultimately, he insinuates Safety-Kleen is guilty of laboratory fraud.19

Nothing in Kopstein’s education, experience or background qualifies him to

offer expert testimony regarding analytical chemistry testing methods. In order to

satisfy the threshold requirement of Rule 702, a proffered expert witness must

demonstrate expertise in the particular subject about which he proposes to testify.

Smelser v. Norfolk S. R.R. Co., 105 F.3d 299, 303 (6th Cir. 1997), cert. denied, 522

17 See Ex. A at ¶ 92; see also Melvyn Kopstein Dep. 89:12-17, Apr. 23, 2013, attached hereto as Exhibit G.

18See Ex. A at ¶¶ 95, 97.

19 See Ex. A at ¶ 43; see also Ex. G at 90:2 - 24.

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U.S. 817 (1997); Berry v. Crown Equip. Corp., 108 F. Supp. 2d 743, 749-753

(E.D. Mich. 2000). Even an advanced degree in the general field of his testimony

is not sufficient if the witness cannot show “specialized” knowledge, skill,

experience, training, or education pertaining to the particular subject matter of his

testimony. Cicero v. Borg-Warner Auto, Inc., 163 F. Supp. 2d 743, 748 (E.D.

Mich. 2001).

Kopstein describes himself as a “forensic chemical engineer.” His degree is

simply in chemical engineering and the entirety of his work experience, prior to

becoming a professional expert witness, is limited solely to chemical engineering.20

Kopstein admitted that his title of “forensic chemical engineer” is self-bestowed,

not the result of a degree or certification in the field. 21 Importantly, Kopstein has

never created or implemented an analytical method or standard for the analysis of

hydrocarbon solutions, including mineral spirit solvents such as SK 105.22

Kopstein has no degree in analytical chemistry, he has never audited an analytical

laboratory, and it has never been his job to evaluate laboratory standards like

Method 9211 or laboratory practices in the field of analytical chemistry.23

Kopstein has not identified any qualification beyond his career as an expert witness

for plaintiffs in personal injury suits. “[E]xpert testimony prepared solely for

purposes of litigation, as opposed to testimony flowing naturally from an expert’s

20 See Ex. A at 3-7.

21 See Ex. G at p. 72:17 – 73:4.

22 Id. at 71:21-25.

23 See Ex. G at 72:2-16.

Case 2:08-cv-14371-VAR-MKM ECF No. 118, PageID.4158 Filed 10/28/13 Page 20 of 37
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line of scientific research or technical work, should be viewed with some caution”

and suspicion. Johnson v. Manitowoc Boom Trucks, Inc., 484 F.3d 426, 434 (6th

Cir. 2007); see also Mike’s Train House, Inc. v. Lionel, L.L.C., 472 F.3d 398, 408

(6th Cir. 2006).

Kopstein conducted no testing or experiments in preparation for this case.

He has never analyzed SK 105 to determine its chemical content, he has never

conducted testing to measure the accuracy or reliability of Method 9211, nor has

he ever conducted testing on any petroleum product to determine chemical

content.24 Kopstein does not cite a single test or data point to demonstrate

empirically that Method 9211 is unreliable or in any way deficient. Without any

empirical evidence to demonstrate the accuracy or reliability of Method 9211,

Kopstein’s opinions are improper and should be excluded. See Mohney v. USA

Hockey, Inc., 138 Fed.Appx. 804, 808-09 (6th Cir. 2005).

Similarly, Kopstein opines, without any basis in experience, training or other

knowledge, that Safety-Kleen’s MSDS fail to list benzene in the ingredients

section or otherwise provide some unspecified “benzene-specific health warnings

and instructions for safe use.”25 However, Kopstein has never created, nor has it

ever been his job to create, a MSDS or warning label for any product or material.26

24 Id. at 56:11- 57:7.

25See Ex. A at ¶ 122.

26 See Ex. G at 61:6-14.

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He admits that he is neither an expert in industrial hygiene nor human factors.27

He is not a certified industrial hygienist; nor does he hold any degrees or other

certifications in industrial hygiene or human factors.28 He is woefully unqualified

to opine about Safety-Kleen’s product labels, warnings and MSDS.

Kopstein’s virtually non-existent level of familiarity with either of these

topics is grossly insufficient to support Plaintiff’s liability theory in this case. Lippe

v. Bairnco, 288 B.R. 678, 689 (S.D.N.Y. 2003) (expert not qualified under Daubert

to render valuation opinion when, despite academic credentials, witness never

performed valuation). Simply put, his proposed testimony is that of an “oath

helper[], in that [he] lend[s] [his] credentials and reputations to the party who calls

[him] without bringing much if any relevant knowledge to bear on the facts

actually at issue.” In re Rezulin Prods. Liab. Litig., 309 F. Supp. 2d 531, 538

(S.D.N.Y. 2004). Given his lack of experience and qualifications in the fields in

which he proffers opinions, this Court should exclude his opinions at trial.

B. Kopstein ignores all relevant benzene testing of SK 105 and instead

substitutes outdated and irrelevant data related to other products.

Kopstein selectively decided which data to consider for benzene content and,

27 Id. at 59:14-16; 61: 21-62:14.

28 Id. at 61:15- 62:14. Of note, Plaintiff’s failure to warn claims fail because, as a result of the foregoing, she

lacks expert evidence that Safety-Kleen breached a duty to warn or a causal connection between the warnings

and Hendrian’s injury. As the content and adequacy of warning labels on a parts washing machine is not in the

common understanding of the typical lay juror, Plaintiff must offer expert testimony to establish that the

warnings Safety-Kleen provided were insufficient. See, Lawrenchuk v. Riverside Arena, Inc., 214 Mich.App.

431, 435, 542 N.W.2d 612 (1995) (finding expert testimony is required to establish design defect where “a jury

would be denied an objective framework by which to evaluate plaintiff's claim, thus precluding any genuine

determination whether the design was unreasonable”). The warnings at issue are based upon a multitude of

factors including complex state and federal regulations, which are not commonly in the purview of lay persons.

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in so doing, completely ignored a proper application of the scientific method.

Kopstein relies on outdated literature related to a broad category of mineral

spirits—and, notably, not a single reference to SK 105. On the surface, he points

to his own publications, which he claims cite to “numerous published sources” that

report “regular mineral spirits typically contains 1,000 ppm benzene.”29 In reality,

those citations are general references to mineral spirits, all based upon outdated

data gathered prior to 1980 and without reference to the analytical methods used to

determine the benzene content of the solvents tested. Moreover, all of his sources

are secondary; tracing the references to the primary source reveals that all of his

citations refer to a 1975 paper by Carpenter et. al, in which the authors reported a

benzene level of 0.1% (1,000 ppm) in Stoddard solvent in what was described as a

sample “typical of commercial production in the United States.” 30 The Carpenter

study provides the sole basis for Kopstein’s arbitrary assessment of the benzene

content of mineral spirits and, from this, he makes a wholly unsupported leap to

conclude that SK 105 also contained 1,000 ppm benzene,31 at a time almost twenty

29 See Ex. A at ¶ 79.

30 See Carpenter, C.P., E.R. Kinkead, D.L. Geary, et al: Petroleum hydrocarbon toxicity studies III. Animal

and human responses to vapors of Stoddard solvent. Toxicol. App. Pharm. 32:282-297 at 283 (1975), attached

as Exhibit H, p 283.

31 Of note, Kopstein’s selection of a 1,000 ppm benzene content value is no coincidence. OSHA’s hazard

communication standard does not require that benzene be listed on a product’s Material Safety Data Sheet if

the product contains less than 0.1% (or 1,000 ppm) benzene or if it is not likely to be released into the

workplace at concentrations that would exceed OSHA’s permissible exposure limit or present a health hazard

at those concentrations. 29 CFR § 1910.1200(g)(2)(i)(C)(2). OSHA concluded that 1,000 ppm is the

appropriate action level because it gives “a high degree of confidence” that resulting airborne concentrations

would be below the airborne action level. See Ex. C at 4-5. As the triggering value for regulatory listing

requirements, Kopstein’s reliance on this value as the benzene content of SK 105 is a thinly-veiled attempt to

confuse the jury regarding the applicability of OSHA’s HazCom Standard in this case.

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years removed from the time of the Carpenter paper.

Federal courts have deemed improper any method that relies on data

analyzing a different substance than the one at issue, particularly when relevant

data is available. See In re Propulsid Products Liability Litigation, 261 F. Supp.

2d 603, 616 (E.D. La. 2003).32 In Nelson v. Tennessee Gas Pipeline, the Western

District of Tennessee recognized that “[c]ourts have found that extrapolation from

studies of chemicals different from those at issue does not rise to the level of

accepted methodology.” No. 95-1112, 1998 WL 1297690 at *7 (W.D. Tenn. Aug.

31, 1998) aff'd, 243 F.3d 244 (6th Cir. 2001); see also Downs v. Perstorp

Components, Inc., 126 F. Supp. 2d 1090, 1097 (E.D. Tenn. 1999). Kopstein seeks

to do exactly what these courts have prohibited and apply data related to solvents

other than SK 105 without offering any evidence of its applicability to SK 105.

His opinions should be similarly excluded, especially in light of the fact that he has

made no effort to verify his opinions or to reconcile them with relevant,

contemporary data for SK 105, either generated by Safety-Kleen or other sources.

1. Kopstein’s opinions do not consider any data specific to SK 105.

Again, Safety-Kleen’s data demonstrates the approximate benzene content

of SK 105 provided to Hendrian’s workplace was 15.7 ppm to 19 ppm, depending

32 The Eastern District of Louisiana examined this very issue in In re Propulsid, wherein the plaintiff’s experts

ignored data and studies involving the actual drug at issue and instead tried to establish causation by looking at

studies involving similar drugs. In re Propulsid, 261 F. Supp at 616. The Court concluded that the experts

“fail[ed] to show that [drug at issue] is so similar in chemical structure to those [other] drugs as to produce the

same result” and “[s]ound scientific method does not support an extrapolation from one substance to another

without some showing of identity or at least close similarity.” Id.

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on the timeframe at issue.33 In other words, real-world data specific to the material

at issue in this case indicates benzene content approximately fifty (50) times lower

than that suggested by Kopstein for other materials dating back to the 1970s.

The contradictory nature of Kopstein’s opinions highlights the impropriety

of his methodology in arriving at his benzene value. He acknowledges that “[t]he

benzene content in a petrochemical product is its most important property relative

to benzene exposure.”34 He has also admitted that “every mineral spirits’ mixture

is different,” that the benzene content of mineral spirits varies batch to batch by

vendor and that different vendors can produce mineral spirits with different

benzene contents based upon the source of the crude oil or upon the processing.35

Despite the foregoing, he admitted that he doesn’t know which supplier

might have provided mineral spirits to Safety-Kleen for the Detroit area during the

relevant time period, nor does he know which Safety-Kleen Recycling Center

would have provided SK 105 to customers in the Detroit area during that time. 36

Thus, not only does Kopstein intentionally ignore every test conducted on

the 105 Solvent for benzene content, proclaiming invalid testing methodologies,

but he also neglected to undertake any investigation himself having to do with the

chemical composition of the solvent. Without analysis of the empirical data, there

is no “fit” between the facts of this case and the opinions to which Kopstein

33 See Ex. B at 3; see also Ex. F at 2; see also Ex. C at 3.

34 See Ex. A at ¶ 67.

35 See Ex. E at 84:3-16; 239:3-11.

36 See Ex. E at 84:21-85:10.

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proposes to testify. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 144-47 (1997)

(upholding trial court’s exclusion of expert testimony based on studies totally

dissimilar to the facts of the case). Mathematical calculations, even if based in part

on reliable scientific method, should still be tested in real world by the expert; must

be supported by peer reviewed, published sources; must still express an opinion

that is generally accepted in the scientific community; and must not be based upon

suspect assumptions. Mohney, 138 Fed.Appx. at 808-09.

2. Kopstein relies solely on irrelevant and outdated data regarding

materials other than SK 105.

Seemingly in an effort to bolster his exaggerated benzene content

assumptions and resulting exposure calculations, Kopstein claims mineral spirits

have remained largely unchanged for roughly four decades: “The process for

manufacturing mineral spirits is unchanged since the [sic] 1975 according to

Paustenbach, et al and since the early 1970s according to Exxon. Therefore the

chemical properties of mineral spirits – including benzene content – are unchanged

since 1975.”37

Both SK 105 testing and extensive documentation in contemporary,

published literature regarding mineral spirits in general, including submissions to

OSHA during its final rulemaking on benzene, indicate that the benzene content of

most commercial petroleum-derived solvents has been less than 1,000 ppm since at

37 See Ex. A at ¶ 78.

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least the late 1970s or early 1980s.38 Moreover, among the sources cited in his

publications, Kopstein cites to the International Agency for Research on Cancer’s

(“IARC”), the specialized cancer agency of the World Health Organization, 1989

Monograph. Ironically, the Monograph acknowledges that pre-1980 data on the

benzene content of petroleum solvents has no relevance to today’s products.

IARC, in fact, noted a “pronounced move” over the preceding twenty to thirty

years toward the use of refining practices which substantially reduced the benzene

content of many solvents to trace levels.39 Tellingly, Kopstein does not address

this in his report.

Kopstein’s benzene content opinions in this case are even more dubious in

light of his testimony from prior cases. In fact, he has previously testified under

oath that the benzene content of solvents has decreased over time – there was a

“drop off” by 1986 and “another drop-off after about 1990 or 1991.” 40 In that

same deposition, Kopstein further testified that, based upon his experience, the

data and his “knowledge that the pattern of benzene concentrations in industrial

solvents, in petroleum-based solvents was dropping,” typical vendor’s mineral

38 See Williams, P.R.D., Panko, J.M., Unice, K., Brown, J.L., and D.J. Paustenbach (2008) Occupational

exposures associated with petroleum-derived products containing trace levels of benzene (“Williams 2008”).

J. Occup. Environ. Hyg. 5:565-574, attached as Exhibit J; see also Andrew Jaques , Letters to the Editor:

Benzene Levels in Hydrocarbon Solvents, Vol. 3, J. OCC. AND ENVT’L HYG. No 9, D85-D90, Sept. 2006,

attached as Exhibit K; see also Richard H. McKee, et al, Letter to the Editor – Benzene Levels in Hydrocarbon

Solvents – Response to Author’s Reply, Vol. 4 J. OCC. ENVT’L HYG. at D60-D62 (2007), attached as Exhibit

K.

39 See IARC Monograph, Ex. E at 48.

40 See Melvyn Kopstein Dep., Edwards v. Safety-Kleen Corp., Case No. 97-7180-CIV, 80:22-81:9, Jan. 5,

1999, attached hereto as Exhibit M. Notably, each of these “drop-offs” pre-dates Hendrian’s use of SK 105,

beginning in May 1991. Ex. A at ¶25.

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spirits would have contained 300 to 400 ppm in 1986 and would have declined

below that amount over time.41 Most importantly, Kopstein not only

acknowledged the levels of benzene in SK 105 averaged 35 to 40 ppm during the

relevant time period, but he also admitted that they are consistent with “the

diminution of the benzene in [similar] types of products.”42 The foregoing

testimony and benzene values discussed therein are a far cry from the 1,000 ppm

benzene content value he attempts to insert into the present case.

3. Kopstein’s sources don’t disclose the analytical methods used.

Kopstein obsessively references his reliance on “published sources” for

mineral spirits’ benzene content, discrediting Safety-Kleen’s “unpublished” testing

methods for the exact solvent at issue: “As noted, in assessing Mr. Hendrian’s past

exposure to benzene arising from his use of SK-105, I utilized published sources

reporting the benzene content of mineral spirits – rather than unpublished claims

arising from a flawed analytical procedure such as SK9211.”43 Ironically, beyond

the fact that his “published sources” represent outdated information, they also fail

to identify the analytical methods used to test for benzene and thus cannot be

appropriately verified. For example, the Carpenter paper—the basis for Kopstein’s

benzene content claims—does not provide a detailed description of the test sample

analysis for determining benzene content. Without such information, even

41 See Ex. M at 85:18 – 88:3.

42 Id. at 90:19 – 91:5.

43 See Ex. A at ¶ 82.

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according to Kopstein’s own admitted dictates applicable to analytical methods,

the accuracy of the benzene content estimates cannot be determined. This is

especially true given his antiquated data because the identification and

quantification of certain compounds, such as benzene, has historically been subject

to interference and false positives.44 Other chemicals in the solvent have physical

or chemical properties that can make speciation difficult unless appropriate

scientific methods are used. These analytical challenges have long been

recognized and the appropriate methods necessary for adequate speciation and

quantification of aromatic hydrocarbons like benzene have evolved over time.45

Kopstein, fails to address this evolution.

C. Kopstein uses a flawed exposure model and fails to validate his

findings by comparison to any other data.

Not only are Kopstein’s calculations based upon inaccurate and unverifiable

data, but his exposure calculation methodology is fundamentally flawed on

numerous levels. According to his report and deposition testimony, Kopstein

applied the methodology from his published article in “estimating” Hendrian’s

alleged exposures to benzene from his claimed use of SK 105. His

“methodology,” in reality, is the application of an oversimplified and arbitrary ratio

between benzene in hydrocarbon solutions and airborne emissions as reported in a

44 See May 22, 2013 Supplemental Report of Anne O’Donnell, attached hereto as Exhibit N, at pp. 3-4.

45 See Ex. J, Williams 2008 at 565; see also Ex. B at 7-8.

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single exposure simulation published by Fedoruk, et al. (“Fedoruk simulation”),46

without consideration of the many factors necessary in calculating past benzene

exposures in specific circumstances.

Kopstein presents no data supporting his characterization of the artificial

exposure simulation presented in the Fedoruk simulation as a “model” for

reconstructing past benzene exposures in this case or for determining whether

benzene content must be disclosed on MSDS for SK 105. Nor does the simulation

refer to any data showing that this model has been “validated.” Kopstein

recognizes that exposure modeling requires the identification and quantitation of

all the conditions that contribute significantly to exposures, yet he has done

nothing of the sort with regard to his application of the Fedoruk simulation to the

alleged exposures in this case.

1. Kopstein’s “methodology” ignores all available empirical

exposure data specific to the machine and solvent at issue.

Air monitoring for determination of employee exposures is presently the

46 See Fedoruk, M.J., R. Bronstein, and B.D. Kerger: Benzene exposure assessment for use of a mineral spiritsbased degreaser. Appl. Occup. Environ. Hyg. 18:764-771 (2003), attached as Exhibit O. The Fedoruk

simulation considered whether worker benzene exposures could exceed regulatory airborne exposure limits

using SK 105 spiked with additional pure benzene in a larger vat-style parts-washing machine and under

aggressive study conditions. Id. The simulation involved what the investigators called a “relatively vigorous”

use of the work station, creating conditions that “were considered to represent upper bound benzene emissions

and maximal worker exposures relevant to standard uses.” Id. at 771. Even under those conditions, airborne

occupational exposure limits were not exceeded. Id. All of the measured airborne concentrations of benzene

in the Fedoruk simulation are conservative (i.e., likely to over-estimate benzene exposures) because they are

based on an aggressive protocol of parts washer use. Moreover, the simulation identifies a significant number

of factors contributing to the exposures at the specific parts washer involved in the study, including the exact

configuration of the machine itself, which is a rectangular structure with a solvent reservoir storing

approximately thirty (30) gallons of solvent. Id. at 765. The device used in the Fedoruk simulation is very

different in size, volume and other features that impact benzene emissions from the “sink on a drum” style

device Hendrian used in the ATNPC. Id. at 766; see also, e.g., Ex. C at p. 3; David Doak Dep. 50:2-10, Oct. 12,

2012, attached hereto as Exhibit P; Daniel Doak Dep. 95:8-20, 96:4-11, Oct. 11, 2012, attached hereto as Exhibit Q.

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only method accepted by OSHA, NIOSH or the ACGIH for evaluating and

comparing exposures with occupation health standards and is the primary means

for industrial hygienists to evaluate an individual’s exposure.47 Kopstein ignored

numerous air monitoring studies regarding the sink-on-a-drum parts washer at

issue and SK 105. These include both internal and third-party exposure

evaluations beginning in the late 1980s and including Health Hazard Evaluations

performed by NIOSH, a several-month study conducted by National Medical

Advisory Services, Inc. (“NMAS”), and several published studies over the next

thirty years.48 Thus, just as Kopstein conveniently disregards applicable benzene

content data for SK 105, he also ignores exposure data for the relevant parts

washing machine.49

Evidentiary reliability is not present when the opinion is premised upon

fundamentally unsound bases or a fatally deficient amount of data. Moore v.

Ashland Chem., Inc., 151 F.3d 269, 278-79 (5th Cir. 1998); see also Attorney

General of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 781 (10th Cir. 2009) (holding

that, an expert has to make discretionary decisions about what data to enter into his

calculations, and where the discretionary decisions had not been tested or peer

reviewed, his analysis was unreliable and properly excluded). To establish

reliability under Daubert, an expert bears the burden of furnishing some objective,

47 See May 21, 2013 Supplemental Report of John Spencer, attached hereto as Exhibit R, at 4.

48 See Ex. C at 6-10.

49 See Ex. C at 6-7. These studies are all set forth in detail on pages 6 through 10 of Mr. Spencer’s report.

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independent validation of his methodology, Daubert, 509 U.S. at 592-93; see also

Kumho Tire, 526 U.S. at 151-52; Meemic Ins. Co. v. Hewlett-Packard Co., 717 F.

Supp. 2d 752, 762 ( E.D. Mich. 2010).50

Kopstein’s opinions are founded on unreliable data which was not gathered

in a scientific way. Daubert, 509 U.S. at 590 (“explaining that the adjective

“scientific” implies a grounding in methods and procedures of science,

“knowledge” connotes more than a subjective belief or unsupported speculation,

and, in order for an inference or assertion to qualify as “scientific knowledge,” it

must be derived by the scientific method). Indeed, he assumes the benzene content

of SK 105, performs calculations based up selected data within a single simulation

and wholly fails to validate his calculations by comparison to any other data,

including that from the relevant time and pertaining to the relevant machine at

issue. Opinions based on speculative information regarding exposure levels cannot

be admissible. Castellow v. Chevron USA, 97 F. Supp. 2d 780, 797 (S.D. Tex.

2000).51

50 District courts are tasked with the function of ensuring that the opinions proffered by experts do not cross

the line between scientific knowledge and mere advocacy. Courts properly preclude expert testimony “that is

connected to existing data only by the ipse dixit of the expert.” Nelson v. Tennessee Gas Pipeline Co., 243 F.3d

244, 254 (6th Cir. 2001). Daubert and its progeny teach that the reliability of expert testimony can be judged

by such factors as whether the expert’s theory or technique can be tested, whether it has been subject to peer

review and whether the methodology utilized by the expert is generally accepted in the field. Daubert, 509

U.S. at 593-94; Clay v. Ford Motor Co., 215 F.3d 663, 667 (6th Cir. 2000).

51 As the Castellow Court explained: After a thorough review of all of the testimony, exhibits, and

supplements, the court is led to the inescapable conclusion that the opinions from the expert witnesses in this

case are unreasonably dependent on speculation about the cause of [Plaintiff’s] AML. The court finds further

that [Plaintiff’s expert’s] exposure assessment is not based on adequate data, but instead was devised to

support a causation opinion without reliable bases to do so. His methodology, therefore, is not reliable and his

testimony is inadmissible. In the absence of sufficient, accurate information of exposure levels, his opinion

is nothing more than speculation. Such result-driven procedures are anathema to both science and law

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Thus, Kopstein’s bald assertion that the arbitrary ratio he took from a

simulation involving (1) a very different machine and (2) under completely

irrelevant conditions can be applied to Hendrian’s alleged exposures herein,

without any basis in science or validation of the ratio’s application in other

exposure scenarios, is simply is not enough to demonstrate reliable methodology.

2. Kopstein’s ipse dixit has been previously excluded because his

unreliable exposure assessment lacks either validation or general

acceptance in the scientific community.

Kopstein’s “end-justifies-the-means” approach to expert testimony has been

rejected previously. The United States District Court for the Southern District of

Florida, in Edwards v. Safety-Kleen Corporation, took issue with Kopstein’s

“methodology” in another case involving SK 105, finding that Kopstein’s

“applications ignore[d] basic science principles and, as such, [were] not based on

sound science.”52

The Eleventh Circuit rejected a similarly unreliable method in Firestone v.

and are properly excluded because they are too speculative to assist the triers of fact in determining the

cause of [Plaintiff's] illness. In addition, the court finds that the other expert witnesses, eminently qualified as

each is in his own field, depend on [these same] exposure level calculations to provide the causal link to

Defendants' products. That causal link fails. Castellow v. Chevron USA, 97 F. Supp. 2d 780, 797 (S.D. Tex.

2000) (emphasis added).

52 Edwards v. Safety-Kleen Corp., 61 F. Supp. 2d 1354, 1358 (S.D. Fla. 1999), attached hereto as Exhibit S.

The Edwards Court rebuffed Kopstein’s attempts at “self-acclamation” of his own methodologies, noting that

“nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence

that is connected to existing data only by the ipse dixit of the expert.” Id. at 1357. Specifically, the Court took

issue with the assumptions Kopstein made, the data he relied upon in applying his “textbook models” to the

facts of the case, and his “intermingling of well-established formulae in order to reach a particular conclusion.”

Id. Moreover, the Court found no indication in the record that Kopstein’s approach of applying his “formula

or combination of formulae” was in fact followed by other experts in the industry; nor were there any

references to articles or papers that validated his approach of applying the formula to the exposures at issue in

that particular case. Id. at 1358. Noting that it is the plaintiff’s burden to prove the reliability of the proffered

testimony, and finding that the plaintiff therein failed to do so, the Court excluded Kopstein’s testimony. Id.

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Fla. Power & Light Co., wherein it affirmed the trial court’s rejection of an expert

witness in a radiation exposure case because the inputs of the expert’s calculations

were “unsupported leaps of faith.” Firestone v. Fla. Power & Light Co., 272 Fed.

Appx. 761, 768 (11th Cir. 2008).53 Similarly, in Allen v. Pa. Eng’g Corp, the Fifth

Circuit affirmed the exclusion of expert testimony because the expert’s opinion

relied principally on the affidavit of a plaintiff’s co-worker and extrapolations

concerning chemical handling based on standards in the industry at the time. Allen

v. Pa. Eng’g Corp., 102 F.3d 194, 198-99 (5th Cir. 1996). The Allen Court found

the experts background information concerning the level of exposure “so sadly

lacking as to be mere guesswork.” Id.

Kopstein’s calculations herein are equally lacking in scientifically

acceptable supporting data and his testimony amounts to nothing more than an ad

hoc and subjective review of self-selected and mostly irrelevant data presented in

the light most favorable to Plaintiff’s purported case. In the absence of any

objective economic or historical analysis, and without a scientifically-valid and

independent real-world assessment of Hendrian’s alleged exposure, Kopstein’s

opinions are undeniably inadmissible. See Freeport-McMoran Res. Partners Ltd.

P’ship, 56 F. Supp. 2d 823, 834-35 (E.D. Mich. 1999).

53 In Firestone, the experts calculated the radiation dose levels based on unproven or unrelated data. Id. Thus, the

Court held that, as the calculations were based on unreliable data, the experts’ testimony was properly excluded.

Firestone, 272 Fed.Appx. at 768.

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D. Kopstein’s allegations regarding materials submitted to Ford are

based upon speculation and conjecture.

Kopstein also claims Safety-Kleen violated Ford policies regarding product

information, claiming that Safety-Kleen failed to disclose the presence of benzene

in SK 105 during Ford’s product approval process.54 Kopstein admits he doesn’t

know what information may have provided to Ford.55 In fact, Ford was unable to

produce the materials Safety-Kleen submitted when SK 105 was approved for use

so the record is silent on this issue.56 Expert opinions that are based on subjective

beliefs, speculative assumptions or are unsupported by the record are inadmissible.

See, General Elec. Co., 522 U.S. at 146 (1997); McLean v. 988011 Ontario, Ltd.,

224 F.3d 797, 800 (6th Cir. 2000). Accordingly, Kopstein’s opinions should be

precluded at trial.

CONCLUSION

Kopstein lacks the experience or qualifications necessary to render opinions

regarding Safety-Kleen’s product warnings and analytical testing method. He has

54 See Ex. A, p. 39. This opinion is yet another example of Kopstein serving as an advocate for Plaintiff rather

than providing any specialized knowledge that would assist the trier of fact to understand the evidence or to

determine a fact in issue. Fed. R. Civ. P. 702. The jury is not aided by expert testimony that does little more

than package the evidence in a preview of Plaintiff’s counsel closing argument and, as such, the foregoing

testimony is an improper expert opinion. In re Rezulin, 309 F. Supp. 2d at 538 (criticizing use of experts

“whose intended role is more to argue the client’s cause from the witness stand than to bring to the fact-finder

specialized knowledge or expertise that would be helpful in resolving the issues of fact”).

55 See Ex G, p. 229:17 – 230: 8.

56 Dave Hands, CIH testified at length regarding the toxicology review Ford performs before a chemical is

approved for use in Ford’s facilities. See 30(b)(6) David Hands Depo. 66:22 –68:7, Jan. 13, 2012, attached

hereto as Exhibit T. Ford even provided a form to chemical manufacturers, requesting specific chemical

property and identification information; it also obtained a Material Safety Data Sheet (“MSDS”) with pertinent

chemical data from the manufacturer. Id. at 68:12 – 71:11. If the information received was insufficient,

Ford’s toxicologists would request any additional information necessary to conduct the toxicological review.

Id at 71:4-11. Ford was unable to produce these toxicology materials. See Ford’s Response to Plaintiff’s

Request to Produce, attached as Exhibit U, at Responses to Requests 3, 4, 5, 8 and 11.

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disregarded important evidence and failed validate his calculations with

scientifically-reliable, real-world testing of SK 105 and the parts-washing machine

at issue. Kopstein’s opinions fail to meet the most basic reliability and relevance

standards for expert testimony under the Federal Rules of Evidence and Daubert,

and Safety-Kleen respectfully requests that, after a hearing and thorough

examination of these issues, this Court grant Safety-Kleen’s motion in limine and

preclude any testimony and reports regarding Kopstein’s opinions, including any

mention or reference thereto, at the trial of this matter.

Respectfully submitted,

JONES CARR Mc GOLDRICK, L.L.P.

/s/ Wesley S. Alost

________________________________

Wesley S. Alost

wes.alost@jcmfirm.com

Texas State Bar No. 24027192

5910 N. Central Expy., Ste. 1700

Dallas, Texas 75206

(214) 828-9200 (Telephone)

(214) 828-9229 (Facsimile)

ATTORNEYS FOR DEFENDANT

SAFETY-KLEEN SYSTEMS, INC.

Date: October 28, 2013

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CERTIFICATE OF SERVICE

I hereby certify that on October 28, 2013 I electronically filed the foregoing

paper with the Clerk of the Court using the Court’s ECF system, which will send

notification of such filing to all ECF participants of record:

JONES CARR M

CGOLDRICK, L.L.P.

/s/ Wesley S. Alost

______________________________

Wesley S. Alost

Case 2:08-cv-14371-VAR-MKM ECF No. 118, PageID.4175 Filed 10/28/13 Page 37 of 37