IN THE SUPERIOR COURT
OF THE VIRGIN ISLANDS

FILED

April 20, 2922 11:01 AM
Sx-2006-CV¥-00231

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

KADAR MOHANSINGH,
Case No. SX-2006-CV-231
Plaintiff Complex Litigation Division
v.
(Grouped under SX-15-MC-198)
HESS CORPORATION and
HESS OIL VIRGIN ISLANDS
CORPORATION,
Defendants.

Cite as: 

MEMORANDUM OPINION
(Filed April 19, 2022)

Andrews, Jr., Judge
INTRODUCTION

fi ~—s— Plaintiff brings this action for damages against defendant oil refinery
companies. He alleges, during their 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 Plaintiffs doctor at the trial of this matter.
They claim his analysis is based on assumptions instead of facts and is
inconsistent with legal principles governing diagnostic procedures. 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

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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), and Litwin Corporation.’ On
March 18, 2022, Defendants Hess and HOVIC filed the instant Motion in Limine to
Exclude the Testimony of Plaintiffs Expert, Dr. Christopher Leigh John and any
evidence related thereto. Defendants requested a Daubert hearing on their
motion. Mot /n Limine to Exclude, p 12. Plaintiff opposed the motion on March
25, 2022. Defendants filed their reply on April 1, 2022. No hearing was held on
the motion.”

RELEVANT FACTS

q3 Plaintiff alleged, during his employment with defendant oil refinery
companies, he was continuously exposed to asbestos products and other toxic
substances due to Defendants’ negligence. Complaint, p 2. As a result of such
exposure, plaintiff 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

4 Litwin Corporation has 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.1. 2016).
Mohansingh v. Hess Corporation, Et. Al., SX-06-CV-231

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Page 3

the American Industrial Hygiene Association. Mot in Limine, Ex. A (Spear’s
Report). Based on his review of Plaintiffs work history, occupational activities,
evidence of exposure, documents and materials in Plaintiffs case and 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) Plaintiffs direct and bystander exposure likely resulted in contamination
to his clothing. Secondary exposure from wearing contaminated clothing
contributed to Plaintiffs 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 asbestos from TSI, asbestos cement pipe, gaskets
and packing were significant sources of his exposure. Asbestos
released from these products increased his dose, which in turn,
Mohansingh v. Hess Corporation, Et. Al., SX-06-CV-231

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Page 4
significantly increased his risk of contracting an asbestos-related
disease.

.

LEGAL STANDARD
14 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.ILR.E. 702. In Daubert v. Merrell Dow Pharmaceuticals, 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
Mohansingh v. Hess Corporation, Et. Al., SX-06-CV-231

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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-
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.

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

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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, 

 (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).

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

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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).
LEGAL ANALYSIS
15 Defendants seek to exclude testimony of Christopher L. John, M.D.

as well as all evidence that refers to his testimony or analysis. They challenge his
testimony on two grounds: 1) his opinions are based on unsupported facts
regarding Plaintiffs asbestos exposure; and 2) Dr. John failed to complete a
differential diagnosis or perform any evaluation to rule out other possible causes
of Plaintiff's symptoms, hence his analysis is inconsistent with legal principles
governing diagnostic procedures. Mot. /n Limine to Exclude, pp 1 - 2.

A. Dr. John’s Conclusions Were Based on Adequate Data.

Defendants assert that Dr. John’s report is not based on adequate data
because:
a. The report depends on Plaintiffs exposure history derived solely from

Plaintiff's own description of periodic exposure to what may have been
asbestos.
Mohansingh v. Hess Corporation, Et. Al., SX-06-CV-231

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b. Dr. John failed to verify whether Plaintiff in fact experienced exposure
over a prolonged period of time and whether Plaintiff was in fairly close
contact to asbestos.

c. Dr. John failed to consider the fact that Plaintiff never told his doctors he
believed he had been exposed to asbestos.

d. Dr. John’s analysis was based on unsubstantiated assumptions about
Plaintiff's exposure.

e. Dr. John could not confirm that the dust to which Plaintiff was exposed
contained asbestos.

f. Dr. John failed to include any analysis of dosage (level of exposure) in
his analysis.

id.pp5-—7. Each of these challenges attack the quality, reliability, and sufficiency
of asbestos exposure evidence. In this regard, the evidence Dr. John relied upon
include:

a. Plaintiffs statements that he worked with asbestos piping, asbestos
insulation and dust created by himself, his supervised workers and other
refinery workers near him removing and replacing insulation with no
appropriate safety measures taken.

b. Plaintiffs statements that he was exposed to Sorbant C used to control
oil spills, which was spread in the form of a powder creating clouds of
dust.

c. Report by Jerome Spear.

Ex. A Mot. /n Limine to Exclude (Dr. John’s 2/22/22 Report). Based on these

exposures, Dr. John concluded that Plaintiff “was subject to significant exposure

to asbestos dust and materials at the Hess refinery over a prolonged period of
Mohansingh v. Hess Corporation, Et. Al., SX-06-CV-231

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time.” 

In a February 28, 2022, report, Dr. John referenced further details

regarding Plaintiffs exposure as a result of an interview:

a.

Plaintiff assisted in connecting hoses, cleaning asbestos pipes and
gaskets, and repairing asbestos insulation on piping in addition to
replacing gaskets.

Masks were occasionally provided, but not continuously so.

Between 1970 through 1981 Plaintiff worked at the docks and on pipes
in tank fields, known as “The Terminal.”

. After being promoted to leadman he was more actively involved in the

actual repair of pipes and gaskets and was exposed to clouds of
asbestos dust.

His work included sandblasting, metal grinding, and welding flux
exposure. Occasionally disposable cloth masks were used.

Plaintiff engaged in cleanup work after Hurricane Hugo from 1989 to
1992.

Cleanup involved picking up and removing asbestos debris, insulating
materials and depositing them in a pickup truck, which created
substantial amounts of dust.

Ex. B Mot. in Limine to Exclude (Dr. John’s 2/28/22 Report). Jerome Spear’s

report included the following findings considered by Dr. John:

a.

Documents reviewed indicate that during the approximate years of 1965
to 1983, asbestos-containing materials were used at the HOVIC refinery.

Asbestos cloth and blankets were generally used around the heaters for
the purpose of insulating for fire.

Bulk samples collected (1982-1999) from insulation materials used in the
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refinery indicate a prevalence of amosite and chrysotile asbestos
throughout the facility.

d. Asbestos abatement records for the Hess Oil St. Croix refinery from
1995-99 timeframe further demonstrate the vast amounts of asbestos
insulation used at the refinery, including the terminal area and tank fields.

e. Plaintiff was exposed to asbestos when helping to clean-up insulation
debris in the terminal area of the refinery after Hurricane Hugo, as a
bystander from being in close proximity to other workers, and when
replacing asbestos-containing gaskets and packing in the terminal area.

f. Plaintiff was subject to secondary exposure from wearing contaminated
clothing.

Opp. to Mot. in Limine to Exclude, p 6 n 26 (Ex. 2 Opp. to Mot. to Exclude
Testimony of Jerome Spear [Spear's Report — 2/22/22, pp 19 — 21, 62]). Dr. John
opined that Plaintiff “nas evidence of asbestos related lung disease consisting of
bilateral parenchymal fibrosis diagnostic of asbestos and bilateral pieural disease
diagnostic of asbestos related pleural disease.” Ex. A Mot. In Limine to Exclude
(Dr. John’s 2/22/22 Report).

{6 Contrary to Defendants’ assertion, Dr. John’s report did not rely solely on
Plaintiffs description to determine Plaintiffs exposure to asbestos. He also
determined Plaintiffs exposure through review of Jerome Spear’s report, his
physical examination of Plaintiff which included a pulmonary test and a review of
Plaintiff's medical records. Ex. A, Opp. to Mot. /n Limine to Exclude (Deposition of

Dr. John, 3/3/22, pp 14, 35-36, 78-79). Also contrary to Defendants’ assertion,
Mohansingh v. Hess Corporation, Et. Al., SX-06-CV-231

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the evidence listed above was sufficient to conclude that Plaintiff was exposed
over a prolonged period of time and was in close contact to asbestos. Plaintiffs
failure to tell his doctors that he believed he had asbestos exposure does not alter
the evidence of his exposure. Such evidence went beyond assumptions. It was
corroborated through evidence of pleural plaques in Plaintiff, Dr. John’s
examination, and Jerome Spear’s report which considered documents verifying
Defendants’ use of asbestos containing materials and Defendants’ asbestos
abatement records.

17 Further, Dr. John agreed that “the dose of asbestos required to induce
pulmonary fibrosis is relatively high, and usually acquired over at least several
years of exposure in the workplace.” Ex. A (Dr. John's Deposition 3/3/22) p 15,
Opp. to Mot. /n Limine to Exclude. He also explained that “I think that some
patients seem to be prone to develop features of asbestosis with what appears to
have been a lesser exposure than the classic literature would suggest. So | think
there’s a degree of individual response to these fibers, but in general, you would
expect them to have a significant exposure over a prolonged period of time.” 

In light of this, Defendants’ argument that Dr. John could not confirm that the dust
to which Plaintiff was exposed contained asbestos, and that he did not include an

analysis of dosage, are factors that impact the weight to be attributed to his
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testimony rather than its admissibility. Under the circumstances, the Court finds
the principles and methodology applied by Dr. John to be reliable even if one may
disagree with his conclusions. See Daubert, 

 (“the focus . . . must
be solely on principles and methodology, not on the conclusions that they
generate.”). He considered sources beyond Plaintiffs statements as explained
above. Dr. John performed a qualitative-type analysis and made reasonable
calculations since performing a precise quantitative one was impossible. His
approach is not unique and has been found reliable by other courts as explained
below.

"8 The United States District Court of Pennsylvania upheld a similar

methodology in In re Asbestos Prods. Liab. Litig., it held

When it is impossible to calculate actual exposure levels, the
mere fact that an expert makes reasonable calculations to support
his opinion is not enough to render that opinion unreliable. Dr. Dyson,
using his knowledge and experience, applied an accepted
methodology to information garnered from Ms. Larson's medical
records, deposition testimony and answers to discovery requests,
and reached conclusions that reliably flow from the available data
and methodology. To the extent that Defendants believe that Dr.
Dyson's calculations are based on inaccurate evidence or otherwise
are in error, such concerns can be addressed through cross-
examination and/or rebuttal evidence. However, they do not provide
a basis for finding his opinions unreliable within the meaning of Rule
702.

, 545 (E.D. Pa. 2010). Similarly, in Inre Asbestos, the United
Mohansingh v. Hess Corporation, Et. Al., SX-06-CV-231

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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
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).

Finally, in Baldonado vy. Wyeth, the United States District Court

admitted testimony premised upon the expert’s reliance on symptomology in the

absence of measurement levels. It stated:

Although Dr. Naftalis relies on a "qualitative evaluation,” rather than a
quantitative assessment, Defendant offers no persuasive reason to
suggest that her qualitative analysis lacks reliability for purposes of
admissibility under Daubert, citations omitted ("Even though we didn't
have a measurement of levels, we know from her symptomology, and
we know from the fact that she didn't have withdrawal bleeding.").

, No. 04 C 4312, at *45 — 46 (N.D. Ill. May 31, 2012).

This Court thus concludes that the entirety of Defendants’ attack on the adequacy

of the data relied upon by Dr. John goes to weight and raises issues for the jury to
Mohansingh v. Hess Corporation, Et. Al., SX-06-CV-231

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determine. FTC v. Innovative Designs, Inc., 

, No. 2:16-cv-

1669, at *6-7 (W.D. Pa. 2019) (stating, “moreover, challenges to the factual
foundation of expert opinions such as the ones raised by FTC go to the
weight of such testimony which is more appropriately addressed through
cross-examination at trial.”). There is a sufficient factual basis in the record to

support Dr. John’s conclusions and hence his testimony should not be excluded.

B) The Failure To Perform a Differential Diagnosis Does Not Warrant
Exclusion of Dr. John’s Testimony.

19 Defendants assert that Dr. John failed to complete a differential
diagnosis to verify his initial assessment. Mot. in Limine to Exclude, p 8. They
argue that such a diagnosis was required to rule out other potential causes of
Plaintiffs symptoms such as asthma and obesity. 

. Dr. John, they assert,
failed to complete a CT scan or administer a methacholine test to verify his
conclusions. 

.

qi0 Atthe outset, the Court notes that a differential diagnosis analysis “is
not required to satisfy Daubert.” Sampson v. Carnival Corp., 

, No. 15-2439-Civ-KING/TORRES, at *18 (S.D. Fla. Dec. 16,2016). The

Arizona district court so found in Ericson v. City of Phoenix. It stated:

Thus, City Defendants argue that because Ms. Downing cannot rule
out other causes of Decedent's death through a differential diagnosis,
her testimony should be excluded. While “a reliable differential
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diagnosis passes muster under Daubert," (citations omitted), City
Defendants cite to no case law indicating that Daubert requires a
reliable differential diagnosis. While a differential diagnosis may
muster more credibility, general causation testimony regarding a
potential cause of death may still be helpful to a jury in certain cases—
and, therefore, be admissible. As relevant here, Ms. Downing will
opine that certain forms of strangulation are capable of causing the
injuries suffered by Decedent. The Court finds Ms. Downing's
testimony to be helpful and, thus, relevant.

, No. CV-14-01942-PHX-JAT, at *16-17 (D.C. Ariz.
Nov. 2, 2016). Of significance here is Dr. John’s testimony that the most common
manifestation of asbestos exposure is pleural plaque; and “asbestos, as | say, is
considered to be the primary source of pleural plaque.” Ex. A, p 107-08 (Dr. John’s
Deposition — 3/3/22), Opp. to Mot. in Limine to Exclude. He further explained that
he wanted to do a test to rule out asthma (i.e., the methacholine test) but Plaintiff
could not complete it. 

. The purpose was to rule out the shortness of
breath, but he did not think it would have any impact of Plaintiff's radiological
features. 

. If a test came back negative for asthma, he explained, it
would be a separate diagnosis as Plaintiff has more then one disease process

causing shortness of breath. However, Dr. John concluded, that would not cause

pleural changes or parenchymal changes. 

. See, Brathwaite v. Xavier,

71 V.1 1089, 1098-99 (V.I. 2019) (stating, “even to the extent that the negative test

results can be said to conflict with Dr. Weisher's opinions based on Brathwaite’s
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subjective complaints, the existence of conflicting evidence does not render the
opinions inadmissible. Rather, Brathwaite was entitled to have the jury weigh for
itself the apparently conflicting evidence and reach its own determination as to the
credibility of Dr. Weisher's conclusions.). Under these circumstances, the
absence of an asthma test does not impact the reliability nor admissibility of Dr.
John’s conclusions. Further, Dr. John explained that “based on the ILO
recommendations, you know, they haven’t standardized the CT findings, and so
we're stuck with using an x-ray to make the diagnosis.” 

. The failure to
conduct a CT test is thus not contrary to industry practice, nor Dr. John’s
methodology.

{111 Defendants cites to Pritchard v. Dow Agro Scis., 

,

491 in support of their assertion that “Dr. John’s failure to employ standard
alternative assessment methodologies such as a CT scan or methacholine test
merits his exclusion.” Mot. /n Limine to Exclude, p 10. At best, Pritchard stands
for the proposition that “an expert must rule out obvious alternative causes and
address the plausible alternative causes proposed by a defendant, explaining why
the initial opinions remain reliable in light of the proposed alternative causes.” 

. However, this is what Dr. John did. He acknowledged that asthma or

obesity could cause shortness of breath. He nevertheless explained that his
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conclusion linking pleural plaques to asbestosis remains. Further, even the
Pritchard court stated that it was error to exclude expert testimony on the basis
that an expert failed to rule out “all” alternative possible causes when conducting
a differential diagnosis. 

 at490. Dr. John’s methodology was thus scientifically
sound.
CONCLUSION

(12 Defendants do not challenge Dr. John’s qualification as an expert.
Instead, they challenge the reliability of his, conclusions, the methodology
employed and the sufficiency of his factual basis. For the reasons mentioned
above, this Court concludes that Dr. John’s testimony is based on scientific
knowledge and will assist the jury in determining the cause of Plaintiff's symptoms.
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. 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 Dr. Christopher John’s Testimony will

be denied. An order consistent herewith will be issued contemporaneously.
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DATED: April 20, 2022

ALPHONSO G. ANDREWS, JR.

ATTIEST: Superior Court Judge
Tamara Charles
Clerk of the Court

a SS

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By:

Cour erk IJI
Date: —