685 F.3d 452 (5th Cir. 2012), 11-50193, Johnson v. Arkema, Inc.

Docket Nº:11-50193.
Citation:685 F.3d 452
Opinion Judge:PER CURIAM:
Party Name:Gregory Scott JOHNSON, Plaintiff-Appellant, v. ARKEMA, INCORPORATED, Defendant-Appellee.
Attorney:Rod S. Squires, Mark Christopher Hobbs (argued), Ryan Charles Johnson (argued), Beard, Kultgen, Brophy, Bostwick, Dickson & Squires, L.L.P., Waco, TX, for Plaintiff-Appellant. Gerald E. Burns, Thomas Patrick Manning, Buchanan Ingersoll & Rooney, P.C., Philadelphia, PA, Dan Himmelfarb (argued), Br...
Judge Panel:Before REAVLEY, ELROD and HAYNES, Circuit Judges. REAVLEY, Circuit Judge, concurring:
Case Date:June 20, 2012
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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685 F.3d 452 (5th Cir. 2012)

Gregory Scott JOHNSON, Plaintiff-Appellant,


ARKEMA, INCORPORATED, Defendant-Appellee.

No. 11-50193.

United States Court of Appeals, Fifth Circuit.

June 20, 2012

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Rod S. Squires, Mark Christopher Hobbs (argued), Ryan Charles Johnson (argued), Beard, Kultgen, Brophy, Bostwick, Dickson & Squires, L.L.P., Waco, TX, for Plaintiff-Appellant.

Gerald E. Burns, Thomas Patrick Manning, Buchanan Ingersoll & Rooney, P.C., Philadelphia, PA, Dan Himmelfarb (argued), Brian James Wong, Mayer Brown, L.L.P., Washington, DC, John A. Powell, Naman, Howell, Smith & Lee, P.L.L.C., Waco, TX, for Defendant-Appellee.

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

Before REAVLEY, ELROD and HAYNES, Circuit Judges.


In this toxic tort case, we consider whether the district court erred in: (1) excluding the opinions of Gregory Johnson's expert witnesses on the element of causation; and (2) granting summary judgment in favor of Arkema, Inc. because Johnson was unable to prove causation

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without the opinions of his excluded causation experts. We AFFIRM the district court's judgment in all respects except as to Johnson's claims regarding his acute injuries, on which we REVERSE and REMAND for further proceedings.


Johnson worked as a machine repairman at Owens Illinois Inc.'s glass bottling plant in Waco, Texas from May 1998 to the end of 2008. On two separate occasions, first in early June 2007 and again on July 15, 2007, Johnson was directed to perform work in close proximity to a device known as a C-4 Hood, which was designed, manufactured, and installed by Arkema. C-4 Hoods are utilized by Owens Illinois to apply a chemical known as Certincoat to the glass bottles it produces as the bottles are transported along a conveyor belt. 1 Certincoat is composed mostly of monobutyltin trichloride (MBTC), an organometallic compound based on tin. Under the elevated temperatures of the C-4 hoods, MBTC vaporizes and then decomposes when it contacts the glass bottles on the conveyer belt. Hydrochloric acid (HCl) and tin oxide are byproducts of MBTC. Arkema's C-4 Hoods are designed to vacuum up and capture any vapors that are not deposited on the glass bottles, thus preventing the escape of MBTC, HCl and tin oxide into the workplace environment. According to Johnson, the C-4 Hood he worked near on those two occasions in the summer of 2007 failed to perform its proper preventative function, resulting in his exposure to Certincoat and its chemical byproducts.

Specifically, Johnson alleges that within fifteen minutes of first approaching the C-4 hood in early June 2007 he: (1) smelled a sweet, unique chemical odor; (2) noticed chemical buildup on the conveyer belt; (3) developed a sore throat; (4) felt burning and watery eyes; and (5) experienced chest pain and breathing difficulty. Johnson nevertheless continued to work in these conditions for approximately four to five hours and, thereafter, neither reported the incident to his supervisor nor sought immediate medical attention. A few days later, on June 9, 2007, Johnson's family doctor diagnosed him with pneumonia. At his June 18, 2007 follow-up visit, Johnson reported that he " fe[lt] a lot better" and his doctor concluded that he could return to work the following day.

The next month, on July 15, 2007, Johnson was again instructed to work near the C-4 Hood. While doing so for approximately two to three hours, Johnson experienced the same symptoms that he felt during his first alleged instance of Certincoat exposure. This time, however, Johnson reported the incident to his supervisor and sought immediate medical attention at a local emergency room.

On August 8, 2007, upon Johnson's disclosure of the two exposure incidents to his treating physician, Dr. Camille Hinojosa, Johnson was diagnosed with chemical pneumonitis and advised to see a pulmonologist. According to Johnson, his lung condition progressively worsened over the course of the years following the exposure incidents, culminating in a diagnosis of severe restrictive lung disease and pulmonary fibrosis.2


On November 3, 2008, Johnson filed a personal injury lawsuit against Arkema in

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the 60th Judicial District Court of Jefferson County, Texas, claiming that Arkema's C-4 Hood proximately caused his restrictive lung disease and pulmonary fibrosis.3 Arkema removed the matter to the Eastern District of Texas and, on April 30, 2009, this matter was transferred to the Western District of Texas. In his complaint, Johnson raises theories of negligence and strict liability based on Arkema's design, manufacture, marketing, and installation of its C-4 Hoods. Johnson seeks compensatory and punitive damages, including, but not limited to, compensation for past physical pain and medical expenses.

Arkema filed motions to exclude the opinions of Dr. Richard Schlesinger, Johnson's expert toxicologist, and Dr. Charles Grodzin, Johnson's expert pulmonologist, under Federal Rule of Evidence 702 and the Supreme Court's decision in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Arkema also filed a motion for summary judgment, contending that Johnson was unable to present scientifically reliable evidence establishing that exposure to the chemicals in Certincoat can cause restrictive lung disease and pulmonary fibrosis.

On December 16, 2010, the magistrate judge issued a report and recommendation to the district court regarding Arkema's Daubert motions. The magistrate judge recommended: (1) excluding Dr. Schlesinger's opinion, which only addressed causation, as unreliable and irrelevant; and (2) limiting Dr. Grodzin's opinion so that he could only opine on the nature and extent— but not the cause— of Johnson's illness. The district court adopted the report and recommendation and subsequently granted summary judgment in favor of Arkema. The district court reasoned that summary judgment was appropriate because— given the exclusion of Dr. Schlesinger's opinion and the limitation of Dr. Grodzin's opinion— Johnson " ha[d] no evidence that any lung injury he suffered [was] a result of his exposure to MBTC and/or HCl." In so doing, the district court rejected Johnson's claim that the similar symptoms experienced by his co-workers provided sufficient summary judgment evidence of causation:

The only thing presented with the summary judgment material which was not presented to Magistrate Judge Manske is Plaintiff's evidence that other Owens employees suffered lung injuries similar to his. However, an inspection of this evidence fails to reveal a single employee who has suffered a permanent, or chronic, lung injury after exposure to Arkema's chemicals. While other employees may have been exposed to the same chemicals, they suffered only transitory symptoms which quickly resolved.

This appeal followed.


The first issues we consider concern the district court's evidentiary rulings under Rule 702 and Daubert, which we review for abuse of discretion. Curtis v. M & S Petroleum, Inc. 174 F.3d 661, 668 (5th Cir.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). In conducting our review, " [w]e are mindful that under Daubert and Fed.R.Evid. 702, a district court has broad discretion to determine whether a body of evidence relied upon by an expert

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is sufficient to support that expert's opinion." Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 354 (5th Cir.2007); see also Rider v. Sandoz Pharm. Corp., 295 F.3d 1194, 1197 (11th Cir.2002) (" [J]udges have considerable leeway in both how to test the reliability of evidence and determining whether such evidence is reliable." (citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 151-53, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999))).

The admissibility of expert testimony is governed by Federal Rule of Evidence 702, which provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed.R.Evid. 702.

In Daubert, the Supreme Court " explained that Rule 702 assigns to the district judge a gatekeeping role to ensure that scientific testimony is both reliable and relevant." Curtis, 174 F.3d at 668 (citing Daubert, 509 U.S. at 597, 113 S.Ct. 2786). The reliability prong mandates that expert opinion " be grounded in the methods and procedures of science and ... be more than unsupported speculation or subjective belief." Id. (citing Daubert, 509 U.S. at 590, 113 S.Ct. 2786); see also Moore v. Ashland Chem., Inc., 151 F.3d 269, 276 (5th Cir.1998) (en banc) (" [T]he party seeking to have the district court admit expert testimony must demonstrate that the expert's findings and conclusions are based on the scientific method, and, therefore, are reliable." ). The relevance prong requires the proponent to demonstrate that the expert's " reasoning or methodology can be properly applied to the facts in issue." Curtis, 174 F.3d at 668 (citing Daubert, 509 U.S. at...

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