Christophersen v. Allied-Signal Corp., ALLIED-SIGNAL

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation939 F.2d 1106
Docket NumberALLIED-SIGNAL,No. 89-1995,89-1995
Parties, 33 Fed. R. Evid. Serv. 1173 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.
Decision Date15 August 1991

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.

Michael W. Huddleston, Teresa Bohne, R. Brent Cooper, Cowles & Thompson, Dallas, Tex., for The Hall Chemical Co.

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

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

Kenneth S. Geller, Mayer, Brown and Platt, Washington, D.C., for amicus curiae, Product Liability Advisory Council, et al.

David F. Zoll, V.P., Donald D. Evans, Deputy General Counsel, Michael P. Walls, Asst. General Counsel, Chemical Mfrs. Ass'n, Washington, D.C., for amicus curiae Chemical Mfrs.

Brent M. Rosenthal, Baron & Budd, Dallas, Tex., for amicus curiae Trial Lawyers for Public Justice (in support of appellant.)

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



The issue presented by this appeal is how a court should determine the admissibility of expert opinion testimony. At the summary judgment stage of this case, plaintiff attempted to establish medical causation of a toxic tort through the testimony of a single expert witness. The district court held that the basis of the expert's opinion was insufficiently reliable and, in the alternative, that the expert's testimony would have been more prejudicial than probative. With the expert's testimony ruled inadmissible, plaintiff was left without proof of causation. The district court entered summary judgment for the defendants. We affirm.


Christophersen died in March of 1986 as a result of a rare, small-cell form of cancer that originated in his colon and metastasized to his liver. During the fourteen years preceding his death, Christophersen worked for Marathon at its plant in Waco, Texas. At that plant, Marathon produces 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 allegedly exposed to fumes resulting from the manufacturing process. Plaintiffs, Christophersen's surviving spouse and child, 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 the 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 to provide Christophersen a safe place to work or to warn him of the dangerous conditions that existed at the plant. Marathon moved for summary judgment. The district court determined that plaintiffs failed to state a design defect or manufacturing defect claim and granted the defendants' motions for summary judgment. Plaintiffs do not appeal this ruling.

The district court also granted Marathon's motion for summary judgment on the marketing defect claim because the plaintiffs did not present sufficient evidence of causation. In reaching this conclusion, the court focused on the affidavit of the plaintiffs' expert witness, Dr. Miller, who concluded that Christophersen's exposure to nickel and cadmium at Marathon caused the cancer that resulted in his death. The district court undertook an in-depth review of the basis for Dr. Miller's conclusion and determined that his opinion should be excluded. On appeal, a panel of this court reversed, holding that Dr. Miller's opinion was not so fundamentally unreliable that the jury should not consider it. Defendants timely petitioned this court for rehearing en banc.


A trial court's ruling regarding admissibility of expert testimony is protected by an ambit of discretion and must be sustained unless manifestly erroneous. 1 At the same time, we 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." Viterbo v. Dow Chem., 826 F.2d 420, 422 (5th Cir.1987); see also Dixon v. International Harvester, 754 F.2d 573, 580 (5th Cir.1985).

This is an appeal from a grant of summary judgment. Although we review grants of summary judgment de novo, that is, under the same Rule 56 standards as are used by the district court, e.g., Medlin v. Palmer, 874 F.2d 1085, 1089 (5th Cir.1989) (applying the Celotex and Rule 56 summary judgment standards de novo) (citing United States Steel Corp. v. Darby, 516 F.2d 961 (5th Cir.1975)), in Rule 56 proceedings we still apply the manifest-error standard of review to the trial court's evidentiary rulings, Lavespere v. Niagara Mach. & Tool Works, 910 F.2d 167, 175-76 (5th Cir.1990); Slaughter v. Southern Talc Co., 919 F.2d 304, 306-07 (5th Cir.1990); Washington v. Armstrong World Indus., 839 F.2d 1121, 1123 (5th Cir.1988); Viterbo, 826 F.2d at 422. 2 Thus an appeal of a summary judgment presenting evidentiary issues raises two levels of inquiry. At the first level, we review the trial court's evidentiary rulings, which define the summary judgment record, and we give these rulings their due deference. At the second level, with the record defined, we review the trial court's summary judgment decision de novo. When the contested evidence is essential to the cause of action and the trial court has excluded the evidence, we may decide the appeal at the first level solely on the basis of the soundness of the evidentiary ruling. For if we uphold the exclusion of essential evidence, the second-level inquiry becomes academic. E.g., Viterbo, 826 F.2d at 422 (stating that appropriateness of summary judgment depends solely upon whether the district court erred in excluding causation testimony of plaintiff's expert). This is such a case. Without Dr. Miller's testimony, Christophersen cannot prove that any exposure to nickel/cadmium caused the colon cancer. In sum, we ask in this appeal whether excluding Dr. Miller's opinion was manifestly erroneous.


The Federal Rules of Evidence, combined with Frye v. United States, 293 F. 1013 (D.C.Cir.1923), provide a framework for trial judges struggling with proffered expert testimony. The signals are not neatly cabined categories, and we

disentangle them only to accent the independent significance of each.

(1) Whether the witness is qualified to express an expert opinion, Fed.R.Evid. 702;

(2) whether the facts upon which the expert relies are the same type as are relied upon by other experts in the field, Fed.R.Evid. 703;

(3) whether in reaching his conclusion the expert used a well-founded methodology, Frye; and

(4) assuming the expert's testimony has passed Rules 702 and 703, and the Frye test, whether under Fed.R.Evid. 403 the testimony's potential for unfair prejudice substantially outweighs its probative value.

These four signals or inquiries introduce no new concepts to our jurisprudence. They are only guideposts drawn from the Federal Rules of Evidence and our cases. We list these inquiries, but in doing so we do not intend that they be applied mechanically. At the same time, they often will naturally lend themselves to sequential application. The reality is that trials are too varied for fixed molds; we construct none today.

The first three steps are best understood as threshold requirements that all expert testimony must meet before being deemed admissible. Cf. Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129, 1135 (5th Cir.1985) (construing Rule 702's qualifications requirement as a threshold inquiry); Slaughter, 919 F.2d at 306-07 (construing Rule 703's factual basis requirement as a threshold inquiry). Rule 403, on the other hand, provides an overlay--a final mechanism for screening out otherwise admissible testimony whose potential for prejudice substantially outweighs its probative value. 3 Cf. 22 C. Wright & K. Graham, Federal Practice & Procedure, Sec. 5213 at 258-59 (1978).

The first question concerns the expert's qualifications: Is the witness--because of his specialized knowledge, skill, experience, training, or education in the relevant field--qualified to express an expert opinion on the topic at issue? Fed.R.Evid. 702. The Advisory Committee Note accompanying Rule 702 reads the broad language of the rule to permit expert testimony not only by experts carrying formal...

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