On February 22, 2021, Justin Demary was working for Freedom Trucks of America, LLC (“Freedom Trucks”). He was asked to wash out a tank truck owned by Freedom Trucks. It appears that there is a dispute as to whether Justin was asked to wash the tank truck, or he entered the tank truck of his own volition, or at the behest of his friend and co-worker, Dustin Wynn. Justin and Wynn were unaware that the tank truck had been purged with nitrogen at the Vopak Terminal Deer Park facility (“Vopak Terminal”) because no warning tag was placed on the tanker by Vopak North America, Inc. (“Vopak”). Again, this is a disputed fact; a Vopak employee has testified that he did place a warning tag on the tank truck.
Vopak operates a storage facility at which Freedom Truck had a liquid chemical cargo removed from the tanker about a month before Justin’s accident. The tanker was then transported back to Freedom Truck’s yard on or about January 27, or January 28, 2021, where it sat dormant until the date of the accident.
Justin entered the tanker to perform the task but could not breath. He passed out and died of asphyxiation. Justin’s parents and only heirs, Daniel and Tammy Demary, have filed this wrongful death action against several Defendants for the death of their son.
Motion to Exclude
Vopak Terminal had hired Dr. Pablo Sanchez-Soria as an expert toxicologis/pharmacologist who is anticipated to testify that the level of cannabinoids and THC metabolites in Justin’s blood far exceeded the threshold for impairment. As such, Justin’s alleged impairment contributed to his decision to enter the tanker and his ultimate death.
Plaintiffs requested that the Court exclude Soria’s testimony related to cannabis and workplace deficiencies at Freedom Trucks pursuant to Rule 702 of the Federal Rules of Civil Procedure and Daubert.
Toxicology Expert Witness
Pablo Sanchez-Soria is a Senior Toxicologist and Director of Health Sciences at CTEH® specializing in risk and exposure assessment, toxicity evaluations, emergency response toxicology, and in evaluating relationships between chemical exposure and disease causation. He has a double major in microbiology and nutritional sciences and a PhD in pharmacology and toxicology. He has been involved in the practice of toxicology and industrial hygiene and has specialized in quantitative exposure reconstruction of occupational and environmental hazards.
Soria has served as a consulting toxicologist and industrial hygienist, and has developed plans to protect workers and communities from chemical exposure. Additionally, as a practicing toxicologist, he has evaluated the impairment and risk-perception impacts associated with the use of alcohol, and recreational, illicit and prescription drugs. He routinely conducts disease causation analysis by evaluating the scientific evidence relating chemical exposures to human diseases according to the methodology of toxicological causation analysis. Soria’s curriculum vitae lists numerous publications and presentations related to the study of toxicology, several of which relate to the effects of toxicants on the human body.
Discussion by the Court
Vopak’s defense in this case is that Justin’s death was caused by his own negligence and by the negligence of his employer, Freedom Trucks. Soria opines as to the following in his report:
1. The use of cannabis is associated with impaired cognitive function and physiological response, including impairments in decision-making, risk-taking, balance, coordination, reaction time, spatial perception which may increase the risk of being involved in an accident due to impaired cognitive and motor skills. These impairments are associated with blood concentrations of cannabis and its metabolites in a dose-dependent manner.
2. The presence and concentration of cannabis and its metabolites, 11-OH-THC in Demary’s blood sample results are useful indicators that he would have recently consumed (inhaled or ingested) cannabis.
3. Demary’s employer did not properly establish industrial hygiene measures to control workplace hazards, highlighting a disregard for established safety protocols and the well-being of their employees.
Qualifications
Plaintiffs argued that Vopak cannot meet its burden to show that Soria has the requisite qualifications to opine on medical toxicology and the alleged impairment due to cannabis use. Plaintiffs pointed out that Soria’s education was focused on pharmacology and toxicology, but he is not a medical doctor, nor has he disclosed any specific training on medical toxicology or the effects of cannabis on the human body and any alleged impairment. It was noted that Soria has not authored any publications nor made any presentations regarding cannabis and its effect.
Soria reviewed the NMS Labs toxicology report that established that Justin’s blood levels of THC were reported to be 9.9 ng/mL. Soria concluded that it was more likely than not that Justin was suffering from motor and cognitive impairments that may have contributed to his demise as a result of poor decision making. His report seeks to provide insight into effects that the specific amount of THC discovered in Justin’s bloodstream would likely have had on his body and mind while conscious, but makes no effort to challenge medical opinions or the cause of Justin’s death. The Court found that Soria is qualified to testify as an expert as to the effect of THC on the mind and body.
Relevancy
Defendants argued that Soria’s testimony is relevant because the evidence and facts—lab results, autopsy reports, testimony relating to marijuana use and chemical inhalation, etc.—involve complicated scientific issues, which, if brought before a jury without further explanation, are highly likely to leave the trier of fact confused and unable to reach a well-informed conclusion. Hence, Soria’s testimony is necessary to assist a jury in understanding that based upon science, the level of cannabinoids in a human system can make one impaired and have poor judgment. Defendants noted that precedential authority almost unanimously vouches for the admission of a toxicologist’s testimony to assist the trier of fact in understanding complex topics rooted in science, especially toxicology. Defendants cite to numerous cases that have held that evidence of impairment is relevant, admissible, and important to the issue of contributory negligence.
Additionally, Defendants cite to numerous cases in which toxicologists are routinely allowed to testify about failed drug tests and the impairment of the drug-user.
Defendants also noted that Justin’s supervisor, Mark Francis, testified that Justin was never directed to enter the tank, and that 90 percent of tank cleanings are never done on the interior. It appeared that Defendant is attempting to show that Justin entered the tank of his own volition, entering the tank was a departure from protocol, and collectively revealed a pattern of erratic and irrational decision making by Justin. The Court found that Soria’s opinion as to Justin’s levels of THC and possible impairment is relevant.
Reliability
Plaintiff argued that Soria’s opinions as to Justin’s cannabis use and timing are inadmissible because they are based on unreliable and incomplete information.
Plaintiffs complained that Soria does not reference Justin’s height, weight, or body habitus to discuss the effects that could have occurred in Justin due to cannabis ingestion, nor can he suggest the timing as to when Justin ingested cannabis. Plaintiffs fault Soria for the lack of evidence to establish the timing and as such, argued that Justin’s cannabis impairment cannot be verified. It was also noted that cannabis is not listed on the death certificate as a cause of death in the autopsy.
Defendants remarked that the countless cited scientific methods can be applied to the facts of this case, and Soria details how the science of toxicology can tie together various case materials to offer a viable explanation for Justin’s behavior at the time of the incident.
The Court found that Soria’s opinions are supported by peer-reviewed scientific studies and facts such as the lab results and deposition testimony. As such, a rigorous cross-examination would be the proper vehicle to challenge Plaintiffs’ objections as opposed to excluding the expert’s testimony.
Held
The Court denied the Plaintiffs’ motion to exclude the opinions of Defendant’s expert witness Pablo Sanchez Soria.
Key Takeaway:
As a practicing toxicologist, Soria has evaluated the impairment and risk-perception impacts associated with the use of alcohol, and recreational, illicit and prescription drugs. Considering that, the Court held that Soria’s opinion as to Justin’s levels of THC and possible impairment is relevant. His report seeks to provide insight into effects that the specific amount of THC discovered in Justin’s bloodstream would likely have had on his body and mind while conscious, but makes no effort to challenge medical opinions or the cause of Justin’s death.
Case Details:
| Case Caption: | Demary V. Freedom Trucks of America LLC |
| Docket Number: | 2:22cv792 |
| Court: | United States District Court, Louisiana Western |
| Order Date: | December 6, 2024 |
Leave a Reply