555 F.3d 383 (5th Cir. 2009), 08-60085, Paz v. Brush Engineered Materials, Inc.

Docket Nº:08-60085.
Citation:555 F.3d 383
Party Name:George PAZ et al., Plaintiffs, v. BRUSH ENGINEERED MATERIALS, INC, et al., Defendants. Joseph P. Harris, et al., Plaintiffs-Appellants, v. Brush Wellman Inc., et al., Defendants-Appellees.
Case Date:January 13, 2009
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 383

555 F.3d 383 (5th Cir. 2009)

George PAZ et al., Plaintiffs,



Joseph P. Harris, et al., Plaintiffs-Appellants,


Brush Wellman Inc., et al., Defendants-Appellees.

No. 08-60085.

United States Court of Appeals, Fifth Circuit.

January 13, 2009

Page 384

[Copyrighted Material Omitted]

Page 385

Ruben Honik (argued), Stephan Matanovic, Golomb & Honik, Philadelphia, Randall Alan Smith, Smith & Fawer, New Orleans, LA, Hiawatha Northington, II, Smith & Fawer, LLC, Ridgeland, MS, for plaintiffs-appellants.

Jeffery Ubersax (argued), Jones Day, Cleveland, OH, Paul H. Stephenson, III, Watkins & Eager, Jackson, MS, for Brush Wellman, Inc.

Timothy Dale Crawley, Brian A. Hinton, Anderson, Crawley & Burke, Ridgeland, MS, for Wess-Del, Inc.

V.L. Woolston, Perkins Coie, Seattle, WA, Ray D. Campbell, III, Bradley, Arant, Rose & White, Jackson, MS, for Boeing Co.

Appeal from the United States District Court for the Southern District of Mississippi.

Page 386

Before JONES, Chief Judge, JOLLY, Circuit Judge, and MONTALVO, District Judge.[*]

MONTALVO, District Judge:

In this negligence, product liability, and breach of warranty case, Joseph Harris (" Harris" ), Terry Lemon (" Lemon" ), Marlin Moran (" Moran" ), Rodney Sorapuru (" Sorapuru" ), and Alvin Pittman, Sr. (" Pittman" ) (collectively, " employees" ) alleged Brush Wellman Inc.'s (" Brush" ) beryllium-containing products, which Brush sold to The Boeing Company (" Boeing" ) to use at the Stennis Space Center, in Stennis, Mississippi, caused the employees personal injuries, including beryllium sensitization (" BeS" ) and chronic beryllium disease (" CBD" ).1 Margaret Ann Harris, Judith A. Lemon, and Hermelinda Sorapuru alleged derivative claims for loss of consortium as a result of the alleged injuries to their husbands. The district court excluded certain evidence presented by the employees because of its unreliability pursuant to Daubert 2 and the employees' violation of the district court's discovery order. The district court found none of the employees presented a compensable injury pursuant to Mississippi law and dismissed their claims and the derivative claims of their wives. We agree.


The employees sued to recover compensatory and punitive damages for alleged personal injuries suffered as a result of exposure to beryllium-containing products at the Stennis Space Center. They contend exposure to beryllium-containing products have resulted in injuries, which include CBD and BeS. On November 17, 2004, the district court consolidated this matter with Paz v. Brush Engineered Materials, Inc., No. 1:04-CV-597-GuRo, in which the plaintiffs alleged a medical monitoring cause of action against Brush and Boeing.

Brush and Boeing jointly moved for dismissal on the medical monitoring cause of action, which the district court granted. Paz v. Brush Engineered Materials, Inc., 351 F.Supp.2d 580, 586-87 (S.D.Miss.2005) (" Paz I " ). The Paz plaintiffs appealed to this court, which certified the question to the Mississippi Supreme Court of whether Mississippi law recognized a cause of action for medical monitoring without proof of physical injury. Paz v. Brush Engineered Materials, Inc., 445 F.3d 809, 815 (5th Cir.2006) (" Paz II " ). The Mississippi Supreme Court answered " [c]reating a medical monitoring action would be contrary to Mississippi common law, which does not allow recovery for negligence without showing an identifiable injury, and, further, strongly indicates that a claim for medical monitoring, as Plaintiffs present it, lacks an injury." Paz v. Brush Engineered Materials, Inc., 949 So.2d 1, 3 (Miss.2007) (" Paz III " ). This court concluded the Paz case was controlled by the Mississippi Supreme Court's holding in Paz III, and accordingly affirmed the district court's decision. Paz v. Brush Engineered Materials, Inc., 483 F.3d 383 (5th Cir.2007).

On September 6, 2005, Brush moved for summary judgment on the employees' remaining claims, arguing the employees failed to allege a compensable injury pursuant to Mississippi law. Boeing joined in

Page 387

Brush's summary judgment motion.3 In August 2006, eight months after Brush filed for summary judgment, the employees filed a supplemental opposition to the summary judgment motion, claiming Dr. Lisa Maier (" Dr. Maier" ), an expert in the field of CBD and BeS, diagnosed Pittman with CBD, in consultation with Dr. Jerrold Abraham (" Dr. Abraham" ), and submitting Dr. Maier's testimony and report as evidence. Brush sought discovery on the diagnosis.

The district court entered a discovery order on October 16, 2006, directing the employees to provide Brush with slides and samples related to Pittman's biopsy by November 14, 2006, and permitting Brush to depose Drs. Maier and Abraham. Contrary to this order, the employees did not produce slides or samples related to Pittman's biopsy until May 2007. On April 20, 2007, after Brush had deposed Drs. Maier and Abraham, Brush moved the district court to exclude Dr. Maier's testimony and report regarding Pittman's diagnosis. On June 8, 2007, Brush moved the district court to exclude two slides of Pittman's biopsy because the employees failed to produce the slides in accordance with the October 16, 2006, discovery order.

In its October 30, 2007, Order and Reasons, the district court, relying on Daubert, found Dr. Maier's testimony and report unreliable and excluded them. Based on its Rule 37 discretion and the slides' unreliability, the district court excluded the two slides. The district court concluded the Mississippi Supreme Court would find BeS is not a compensable injury as a matter of law.

The district court granted summary judgment on Harris', Pittman's, Lemon's, Sorapuru's, and the wives' claims. It found, however, there was a dispute of material fact regarding whether Moran had CBD and denied summary judgment on Moran's claim. On November 2, 2007, the employees moved the district court to reconsider its entire October 30, 2007, Order and Reasons, which the district court denied in its entirety on November 27, 2007. On November 6, 2007, Brush moved the district court to reconsider its denial of summary judgment on Moran's claim, which the district court granted.

The district court entered a final judgment, and the employees have appealed. On appeal, the employees contend the district court erred in (1) excluding Dr. Maier's expert testimony and report; (2) excluding two additional slides from evidence; (3) finding BeS is not a compensable injury pursuant to Mississippi law; and (4) finding Moran did not have CBD.


A. Exclusion of Expert Testimony and Report and Evidentiary Slides

1. Standard of Review

" This court reviews a district court's decision to admit or exclude evidence for abuse of discretion." Compaq Computer Corp. v. Ergonome Inc., 387 F.3d 403, 408 (5th Cir.2004) (citation omitted). " ‘ 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.’ " Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 351 (5th Cir.2007) (quoting Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir.2003)).

2. The Exclusion of Dr. Maier's Testimony and Report Regarding Pittman's Diagnosis

The admissibility of evidence " is governed by the same rules, whether at

Page 388

trial or on summary judgment." First United Fin. Corp. v. U.S. Fid. & Guar. Co., 96 F.3d 135, 136-37 (5th Cir.1996). The proponent of an expert's testimony need not prove the testimony is factually correct, but rather need only prove by a preponderance of the evidence the testimony is reliable. Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir.1998) (citations omitted). The Supreme Court set out the standard of reliability of expert testimony in Daubert, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469.

" The subject of an expert's testimony must be ‘ scientific ... knowledge.’ " Id. at 589-90, 113 S.Ct. 2786 (notation omitted). The testimony must be " ground[ed] in the methods and procedures of science" and " more than subjective belief or unsupported speculation." Id. at 590, 113 S.Ct. 2786. This is not to say it " must be ‘ known’ to a certainty; arguably, there are no certainties in science." Id. (citation omitted). " [I]n order to qualify as ‘ scientific knowledge,’ an inference or assertion must be derived by the scientific method." Id.

Pursuant to Daubert, the district court may 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.

Knight, 482 F.3d at 351 (citation omitted). Where an expert relies on sound scientific methodology, " lack of textual support may ‘ go to the weight, not the admissibility’ of the expert's testimony." Id. at 354 (citation omitted). " [A]ny step that renders the analysis unreliable ... renders the expert testimony inadmissible." Curtis v. M& S Petroleum, Inc., 174 F.3d 661, 670-71 (5th Cir.1999) (citation omitted). Where an expert's opinion is based on insufficient information, the analysis is unreliable. See id. at 671.

After the district court considers the Daubert factors " the [District C]ourt then can consider whether other factors ... are relevant to the case at hand." Black v. Food Lion, Inc., 171 F.3d 308, 312 (5th Cir.1999). The district court has the discretion to exclude evidence if it has not been properly authenticated. R.R. Mgmt. Co. v. CFS La. Midstream Co., 428 F.3d 214, 220 (5th Cir.2005).

The district court found Dr. Maier's March 22, 2006, evaluation of Pittman's lung biopsy identified no interstitial or bronchial wall granulomas, but...

To continue reading