Larry SEAMAN, Plaintiff-Appellant v. SEACOR MARINE L.L.C., Defendant-Appellee.
No. 08-30911.
United States Court of Appeals, Fifth Circuit.
April 30, 2009.
Rufus C. Harris, III, Harris & Rufty, New Orleans, LA, for Defendant-Appellee.
Before WIENER, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Larry Seaman sued his former employer Defendant-Appellee Seacor Marine, L.L.C., alleging that its negligence caused Seaman‘s bladder cancer. The district court excluded the testimony of Seaman‘s only causation expert and granted summary judgment in favor of Seacor. Holding that the district court acted within its discretion in excluding the expert testimony and that Seacor is entitled to summary judgment, we affirm.
I. FACTS AND PROCEEDINGS
From 1982 until March 2003, Seaman worked as a captain aboard several of Seacor‘s vessels. In 2003, Seaman, complaining of hematuria—blood in his urine—went
In June 2007, Seaman filed the instant suit in district court alleging that while aboard Seacor‘s vessels he “inhaled and was otherwise exposed to a host of hazardous and toxic chemicals including drilling mud, caustic soda, barium sulfate, Barite, ammonia, muriatic acid, and others.” Seaman pursues his claim under the Jones Act and general maritime law and alleges that he developed bladder cancer as a result of the chemical exposures. Seaman specifically contends that Seacor‘s negligence caused his injuries. He also alleges that Seacor had a duty to detect his bladder cancer and failed to do so.
Seacor simultaneously filed motions (1) to exclude the testimony of Dr. Perri Prellop, Seaman‘s sole causation expert and (2) for summary judgment. The district court, holding that Dr. Prellop‘s opinion was neither factually supported nor scientifically reliable, excluded her testimony. The court then granted summary judgment in Seacor‘s favor. Seaman filed a motion to alter or amend the district court‘s judgment, which the court denied. Seaman timely filed a notice of appeal.
II. STANDARDS OF REVIEW
“We review the district court‘s determination of admissibility of expert evidence under Daubert for abuse of discretion.”1 “A trial court abuses its discretion when its ruling is based on an erroneous view of the law or a clearly erroneous assessment of the evidence.”2 If the trial court abused its discretion, the harmless error doctrine applies, and we reverse the ruling only if it affected the substantial rights of the complaining party.3
Once we make the necessary evidentiary determinations, “[t]hen, with the record defined, we must review de novo the order granting judgment as a matter of law.”4
III. ANALYSIS
A. Exclusion of Dr. Prellop‘s Testimony
1. Applicable Law
“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.”5 A plaintiff in such a case cannot expect lay fact-finders to understand medical causation; expert testimony is thus required to establish causation.6
Attempting to establish these requisite facts, Seaman proffered the report and deposition testimony of Dr. Perri Prellop, his only medical-causation expert. As the proponent of Dr. Prellop‘s testimony, Seaman had the burden of establishing by a preponderance of the evidence that the proffered testimony was admissible.9 A district court assesses expert testimony under
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, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.10
Rule 702 was most recently amended in 2000 in response to the Supreme Court‘s decision in Daubert, which “charged trial judges with the responsibility of acting as gatekeepers to exclude unreliable expert testimony.”11 Pursuant to Daubert, a trial court ensures that testimony is “supported by appropriate validation—i.e., ‘good grounds,’ based on what is known.”12 And, “a district court has broad discretion to determine whether a body of evidence relied upon by an expert is sufficient to support that expert‘s opinion.”13
In carrying out its gate-keeping function, the trial court “ensures that the proffered evidence is both ‘reliable’ and ‘relevant.’ Reliability is determined by assessing ‘whether the reasoning or methodology underlying the testimony is scientifically valid.’ Relevance depends upon ‘whether [that] reasoning or methodology properly can be applied to the facts in issue.‘”14
“Where an expert‘s opinion is based on insufficient information, the analysis is unreliable.”16 Still, there is no bright-line standard and when an expert “otherwise reliably utilizes scientific methods to reach a conclusion, lack of textual support may go to the weight, not the admissibility of the expert‘s testimony.”17 The Supreme Court has offered a non-exhaustive list of Daubert factors that trial courts should consider: “[1] whether the theory or technique the expert employs is generally accepted; [2] whether the theory has been subjected to peer review and publication; [3] whether the theory can and has been tested; [4] whether the known or potential rate of error is acceptable; and [5] whether there are standards controlling the technique‘s operation.”18
2. District Court Acted Within Its Discretion
Dr. Prellop, a radiation oncologist who completed her residency in radiation oncology in 2006, has never before provided expert testimony. She does not have a particular expertise in bladder cancer and its causes, and, in her career, has only treated three patients diagnosed with bladder cancer.19 She is also the sister-in-law of Seaman‘s trial counsel (who continues to represent Seaman in the instant appeal). Dr. Prellop submitted a two-page report that concluded:
Mr. Seaman‘s history of occupational exposure to diesel exhaust and chemicals including aromatic hydrocarbons[, particularly a chemical called Ferox,] put him at increased risk for bladder cancer. Of course, we could never be certain that these occupational exposures were the definite cause of Mr. Seaman‘s bladder cancer but I have no information suggesting that Mr. Seaman‘s cancer was caused by other external agents.
Dr. Prellop based her opinion on (1) her “understand[ing] that Mr. Seaman‘s occupational history includes regular exposure to diesel exhaust and exposure to Ferox at least once a week, twenty-six weeks per year, over more than a decade” and (2) her determination that Mr. Seaman has no risk factor for bladder cancer, e.g., smoking, family history, or age, other than his male gender. To arrive at her conclusion, Dr. Prellop reviewed Seaman‘s deposition and medical records, the material safety data sheet (“MSDS“) for Ferox,20 and two scholarly articles about the risk factors for bladder cancer. She never saw or spoke
The district court determined that Dr. Prellop‘s assumption of regular exposure without any “facts upon which Dr. Prellop could have possibly surmised exposure levels, rendered her causation opinion mere guesswork.”21 The court also noted that Dr. Prellop never discussed, in either her report or her deposition testimony, the studies on which her two cited journal articles were based.22 In excluding Dr. Prellop‘s testimony, the district court concluded that her “opinion is neither factually supported nor scientifically reliable.”23 We agree and hold that the district court acted well within its discretion in excluding Dr. Prellop‘s testimony. Here is why.
First, Dr. Prellop does not establish general causation. Her Ferox-related testimony relies on no scholarly studies and merely recites her opinion that Ferox contains aromatic hydrocarbons, which are known carcinogens. Yet, Dr. Prellop makes no connection between Ferox and bladder cancer specifically.24 And, she provides no clue regarding what would be a harmful level of Ferox exposure.25 Without some showing of a “statistically significant” link between Ferox and bladder cancer, Dr. Prellop‘s testimony does not establish general causation for Ferox.26
As for her opinion that diesel exhaust causes bladder cancer, Dr. Prellop cites two articles as support: An Updated Review of the Literature: Risk Factors for Bladder Cancer with Focus on Occupational Exposures (“Updated Review“),27 and Projecting Individualized Probabilities of Developing Bladder Cancer in White Individuals (“Projecting Probabilities“).28 Updated Review is an overview of bladder-cancer literature which notes that one analysis found that “[w]orkers with high exposure to diesel exhaust” (the term “high exposure” is left undefined) have an increased risk of bladder cancer.29 The article cautions that research of occupational bladder cancer is complicated because smoking is the main risk for bladder cancer and it is difficult to separate bladder cancer caused by smoking from that caused by occupational exposures.30 Updated Review mentions nothing about the level of exposure that over time might increase one‘s risk of bladder cancer.
The authors of Projecting Probabilities created a model that was “consistent with diesel exhaust exposure ... having a strong etiologic role in [bladder cancer], with numerous studies showing an excess incidence of [bladder cancer] in truck driv-
Neither does Dr. Prellop establish specific causation. Seaman makes the contention—with which we disagree—that our opinion in Bocanegra v. Vicmar Services, Inc.33 mandates that any shortcomings in Dr. Prellop‘s opinion go to its weight, not its admissibility. In that vehicle-collision case, the plaintiff used a toxicology expert to testify about the effects of marijuana on a motorist‘s perception, reaction time, and overall driving ability.34 Stressing that “[t]he real world ... does not operate like a controlled study,” we held that the expert‘s testimony was admissible despite unknown variables related to the potency and quantity of the marijuana ingested by the defendant.35 In Bocanegra, the reason that these unknown variables went to the weight and not to the admissibility of the expert‘s testimony is because the record also contained sufficient exposure information: It was undisputed both that (1) being high on marijuana impairs perception, viz., it generally has that effect, and (2) the defendant driver had been high within the relevant twelve-hour window, viz., the specific effect.36 We cautioned that we were “not concluding that a trial court may never exclude testimony in a ... case based on the fact that unknown variables render the testimony unhelpful to the jury.”37 Instead, we “simply [held] that in th[at] case, the variables d[id] not undermine the expert‘s testimony to the point that it [was] of no assistance to the jury.”38
Unlike in Bocanegra,39 the unknown variables of the instant case do render Dr. Prellop‘s testimony unhelpful. Dr. Prel-
In short, Dr. Prellop‘s “background information concerning [Seaman‘s] exposure ... is so sadly lacking as to be mere guesswork. The expert[] did not rely on data concerning [Seaman‘s] exposure that suffices to sustain [her] opinions” under Daubert or Rule 702.40 Dr. Prellop‘s testimony does not come close to establishing either general or specific causation. The district court did not abuse its discretion in excluding her testimony.41
B. Summary Judgment
1. Applicable Law
Having defined the record, we next determine whether summary judgment was proper. “Summary judgment is appropriate only if ‘the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.‘”42 In making our determination, we view the evidence in the light most favorable to the non-moving party, here, Seaman.43 “[W]e are not limited to the district court‘s reasons for its grant of summary judgment. We may affirm the district court‘s summary judgment on any ground raised below and supported by the record.”44
2. Seacor is Entitled to Summary Judgment
Deprived of Dr. Prellop‘s testimony, Seaman nevertheless urges that summary judgment was improper for two principal reasons: (1) Other sources provide sufficient causation evidence, and (2) the district court erred by granting summary judgment sua sponte on Seacor‘s purported duty to detect Seaman‘s cancer irrespective of causation by chemicals aboard Seacor‘s vessels. In rejecting these arguments we hold that Seaman failed to establish a genuine issue of material fact that would justify denial of summary judgment.
Seaman first contends that the deposition testimony of Seacor‘s own expert, Dr. Richard Airhart, establishes both general and specific causation. Our review of Dr. Airhart‘s deposition makes clear that his testimony does no such thing and instead fully supports his expert report, which emphasized that he was “unable to find any direct carcinogen for Mr. Seaman‘s disease based on the evidence of his records.” The report focused on Seaman‘s childhood second-hand exposure to cigarette smoke as a more significant risk factor than any demonstrated occupational risk. Dr. Airhart‘s deposition testimony contains the following representative statements: (1) diesel exhaust has potential carcinogens in it but that “[w]hen you look at how much of a potential it is, especially for bladder cancer, it‘s not proven“; (2) “I think [second-hand smoke] caused his cancer.... That‘s a little stronger than more probable [than not].... I feel very strongly that this is the most likely cause of [Seaman‘s cancer]“; and (3) if Seaman worked around carcinogens, information about parts per million, length of exposure, and type of ventilation would all be relevant. In summary, the testimony and report of Seacor‘s expert, Dr. Airhart, does not support Seaman‘s position at all. Dr. Airhart‘s deposition does not reveal the requisite causal link between Seaman‘s cancer and either Ferox or diesel exhaust. And, without admissible expert evidence in this toxic-tort case, Seaman cannot prove causation.45
In an effort to establish his exposure to Ferox and diesel exhaust, Seaman points to the declarations of three of Seaman‘s co-workers.46 Each co-worker submitted a similar declaration that said: (1) Seacor‘s vessel was supplied with Ferox; (2) Seaman applied Ferox “regularly,” “usually two or three times every week” using a brush or a pneumatic spray gun; (3) the crew never wore safety gear; (3) half of the time that the crew applied Ferox, it did so in enclosed spaces; (4) Seaman inhaled diesel exhaust fumes every day that he served aboard the vessel; (5) the smell of diesel exhaust was noticeable at all times; and (6) Seacor‘s vessel routinely carried benzene and other chemicals. Without expert testimony to place these declarations in context, they do not demonstrate that Seaman was exposed to whatever may be the allegedly harmful level of Ferox or diesel exhaust.47
Seaman lacks competent summary judgment evidence that would create a genuine fact issue regarding the causation of his cancer.
ii. Seaman‘s Duty-to-Detect Claim
The district court dismissed all of Seaman‘s claims based on his failure to offer evidence that exposure to chemicals while aboard Seacor‘s vessels caused his cancer. Seaman asserts, however, that Seacor never sought summary judgment on his independent cause of action related to Seacor‘s
Seaman‘s memorandum in opposition to Seacor‘s motion for summary judgment described his theory related to Seacor‘s alleged duties to detect his cancer and to provide him medical monitoring. By raising these issues in his opposition brief, Seaman, who makes no representation that he was deprived of an opportunity to present additional evidence, placed them at issue for summary judgment.50
According to Seaman, Seacor‘s duty to detect his bladder cancer fell under Seacor‘s fundamental Jones Act duty to provide a “reasonably safe place to work.”51 Even assuming arguendo that Seacor had a duty to provide medical monitoring to Seaman,52 he has offered no summary judgment evidence that would establish that Seacor‘s alleged breach of that duty caused his cancer, i.e., that Seacor‘s non-detection “played any part—however small—in the development of his” cancer.53 No one disputes that early diagnosis of bladder cancer is important. And, Seaman contends that Seacor was at fault for his not receiving treatment for bladder cancer until 2006. Seaman disregards the fact, however, that he did see a doctor for hematuria in 2003 and that the doctor recommended seeing a urologist if Seaman‘s urine did not clear. Yet, it was not until 2006 that Seaman saw a urologist. Seaman offers no evidence that routine medical monitoring would have altered his prognosis any more than did seeing his doctor in 2003, particularly given that Seaman had been experiencing symptoms for seven to ten years before his 2005 visit to the infectious disease specialist. As Seaman has not established a genuine issue of
IV. CONCLUSION
We affirm the district court‘s Daubert-based exclusion of Dr. Prellop‘s expert testimony as unreliable. We also affirm the court‘s grant of summary judgment in favor of Seacor because Seaman failed to demonstrate the presence of a disputed issue of material fact.
AFFIRMED.