Knight v. Kirby Inland Marine Inc.

• Decision Date: 19 March 2007
• Docket Number: No. 06-60134.,06-60134.
• Citation: 482 F.3d 347
• Parties: Heath KNIGHT; et al., Plaintiffs, Heath Knight; Thomas David Ingerman, Plaintiffs-Appellants, v. KIRBY INLAND MARINE INC.; Kirby Inland Marine Inc. of Texas, also known as Dixie Marine Inc.; Hollywood Marine Inc.; Kirby Inland Marine Inc. of Mississippi, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

482 F.3d 347

Heath KNIGHT; et al., Plaintiffs, Heath Knight; Thomas David Ingerman, Plaintiffs-Appellants, v. KIRBY INLAND MARINE INC.; Kirby Inland Marine Inc. of Texas, also known as Dixie Marine Inc.; Hollywood Marine Inc.; Kirby Inland Marine Inc. of Mississippi, Defendants-Appellees.

No. 06-60134.

United States Court of Appeals, Fifth Circuit.

March 19, 2007.

Robert Dale Green (argued), Mignon Angelette Gill, James Robert Davis, Jr., Law Office of J. Robert Davis, Houston, TX, for Plaintiffs-Appellants.

Frank J. Dantone (argued), Edward D. Lamar, Henderson Dantone, Greenville, MS, for Defendants-Appellees.

Appeals from the United States District Court for the Northern District of Mississippi.

Before DAVIS and STEWART, Circuit Judges, and CRONE, District Judge.^*

CARL E. STEWART, Circuit Judge:

Appellants Heath Knight and Thomas Ingerman appeal the district court's summary judgment ruling for appellees Kirby Inland Marine and related companies. For the following reasons, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Heath Knight began working for Kirby Inland Marine ("Kirby") in 1993. Knight worked as a tankerman between 1993 and 1994. During his time as a tankerman with Kirby, he was exposed to various toxic chemicals, including benzene. Knight learned that he had Hodgkins lymphoma in 1998. He underwent chemotherapy and made a full recovery. His cancer has been in remission since 1998, and his primary physician opined that it is unlikely to recur.

Thomas Ingerman began working for one of the defendants, Hollywood Marine, Kirby's predecessor-in-interest, in 1987. Ingerman worked as a tankerman for Hollywood Marine during the years 1987-1995. During his time as a tankerman for Hollywood Marine, Ingerman was exposed to various toxic chemicals, including benzene. During this time, Ingerman underwent routine benzene physicals. The tests never revealed an abnormal buildup of benzene. In 1999, Ingerman was diagnosed with bladder cancer following a persistent bladder infection.

Knight and Ingerman ("appellants") filed a toxic tort suit in 2001 in federal district court under the Jones Act. 46 U.S.C. § 688. Pursuant to their suit, appellants hired Dr. Barry Levy, a highly qualified epidemiologist and physician. In 2005, the district court held a Daubert hearing to determine whether Dr. Levy's testimony was admissible on the issue of whether appellants' exposure to chemicals while working as tankermen for defendants caused Knight's Hodgkin's lymphoma and Ingerman's bladder cancer.

Dr. Levy testified that benzene was the cause of Knight's and Ingerman's cancers, and he relied on over fifty studies for this conclusion. For various reasons, the district court excluded all of the studies offered by Dr. Levy. The court found that most of the studies relied on by Dr. Levy failed to isolate benzene as a cause of cancer. The court found other studies statistically insignificant, concluding that Dr. Levy's testimony failed to satisfy Daubert. Later, the court granted summary judgment in favor of defendants.

Subsequently, appellants filed a motion for cost reimbursement under FED. R. CIV P. 26(b)(4)(A) and (C), which allows a party to recover discovery costs relating to expert witnesses. The district court refused to grant all of appellants' requested costs. The district court also denied appellants' request that defendants pay for all expenses they incurred in securing Dr. Levy's testimony at the Daubert hearing, totaling $63,853.91, holding that no right to reimbursement for Daubert costs existed under 26(b)(4)(C).

Appellants appeal the district court's summary judgment ruling, which resulted from the exclusion of Dr. Levy's testimony, as well as its determinations regarding discovery and Daubert costs.

II. STANDARD OF REVIEW

We review the district court's determination of admissibility of expert evidence under Daubert for abuse of discretion. Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243 (5th Cir.2002) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)). "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." Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003). If this court finds an abuse of discretion in admitting or excluding evidence, we "review the error under the harmless error doctrine, affirming the judgment, unless the ruling affected substantial rights of the complaining party." Id.

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court delineated certain factors to assist courts in evaluating the foundation of a given expert's testimony, though the Court carefully emphasized the nonexhaustive nature of the listing. Daubert, 509 U.S. at 593, 113 S.Ct. 2786. Daubert suggested that a trial judge consider: whether the theory or technique the expert employs is generally accepted; whether the theory has been subjected to peer review and publication; whether the theory can and has been tested; whether the known or potential rate of error is acceptable; and whether there are standards controlling the technique's operation. Id.

The district court based its exclusion of Dr. Levy's testimony on several findings. The district court acknowledged that Dr. Levy's methodology was "unassailable," but found deficiencies in the underlying data, namely the various studies and articles Dr. Levy relied upon for his research conclusions.

III. DISCUSSION

A. Causation

"General causation is whether a substance is capable of causing a particular injury or condition in the general population, while specific causation is whether a substance caused a particular individual's injury." Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 714 (Tex.1997). Evidence concerning specific causation in toxic tort cases is admissible only as a follow-up to admissible general-causation evidence. See Raynor v. Merrell Pharm., 104 F.3d 1371, 1376 (D.C.Cir.1997). Thus, there is a two-step process in examining the admissibility of causation evidence in toxic tort cases. First, the district court must determine whether there is general causation. Second, if it concludes that there is admissible general-causation evidence, the district court must determine whether there is admissible specific-causation evidence. See Cano v. Everest Minerals Corp., 362 F.Supp.2d 814, 824 (W.D.Tex.2005).

Appellants hired Dr. Levy to provide testimony as to both general causation and specific causation. Finding that Dr. Levy's testimony regarding general causation lacked the necessary foundation to withstand Daubert scrutiny, the district court concluded it was unnecessary to determine whether his specific causation testimony was admissible. Appellants challenge and we review the district court's determination regarding general causation for abuse of discretion.

Therefore, the fundamental question underlying Dr. Levy's testimony and our assessment of the district court's determination is whether the chemicals Knight and Ingerman were exposed to and the type of exposures they experienced cause Hodgkin's lymphoma and bladder cancer (general causation). If the district court properly determined that Dr. Levy's testimony regarding general causation was inadmissible under Daubert and FED. R. EVID. 702, then there would be no need to consider whether Knight and Ingerman's exposures actually caused their respective illnesses (specific causation). See Miller v. Pfizer, Inc., 356 F.3d 1326, 1329 (10th Cir.2004).

Appellants argue that the district court set too high a bar for their general causation evidence. Specifically, appellants take issue with the district court's exclusion of all the case-control,¹ cohort,² and nonspecific studies relied on by Dr. Levy.

Appellants point to the Olsson study, which concluded that "exposure to organic solvents may constitute an occupational risk with regard to Hodgkins'" as an example of reliable and admissible evidence for general causation. See Hakan Olsson and Lars Brandt, Occupational Exposure and Hodgkin's Disease in Men, SCAND. J.W. ENVIRON. HEALTH 6, 302 (1980).

The Daubert standard ensures that the proffered evidence is both "reliable" and "relevant." Daubert, 509 U.S. at 589, 113 S.Ct. 2786. Reliability is determined by assessing "whether the reasoning or methodology underlying the testimony is scientifically valid." Id. at 592-93, 113 S.Ct. 2786. Relevance depends upon "whether [that] reasoning or methodology properly can be applied to the facts in issue." Id. at 593, 113 S.Ct. 2786. Here, appellants focus on the district court's determination regarding the "relevant" prong.

Case-control studies are not per se inadmissible evidence on general causation. See McNeil v. Wyeth, 462 F.3d 364, 370 (5th Cir.2006). Nonetheless, we cannot say that it was an abuse of discretion for the district court to conclude that the reasoning and methodology of the case-control studies relied on for Dr. Levy's general causation testimony could not be applied to the facts at issue here. For example, the Olsson study, which Dr. Levy relied on for his testimony on Hodgkin's lymphoma, measured exposure to organic solvents among twenty-five men diagnosed with the disease. The men were employed in over ten different occupations, including painting, photography, and woodmaking. Additionally, the study contained a fifty-person control group of non-cancer patients, which was composed of referents selected from the Swedish census. Although the control group did include three "shipyard workers," those three workers were exposed, on average, for ten years to a variety of organic solvents, including many Knight was not exposed to, and none of the three developed Hodgkin's lymphoma. Knight, who worked as a tankerman for only one year, does not allege the type of exposure, either in terms of the chemicals involved or the length of...