Burleson v. Texas Dept. of Criminal Justice, 03-50650.

• Decision Date: 09 December 2004
• Docket Number: No. 03-50650.,03-50650.
• Citation: 393 F.3d 577
• Parties: Raymond BURLESON, Plaintiff-Appellant, v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE; et al., Defendants, Nolan Glass, Plant Manager, Stainless Steel Plant, Boyd Unit, Texas Department of Criminal Justice — ID; Billy West; Joe White, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

393 F.3d 577

Raymond BURLESON, Plaintiff-Appellant, v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE; et al., Defendants Nolan Glass, Plant Manager, Stainless Steel Plant, Boyd Unit, Texas Department of Criminal Justice — ID; Billy West; Joe White, Defendants-Appellees.

No. 03-50650.

United States Court of Appeals, Fifth Circuit.

December 9, 2004.

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Bernardo S. Garza (argued), Callier & Garza, Houston, TX, Jamshyd Michael Zadeh, Fort Worth, TX, for Plaintiff-Appellant.

Celamaine Cunniff, Asst. Atty. Gen. (argued), Austin, TX, for Defendants-Appellees.

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

Before DeMOSS, STEWART and CLEMENT, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Raymond Burleson ("Burleson"), an inmate in the Texas Department of Criminal Justice, brought this 42 U.S.C. § 1983 action against prison officials, alleging they violated the Eighth Amendment's prohibition against cruel and unusual punishment by exposing him to hazardous conditions while he was working as a welder in the Boyd Unit Stainless Steel Plant. Burleson appeals the magistrate judge's decision to grant the Defendants' Motion to Exclude Expert Testimony and Defendants' Second Motion for Summary Judgment. Burleson also appeals the court's decision to overrule his Objections to Defendants' Summary Judgment Evidence. For the reasons set forth below, we AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND

Raymond Burleson, a Texas inmate, worked as a welder at the Boyd Unit's stainless steel plant in Teague, Texas, from May 1995 through May 1997. Burleson performed tungsten inert gas welding activities using 2% thoriated tungsten steel welding electrodes. His welding supervisors, Billy West and Joe White, gave the inmates unlabeled electrodes to work with, but the inmates never received the boxes in which the electrodes were packaged.

Burleson later learned that the warning labels on the boxes indicated that these 2% thoriated tungsten electrodes were radioactive and exposure to them may cause cancer. The thorium in the welding rods used by Burleson is present in the form of thorium dioxide. Thorium dioxide is a naturally occurring radioactive compound that is distributed in the air during the welding and grinding processes. The U.S. Department of Health and Human Services has determined that thorium dioxide is a carcinogen.

In May of 1997, Burleson was diagnosed with throat and lung cancer.¹ Four other individuals employed as welders at the Boyd stainless steel plant were also diagnosed with cancer around the same time.² However, Burleson also has a forty-five year, two-pack-per-day history of smoking, and both his parents and maternal grandparents died of cancer.

Proceeding pro se, Burleson filed a 42 U.S.C. § 1983 action on December 1, 1997, against the defendants the Texas Department of Criminal Justice ("TDCJ"), Texas Correctional Industries ("TCI"), Gary Johnson, John Benestante, former plant manager Nolan Glass, and welding supervisors West and White. Burleson's § 1983 claim asserted a violation of his Eighth Amendment right to be free from cruel and unusual punishment on the grounds that his conditions of confinement posed an unreasonable risk of damage to his health. Specifically, Burleson claims that the defendants were deliberately indifferent to his health when they allowed him to weld with 2% thoriated tungsten electrodes during the two years he worked as a welder at the Boyd Unit's plant, the exposure to which caused him to develop lung and throat cancer.

To support his causation claim, Burleson presented the expert witness testimony of Dr. Arch Carson, a well-credentialed³ toxicologist and expert in occupational medicine. Dr. Carson opined that Burleson inhaled hazardous radioactive particles while engaging in welding operations at the Boyd Unit, in turn exposing him to a significant risk for the development of respiratory tract cancers. Dr. Carson further opined that this risk exceeded other risk factors, including Burleson's significant smoking history, and led to the occurrence of his cancers.

Under Dr. Carson's so-called "radiation hot spot" theory or "microscopic flux" theory, the primary risk factor for cancer is the local microscopic dose of radiation that is received by the one cell that transforms into cancer, not the total dose of radiation to the body. In Dr. Carson's opinion, the thorium dust Burleson inhaled contained particles which lodged in his airways and damaged the surrounding cells. These particles were a continual radiation hazard to the few local cells near it. Dr. Carson concedes that he has never calculated an individual's radiation exposure from exposure to thoriated tungsten welding electrodes, nor does Dr. Carson have any specialties or medical certifications in any radiation related disciplines or medical physics. Instead, Dr. Carson states that his "radiation hot spot" theory has been proven in practice⁴ and that published scientific and epidemiological studies show that patients who received Thorotrast — a form of thorium dioxide used as a medical imaging dye — during its thirty year use, developed multiple types of cancers. Dr. Carson ultimately concludes that because studies and practice show that Thorotrast resulted in tumors, this conclusively links thorium dioxide — the same substance allegedly inhaled by Burleson during the welding process — to cancer as a causative agent.

In June of 2000, Burleson's claims against defendants Benestante, TDCJ, and TCI were dismissed. On December 20, 2000, Magistrate Judge Dennis G. Green granted summary judgment in favor of defendants Glass, West, and White.

On November 14, 2001, this Court reversed and remanded on the grounds that the summary judgment evidence before it at the time created a genuine issue of material fact as to whether the levels of the carcinogens Burleson was exposed to were sufficient to pose an unreasonable risk of serious damage to his future health. See Burleson v. TDCJ, 277 F.3d 1374 (5th Cir.2001) (unpublished). Additionally, this Court also concluded that summary judgment was not appropriate on the subject of qualified immunity because there was a genuine issue of material fact as to whether the defendants acted with deliberate indifference to significant risks to Burleson's health, such that their conduct was not objectively reasonable in light of clearly established law at the time Burleson worked at the Boyd Unit. Id.

On remand, Burleson acquired counsel and the case was reassigned to Magistrate Judge Jeffrey C. Manske. On August 12, 2002, defendants Glass, West, and White moved to exclude the expert testimony of Dr. Carson. The defendants did not challenge Dr. Carson's qualifications or competency, rather the defendants contended "that Dr. Carson's opinion was not reliable because (1) it is not based upon any scientific or epidemiological studies showing any statistically significant link between exposure to thoriated tungsten electrodes and lung and throat cancer, and (2) that Dr. Carson's application of the `radiation hot spot' theory is not grounded in established science." The defendants also asserted that Dr. Carson's opinion was not relevant "because his opinion is not based on any reliable data about the extent of Mr. Burleson's exposure, if any, to radiation from the thoriated tungsten welding rods during the relevant time period." Because the defendants sought to have Dr. Carson's testimony excluded, the defendants also moved for a second motion for summary judgment. The magistrate judge did not conduct a Daubert hearing because both parties declined the court's request to present oral argument or testimony on behalf of their respective positions.

On May 7, 2003, the magistrate judge granted both of the defendants' motions and entered a final judgment dismissing Burleson's claims. The court dismissed Dr. Carson's testimony as unreliable and irrelevant under the Daubert standards. Without Dr. Carson's testimony, the court found that there was no genuine issue of material fact as to whether Burleson's lung and throat cancers were caused by exposure to thoriated tungsten electrodes, rather than his extensive smoking history. Since Burleson did not establish thoriated tungsten welding electrodes caused cancer, the court concluded that Burleson was unable to make out a constitutional claim. The court therefore granted summary judgment in favor of Glass, West, and White. This appeal followed.

DISCUSSION

On appeal, Burleson challenges the district court's decision to exclude the testimony of Dr. Carson under the standard set forth in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Burleson also contends the court erred in overruling his Objections to Defendants' Summary Judgment Evidence and in granting the Defendant's Second Motion for Summary Judgment.

I. Exclusion of Dr. Carson's Expert Testimony

A. Standard of Review

We review the trial 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.

B. Applicable Law

Daubert "provides the analytical framework for determining whether expert testimony is admissible under Rule 702 of the Federal Rules of Evidence." Pipitone, 288 F.3d at 243. Under Daubert, trial courts act as gate-keepers...