February 24, 2011 – Connie Lea Gibson Andrews, Individually and as Personal Representative of Tommy Lindell Andrews, Deceased v. United States Steel Corporation, Chevron U.S.A., Inc., Conoco Phillips Company, and Radiator Specialty Co., Nos. 29,136 and 29,336

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ______________
Filing Date: February 24, 2011
NOS. 29,136 and 29,336
(consolidated)
CONNIE LEA GIBSON ANDREWS,
Individually and as Personal Representative
of TOMMY LINDELL ANDREWS,
Deceased,
Plaintiff-Appellant,
v.
UNITED STATES STEEL CORPORATION,
CHEVRON U.S.A., INC., CONOCOPHILLIPS
COMPANY, and RADIATOR SPECIALTY
COMPANY,
Defendants-Appellees.
APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
Gary L. Clingman, District Judge
Tucker Law Firm, PC
Steven L. Tucker
Santa Fe, NM
Marion J. Craig, III PC
Marion J. Craig, III
Roswell, NM

Heard, Robins, Cloud & Black, LLP
J. Robert Black
Houston, TX
Daryl L. Moore, P.C.
Daryl L. Moore
Houston, TX
for Appellant
Hinkle, Hensley, Shanor & Martin, L.L.P.
Richard E. Olson
Rebecca Nichols Johnson
Roswell, NM
Forman, Perry Watkins Krutz & Tardy, L.L.P.
Phillip S. Sykes
Lea Ann Smith
Tim Gray
Jackson, MS
Coats Rose
James M. Riley, Jr.
Stacy K. Yates
Houston, TX
Abrams, Scott & Bickley, L.L.P.
Robert P. Scott
Houston, TX
for Appellees

OPINION
VIGIL, Judge.
{1} 	This is a toxic tort case. 	The district court granted Defendants’ motion to
exclude the testimony of Plaintiff’s experts pursuant to Daubert v. Merrell Dow
Pharmacueticals., Inc., 509 U.S. 579 (1993), and State v. Alberico, 116 N.M. 156, 861
P.2d 192 (1993), granted summary judgment in favor of Defendants, and awarded
Defendants expert witness fees and costs. We affirm.
BACKGROUND
Facts
{2} 	Decedent worked as a farmer and rancher for approximately twenty-four years,
from 1947 through 1971. During this time, Decedent worked with equipment and
machinery and various products associated with the operation, cleaning, and
maintenance of the equipment and machinery, which included gasoline and a product
known as Liquid Wrench. Decedent used the gasoline to clean machinery parts in the
field and in his shop, and he used the Liquid Wrench to loosen rusted and frozen
equipment parts. In November 2004, Decedent was diagnosed with Myelodysplastic
Syndrome (MDS), also known as acute mylegenous leukemia (AML), and he died on
February 5, 2005. 	Plaintiff is the surviving widow of Decedent, and she sued
Defendants, alleging that benzene in the gasoline and Liquid Wrench they supplied
or manufactured caused Decedent’s MDS and death.

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Summary Judgment Proceedings in the District Court
{3} 	Plaintiff designated Dr. Mark Nicas, an industrial hygienist, as her expert to
estimate Decedent’s exposure to benzene from Defendants’ products. 	In addition,
Plaintiff designated Dr. Frank Gardner, a hematologist, to testify that Decedent’s form
of MDS was caused by his exposure to the benzene.
{4} 	Defendants filed a motion to exclude the testimony of Dr. Nicas and a motion
to exclude the testimony of Dr. Gardner. These motions were supported by excerpts
from depositions, exhibits from depositions, affidavits of witnesses, and affidavits of
experts, with references to pertinent scientific literature, studies, and techniques.
Plaintiff responded to these motions, supported in the same way. After Defendants
filed their reply in support of the motions, the district court held a Daubert/Alberico
evidentiary hearing at which the parties were given an opportunity to present
additional evidence in support of their respective positions. We commend the parties
and the district court for their full development of an intelligent and understandable
record of the complex issues presented.
{5} 	Defendants also filed a motion for summary judgment on causation alleging
that the methodology used by each expert was fatally flawed, and their opinions were
therefore inadmissible under Rule 11-702 NMRA. 	On this basis, Defendants
contended they were entitled to summary judgment because, “[o]nce the testimony of
Plaintiff’s experts is excluded, there is no evidence to support causation in this case.”

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{6} 	The district court ruled that the testimony of Dr. Nicas and Dr. Gardner was
inadmissible, filed findings of fact and conclusions of law, and granted summary
judgment in favor of Defendants. On appeal, Plaintiff contends that the district court
abused its discretion in striking the testimony of Dr. Nicas and Dr. Gardner. Thus,
Plaintiff asserts, genuine issues of material fact exist on diagnosis and causation, and
Defendants were not entitled to summary judgment. 	Plaintiff also challenges the
award of expert witness fees and costs.
DISCUSSION
{7} 	The primary issue in this case is whether Defendants were entitled to summary
judgment. 	In deciding this question, we must determine whether the district court
abused its discretion in striking the testimony of Dr. Nicas and Dr. Gardner under
Daubert/Alberico, because without their testimony, Plaintiff cannot establish a prima
facie case. 	We also discuss whether the district court abused its discretion in the
award of expert witness fees and costs.
I. 	The Summary Judgment Award
{8} 	To determine whether summary judgment was proper, we discuss: (A) proof
of 	causation 	in 	a 	toxic 	tort 	case; 	(B) 	Rule 	11-702 	and 	the 	application 	of
Daubert/Alberico; (C) our standard of review of a district court order excluding expert
witness testimony under Daubert/Alberico; (D) the district court order excluding the
testimony of Dr. Nicas; and (E) the district court order excluding the testimony of Dr.

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Gardner.
A. 	Proof of Causation in a Toxic Tort Case
{9} 	“Scientific knowledge of the harmful level of exposure to a chemical, plus
knowledge that the plaintiff was exposed to such quantities, are minimal facts
necessary to sustain the plaintiffs’ burden in a toxic tort case.” 	Allen v. Pa. Eng’g
Corp., 102 F.3d 194, 199 (5th Cir. 1996). Therefore, to establish cause in a toxic tort
case, the evidence must show both “general causation” and “specific causation.” See
Norris v. Baxter Healthcare Corp., 397 F.3d 878, 881 (10th Cir. 2005) (discussing
causation in toxic tort cases in terms of general causation and specific causation).
“General causation is whether a substance is capable of causing a particular injury or
condition in the general population and specific causation is whether a substance
caused a particular individual’s injury.” Id. at 881; see also Federal Judicial Center,
Reference Manual on Scientific Evidence, Reference Guide on Medical Testimony,
481, 	483 	(2d. 	ed. 	2000) 	(stating 	that 	“[g]eneral 	causation 	is 	established 	by
demonstrating (usually by reference to a scientific publication) that exposure to the
substance in question causes (or is capable of causing) disease” and that “[s]pecific,
or individual, causation is established by demonstrating that a given exposure is the
cause of an individual’s disease”).
{10} 	These principles were enunciated by Dr. Richard D. Irons in an affidavit filed
on behalf of Defendants. 	As a toxicologist with an extensive background in

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hematology, he said: 	“[I]n order to evaluate the potential risks of adverse health
effects associated with exposure to a drug or chemical one has to know the actual dose
of the substance that is absorbed and compare that dose to those shown to cause
adverse health effects as well as to doses that have not been shown to result in adverse
health effects.”
B. 	Rule 11-702 NMRA and the Application of Daubert/Alberico
{11} 	The admission of all expert testimony in our courts is governed by Rule 11-
702, which is entitled: “Testimony by experts.” The rule states:
If scientific, technical or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experience, training
or education may testify thereto in the form of an opinion or otherwise.
The three prerequisites for the admission of expert testimony under the rule are: (1)
the witness must be qualified as an expert; (2) the specialized testimony must assist
the trier of fact; and (3) the expert witness testimony must be limited to scientific,
technical, or other specialized knowledge in which the witness is qualified. Alberico,
116 N.M. at 166, 861 P.2d at 202. The burden is on the party offering the evidence
to satisfy these requirements. 	State v. Morales, 2002-NMCA-052, ¶¶ 21, 23, 132
N.M. 146, 45 P.3d 406.
{12} 	The parties do not dispute the qualifications of Dr. Nicas and Dr. Gardner, nor
is there a dispute that their testimony, if admissible, would assist the trier of fact. The

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dispute in this case centers on whether the opinions of Dr. Nicas and Dr. Gardner are
reliable and therefore admissible as scientific knowledge under Alberico’s third
prerequisite. See State v. Fuentes, 2010-NMCA-027, ¶ 23, 147 N.M. 761, 228 P.3d
1181, cert. denied, 2010-NMCERT-002, 147 N.M. 704, 228 P.3d 488 (stating that the
reliability requirement for the admission of scientific evidence under Daubert
implicates the third prerequisite).
{13} 	Where expert testimony concerns scientific knowledge, the proponent of the
testimony must establish the reliability of the science and methodology on which it
is based. In Alberico, 116 N.M. at 165-68, 861 P.2d at 200-04, our Supreme Court
abandoned the “general acceptance” test of Frye v. United States, 293 F. 1013, 1014
(D.C. Cir. 1923), in favor of the more flexible Daubert test for determining if expert
opinion evidence involving scientific knowledge is reliable and therefore admissible
under Rule 11-702. In adopting this test, our Supreme Court “established that it is
error to admit expert testimony involving scientific knowledge unless the party
offering such testimony first establishes the evidentiary reliability of the scientific
knowledge.” State v. Torres, 1999-NMSC-010, ¶ 24, 127 N.M. 20, 976 P.2d 20. The
party proposing to introduce expert scientific testimony into evidence must satisfy the
threshold requirement for admissibility; namely, that the testimony is reliable because
it is grounded in established scientific principles or methods. See Alberico, 116 N.M.
at 167-68, 861 P.2d at 203-04 (discussing that our courts consider “whether the

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scientific technique is based upon well-recognized scientific principle and whether it
is capable of supporting opinions based upon reasonable probability rather than
conjecture”). 	“[I]n New Mexico, evidentiary reliability is the hallmark for the
admissibility of scientific knowledge.” Torres, 1999-NMSC-010, ¶ 26.
{14} 	The proponent of the scientific evidence is required to establish by a
preponderance of the evidence that the testimony is reliable, and therefore admissible,
but not that the testimony must be believed. Moore v. Ashland Chem., Inc., 151 F.3d
269, 276 (5th Cir. 1998). 	To determine whether the proposed expert testimony is
reliable, the district court considers a non-exclusive list of factors. These include: (1)
whether the theory or technique can be, and has been, tested; (2) whether the theory
or technique has been subjected to peer review and publication; (3) the known
potential rate of error in using a particular scientific technique and the existence and
maintenance of standards controlling the technique’s operation; (4) whether the theory
or technique has been generally accepted in the particular scientific field; and (5)
whether the scientific technique is based upon well-recognized scientific principle and
whether it is capable of supporting opinions based upon reasonable probability rather
than conjecture. State v. Anderson, 118 N.M. 284, 291, 881 P.2d 29, 36 (1994).
C. 	Standard of Review
{15} 	Whether evidence involves scientific knowledge, which must satisfy the
standard of evidentiary reliability set forth in Daubert/Alberico, presents a question

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of law that is reviewed de novo. Torres, 1999-NMSC-010, ¶ 28. The district court’s
application of the Daubert-Alberico factors is reviewed for abuse of discretion. State
v. Tollardo, 2003-NMCA-122, ¶ 16, 134 N.M. 430, 77 P.3d 1023. Moreover, when
all the applicable factors are considered, the admission or exclusion of the expert
scientific testimony is within the discretion of the district court and will not be
reversed on appeal absent a showing of abuse of that discretion. Alberico, 116 N.M.
at 169, 861 P.2d at 205.
D. 	Opinion of Dr. Nicas
{16} 	Plaintiff designated Dr. Mark Nicas, an industrial hygienist, as her expert to
establish Decedent’s level of benzene exposure. 	Dr. Nicas calculated both an
inhalation and dermal exposure for gasoline and Liquid Wrench. Inhalation exposure
measures the amount of inhaled evaporated benzene, while dermal exposure measures
the amount of benzene absorbed through the skin. Dr. Nicas calculated that Decedent
had a total cumulative benzene exposure from gasoline and Liquid Wrench of 55 parts
per million-years (ppm-years). A ppm-year is the calculation of a dose measurement
used by industrial hygienists and health agencies that measures the amount of
exposure to a product over a period of time. Epidemiology studies report statistically
significant elevations AML at cumulative exposures to benzene of 45-200 ppm-years.
In this case, the total 55 ppm-year figure was arrived at by adding Decedent’s
calculated inhaled exposure to benzene from gasoline and Liquid Wrench of 2.23

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ppm-years, (1.92 ppm-years from gasoline; 0.30 ppm-years from Liquid Wrench) and
his calculated dermal exposure to benzene from gasoline and Liquid Wrench of 52.75
ppm-years (45.3 ppm-years from gasoline and 7.45 ppm-years from Liquid Wrench).
{17} 	The methodology Dr. Nicas used to calculate Decedent’s inhaled exposure to
benzene is not challenged. We therefore turn to the methodology used to calculate
Decedent’s dermal absorption of benzene. 	Dr. Nicas used three parameters to
calculate the amount of benzene absorbed by Decedent through his skin: (1) the “flux
rate” (or “flux parameter”) of benzene, (2) the surface area of the skin exposed to
benzene, and (3) the duration of the contact between the skin and benzene. The “flux
rate” refers to the estimated rate at which a substance is absorbed through the skin into
the bloodstream. Based upon deposition testimony that Decedent had “red and peely”
skin rashes, that Decedent’s hands were red and chapped from gasoline contact and
working in the fields, and that he did not wear gloves when cleaning with gasoline,
Dr. Nicas calculated that Decedent absorbed benzene at a rate five times greater
(500%) than through healthy skin. The calculation then used the average area of an
adult male’s hands for the surface area of exposure. For the duration of the contact,
Dr. Nicas relied on an affidavit of Decedent’s son.
{18} 	The district court excluded Dr. Nicas’ opinion, concluding that the dermal
absorption methodology he utilized was not scientifically valid or reliable. In arriving
at its conclusion, the district court directed most of its criticism to the methodology

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Dr. Nicas used for calculating the flux rate of benzene through live human skin. For
example, the district court found: (1) flux rates for benzene have no known error rate,
reliability, or reproducibility; (2) there is no method for calculating the absorption rate
of benzene as a constituent part of a solvent mixture such as gasoline and Liquid
Wrench; (3) Dr. Nicas’ reliance on a study to increase the benzene absorption rate by
500% is flawed; (4) the dermal absorption of benzene cannot reliably be combined
with inhalation exposure to benzene for a total exposure estimate; and (5) the dermal
flux model used by Dr. Nicas to calculate the amount of benzene that was absorbed
by Decedent has not been tested, has not been validated or reproduced, and it is
unreliable.
{19} 	It is not necessary for us to determine whether the district court properly
excluded Dr. Nicas’ testimony pursuant to Daubert-Alberico on grounds that the
methodology he used to calculate the flux rate of benzene through live, human skin
is not scientifically valid and reliable. It is not necessary because a critical component
of 	the 	analysis—the 	duration 	of 	the 	contact 	between 	Decedent’s 	hands 	and
gasoline—is unmistakably flawed and unreliable.
{20} 	In his report, describing the amount of time Decedent’s hands were in gasoline,
Dr. Nicas stated:
To estimate benzene exposure assuming high usage of gasoline, I relied
on the affidavit of Mr. Terry Andrews dated May 8, 2008. According to
the affidavit, [Decedent]: 	(i) used rags soaked with gasoline to clean

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equipment for 10 minutes in the morning, six days a week; (ii) used rags
soaked with gasoline to clean equipment for 10 minutes in the afternoon,
two days a week; (iii) cleaned parts with a wire brush that were soaking
in gasoline in a tray for 30 minutes once a week; and (iv) cleaned parts
in the field for 15 minutes, three times a week, by pouring gasoline over
the parts. According to the affidavit, [Decedent] did not wear gloves,
and both hands were wet with gasoline during the entire time these tasks
were performed. 	Therefore, I assumed the total time per week spent
cleaning equipment with gasoline was 155 minutes (60 + 20 + 30 + 45
= 155 min), and that these cleaning tasks were done for 48 weeks per
year. According to Mrs. Connie Andrews, the harvest “season” lasted
eleven months (page 240, Connie Andrews deposition, December 11,
2007); this included months when the fields were being prepared for
planting. I assumed that the entire skin surface of both hand[s] were wet
with gasoline; Mr. Terry Andrews did not say that only parts of the
hands were wet.
Thus, the Nicas calculation depends on both of Decedent’s hands being immersed in
gasoline slightly over 2.5 hours per week, 48 weeks per year, for approximately 24
years. This does not include Decedent’s use of Liquid Wrench. Dr. Nicas calculated
that in addition to the gasoline, Decedent’s hands were in contact with Liquid Wrench
one hour per week, 48 weeks per year, for approximately 24 years.
{21} 	In support of the motion to exclude Dr. Nicas’ testimony, Defendants offered
the affidavit of Dr. Irons. 	In his affidavit, supported by references to applicable
literature and studies, Dr. Irons addressed whether a human being could tolerate
soaking hands in gasoline for 2.5 hours per week over the period of time involved.
He said that comparing Dr. Nicas’ estimated dermal dose of benzene with that of other
substances typically found in gasoline would result in a “reality check.” The toluene,

12
xylenes, and alkanes that are found in gasoline are present in concentrations “typically
50 times that of benzene.” Moreover:
The dermal flux of toluene through human skin has been determined to
be 35-60 times faster than benzene, and that of xylene 11-23 times faster
than benzene. 	Assuming that these and other solvents are present in
gasoline at concentrations 50 fold higher than benzene, and applying the
same assumptions and conditions made by Dr. Nicas, [Decedent] would
absorb doses of toluene and xylenes alone that are approximately 700 to
1000 times greater during the same 2.5 hr period. Similar calculations
can be made for other substituted benzenes and other solvents present in
gasoline. Because the acute effects of all these compounds on the central
nervous system are the same, the doses estimated for all of them are
additive with respect to effect. Analysis of straight chain alkanes present
at much higher concentrations would render much higher numbers and
result, 	again, 	in 	acute 	central 	nervous 	system 	toxicity. 	These
comparisons lead to the inevitable conclusion that the conditions and
assumptions made in the benzene dermal absorption estimates by Dr.
Nicas are not consistent with repeated gasoline exposures that could be
tolerated for 24 years of chronic exposure.
Finally, Dr. Irons stated that no reliable scientific or medical evidence suggested that
these other materials found in gasoline are leukegenic or toxic to bone marrow.
{22} 	The foregoing evidence was undisputed, and Plaintiff made no effort to
discredit or explain it. Moreover, Dr. Nicas admitted he did not look for or locate any
articles related to the flux factor or dermal absorption of gasoline. While he may have
seen a study in which the flux factor for gasoline was analyzed or evaluated, he could
not remember, and he did not know how the flux factor for gasoline is measured. Dr.
Nicas believes he has seen a study regarding the dermal absorption of gasoline.
However, he said he did not have a copy of the study in his papers because he did not

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“believe it had information about the absorption of benzene.” Concerning what the
article reported was actually being absorbed by skin, Dr. Nicas could only say, “I
don’t remember the paper enough to tell you what was being absorbed.”
{23} 	Dr. Nicas further admitted that in making his calculations, he focused
exclusively on benzene and ignored the other toxic chemicals that are constituents of
gasoline, although he conceded that xylene and toluene in gasoline could be dermally
absorbed at higher rates or lower rates than benzene. Specifically, he does not know
whether benzene or toluene would be absorbed through the skin faster than the other
from a mixture in which they are both present. 	He also did not factor in whether
alkanes that might be in gasoline would be dermally absorbed in the same manner and
at the same rates as aromatics that might be in gasoline. In fact, when asked if alkanes
are dermally absorbed if they are in gasoline, Dr. Nicas answered, “Some may be. I’m
not really sure.” 	In order to factor this variable into his calculations, he testified,
“Someone would have to supply me the exact constituents of gasoline and the exact
permeation rates of gasoline.”
{24} 	Dr. Nicas also acknowledged he made no effort to see what the literature would
disclose about the acute effects to skin that was immersed in gasoline for 155 minutes
per week. When asked whether some constituents of gasoline cause skin to slough off
with sufficient exposure, Dr. Nicas answered, “I don’t know the exact effects of
specific constituents of gasoline.” Finally, when he was specifically asked whether

14
a person can medically tolerate having their hands immersed in gasoline for 155
minutes per week and in Liquid Wrench for one hour per week for many years, Dr.
Nicas said, “[I]t’s a question I’m not prepared to answer, because that’s not my area.”
{25} 	After considering the foregoing evidence, the district court made the following
findings of fact:
[1.] 	Gasoline contains concentrations of “substituted benzenes,”
such as toluene and xylene, as well as alkanes which are typically 50
times the concentration of benzene in gasoline.
[2.] 	Studies which have been conducted on relative flux for
benzene and other chemicals have reported the dermal flux for toluene
to be 30-60 times greater than benzene and that of xylene 11-23 times
greater than benzene, and Plaintiff has offered no evidence to the
contrary.
[3.] 	Using 	the 	50 	fold 	greater 	than 	benzene 	typical
concentrations of toluene, xylene and alkanes present in gasoline, and
applying the same assumptions and conditions made by Dr. Nicas,
[Decedent] would have absorbed doses of toluene and xylene alone at
approximately 700 to 1000 times greater than his estimated benzene
absorption, during the same [2.5] hour period, which absorption at such
concentrations would have resulted in acute central nervous system
toxicity that could not have been tolerated for 24 years of chronic
exposure.
In accordance with these findings, the district court concluded as a matter of law that,
“The methodology utilized by Dr. Nicas to arrive at his exposure estimates for
[Decedent] is not scientifically valid, or reliable, and is excluded.” Because Plaintiff
relied exclusively on the opinion of Dr. Nicas to establish Decedent’s exposure to
benzene, the district court also concluded, “There is insufficient evidence of the levels

15
of benzene and frequency of exposure by [Decedent] to gasoline and Liquid Wrench
to support any claim that either one of these substances caused the disease that caused
his death.”
{26} 	The district court did not abuse its discretion in excluding the scientific
testimony of Dr. Nicas. Dr. Nicas’ calculation of Decedent’s dermal absorption from
gasoline required Decedent’s hands to be immersed in gasoline for 2.5 hours per
week, 48 weeks per year, for 24 years. The undisputed evidence is that such exposure
would have resulted in Decedent’s death from acute central nervous system toxicity
due to the dermal absorption of other toxic constituents of gasoline that are absorbed
much faster (700 to 1000 times) than benzene in gasoline. See In re TMI Litigation,
193 F.3d 613, 683, 687-88 (3d Cir. 1999) (concluding that the experts’ estimates of
radiation exposure were not reliable because they would have resulted in the death of
half of the region’s population, which did not occur); Castellow v. Chevron USA, 97
F. Supp. 2d 780, 788 (S.D.Tex. 2000) (noting that the expert’s report calculating the
decedent’s exposure to benzene from gasoline would have required the decedent to
be exposed to gasoline in potentially lethal amounts); Shatkin v. McDonnell Douglas
Corp., 727 F.2d 202, 208 (2d Cir. 1984) (noting that generally, expert testimony
should be excluded if it is based on assumptions that “were so unrealistic and
contradictory as to suggest bad faith”).
{27} 	Scientific evidence offered by a party is reviewed by our trial courts pursuant

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to the factors set forth in Daubert/Alberico to insure that the evidence is reliable.
Thus, the reliability determination itself is the overarching issue we review for an
abuse of discretion. The calculations in this case were shown without contradiction
to be unreliable because they were based on assumptions which would have resulted
in Decedent’s demise from causes other than dermal absorption of benzene from
gasoline. The order of the district court excluding the opinions of Dr. Nicas on this
basis is affirmed. It is not necessary for us to analyze the additional reasons given by
the district court for excluding Dr. Nicas’ opinions.
E. 	Opinion of Dr. Frank Gardner
{28} 	Plaintiff offered the testimony of Dr. Frank Gardner, a hematologist, to testify
that Plaintiff’s form of MDS was caused by his exposure to benzene. The evidence
before the district court is that refractory anemia with ringed sideroblasts (RARS) and
refractory anemia with excess blasts (RAEB) are subtypes of myelodysplastic
syndrome (MDS). Dr. Gardner concluded that Decedent had RAEB.
{29} 	Defendants’ experts criticized Dr. Gardner’s methodology for concluding that
Decedent had RAEB. 	Moreover, they concluded that Decedent had RARS, and
Benzene does not cause RARS. On these grounds, Defendants contended, and the
district court agreed, that Dr. Gardner’s opinions should be excluded.
{30} 	It is not necessary for us to undertake an analysis of whether the district court
abused its discretion by excluding Dr. Gardner’s scientific testimony. Dr. Gardner

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testified that he does not know what the threshold of exposure to benzene is to connect
with a myelodysplasia , and he reached no quantitative conclusions about the level of
benzene exposure Decedent may have had. He relied exclusively on the conclusions
of Dr. Nicas about Decedent’s level of exposure to Benzene. Without evidence that
Decedent was exposed to sufficient quantities of Benzene to cause MDS, Dr.
Gardner’s opinions were not relevant. For this reason, we therefore conclude that the
district court did not abuse its discretion in excluding Dr. Gardner’s testimony.
II. 	Expert Witness Fees and Cost Bill
{31} 	After the district court granted summary judgment, Defendants filed a cost bill,
to which Plaintiff duly objected. Following a hearing, the district court entered its
order awarding Defendants’ costs, and Plaintiff appeals from this order as well.
{32} 	Rule 1-054(D) NMRA governs an award of costs in the district court. Whether
the district court properly interprets Rule 1-054(D) in making its award presents a
question of law, which we review de novo. H-B-S P’ship v. Aircoa Hospitality Servs.,
Inc., 2008-NMCA-013, ¶ 5, 143 N.M. 404, 176 P.3d 1136. On the other hand, the
necessary and reasonable costs awarded by the district court are reviewed for an abuse
of discretion. Id. ¶ 24.
{33} 	Rule 1-054(D) directs that costs (other than attorney fees) “shall be allowed to
the prevailing party unless the court otherwise directs,” and that costs are recoverable
“as allowed by statute, Supreme Court rule and case law.” Rule 1-054(D)(1), (2). In

18
pertinent part, the rule directs that the cost of a deposition is generally recoverable:
(i) 	if any part is used at trial; [or]
(ii) 	in successful support or defense of a motion for
summary judgment pursuant to Rule 1-056 NMRA; or
(iii) 	when 	the 	court 	determines 	the 	deposition 	was
reasonably necessary to the litigation[.]
Rule 1-054(D)(2)(e) (emphasis added). In addition, “expert witness fees for services
as provided by Section 38-6-4(B) NMSA 1978 or when the court determines that the
expert witness was reasonably necessary to the litigation” are also generally
recoverable. 	Rule 1-054(D)(2)(g) (emphasis added). 	The language in the rule we
have emphasized above was added by our Supreme Court, effective May 23, 2008.
Supreme Court Order No. 08-8300-011. 	The amendments apply even though the
complaint was filed before they came into effect. State v. Pieri, 2009-NMSC-019, ¶
35, 146 N.M. 155, 207 P.3d 1132 (stating that when the Supreme Court changes its
own rules, the changes apply to pending cases in the absence of some affirmative act
by the Supreme Court). 	NMSA 1978, Section 38-6-4(B) (1983) provides that the
district court
may order the payment of a reasonable fee, to be taxed as costs, . . . for
any witness who qualifies as an expert and who testifies in the cause in
person or by deposition. The additional compensation shall include a
reasonable fee to compensate the witness for the time required in
preparation 	or 	investigation 	prior 	to 	the 	giving 	of 	the 	witness’s
testimony. The expert witness fee which may be allowed by the court
shall be limited to one expert regarding liability and one expert regarding

19
damages unless the court finds that additional expert testimony was
reasonably necessary to the prevailing party and the expert testimony
was not cumulative.
{34} 	The district court awarded Defendants expert witness fees for Dr. Ethan A.
Natelson, Mr. John W. Spencer, and Dr. Irons, as well as the cost of the deposition for
Dr. Irons. 	Plaintiff contends the award of these costs was improper under Rule 1-
054(D). We conclude that the award falls within the ambit of Rule 1-054(D) and that
the district court did not abuse its discretion in awarding these costs.
{35} 	Dr. Natelson is a practicing hematologist oncologist and is certified by the
American Board of Medical Specialties in internal medicine and hematology. 	He
provided an affidavit, supported by references to applicable literature and studies,
criticizing the methodology Dr. Gardner followed in formulating his opinions. The
affidavit was used by Defendants to support their memorandum seeking summary
judgment; by Plaintiff to support her memorandum in opposition to Defendants’
motion for summary judgment and her response to exclude the testimony of Dr.
Gardner; and by Defendants in their reply in support of the motion for summary
judgment and the motion to exclude the testimony of Dr. Gardner. 	Finally, Dr.
Natelson appeared and testified on behalf of Defendants at the Daubert/Alberico
hearing, where Plaintiff was given an opportunity cross examine him.
{36} 	Mr. Spencer has been an industrial hygienist for more than thirty-one years, and
he is certified as an industrial hygienist by the American Board of Industrial Hygiene.

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He was formerly with the National Institute for Occupational Safety and Health
(NIOSH) and led a group of industrial hygienists conducting research for the National
Occupational Exposure Survey. As an industrial hygienist for the United States Coast
Guard, he conducted thousands of exposure assessments which included a wide range
of products, including various benzene-containing solvents. Mr. Spencer provided an
affidavit, which was also supported by references to applicable literature and studies,
criticizing the methodology used by Dr. Nicas to calculate Decedent’s exposure to
benzene from gasoline and Liquid Wrench. The affidavit was used by Defendants in
support of the motion to exclude the testimony of Dr. Nicas, and Mr. Spencer also
provided live testimony in support of the motion at the Daubert/Alberico hearing,
where Plaintiff was able to cross examine him.
{37} 	Dr. Irons is a toxicologist with an extensive background in hematology. He
also provided an affidavit supported by references to applicable literature and studies,
criticizing the methodology used by Dr. Gardner and Dr. Nicas in formulating their
respective opinions. 	Dr. Iron’s affidavit was used by Defendants to support the
motion to exclude the testimony of Dr. Gardner and in their memorandum in support
of the motion for summary judgment. Moreover, Dr. Irons was deposed, and portions
of his deposition were used by Defendants in the reply in support of the motion for
summary judgment and to exclude the testimony of Dr. Nicas.
{38} 	The testimony given by these experts, whether by affidavit or by deposition,

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was material to the award of summary judgment granted by the district court in favor
of Defendants. 	We have only addressed one basis on which the testimony of Dr.
Nicas and Dr. Gardner was excluded. Nevertheless, the district court excluded the
testimony of Plaintiff’s experts on several grounds pursuant to Daubert/Alberico, and
the findings of fact and conclusions of law the district court reflect that the testimony
of each expert was used in granting the motion.
{39} 	Moreover, the district court demonstrated it exercised its discretion consistent
with Rule 1-054(D)(2). At the conclusion of the hearing on Plaintiff’s objections to
Defendants’ cost bill, the district court commented, “I think that in today’s practice,
a Daubert hearing is the functional equivalent of a motion for summary judgment.”
In its order awarding costs, the district court made a finding that “[t]he procedural
effect and reality is . . . Defendant’s Daubert Motion was the basis for Defendant’s
Motion for Summary Judgment and became a part thereof.” We agree. In addition,
the district court made specific findings that the testimony at the Daubert/Alberico
hearing consisted of both the live testimony and the affidavit and deposition testimony
of the experts; that the testimony of the experts was not cumulative; and that the
testimony of each expert was reasonably necessary to Defendants’ success as the
prevailing party. These findings are not challenged. We find no abuse of discretion.
See Gillingham v. Reliable Chevrolet, 1998-NMCA-143, ¶¶ 26-27, 126 N.M. 30, 966
P.2d 197 (concluding that consulting fees paid to physicians who qualified as experts

22
and testified at trial and consulting fees paid to two treating physicians listed as
potential expert witnesses by opposing party were properly taxed as costs; and noting
that a separate finding as to the reasonable necessity of each expert’s testimony is not
required), overruled on other grounds by Fernandez v. Espanola Pub. Sch. Dist.,
2005-NMSC-026, ¶ 9, 138 N.M. 283, 119 P.3d 163.
CONCLUSION
{40} 	The district court is affirmed.
{41} 	IT IS SO ORDERED.
__________________________________
MICHAEL E. VIGIL, Judge
WE CONCUR:
_________________________________
MICHAEL D. BUSTAMANTE, Judge
_________________________________
LINDA M. VANZI, Judge