Christophersen v. Allied-Signal Corp.

• Citation: 902 F.2d 362
• Decision Date: 04 June 1990
• Docket Number: ALLIED-SIGNAL,No. 89-1995,89-1995
• Parties: , 30 Fed. R. Evid. Serv. 497 Rosemarie CHRISTOPHERSEN, Surviving Spouse of Albert Roy Christophersen, deceased and Steven Roy Christophersen, Plaintiffs-Appellants, v.CORPORATION, Inco Alloys International, Inc., United Catalysts, Inc., the Hall Chemical Company, Marathon Manufacturing Company, and CP Chemicals, Inc., Defendants-Appellees. Summary Calendar.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 362

902 F.2d 362

58 USLW 2729, 30 Fed. R. Evid. Serv. 497

Rosemarie CHRISTOPHERSEN, Surviving Spouse of Albert Roy Christophersen, deceased and Steven Roy Christophersen, Plaintiffs-Appellants, v. ALLIED-SIGNAL CORPORATION, Inco Alloys International, Inc. United Catalysts, Inc., the Hall Chemical Company Marathon Manufacturing Company, and CP Chemicals, Inc., Defendants-Appellees.

No. 89-1995

Summary Calendar.

United States Court of Appeals Fifth Circuit.

June 4, 1990.

Paul Colley, Jr., Law Offices of Paul Colley, Jr., Tyler, Tex., for Christophersen, et al.

Steve Schoettmer, P. Jefferson Ballew, Thompson & Knight, Dallas, Tex., for Allied-Signal, Inc.

Marc A. Sheiness, Hirsch, Glover, Robinson & Sheiness, Houston, Tex., for Inco Alloys Intern., Inc.

Pat Beard, Beard & Kultgen, Waco, Tex., for United Catalysts, Inc.

R. Brent Cooper, Stan Thiebaud, Cowles & Thompson, Dallas, Tex., for Hall Chemical Co.

Clifton T. Hutchison, Hughes & Luce, Dallas, Tex., for Marathon Mfg.

Jeff Kinsel, Elizabeth S. Miller, Naman, Howell, Smith & Lee, Waco, Tex., for CP Chemicals, Inc.

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

Before REAVLEY, KING and JOHNSON, Circuit Judges.

REAVLEY, Circuit Judge:

On motion for summary judgment, the district court determined that the opinion of plaintiffs' expert witness should be excluded because it was unreliable. The exclusion of this evidence left plaintiffs without any support in the record for their contention that Albert Roy Christophersen's exposure to nickel and cadmium caused the cancer that resulted in his death. For that reason the court granted the defendants' summary judgment motion. Rosemarie Christophersen and Steven Roy Christophersen, the surviving spouse and son of the decedent, seek reversal and argue that the court erred in disregarding their expert witness' opinion evidence. Because we agree that plaintiffs did raise an issue on a causal relation between a marketing defect and the cancer, we reverse the judgment and remand the case.

I.

Albert Roy Christophersen died in March of 1986 as a result of cancer that originated in his colon and metastasized to his liver. During the fourteen years preceding his death, Christophersen worked for Marathon Manufacturing Company at its plant in Waco, Texas. At its Waco operation, Marathon among other things engages in the production of nickel/cadmium batteries. Christophersen never was directly involved in the production of these batteries. The record, however, indicates that over a number of years Christophersen's job duties required him to visit the area of the plant in which the batteries were manufactured. During these visits, Christophersen was exposed to fumes resulting from the manufacturing process. Plaintiffs contend that these fumes contained particles of nickel and cadmium and that Christophersen's exposure to these heavy metals caused the cancer that resulted in his death.

Plaintiffs brought suit pursuant to the Texas Wrongful Death and Survival Statute, Tex.Civ.Prac. & Rem.Code Ann. Secs. 71.001-031 (Vernon 1986), against Marathon and a number of companies that supplied Marathon with chemicals and other materials used in the manufacture of the nickel/cadmium batteries. Plaintiffs' complaint alleged that the products used in the production of the batteries were defectively designed, manufactured, and marketed and were producing causes of the cancer that resulted in Christophersen's death. The complaint also alleged that Marathon was aware of the dangerous nature of the chemicals and products and failed either to provide Christophersen a safe place to work or to warn him of the dangerous conditions that existed at the plant. Defendants moved for summary judgment.

In considering plaintiffs' marketing defect claim, ¹ the court focused on the affidavit of plaintiffs' expert witness, Dr. Lawrence Miller, who indicated that Christophersen's exposure to nickel and cadmium at Marathon caused the cancer that resulted in his death. The court undertook an in-depth review of the bases for Dr. Miller's conclusion and determined that his opinion should be excluded. This ruling left plaintiffs without any evidence linking Christophersen's cancer to his exposure to nickel and cadmium, and the court held that, absent evidence creating an issue of material fact with regard to causation, summary judgment on the marketing defect claim was appropriate.

II.

A.

Before a court may grant summary judgment, the moving party must demonstrate that it is entitled to judgment as a matter of law because there is no actual dispute as to an essential element of the plaintiff's case. Fed.R.Civ.P. 56(c); see Washington v. Armstrong World Indus., 839 F.2d 1121, 1122 (5th Cir.1988); Impossible Elecs. Techniques, Inc. v. Wackenhut Protective Sys., 669 F.2d 1026, 1031 (5th Cir. Unit B 1982). In this case, the district court considered Dr. Miller's affidavit as the only evidence supporting plaintiffs' claim of causation. Plaintiffs do not contend otherwise. Therefore, if the district court properly determined that Dr. Miller's conclusion should be excluded, the grant of summary judgment was appropriate.

B.

The district court based its decision to exclude the causation evidence on its determination that Dr. Miller's conclusion was unreliable. ² Our decisions indicate that the court's determination in this regard may be reversed only if it was manifestly erroneous. See Washington, 839 F.2d at 1123; Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir.1987). We have also held, however, that in undertaking its inquiry into the admissibility of expert testimony a court should accord "proper deference to the jury's role as the arbiter of disputes between conflicting opinions. As a general rule, questions relating to the bases and sources of an expert's opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the jury's consideration." Id. at 422; see Dixon v. International Harvester Co., 754 F.2d 573, 580 (5th Cir.1985) (noting that once a witness is "properly admitted as an expert, the jury [is] at liberty to accept or reject his testimony, and to judge his credibility"). Thus, a court should exclude an expert opinion only if it is "fundamentally unsupported" and "would not actually assist the jury in arriving at an intelligent and sound verdict." Viterbo, 826 F.2d at 422.

In an affidavit submitted to the district court, Dr. Miller reached the following conclusion:

Based upon my review of the medical records, research literature, my education and experience, it is my opinion that, more likely than not, the metastatic cancer which caused the death of Mr. Christophersen was caused by his exposure to toxic nickel and cadmium fumes during his lifetime. I have reached this opinion after conducting extensive research and investigation into this matter and my opinion is based upon reasonable medical probability.

Counsel for defendants explored the bases for this conclusion during an extensive oral deposition. In its memorandum opinion, the district court focused its analysis on three types of information that Dr. Miller relied on in forming his conclusions.

Evidence of Exposure.--Most of the information Dr. Miller received regarding Christophersen's exposure to nickel and cadmium came from the affidavit of Edgar G. Manoliu, a former employee at Marathon's Waco plant. This affidavit indicated that over a fourteen-year period Christophersen's duties required him to regularly visit areas of the Marathon plant in which he was exposed to "many fumes and gases," including "airborne particles of cadmium and nickel alloys." Dr. Miller relied on these statements and other information from plaintiffs' counsel in concluding that Christophersen's employment history at Marathon "included extensive exposure to nickel and cadmium fumes." The district court took issue with Dr. Miller's conclusion, primarily because there was no indication of the chemical composition of the fumes in the plant or the level of exposure, and found that "Dr. Miller could not base a reliable opinion solely upon the information provided in the Manoliu affidavit."

Although the district court certainly was correct in observing that evidence concerning the chemical composition of the fumes in the Marathon plant and the level of exposure would be helpful, the court erred to the extent that it held the absence of such information rendered Dr. Miller's opinion unreliable. In his deposition, Dr. Miller noted that "in general there appears to be a dose-response effect for [nickel and cadmium] in terms of their carcinogenicity." "That is, the greater the dose ... on a daily basis [and] the dose over time," the higher the risk of the development of cancer. Dr. Miller also indicated, however, that the dose-response relationship could not be applied to individual cases, and thus knowledge of the precise level of exposure on a daily basis would not necessarily be of benefit in reaching an accurate conclusion as to the cause of an individual's cancer. With regard to Christophersen's cancer, Dr. Miller apparently placed primary emphasis on the exposure over time and indicated that so long as "the general dates are correct in terms of the dates of exposure, the general amounts of exposure based on number of visits made to the area and a general description of the time spent in the area," his conclusions would remain unaffected. Dr. Miller was entitled to rely on the information provided him in formulating his opinions, see Peteet v. Dow Chem. Co., 868 F.2d 1428, 1432 (5th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 328, 107 L.Ed.2d 318 (1989), and he apparently determined that the information was sufficient to allow him to make a finding. At trial defendants certainly may challenge the factual basis for Dr. Miller's conclusions and argue that additional information was necessary in order to make an...