Black v. Food Lion, Inc.

• Decision Date: 30 March 1999
• Docket Number: No. 97-11404,97-11404
• Parties: Maxine BLACK; and James Black; Plaintiffs-Appellees, v. FOOD LION, INC.; Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 308

171 F.3d 308

Maxine BLACK; and James Black; Plaintiffs-Appellees, v. FOOD LION, INC.; Defendant-Appellant.

No. 97-11404.

United States Court of Appeals, Fifth Circuit.

March 30, 1999.

Troy J. Wilson, Houston, TX, for Plaintiffs-Appellees.

James William Karel, Kevin D. Jewell, Magenheim, Bateman, Robinson, Wrotenbery & Helfand, Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas.

Before JONES, SMITH and EMILIO M. GARZA, Circuit Judges.

EDITH H. JONES, Circuit Judge:

While shopping at a Food Lion grocery store, Maxine Black slipped and fell on the remains of a mayonnaise spill that had been previously cleaned by Food Lion personnel. In the ensuing damage action, removed to federal court, a magistrate judge awarded Black nearly $300,000--principally because she had been diagnosed with fibromyalgia syndrome, an elusive but debilitating affliction. Whether Black produced reliable expert evidence that her slip-and-fall injury caused fibromyalgia is the fulcrum of Food Lion's appeal. We conclude she did not. The Supreme Court's recent decision in Kumho Tire Co., Ltd. v. Carmichael, --- U.S. ----, 119 S.Ct. 1167, --- L.Ed.2d ---- (1999), reinforces our decision. The case is affirmed in part, reversed in part, and remanded.

I. BACKGROUND

At a Food Lion Store in Grand Prairie, Texas, a stocker dropped a jar of mayonnaise on September 9, 1993. The jar broke, spilling its contents on the floor. The stocker attempted to clean the spill with a paper towel. The store manager inspected and approved the clean-up. Unbeknownst to the manager, a film of mayonnaise remained on the floor.

While escorting her daughter to the restroom a bit later, Black slipped on the mayonnaise film and fell to the floor. She immediately complained of lower back and arm pain, a headache, and dizziness. Black and her husband reported the injury to Food Lion immediately, and Black sought medical treatment.

Over the next several months, Black was treated and medicated by Dr. James Pollifrone. Despite extensive testing and physical therapy, Dr. Pollifrone was unable to identify any physical basis for Black's continued complaints of pain. All objective tests for pain, including an MRI, EMG, and diskogram, produced results within normal limits.

On May 11, 1994, Black was referred to Dr. Mary Reyna for an evaluation. Dr. Reyna is a physician certified by the American Board of Physical Medicine and Rehabilitation and by the American Board of Pain Medicine; she specializes in treating patients with persistent pain. Following several weeks of treatment, Dr. Reyna diagnosed Black with a condition known as fibromyalgia syndrome. Fibromyalgia is characterized by complaints of generalized pain, poor sleep, an inability to concentrate, and chronic fatigue. The condition is most common in women between the ages of 30 and 50 and is often associated with hormonal problems. Dr. Reyna hypothesized that the fall at Food Lion caused physical trauma to Black, which caused "hormonal changes," which caused Black's fibromyalgia.

Following removal, the case was tried to a magistrate judge without a jury. Food Lion maintained that its actions were not negligent and that the evidence was insufficient to support Black's claim that the fall caused her fibromyalgia. At the core of Food Lion's defense was the contention that Dr. Reyna's testimony could not causally link the fall at Food Lion with Black's present medical condition with any degree of medical certainty. Food Lion also challenged Black's proof regarding her lost earnings and medical expenses. The trial court rejected Food Lion's arguments, allowed Dr. Reyna to testify over objection, and awarded judgment to Black.

II. ANALYSIS

We review the trial court's factual findings for clear error and its conclusions of law de novo. See Seal v. Knorpp, 957 F.2d 1230, 1234 (5th Cir.1992). Food Lion contests only perfunctorily the determination that it was legally responsible for the damages arising from its negligence. We find no error and affirm on liability. The extent of Black's damages and their relation to Food Lion's negligence are hotly disputed.

Black's burden under Texas law was to prove to a reasonable degree of medical certainty, based on a reasonable medical probability and scientifically reliable evidence, that her fall at Food Lion caused the fibromyalgia syndrome. See Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711-12 (Tex.1997) ("possibility, speculation, and surmise" insufficient to support expert testimony regarding causation). She relied on the proffered expert testimony of Dr. Reyna to carry this burden. The magistrate judge admitted Dr. Reyna's expert opinion notwithstanding Food Lion's challenge under Fed.R.Evid. 702 and Daubert v. Merrell Dow Pharms., Inc. ¹ Without explicitly tying Dr. Reyna's testimony to the standards for scientific reliability set out in Daubert, the magistrate judge based his decision on several factors:

[T]he court looks to the trial testimony presented by Dr. Reyna as well as that of the other medical experts whose testimony was presented by deposition.

* * * * * *

Despite the elusiveness which forecloses an absolute determination of causality, the specialists in the field recognize an accepted protocol in rendering an opinion in terms of reasonable medical probability. See Plaintiff's Exhibit 20, at page 536; Causality.

The evidence in this case reflects that Dr. Reyna followed this protocol in reaching her opinion, by ruling out other possible causes for Ms. Black's fibromyalgia. Specifically, the documentary evidence and the testimony of Dr. Reyna show that Dr. Reyna fully apprised herself of Ms. Black's prior medical history before the accident, that she determined that no post-accident incident was an intervening cause for the onset of Ms. Black's fibromyalgia, and that no other factors--based upon her review of tests performed prior to accepting Ms. Black as a patient, as well as those tests which Dr. Reyna, herself, directed to be made--contributed to Ms. Black's fibromyalgia.

Following Daubert, the Supreme Court and this court will reverse the district court's admission of expert testimony only for an abuse of discretion in the trial court's ultimate determination of scientific reliability. See Moore v. Ashland Chemical, 151 F.3d 269, 274 (5th Cir.1998) (en banc). In a just-released opinion, the Supreme Court explained that abuse of discretion review also governs a trial court's decision about how to determine scientific reliability. See Kumho Tire, 119 S.Ct. at 1176. Kumho Tire affirmed that Daubert 's principles concerning the reliability-assurance function of Rule 702 apply to technical or specialized expert testimony as well as to scientific expert testimony. See Kumho Tire, 119 S.Ct. at 1174. While Kumho Tire dealt specifically with engineering testimony, its reasoning fully supports this court's en banc conclusion in Moore that Daubert analysis governs expert medical testimony. See Moore, 151 F.3d at 275 n. 6.

Further, Kumho Tire refines in a common-sense way, but does not undermine, the use of the specific Daubert factors as a reference point for gauging the reliability of potential expert testimony. Justice Breyer put it this way:

The petitioners ask more specifically whether a trial judge determining the "admissibility of an engineering expert's testimony" may consider several more specific factors that Daubert said might "bear on" a judge's gate-keeping determination. These factors include:

--Whether a "theory or technique ... can be (and has been) tested";

--Whether it "has been subjected to peer review and publication";

--Whether, in respect to a particular technique, there is a high "known or potential rate of error" and whether there are "standards controlling the technique's operation"; and

--Whether the theory or technique enjoys "general acceptance" within a "relevant scientific community."

Emphasizing the word "may" in the question, we answer that question yes.

Kumho Tire, 119 S.Ct. at 1175 (citing Daubert, 509 U.S. at 592-94, 113 S.Ct. at 2796-97).

Kumho Tire 's emphasis on the word "may" should not be misunderstood to grant open season on the admission of expert testimony by permitting courts discretionarily to disavow the Daubert factors. On the contrary, the Supreme Court simply recognized the obvious facts that there are many kinds of experts and expertise, that the Daubert inquiry is always fact-specific, and that the Daubert factors may not all apply even to the admissibility of pure scientific testimony. Kumho Tire also stressed that the Daubert factors may be relevant to the reliability of experience-based testimony. The overarching goal of Daubert 's gate-keeping requirement, however,

is to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.

Kumho Tire, 119 S.Ct. at 1176.

Applying its articulated principles to the question presented by Kumho Tire--whether an engineering expert could reliably testify on the cause of an automobile tire failure--the Supreme Court upheld a district court decision to exclude the evidence. The district court found that the expert's methodology satisfied neither the Daubert criteria nor any other factors operating in favor of admissibility which could outweigh those identified in Daubert. The Supreme Court reiterated that the expert's self-proclaimed accuracy is insufficient:

[A]s we pointed out in Joiner, "nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert."

Kumho Tire, 119 S.Ct. at 1179 (citing General Elec. Co. v. Joiner, 522 U.S....