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Decided on May 11, 2006
Supreme Court, Erie County

11247/2001

Richard G. Berger, Esq.
Attorney for Michael Nawrocki, Plaintiff
520 Brisbane Bldg.
Buffalo, NY 14203
Brian M. Melber, Esq.
Personius Melber, LLP

Attorney for Noco Energy 1633 Statler Towers Buffalo, NY 14202 Mitchell J. Banas, Jr., Esq. Jaeckle, Fleischmann & Mugel, LLP Attorney for Reid Petroleum Corp. Fleet Bank Building Twelve Fountain Plaza Buffalo, NY 14202 Howard E. Jarvis, Esq. Woolf, Mcclane, Bright, Allen & Carpenter,pllc Attorney for Exxonmobil/Canada Imperial Oil Limited 900 Riverview Tower 900 S. Gray Street Knoxville, Tn 37902-1810 Thorn, Gershon, Tymann and Bonanni, LLP Richard M. Gershon, Esq. 5 Wembley Court New Karner Road Po Box 15054 Albany, NY 12212-5054 Christopher J. Belter, Esq. Timothy F. Segalla, Esq. Liza Y. Callahan, Esq. Goldberg Segalla, LLP Attorney for Kurk Fuel Company 120 Delaware Ave. Suite 500 Buffalo, NY 14202 Kenneth A. Krajewski, Esq. Brown and Kelly Attorney for Pautler Oil Service 1500 Liberty Building Buffalo, NY 14202Hugh M. Russ, III, Esq. Hodgson Russ, LLP Attorney for Schmitt Sales Inc. One M&t Plaza Suite 2000 Buffalo, NY 14203 Thomas D. Keleher, Esq. Bond, Schoeneck & King, PLLC Attorney for Flint Hills Resources f/k/a Koch Refining Company I Lincoln Center Syracuse, NY 13202
Edward S. Weltman, Esq.
Christopher J. Garvey, Esq.
Goodwin Proctor, LLP
Attorney for Elpaso and Coastal
599 Lexington Ave.
New York, NY 10022
Diane Devlin, J.
This action was commenced on November 30, 2001 against the defendants, Coastal Corporation, Kurk Fuel Company and Pautler Oil Service. The plaintiff alleges in his complaint that he developed aplastic anemia after long-term exposure to benzene. The complaint alleges that the plaintiff was exposed to gasoline containing benzene purchased at the Pautler Oil Service station during the period 1970-1998 when purchasing gasoline used as fuel for the family lawn mower. The complaint further alleges that the plaintiff was employed at the Alden Central School District in Alden, New York as a groundskeeper and maintenance person during 1996 through February 1999 and was exposed to benzene contained in gasoline used for equipment which he operated at the Alden School District.
The complaint alleges that the defendant, Kurk Fuel Company, was the supplier of gasoline to the Alden Central School District and that the gasoline was a product of defendant, The Coastal Corporation. [*2]
After the plaintiff's complaint was served, the defendant Kurk Fuel Company commenced a third-party action against third-part defendants, Schmitt Sales, Inc., Noco Energy Corporation, Flint Hills Resources, LP f/k/a Koch Refining Company, LP and Coastal Refining and Marketing, Inc. Defendant Pautler Oil Service also commenced third-party actions against third-party defendants Reid Petroleum Corporation and Exxon Mobil Oil Corporation. Third-party defendant Noco Energy Corp. commenced a fourth-party action against defendants Canada Imperial Oil Limited and EI Paso Merchant Energy-Petroleum Company f/k/a Coastal Refining and Marketing, Inc. Additional, fourth-party defendants were also at one time included in this action but by stipulation they have been dismissed as parties.
This case was originally assigned to Justice Frank A. Sedita, Jr. Pursuant to the Order of the Honorable Frank A. Sedita, Jr., the plaintiff was required to file a Note of Issue and Statement of Readiness on or before December I, 2003 even though discovery was going to continue beyond that date. He further ordered that the filing of the Note of Issue would not trigger any time limit for the filing of dispositive motions.
On September 30, 2003, the plaintiff filed a Note of Issue and Statement of
Readiness. By the time of the filing of the Note of Issue, no depositions had been taken of any party and discovery was not complete. The examination before trial of the plaintiff took place on January 11 and January 12, 2005. The depositions of the defendants in this action have not taken place to date.
Justice Sedita recused himself and the case was transferred to Justice Peter Notaro. A conference was held by Justice Notaro's chambers in regards to the status of the case. At that conference the defendants were insistent that this case would be disposed of on the science and requested an expedited schedule for expert disclosure and dispositive motion practice. Justice Notaro's office concurred that it might prove helpful to require expert disclosure early in the case and he ordered it done. Part of the procedure was to then require the defendants to bring on their dispositive motions after the expert disclosure on solely the science issue whether gasoline or benzene caused the alleged illness of the plaintiff.After a number of delays, the defendants did just that. The defendants have moved to preclude the plaintiff from producing at trial any expert witnesses on the issue of causation and have coupled that motion with a summary judgment motion on the causation issue. The plaintiff has responded to the motions.
Two of the defendants, Pautler and Kurk, have apparently interpreted the scheduling order to allow them to bring summary judgment motions on the issue as to whether their particular gasoline caused the plaintiff injury. This court's [*3]understanding of the reasons for the expedited expert disclosure and motion practice was solely to test the issue whether gasoline or benzene could and did cause the plaintiff's aplastic anemia and not whose gasoline may or may not have caused the illness. Because of my view of the process, I will not entertain the motion of Pautler and Kurk on the specific causation issue and it is denied without prejudice pending the completion of discovery.
The defendants' motions for summary judgment and to preclude are interrelated and will be discussed as if one motion. The defendants contend that there are only three ways in which a litigant in New York State Court can meet the general acceptance test necessary to get past the Frye test (Frye v. United States, 293 F. 1013, D.C.Cir.1923) and, according to the defendants, none of which have been met by the plaintiff.
One test is where general acceptance is so notorious the Court may take judicial notice of it. The defendants claim that is not the case here. The defendants further contend that the plaintiff may not be able to establish acceptance by reference to legal writings and judicial opinions. In summary the defendants contend that New York and other courts have expressly and repeatedly rejected claims attempting to prove causation of aplastic anemia and leukemias by gasoline exposure and cite Parker and other cases in support of that proposition. Parker v. Mobil Oil Corp., 793 NYS2d 434, 16 AD3d 648 (2nd Dep't 2005) (causation of acute myelogenous leukemia "AML" by gasoline rejected as unreliable); Frias v. Atlantic Richfield Co., 104 S.W.3d 925,2003 Tex. App. LEXIS 4115 (Tex. App. 2003) (rejecting as unreliable expert opinion evidence regarding the alleged cause of aplastic anemia by benzene exposure).
The defendants claim that plaintiff cannot establish the admissibility of his causation evidence through his expert's scientific testimony because it does not meet the three step procedure the defendants contend is the only methodology that can be used. In order to establish admissibility, the defendants contend, the plaintiff would have to satisfy the three-step procedure of the World Health Organization and National Academy of Sciences causation standards and methodology. See Parker, supra .; Mancuso v. Consolidated Edison Co. of New York, 56 F. Supp.2d 391, 394,399 (S.D.NY 1999), aff'd in relevant part, 2000 U.S. App. LEXIS 12487 (2nd Cir. 2000). This three-step procedure first requires a determination of plaintiff's level of exposure. Second, the proponent must establish general causation establishing both that the toxin is capable of producing the plaintiff's illness, as well as ascertaining the dose-response relationship, meaning the level of exposure to the toxin that will produce the illness in question. Thirdly, the proponent must establish specific causation by demonstrating the probability [*4]that the toxin caused this particular plaintiff's illness. Mancuso, 56 F. Supp.2d at 399.
The defendants' first contention is that plaintiff has no evidence that gasoline causes aplastic anemia. The defendants contend that there is no evidence to support any conclusion that exposure to gasoline may cause aplastic anemia, either generally or in plaintiff's specific case. The defendants contention is founded upon the argument that Plaintiff's experts have failed to identify a single published study that associates gasoline with the development of aplastic anemia. And they say that without identifying any dose, plaintiff fails to meet the criteria for admissibility of Parker v. Mobil Oil Corp., 793 NYS2d 434, 16 AD3d 648 (2nd Dep't 2005), and that plaintiff's expert opinions are therefore unreliable as a matter of law. They further contend that the plaintiff's diagnosis of idiopathic aplastic anemia means that there is no discoverable cause of the plaintiff's illness by definition and cite from BLOOD a textbook by James H. Jandl, M.D. The same section cited by defendants for the proposition that roughly half of aplastic anemias are of unknown causes continues with the conclusion that "It is axiomatic, however, that absence of proof is not proof of absence. In each case of aplastic anemia a painstaking search for causative agents is mandatory." The clear implication is that there is a cause but it has yet to be determined and the plaintiff contends that this is exactly his situation. The obvious conclusion is that a mere finding of idiopathic is not dispositive of the case but merely a starting point for the scientists or doctors.
The defendants contend that it is uncontroverted that plaintiff's expert has identified no studies in the scientific or medical literature which identify gasoline as a cause of aplastic anemia. The defendants contend that it is equally clear from the affidavits of defense experts that a review of the literature reveals no evidence that gasoline causes aplastic anemia, and that it is therefore not generally accepted in the scientific and medical communities that gasoline causes aplastic anemia.
Next defendants argue that Plaintiff's reliance on benzene as a cause of aplastic anemia is inappropriate. The argument is that because there is no evidence that gasoline as manufactured has been a cause of aplastic anemia, plaintiff's attempts to rely upon studies concerning exposure to benzene, one of the components of gasoline, as a cause of his aplastic anemia is not appropriate. The defendants' expert Dr. Monson says in his opinion in part of his affidavit that:
"It is not appropriate to apply the results of an epidemiologic study of one chemical (
e.g., benzene) to another product ( e.g., gasoline). It is also inappropriate to infer that a
result from a study of persons exposed at high doses can be necessarily extrapolated to
persons [*5]exposed at low doses."
The defendants argue that this is a gasoline case. Plaintiff was exposed to the mixture of gasoline that contained a wide variety of chemicals, including a small component of benzene. The defendants contend that all of the literature shows that gasoline as manufactured with benzene as a component has never been identified as a cause of aplastic anemia and that it therefore does not matter that high levels of benzene over long periods of time can cause aplastic anemia. Rather the question is whether gasoline as manufactured with its variety of components had ever been identified as a cause of aplastic anemia. As Dr. Monson states:
"... in my scientific opinion, I am not aware of any epidemiologic data that associated
gasoline as currently manufactured as being associated with the development of aplastic
anemia."
The defense then says that for these reasons, plaintiff's attempt to rely upon literature dealing with benzene rather than gasoline is inappropriate.
The defendants next argue that Plaintiff lacks any scientifically reliable evidence that exposure to benzene caused his aplastic anemia. It is important to note at this juncture that apparently there is no dispute that the plaintiff did in fact develop aplastic anemia. The defendants contend that the plaintiff offers no evidence of his level of exposure to benzene.They argue that even if you look at benzene itself, plaintiff will have no reliable evidence concerning the dose of benzene plaintiff allegedly received as a result of his exposure to gasoline, or that any such dose has been identified as a cause of aplastic anemia. Defendants claim that Plaintiff's approach is in direct conflict with the criteria set forth in Parker v. Mobil Oil Corp., 16 AD3d 648 (2nd Dep't 2005). According to the defendants, Plaintiff's approach ignores the scientific criteria set forth in the affidavits of defendants' experts Drs. Natelson, Greenberg, and Monson.
The articles and literature referenced in these affidavits emphasize the importance of a dose quantification for any alleged exposure to benzene. The importance of an accurate dose quantification leads to the following questions with regard to benzene exposure, namely (1) "What was plaintiff s level of exposure to benzene?", and (2) "Does that level of exposure cause aplastic anemia?"
Up to the expert disclosure phase, the Plaintiff had designated two causation experts, William
S. Beckett, M.D., a hematologist and oncologist, and T. Wibberly-Baker, M.D., a physician in practice in Rochester, New York with a specialty in occupational medicine. The plaintiff, in response to this motion and the issues raised, has responded with an additional expert, James J. J. Clark, PhD. [*6]
Because quantification is such a critical part of the defense argument, the defendants' expert John Spencer has calculated Mr. Nawrocki's long term benzene exposures while fueling or operating lawn maintenance equipment. According to Mr. Spencer those exposures would have been significantly lower than the current OSHA 8-hour permitted exposures.
The defendants' experts do acknowledge that an examination of the literature reveals that benzene may cause aplastic anemia , but only "after massive exposures which cause immediate toxicity." According to Dr. Natelson and Dr. Greenberg:
as is stated in a recent review, "Although a threshold for the development of AA from benzene exposure likely exists, the exact value is not known. What is known is that cases of AA were exposed to levels of benzene that caused frank cytotoxicity,15 often for extended periods. By way of an example, Turkish shoe workers who developed AA often were exposed to levels believed to have been as high as 600 ppm for an 8-10 hour work shift"
As noted above, the defendants' experts do acknowledge that benzene may cause aplastic anemia, "but rather occurring after massive exposures which cause immediate toxicity." Dr. Natelson's review of the scientific literature claims that exposure to benzene at levels at or less than of 1 part per million or less cannot cause aplastic anemia. Based upon Mr. Spencer's quantifications, Dr. Natelson opines that Mr. Nawrocki was exposed to intermittent low levels of gasoline, and, moreover, any exposure to benzene was well below the occupational health limits established as protective of health. Dr. Natelson's review of the scientific literature indicates that such exposure to benzene cannot cause aplastic anemia. Dr. Natelson further states in his affidavit:
Exposure to the levels of benzene quantified in the affidavit of John Spencer is not
generally accepted in the scientific community as a cause of AA.

In his affidavit, Dr. Greenberg, Movants' expert toxicologist, states:
"In order to determine whether it is more likely than not that Mr. Nawrocki's AA was caused by benzene, a responsible scientist needs to know what level of benzene exposure is sufficient to cause the disease and to what concentrations of benzene Mr. Nawrocki may have been exposed. John Spencer's affidavit establishes that Mr. Nawrocki's benzene exposure was only intermittent and at levels well below the OSHA standard of 1 PPM. Scientific evidence indicates that [*7]chronic exposure to benzene at 1 PPM, or less; is not associated with any adverse health effects, much less AA."
New York has long recognized the rule from Frye v. United States, 293 F. 1013 (D.C.Cir.1923), as the test for the admissibility of scientific evidence. This test requires that expert testimony be based on a scientific principle or procedure that is sufficiently established to have gained general acceptance in the particular field in which it belongs.
A Frye challenge to proffered expert testimony first involves making a prima facie showing
that a particular concept, principle or methodology underlying the proposed expert opinion has not been generally accepted in the relevant scientific community. DeMeyer v. Advantage Auto, 9 Misc 3d 306 (NY Sup. Ct. 2005) (holding that the affidavit of defendant's expert, along with references to epidemiological studies concerning the general causation of mesothelioma sufficed to make such a prima facie showing). Once a prima facie showing is made, the burden shifts to the proponent of the evidence to demonstrate the admissibility of its expert's testimony.
Stating the obvious, expert opinion testimony and scientific writings are properly excluded from evidence in the context of medical causation when they lack definitive studies establishing a causal link between the substance and the illness. The defendants contend that in order to establish the reliability of scientific data in toxic tort actions, a litigant must present epidemiologic studies finding an increased risk of the illness as a result of particular level of exposure. In the cases cited by the defense (only one New York case and several Federal cases), the defense claims that those courts recognized the World Health Organization and National Academy of Sciences standards as the only appropriate methodology for determining whether an illness has been caused by a specific substance. In summary this three-step procedure first requires a determination of plaintiff s level of exposure. Second, the proponent must establish general causation. Proof of general causation involves both establishing that the toxin is capable of producing the plaintiffs illness, as well as ascertaining the dose-response relationship, meaning level of exposure to the toxin that will produce the illness in question. Thirdly, the proponent must establish specific causation by demonstrating the probability that the toxin caused this particular plaintiffs illness.
The defendants claim that the plaintiff has not met that standard. Based on that the defendants request this court to preclude the plaintiff's experts from testifying claiming that his experts' opinions do not meet the Frye test. If they are precluded, the plaintiff will have no scientific evidence to support his clam that his [*8]illness was caused by the defendants product and the defendant should be granted summary judgment.
The plaintiff has retained the services of a new expert not previously disclosed, toxicologist, James J. J. Clark, PhD. who is the principal toxicologist at the Soil Water Air Protection Enterprise in Santa Monica, California. Dr. Clark holds a doctorate in Environmental Health Sciences from the University of California, Los Angeles, School of Public Health and is imminently qualified in the field of toxicology.
According to the plaintiff, Dr. Clark was able to calculate, using studies of the United States Environmental Protection Agency (USEPA), the exhaust emissions of benzene from the gasoline fueled equipment Nawrocki used at his parents' home and at the Alden School District. The lawn mowers, the rototiller, the weed-whacker and the hedge-trimmer, were all small, gasoline engines. According to the plaintiff, their emissions ranged from 3.5 grams of benzene per hour to 40.8 grams per hour. Dr. Clark, using EPA evaluation methodology, then determined that Mr. Nawrocki's exposure to benzene far, far exceeded the OSHA standard of 1 part benzene per million per hour.
Dr. Clark relied upon what the plaintiff characterizes as accepted, peer-reviewed studies and official United States Government standards, specifically the Center for Disease Control, the National Institute of Occupational Safety and Health (NIOSH), Guideline for Benzene. According to the plaintiff's exhibits, the NIOSH exposure limit for benzene is only 0.1 part per million or 0.32 milligrams of benzene per cubic meter of air as an 8 hour time weighted averager (TWA). Dr. Clark then calculated the plaintiff's exposure level as well over 1,000 times greater than the NIOSH recommended levels.
Dr. Clark's affidavit recites his credentials. They include graduating in 1987 with a Bachelor's Degree in Biochemical and Biophysical Sciences from the University of Houston. In 1993, he received a Masters degree in Environmental Health Sciences from the University of California at Los Angeles School of Public Health. He earned a Doctorate in Environmental Health Sciences from the University of California at Los Angeles School of Public Health in 1995. He has been trained and certified under OSHA for Hazardous Waste Operations & Emergency Response.
He currently is the Principal Toxicologist at Soil Water Air Protection Enterprise in Santa Monica, California. From 1987 through 1992 he worked as a toxicological researcher at the University of California at Los Angeles Department of Medicine Pulmonary Division under the supervision of physicians who were investigating the pulmonary toxicity of air pollutants [*9]
He reviewed a summary of the plaintiffs exposure assessment from Dr. Baker, M.D., a summary of the plaintiffs evaluation by Mark Wishnuff, M.D., and a history and exposure estimate of the plaintiff by William Beckett, M.D., and numerous peer-reviewed human epidemiological and toxicological studies on benzene.
As a result he reached his expert conclusion that the aplastic anemia expressed with pancytopenia and severe hypoplastic bone marrow, suffered by Michael 1. Nawrocki as first diagnosed on February 24, 1999, was caused by his exposure to toxic chemicals. He reviewed all other causal possibilities including plaintiff's family history and other exogenous factors.
He concluded that based on the deposition testimony of Mr. Nawrocki, the plaintiff sustained a high-level benzene exposure during his course of employment by the Alden Central School District in Alden, New York, from August 1996 to February 1999. During the course of duties he was exposed to benzene in the gasoline via dermal and inhalation pathways. Dr. Clark concluded that the prior estimates of Mr. Nawrocki's exposure considered only the exposure to benzene from the filling of gas tanks. In Dr. Clark's opinion, Mr. Nawrocki's actual exposure to benzene, during the period in which he was employed as a ground-keeper, was much larger than previously estimated and included a number of pathways including inhalation of vapors from the filling of gas tanks with gasoline and dermal absorption of benzene in gasoline spilled on his hands and arms during the filling of gas tanks with gasoline, dermal absorption of benzene in gasoline on his hands and arms during maintenance activities in which Mr. Nawrocki used the gasoline as a cleaning agent, and inhalation of exhaust from gasoline powered ground keeper machinery (lawn mowers and weed whackers).
Dr. Clark concluded that based on USEPA's evaluation, the inhalation of the exhaust from gasoline powered grounds keeping machinery is therefore capable of delivering a dose much higher than 1 ppm per hour and that Mr. Nawrocki's exposure was therefore much greater than 0.3 ppm initially estimated.
He noted that benzene and benzene compounds are easily and well-absorbed following inhalation of fumes and through contact with the skin from gasoline, contaminated soils and water. Benzene and various benzene compounds are highly volatile, and when released to the environment readily change to a gaseous state and become airborne.
Dr. Clark's opinion is that high level benzene exposure of intermediate duration (three weeks minimum) is known to induce severe hematological changes, especially pancytopenia. Benzene exposures in experimental animals and humans occupationally exposed have resulted in chromosome aberrations. Benzene and its [*10]metabolites cause both structural and numerical chromosome aberrations in humans. He notes that benzene is a recognized Class Al Human Carcinogen by the International Agency for Research on Cancer (IARe) and as a known human carcinogen by USEPE and then rendered his opinion on causation. It is his opinion that Mr. Nawrocki's aplastic anemia was the direct result of his exposures to benzene during the period 1996 through 1999.
The key to this case is clearly Parker v Mobil Oil Corp., 16 AD3d 648, 793 NYS2d 434 (2nd Dept., 2005). Parker was an action to recover for personal injuries where the defendant moved in limine to preclude the plaintiff's medical causation expert testimony of two doctors. The trial court denied the motion and the defendant appealed. In oppositon to the motion, the plaintiff offered the reports of his experts. The Parker court noted that "In their reports ... neither doctor articulated with any specificity the level of benzene to which the plaintiff was exposed." The court went on to note that the expert "merely described his exposure to gasoline as "extensive" and concluded that he had "abundant opportunity for exposure to benzene" and "ample opportunity for percutaneous exposure to benzene." The other expert "made even less of an attempt to quantify the plaintiff's exposure".
At the urging of the defendants, the Second Department found that the three step process recommended by the World Health Organization is "A" scientifically-reliable methodology "for drawing a sound conclusion as to the relationship between an individual's disease and a specific factor suspected of causing that disease". The Parker Court did not decree that it was the only methodology that might be appropriate to determine scientific reliability . The three step process is as follows:
"This three-step process includes: (1) a determination of the plaintiff's level of exposure to the toxin in question, (2) from a review of the scientific literature, proof that the toxin is capable of producing the illness, or general causation, and the level of exposure to the toxin which will produce that illness (i.e., the dose-response relationship) must be ascertained, and (3) establishment of specific causation by demonstrating the probability that the toxin caused the particular plaintiff's illness, which involves weighing the possibility of other causes of the illness."
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The real basis of the decision made by the Second Department in Parker was:
"The plaintiff presented no evidence of the concentration level of benzene in the gasoline to which he was exposed. His experts failed to quantify his exposure (emphasis added) utilized unit of measurement of parts per million factored against the duration of time to which the plaintiff was exposed" ,..., he failed to quantify his own level of exposure (emphasis added) impossible to determine whether he exceeded the threshold. Various courts have rejected expert opinions that also failed to quantify the alleged level of exposure(emphasis added) to the toxin in question or failed to account for the dose

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