IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
                         DIVISION OF ST. CROIX

  KADAR MOHANSINGH,
                                                 CIVIL NO. SX-06-CV-231
                               Plaintiff,
                                                Complex Litigation Division
                  v.                          (Grouped under SX-15- CV-198)

  HESS CORPORATION and HESS OIL
  VIRGIN ISLANDS CORPORATION,


                              Defendants.


                              Cite as: 

                              MEMORANDUM OPINION
                                (Filed April 25, 2022)

   Andrews, Jr., Judge

                                  INTRODUCTION

      ¶1     Plaintiff brings this action for damages against defendant Oil Refinery

Companies. He alleges, during his employment, Defendants negligently exposed

him to toxic substances which caused him to suffer disease and illnesses.

Defendants Hess Corporation and Hess Oil Virgin Islands Corporation now move

this Court to exclude expert testimony by Plaintiff’s industrial hygienist at the trial

in this matter.   They claim the hygienist’s methodology is unreliable and his

testimony does not fit the facts of the case. Plaintiff contends otherwise. For the

reasons mentioned below, this Court will deny Defendants’ Motion to Exclude.
Mohansingh v. Hess Corporation, Et. Al., SX-06-CV-231

Memorandum Opinion
Page 2

                            PROCEDURAL BACKGROUND

       ¶2     On March 14, 2006, plaintiff Kadar Mohansingh commenced this

action for negligence and other tort claims against defendants Hess Corporation

(Hess), Hess Oil Virgin Islands Corporation (HOVIC), Litwin Corporation and

Universal Oil Products.1 On March 18, 2022, defendants Hess and HOVIC filed

the instant Motion In Limine to Exclude the testimony of plaintiff’s expert, Jerome

Spear, an industrial hygienist, and any evidence related thereto.                Defendants

requested a Daubert hearing on their motion. Mot. In Limine to Exclude, p 14.

Plaintiff opposed the motion on March 25, 2022. Defendants filed their reply on

April 1, 2022. No hearing was held on the motion.2

                                   RELEVANT FACTS

       ¶3     Plaintiff alleged, during his employment with Defendants, he was

continuously exposed to asbestos products and other toxic substances due to

Defendants’ negligence. Complaint, p 2. As a result of such exposure, he further

alleged, he developed an asbestos-related disease. Complaint, p 3. To support

his claim, Plaintiff retained the services of Jerome E. Spear, a Certified Industrial

Hygienist, Certified Safety Professional and Fellow of the American Industrial



1 Litwin Corporation and Universal Oil Products have since been dismissed from this action.
2 Since the Court is not excluding the challenged expert testimony, no hearing is required.
 Samuel v. United Corp., 

 (V.I. 2016).
Mohansingh v. Hess Corporation, Et. Al., SX-06-CV-231

Memorandum Opinion
Page 3

Hygiene Association. Ex. A Mot. In Limine to Exclude, (Spear’s Report). Based

on his review of Plaintiff’s work history, occupational activities, evidence of

exposure, documents and materials in Plaintiff’s case, relevant scientific literature,

and information generally relied upon by industrial hygienists, Spear made the

following conclusions within a reasonable degree of scientific certainty:

      1) Plaintiff was exposed to asbestos when helping to clean up the insulation
         debris in the terminal area of the HOVIC refinery as a result of Hurricane
         Hugo in 1989.

      2) Plaintiff had bystander exposure to asbestos from being in close
         proximity to other workers sawing and grinding asbestos cement pipe in
         the terminal area of the HOVIC refinery.

      3) Plaintiff had bystander exposure to asbestos from being in close
         proximity to insulators removing, installing, and/or otherwise disturbing
         asbestos-containing thermal system insulation (TSI) in the terminal of the
         HOVIC refinery.

      4) Plaintiff had direct exposure to asbestos when replacing asbestos-
         containing gaskets and packing in the terminal area.

      5) Plaintiff’s direct and bystander exposure likely resulted in contamination
         to his clothing. Secondary exposure from wearing contaminated
         clothing contributed to his overall asbestos exposure.

      6) Plaintiff was not adequately warned of the dangers of asbestos exposure,
         including its ability to cause an asbestos-related disease.

      7) Plaintiff’s exposure to TSI, cement pipe, gaskets, and packing were
         significant sources of his exposure to asbestos. Asbestos released from
         these products increased his dose, which in turn, significantly increased
         his risk of contracting an asbestos-related disease.
Mohansingh v. Hess Corporation, Et. Al., SX-06-CV-231

Memorandum Opinion
Page 4

.

                                 LEGAL STANDARD

       ¶4       Defendants’ motion requires this Court to determine the admissibility

of proposed expert testimony. The admissibility of expert testimony in the Virgin

Islands is governed by the Virgin Islands Rules of Evidence which provides that:

       A witness who is qualified as an expert by knowledge, skill, experience,
       training, or education may testify in the form of an opinion or otherwise
       if:
       (a) the expert's scientific, technical, or other specialized knowledge will
           help the trier of fact to understand the evidence or to determine a
           fact in issue;
       (b) the testimony is based on sufficient facts or data;
       (c) the testimony is the product of reliable principles and methods; and
       (d) the expert has reliably applied the principles and methods to the
           facts of the case.

V.I.R.E. 702. In Daubert v. Merrell Dow Pharms., Inc., the United States Supreme

Court established the standard for determining admissibility of expert testimony

under identical Federal Rule of Evidence 702. It instructed that:

       The trial judge must determine at the outset … whether the expert is
       proposing to testify to (1) scientific knowledge that (2) will assist the
       trier of fact to understand or determine a fact in issue. This entails a
       preliminary assessment of whether the reasoning or methodology
       underlying the testimony is scientifically valid and of whether that
       reasoning or methodology properly can be applied to the facts in
       issue.

 (1993). To determine whether proposed testimony is based

on reliable reasoning or methodology the Supreme Court listed the following non-
Mohansingh v. Hess Corporation, Et. Al., SX-06-CV-231

Memorandum Opinion
Page 5

exhaustive factors:

   a. whether the opinion can be (and has been) tested;
   b. whether the theory or technique has been subjected to peer review
      and publication;
   c. what the known or potential rate of error is; and
   d. the existence and maintenance of standards controlling the
      technique's operation.

. In 2016, the Virgin Islands Supreme Court concluded that “the

Daubert standard represents the soundest rule for the Virgin Islands.” Antilles

School, Inc. v. Lembach, 

 (V.I. 2016). They adopted it as “the

more liberal standard” that should govern admission of expert testimony in the

Virgin Islands. 

. Hence, courts construe the rule broadly in favor of

admissibility.

      ¶5     When faced with a motion to admit or exclude expert testimony, the

trial judge is tasked with ensuring that the proffered expert testimony rests on a

reliable foundation and is relevant to the task at hand. Daubert, 

.

In order for expert testimony to be admissible, three requirements must be met:

   1) the expert must be qualified;
   2) the expert's opinion must be derived from a reliable process or
      technique; and
   3) the testimony must assist the trier of fact, that is, it must “fit” the facts
      of the case

Gerald v. R.J. Reynolds Tobacco Co., 

, No. ST-10-CV-631,

692, at *1 - 2 (V.I. Super. Ct. June 12, 2018) (quoting In re Catalyst Litigation, 55
Mohansingh v. Hess Corporation, Et. Al., SX-06-CV-231

Memorandum Opinion
Page 

 (Super. Ct. 2010). The proponent of expert testimony bears the burden of

establishing admissibility requirements by a preponderance of the evidence.

Daubert, 

. Whether to conduct a hearing on a Daubert issue

lies within the court’s discretion and no hearing is required if the court decides not

to limit or exclude the expert testimony. Samuel v. United Corp., 

(V.I. 2016); Schrader v. Juan F. Luis Hosp. & Med. Ctr., 

, No.

SX-12-CV-066, at *8 - 9, (Super. Ct. Oct. 6, 2016).

      ¶6     The proposed testimony must qualify as scientific knowledge to meet

the standard of evidentiary reliability.     Thus, “proposed testimony must be

supported by appropriate validation—i.e. ‘good grounds,’ based on what is known.”

Daubert, 

. Such testimony should hence be admitted “as long as

the expert has ‘good grounds’ to hold a particular opinion.” Lee v. United Corp.,

, No. ST-98-CV-598, at *6, (Super. Ct. Aug. 17, 2010). The

Court need not conclude that the expert’s testimony is correct. Instead, “the

focus, of course, must be solely on principles and methodology, not on the

conclusions they generate.” Daubert, 

. In this regard, “the judge

must have considerable leeway in deciding in a particular case how to go about

determining whether particular expert testimony is reliable.” Kumho Tire Co. v

Carmichael, 

 (1999).
Mohansingh v. Hess Corporation, Et. Al., SX-06-CV-231

Memorandum Opinion
Page 7

                             LEGAL ANALYSIS

   ¶7 The opinion of Jerome Spear, Plaintiff’s industrial hygienist, can be

summarized as follows:

   a. Plaintiff had direct and bystander exposure to asbestos through
      various means during the course of his employment at the Hess
      refinery; and

   b. Plaintiff was not adequately warned of the dangers of asbestos
      exposure.

Ex. 2 Opp. (Spear’s Opinion, 6.0). Defendant argues that Spear’s methodology

is unreliable because he failed to make any attempt to quantify Plaintiff’s level of

exposure to asbestos (dose reconstruction); and the methodology offered as a

substitute for a quantitative analysis is unscientific, conclusory, and nothing more

than subjective belief and speculation. Mot. In Limine to Exclude, p 4. Defendant

further argues that Spear’s testimony does not fit the facts of the case. 

.

This Court finds that Spear’s testimony meets the Daubert standard.

   1) The Absence of a Quantitative Analysis Regarding the Level of
      Asbestos Exposure Does Not Render Spear’s Opinion Unreliable.

      ¶8    Defendants’ attack on Spear’s testimony focuses heavily on his failure

to conduct a quantitative analysis of Plaintiff’s alleged exposure to asbestos.

Such an analysis would obviously require the use of relevant exposure data.

Here, Spear did not calculate any dosage of Plaintiff’s exposure data due to the
Mohansingh v. Hess Corporation, Et. Al., SX-06-CV-231

Memorandum Opinion
Page 8

absence of such data.     He explained that he was unaware of any asbestos

exposure data conducted or collected at the refinery which he would need to

estimate Plaintiff’s long-term annual exposure and stated, “but I don’t have that

data.” Ex. 1 Opp. (Spear Deposition, p 85). Thus, Spear should not be faulted for

not conducting a dosage analysis.

      ¶9    In Sanders v. CSX Transp., the Georgia District Court concluded that

the plaintiff did not have to show the actual level of exposure since the defendant,

the only plausible source of such information, failed to preserve the data. Sanders

v. CSX Transp., 

, No. CV5990-209, at *124 (S.D. Ga.

Feb. 24, 2000). It reasoned that:

      It does not follow, however, that as a matter of law, a plaintiff should
      always bear the burden of production regarding the level of
      exposure to asbestos at a defendant's work site. Indeed, a plaintiff
      could not ordinarily produce data regarding the level of workers'
      exposure to asbestos unless the defendant took air samples
      measuring asbestos levels during the relevant time period. If a
      defendant failed to take air samples during the period concerned,
      however, it hardly makes sense to oblige a plaintiff to produce non-
      existing data. In such a scenario where a defendant railroad failed to
      take air samples measuring asbestos exposure levels or, if it did, but
      failed to preserve records memorializing the results of such samples
      -- a jury is entitled to infer that the level of exposure to asbestos, in
      fact, exceeded the amount allowable under the relevant TLV, and
      thus, that the defendant breached its duty of care to the plaintiff.

 at 25 - 16. Further, other courts have concluded that a quantitative analysis is

not required particularly in asbestos-type cases. See Vedros v. Northrop Grumman
Mohansingh v. Hess Corporation, Et. Al., SX-06-CV-231

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Shipbuilding, Inc., 

, No. 11-1198 SECTION: “J” (4),

at * 8 - 9 (E.D. La. June 25, 2015) (stating “experts in the field of risk and causation

in asbestos cases are not required to rely on specific calculations of the exact

dosage or level of asbestos to which a plaintiff was allegedly exposed. . . when a

plaintiff has proven sufficient evidence to raise a genuine issue of material fact

regarding his exposure to asbestos, the plaintiff's experts are not required to prove

the specific levels of asbestos concentrations in a defendant's products”); Payne

v. CSX Transp., Inc., 

 (S. Ct. Ten. 2015) (stating “stated

simply, the Plaintiff's experts were not required to establish ‘a dose exposure

above a certain amount’ before they could testify about causation. So long as a

qualified expert can offer an opinion, based upon reliable data, that will

substantially assist the trier of fact, the expert's testimony should be permitted.”).

In In re Asbestos, the United States District Court in California stated:

      Defendant contends that Dr. Brodkin's methodology, which fails to
      quantify Mr. Toy's actual exposure from Bendix brakes (or any of the
      Defendants' products), is unreliable and therefore inadmissible under
      Rule 702 and Daubert. But neither Rule 702 nor Daubert precludes
      qualitative analysis. Rather, the Supreme Court has cautioned that
      the Daubert inquiry is intended to be flexible, and that when evaluating
      specialized or technical expert opinion testimony, "the relevant
      reliability concerns may focus upon personal knowledge or
      experience." See Kumho Tire Co. v. Carmichael, 

,
      

, 

 (1999). . . Defendant first cites to
      the California Supreme Court's opinion in Rutherford v. Owens Illinois,
      Inc., regarding the proof of causation required in asbestos-related
Mohansingh v. Hess Corporation, Et. Al., SX-06-CV-231

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      cases. (citations omitted). But nothing in Rutherford demands that a
      plaintiff create a dose assessment in order to establish causation.

, No. 19-cv-325-HSG, at *16 - 17 (N.D. Cal. Mar. 26,

2021). This Court, thus, concludes that Spear was not required to conduct a

quantitative analysis in order to render a reliable opinion.

      ¶10    In formulating his opinion Spear relied on: numerous documents from

Hess Oil Refinery - St. Croix; Plaintiff’s Deposition Transcript (10/28/14); Spear’s

interview of Plaintiff on February 4, 2022; and a video deposition of HOVIC

employee Alfred S. Browne. 

 at 1 - 4. He reported that the methodology he

employed is consistent with generally accepted industrial hygiene practices. 

. Spear summarized Plaintiff’s work history and evidence of exposure. He also

summarized scientific literature pertaining to exposure to asbestos fibers and duct.

 His conclusions were based on facts and conditions related to the case as

well as Spear’s professional experience, training and education in industrial

hygiene. 

. He considered: scientific literature revealing that pipe and block

thermal insulation systems containing significant amounts of asbestos have been

used commercially since before World War II; that HOVIC used asbestos-

containing materials from 1965 to 1983 based on invoices and shipping documents

in the terminal area where Plaintiff worked; and that samples collected from

insulation materials used in the refinery indicate the prevalence of asbestos
Mohansingh v. Hess Corporation, Et. Al., SX-06-CV-231

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throughout the facility. 

 at 19 - 23.     A review of Spear’s report reveals a

comprehensive, methodical, scientific qualitative analysis of Plaintiff’s work history,

the prevalence of asbestos-containing materials and Plaintiff’s exposure thereto,

HOVIC’s policies and procedures, and relevant scientific literature. This Court

finds the methodology employed by Spear to be sound and that his conclusions

are reliable despite the absence of a quantitative analysis of Plaintiff’s level of

asbestos exposure.

   2) Spear’s Testimony Fits the Fact of the Case.

      ¶11    Defendants argue that Spear’s testimony does not fit the facts of this

case and is irrelevant since among other things:

      a. he did not ascertain Plaintiff’s proximity to others regarding Plaintiff’s
         bystander exposure;

      b. he does not know the duration of Plaintiff’s exposure;

      c. he does not know the frequency of Plaintiff’s exposure to alleged
         asbestos-containing materials;

      d. he assumed that all of Plaintiff’s encounters with asbestos products
         actually released respirable asbestos fibers;

      e. he failed to quantify actual ambient background levels of exposure to
         which Plaintiff would have been exposed or the levels associated with
         the activities he claimed constituted significant exposure;

      f. He failed to assess wind conditions at the refinery which would have
         decreased the risk of exposure;
Mohansingh v. Hess Corporation, Et. Al., SX-06-CV-231

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      g. he relied on studies involving indoor, as opposed to outdoor, exposure;
         and

      h. he failed to quantify Plaintiff’s exposure scenarios and compare them to
         published literature or other air monitoring at the refinery using time
         weighted averages.

   

 at 7 - 13. These factors do not make Spear’s testimony unreliable and in

   some instances Defendant’s factual assertions are contradicted by evidence.

      ¶12    Spear testified that bystander exposure within five (5) feet is similar to

direct exposure, i.e., someone directly handling the material. Ex. B Mot. In Limine

to Exclude (Spear Deposition, p 108). He further testified that one can have

bystander exposure beyond five (5) feet and up to thirty (30) feet, however, the

concentration of exposure decreases. 

. His report indicates that Plaintiff

explained that at times he would “pass by contractors work[ing] on insulated pipe,

including tearing off the insulation.” Ex. 2, p 7. A jury could easily conclude, based

on these facts, that Plaintiff had bystander exposure of well under thirty (30) feet.

Therefore, Defendants’ argument regarding knowledge of the actual distance goes

to weight.     Similarly, Defendants’ argument concerning the duration and

frequency of Plaintiff’s exposure to asbestos goes to weight. The fact is that

Plaintiff and his co-workers testified that post-Hugo clean-up of insulation was a

daily occurrence for three to four months. Ex. 1 Opp. (Spear’s Deposition, p 105).

As such, the absence of duration and frequency specificity does not preclude
Mohansingh v. Hess Corporation, Et. Al., SX-06-CV-231

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admission of the testimony.       Spear’s alleged failure to quantify ambient

background levels of exposure, to assess wind conditions, or compare Plaintiff’s

exposure scenarios to published literature, is likewise a non-factor relative to

admissibility.   Statistics necessary to conduct such analyses, as previously

mentioned, were nonexistent. On the other hand, there is ample evidence in the

record that significant amounts of asbestos-containing materials were at the

refinery. This includes:

      a. documents evincing the use of asbestos-containing materials from
         1965 to 1983;

      b. bulk samples collected between 1982 to 1989 from insulation
         materials used at the facility indicating a prevalence of amosite and
         chrysotile asbestos throughout the facility; and

      c. asbestos abatement records for the refinery from 1995 to 1999.

Ex. 2 Opp. (Spear’s Report, pp 19 - 20). Proof that all of Plaintiff’s encounters

with asbestos products actually released respirable asbestos fibers is not

necessary to support Spear’s conclusion that Plaintiff had direct and bystander

exposure to asbestos during the course of his employment at the refinery. Under

the circumstances here, this Court concludes that Spear’s testimony quite fits the

facts of this case.   Defendants’ arguments are matters more suited for cross

examination and do not make Spear’s conclusion unreliable.
Mohansingh v. Hess Corporation, Et. Al., SX-06-CV-231

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                                 CONCLUSION

      ¶13   Defendants do not challenge Spear’s qualification as an expert; nor

do they challenge his opinion that Plaintiff was not adequately warned about

exposure to asbestos. Instead, they challenge the reliability of the methodology

Spear used to render conclusions regarding Plaintiff’s asbestos exposure and the

fit of his conclusions to the facts of this case. This Court’s task is to judge the

admissibility of Spear’s testimony, not its credibility.   The focus is solely on

principles and methodology, not on the accuracy of conclusions generated by

Spear.   For the reasons mentioned above, this Court concludes that Spear’s

testimony is based on scientific knowledge and will assist the jury in determining

whether Plaintiff was exposed to asbestos during his employment and, if so, to

what extent. The Court further finds that his conclusions are based upon a legally

sufficient factual foundation and is derived from reliable and scientifically sound

principles and methods which he applied to the facts of this case. In short, his

testimony rests on good grounds and should be tested via the adversary process

rather than excluded.     Accordingly, Defendant’s Motion to Exclude Jerome

Spear’s Testimony will be denied. An order consistent herewith will be issued

contemporaneously.
Mohansingh v. Hess Corporation, Et. Al., SX-06-CV-231

Memorandum Opinion
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                                               _________________________
                                               ALPHONSO G. ANDREWS, JR.
                                                 Superior Court Judge
ATTEST:
Tamara Charles
Clerk of the Court

By: ______________
     Court Clerk III

      April 25, 2022
Date: ____________