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Anderson v. Hess Corp.

January 12, 2009


The opinion of the court was delivered by: Daniel L. Hovland, Chief Judge United States District Court


Before the Court are the Defendant's Motion in Limine and Motion for Summary Judgment filed on December 5, 2008. See Docket Nos. 11 and 14. The Plaintiff filed a brief in opposition to the motions on December 22, 2008, and a reply brief on December 31, 2008. See Docket Nos. 19, 24. Oral arguments on the motion were held on January 9, 2009. For the reasons set forth below, the Defendant's motion in limine is granted in part and denied in part, and the motion for summary judgment is denied.


Around midnight on June 20, 2006, the plaintiff, Karen Anderson, went to bed with her bedroom window open. She awoke around 4:30 a.m. gasping for air and had the sensation that the bed was spinning. Anderson got out of bed and went to the window to get some air. She next remembers lying on the bathroom floor trying to lift her head up because she felt sick. See Docket No. 12-2, pp. 14-15. Bob Anderson, Karen's husband, had fallen asleep while watching television and awoke when he "heard something." See Docket No. 12-3, p. 22. He found Karen Anderson lying on the bathroom floor. She told Bob Anderson that she felt nauseous and that "I feel like I've been eating metal." See Docket No. 12-3, p. 23. Bob Anderson walked into the bedroom and detected a "gassy" smell that he believed originated from the Silurian Battery, which is a gas plant located approximately one and three-quarters miles from the Anderson residence near Tioga, North Dakota. See Docket No. 12-3, pp. 18, 24. The Silurian Battery is operated by the defendant, the Hess Corporation.

Bob Anderson drove his wife to the emergency room at the Tioga Medical Center. En route to the hospital, Bob Anderson noticed that a "gas cloud" appeared to encompass the air. See Docket No. 12-3, p. 33. As a result, Anderson contacted his employer, Hess Corporation, to report the gas emissions.

Karen Anderson was admitted to the emergency room at the Tioga Medical Center at 6:00 a.m on June 20, 2006, and was admitted to the hospital later that morning. Karen Anderson complained of exposure to hydrocarbon, dizziness, numbness in her hands and feet, and a metallic taste in her mouth. Dr. Mukesh Patel described Karen's history of present illness as follows: "She [Karen] states that she was sleeping in her bedroom and the bedroom window was open and a nearby incinerator was burning. The wind was in the direction of the window and she states she got gas from the window into the house." See Docket No. 12-5, p. 8. Karen Anderson was discharged from the Tioga Medical Center on June 20, 2006.

On June 22, 2006, Dale Weathersby, an environmental health specialist for the Silurian Battery, investigated gas emissions near the Anderson residence by using gas monitors. He detected no positive readings in the area between the Silurian Battery and the Anderson residence. However, Dale Weathersby observed a farmer in the vicinity of the Anderson property pulling a sprayer.

Weathersby researched the chemicals that farmers in the area use to spray weeds and determined that such chemicals are respiratory irritants.

Following Karen Anderson's admission to the Tioga Medical Center on June 20, 2006, she received follow-up medical care for her initial complaints of difficulty breathing. On June 27, 2006, Anderson was seen by Dr. H. K. Manne for shortness of breath. The dictation for the June 27, 2006, visit indicates:

The patient states that there is a well close to her home about 1 to 11/2 mile, which burns off excess gasses and that day they had some problems and she was exposed to significant concentrations of hydrocarbon gas in the air while she was sleeping in her bedroom. She had some difficulty with breathing, felt sweaty, and dizzy. Since that time the patient states that she has been feeling some shortness of breath.

See Docket No. 12-6. On a referral from Dr. Manne, Karen Anderson was first seen by Dr. Pedro G. Mendoza on July 7, 2006. Dr. Mendoza is a pulmonologist in Bismarck, North Dakota. Dr. Mendoza stated the reason for the referral as follows:

She is being seen for an acute exposure on June 20, 2006, to gas that is causing pressure on the chest and shortness of breath with coughing. On that date, she had to go to the emergency room. She was seen by Dr. Mukesh Patel after an exposure of carbons that consisted of SO2 and hydrogen sulfide. The source of the gases was a mile to a mile and a half from their home, and she had an acute exposure around 4:30 in the morning, going to bed at 12:30. Ever since she has had coughing spells and a burning sensation in the throat and in the right upper lobe.

See Docket No. 12-7. Dr. Mendoza's impression was that Karen Anderson did not have the symptomatology prior to June 20, 2006. Under the care of Dr. Mendoza, Anderson underwent a methacholine challenge test and a CT scan of the chest. Following the results of those tests, Dr. Mendoza diagnosed Anderson with Reactive Airways Dysfunction Syndrome (RADS). Anderson was seen again by Dr. Mendoza in December of 2006 and April of 2007 for pulmonary follow-ups.

On September 4, 2007, Karen Anderson was self-referred to Dr. Nicholas H. Neumann for asthma. Dr. Neumann is also a pulmonologist who practices in Bismarck, North Dakota. Dr. Neumann diagnosed Anderson with RADS secondary to hydrogen sulfide exposure in June of 2006. Anderson was seen by Dr. Neumann in December of 2007, and June of 2008 for continued RADS treatment.

Karen Anderson filed a lawsuit in federal district court alleging that the defendant, Hess Corporation, was negligent by failing to properly operate and maintain the Silurian Battery, by allowing H2S gas and/or other toxic gases to be emitted from the tank battery, by failing to have and/or implement an appropriate emergency plan, and by failing to warn local residents of the release of toxic gases. See Docket No. 1. Hess Corporation filed an answer in which it admits that it operates a tank battery near the Anderson residence and that on June 20, 2006, gases were emitted from the Silurian Battery. See Docket No. 4. Hess Corporation expressly denies that the emission of the gases caused any injury to Karen Anderson. See Docket No. 4.

Hess Corporation has filed a motion in limine to suppress any causation testimony by Karen Anderson's medical experts, Dr. Mendoza, Dr. Neumann, Gail Joyce, PA-C, Corinne Coughlin, PAC, and Tonya Anderson, FNP-C. Hess Corporation contends that none of these medical experts performed tests to determine the cause of Anderson's respiratory condition, nor did any of the witnesses investigate other possible causes to make a differential diagnosis.


The admissibility of expert testimony is governed by Rule 702 of the Federal Rules of Evidence. Under Rule 702, the trial judge acts as a "gatekeeper" to screen expert testimony for relevance and reliability. Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579, 591-93 (1993). "Rule 702 reflects an attempt to liberalize the rules governing the admission of expert testimony. The rule clearly is one of admissibility rather than exclusion." Polski v. Quigley Corp., 538 F.3d 836, 839 (8th Cir. 2008) (quoting Lauzon v. Senco Products, Inc., 270 F.3d 681, 686 (8th Cir. 2001)). "The exclusion of an expert's opinion is proper only if it is so fundamentally unsupported that it can offer no assistance to the jury." See id. (quoting Wood v. Minnesota Mining & Mfg. Co., 112 F.3d 306, 309 (8th Cir. 1997)).

Under Rule 702, expert witness testimony regarding "scientific, technical, or other specialized knowledge" is admissible if it will "assist the trier of fact to understand the evidence or to determine a fact in issue." A qualified expert may testify thereto if "(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." Fed. R. Evid. 702.

The Eighth Circuit Court of Appeals has explained the three prerequisites of admissibility ...

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