Keller v. Exxon Mobile Oil Corporation

Background

Scott K. Keller sued ExxonMobil Oil Corporation, formerly known as Mobil Oil Corporation, under the Jones Act, a federal law providing a remedy for negligence causing injury to a seaman. Keller alleged that asbestos exposure during his employment on ExxonMobil’s vessels caused his lung cancer and that ExxonMobil failed to warn him about asbestos risks and failed to provide a reasonably safe workplace.

Keller worked for Mobil Oil for about ten years between 1974 and 1984, including on diesel-powered vessels and five steam tankers. He was diagnosed with lung cancer in March 2020 and underwent surgery. He had no further treatment after the surgery, although he continued periodic monitoring.

Keller testified that he did not know whether he had encountered asbestos on ExxonMobil’s vessels and had not been told that materials he encountered contained asbestos. One former coworker, Michael Nedvesky, described insulation on Mobil Oil ships that he believed was probably asbestos, but he did not recall working in the same area or at the same time as Keller. Another former coworker, James Bolton, did not know whether his work involved asbestos and had never learned that asbestos was present on Mobil Oil tankers.

Keller identified Richard L. Kradin, M.D., as his expert on specific causation—that is, whether asbestos exposure actually caused Keller’s particular cancer. Dr. Kradin opined that Keller’s lung cancer was caused by cumulative asbestos exposure while serving in the Merchant Marines. Dr. Kradin’s report discussed medical literature concerning asbestos and lung cancer, but he did not calculate Keller’s asbestos dose, did not review the report or testimony of Keller’s industrial-hygiene expert before preparing his report, and found no medical markers of asbestos-related injury in Keller’s records. Dr. Kradin also did not consider radon as another possible cause when preparing his opinion, even though the record indicated that Keller had lived in areas designated by the Environmental Protection Agency as potential radon-exposure zones and that testing showed radon in his home.

Motions and legal standards

ExxonMobil moved under Federal Rule of Civil Procedure 56 for summary judgment, which means judgment without a trial when the evidence presents no genuine dispute over a fact that could affect the outcome and the moving party is entitled to judgment as a matter of law. ExxonMobil also moved under Federal Rule of Evidence 702 to exclude Dr. Kradin’s testimony and the testimony of Troy Corbin and Arnold Brody. Keller moved to exclude certain testimony from ExxonMobil’s experts Jennifer Pierce and Aaron Depres.

A Jones Act plaintiff must prove that the defendant was negligent and that the negligence caused the injury. Although the Jones Act uses a lower causation standard than ordinary negligence law, the court explained that the plaintiff still must provide reliable expert testimony when, as with lung cancer, the injury has multiple possible causes. Under Rule 702, expert testimony must be based on sufficient facts or data, reliable methods, and a reliable application of those methods to the facts. The court acts as a gatekeeper to prevent speculative or unsupported expert testimony from reaching the jury.

Exclusion of Dr. Kradin’s testimony

The court granted ExxonMobil’s motion concerning Dr. Kradin. It found that Keller had not shown that the testimony was based on sufficient facts or data, resulted from reliable principles and methods, or reliably applied those principles and methods to Keller’s circumstances.

The court emphasized that Dr. Kradin did not rely on testing or other objective measurements of Keller’s actual asbestos exposure on ExxonMobil’s vessels. Dr. Kradin acknowledged that asbestos-related lung disease is dose-dependent, meaning that the risk increases with the amount and duration of exposure, but he did not calculate Keller’s asbestos dose or fiber-years of exposure. The court also found that the testimony of Keller and the two former employees did not establish that Keller was exposed to asbestos on ExxonMobil’s vessels. According to the court, those witnesses either lacked knowledge of asbestos exposure or did not recall working with Keller in the relevant areas and times.

The court further found that Dr. Kradin improperly assumed that Keller had been repeatedly exposed to asbestos throughout his career as a merchant mariner. General literature about asbestos exposure among Merchant Marines and shipyard workers did not supply the missing case-specific evidence, particularly because Dr. Kradin lacked maritime expertise and did not incorporate specific exposure figures into his analysis.

The court also criticized Dr. Kradin’s failure to address radon. Although an expert need not rule out every possible cause, the court said an expert must address obvious alternative causes identified by the opposing party and reasonably explain why those causes were not responsible. Dr. Kradin’s explanation that he had not been asked to consider radon was not a reliable scientific explanation. The court therefore excluded his testimony under Rule 702.

Summary judgment

The court granted ExxonMobil’s motion for summary judgment. Without Dr. Kradin’s testimony, Keller lacked admissible expert evidence establishing that asbestos specifically caused his lung cancer. Because the court determined that expert testimony was necessary to establish causation in this case, it concluded that no sufficient evidence remained to support a finding that asbestos exposure—whether on ExxonMobil’s vessels or elsewhere—caused Keller’s cancer.

Other motions and disposition

The court denied as moot ExxonMobil’s motions concerning the testimony of Troy Corbin and Arnold Brody and Keller’s motions concerning the testimony of Aaron Depres and Jennifer Pierce. The court directed the Clerk of Court to enter judgment and close the case. The order resolved docket entries 24, 27, 30, 33, 37, and 40.