Heller v. Shaw Industries, Inc.

• Decision Date: 03 February 1999
• Docket Number: No. 97-1735,97-1735
• Citation: 167 F.3d 146
• Parties: 29 Envtl. L. Rep. 20,532, Prod.Liab.Rep. (CCH) P 15,443 Carol HELLER; Thomas Heller individually and as the parents and natural guardians of Emily Heller and Katherine Heller, minor children, Appellants, v. SHAW INDUSTRIES, INC.
• Court: U.S. Court of Appeals — Third Circuit

Page 146

167 F.3d 146

29 Envtl. L. Rep. 20,532, Prod.Liab.Rep. (CCH) P 15,443

Carol HELLER; Thomas Heller individually and as the parents and natural guardians of Emily Heller and Katherine Heller, minor children, Appellants, v. SHAW INDUSTRIES, INC.

No. 97-1735.

United States Court of Appeals Third Circuit.

Argued Oct. 6, 1998.

Decided Feb. 3, 1999.

Joseph C. Kohn, Joanne Zack (Argued), Martin J. D'Urso, David G. Concannon, Kohn, Swift & Graf, P.C., Philadelphia, PA, for Appellants.

John F. Kent, Anne M. Manero, Kent & McBride, Philadelphia, PA, Lee Ann Jones (Argued), Powell, Goldstein, Frazer & Murphy, LLP, Atlanta, GA, for Appellee.

Before: BECKER, Chief Judge, NYGAARD, and NOONAN, ^* Circuit Judges.

OPINION OF THE COURT

BECKER, Chief Judge:

This is an appeal by plaintiff Carol Heller ("Heller"), who sought to recover from defendant Shaw Industries ("Shaw"), for certain respiratory illnesses allegedly caused by volatile organic compounds emitted by Shaw carpet installed in Heller's former home. The District Court's grant of summary judgment against Heller and in favor of Shaw is largely a function of its exclusion, following an extensive in limine hearing, of key expert testimony by which Heller hoped to establish liability. See Heller v. Shaw Indus., Inc., No. Civ.A.95-7657, 1997 WL 535163 (E.D.Pa. Aug. 18, 1997). In reviewing the District Court's rulings, we revisit the caselaw interpreting Federal Rule of Evidence 702, particularly Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and In re Paoli Railroad Yard PCB Litigation, 35 F.3d 717 (3d Cir.1994), and apply their teachings to this case.

After careful but deferential review, see General Elec. Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 517, 139 L.Ed.2d 508 (1997), we conclude that, although the District Court erred in excluding certain aspects of the experts' proffered testimony, it properly excluded the central portions of their testimony, depriving Heller's claim of its needed evidentiary support.

More specifically, the District Court was too restrictive in requiring Heller's medical expert to rely on published studies specifically linking Heller's illness with Shaw's product, and in requiring Heller's medical expert to rule out all alternative possible causes of her illness. However, it properly excluded this expert's causation testimony because his conclusion regarding the cause of Heller's illness was heavily based on a flawed temporal relationship between the installation of the Shaw carpet and the presence of Heller's illness. The District Court also properly excluded the testimony of Heller's environmental expert on the grounds that his environmental testing revealed levels of dangerous compounds in the air in Heller's home that were not significantly higher than background levels, and his methodology for extrapolating from these tests to estimate the (higher) levels of compounds at an earlier time was seriously flawed. Therefore, because the District Court did not abuse its discretion in excluding the key elements of Heller's experts' testimony necessary to prove causation, the grant of summary judgment will be affirmed.

I. Facts and Procedural History

On September 30, 1993, Heller, her husband Thomas, and their two children moved into a nine-year old house in West Chester, Pennsylvania. Shortly after the move, Thomas Heller experienced allergy symptoms. In November and December 1993, an allergist advised Mr. Heller to replace the carpeting in the home because cat hair from previous owners might have caused his allergic reactions. On December 13 and 14, 1993, the Hellers put new carpeting--manufactured by Shaw Industries--in certain rooms of their home, including the master bedroom on the first floor and a guest room on the second floor.

In late December 1993, Carol Heller began to experience respiratory problems, including asthma, breathing difficulty, wheezing, coughing, and dizziness. After seeking treatment from her father, a physician, Heller consulted Dr. Joseph Papano, an allergist and one of her two expert witnesses. ¹ Her first visit to Dr. Papano was on February 15, 1994. Dr. Papano took Heller's medical and family history, questioned her about her environment (whether there were cats or dogs in the home, etc.), and performed allergy tests, chest X-rays, and pulmonary function tests. Based on the history, tests, and a physical examination, Dr. Papano ruled out various possible causes of her respiratory problems. In February 1994, the doctor recommended that Heller contact Alan Todd of Todd Environmental Consultants (collectively "Todd") to test both the air quality in her home and the carpet. ² When Dr. Papano next saw Heller, on March 19, 1994, she was still experiencing problems, but informed him that her symptoms improved when she was out of her house. At this time, she brought the doctor a sample of the Shaw carpet, which he testified had a strong odor.

The Hellers contracted with Todd to perform the testing of the environment in the house and of the carpet. Todd initially tested for excessive levels of dust or other possible contaminants, finding nothing unusual. By April 7, 1994, the Heller family had moved out of their home in an attempt to eliminate Heller's respiratory problems. On April 14, 1994, Todd tested the air in the closet of one of the Hellers' bedrooms; the closet contained both some of the Shaw carpet and some carpet from an unknown manufacturer. Todd's initial test, conducted over approximately eight hours, found fourteen types of volatile organic compounds ("VOC"s) present in the air in the closet.

Three weeks later, on May 5, 1994, the Shaw carpet was removed from the house. Less than a week later, on May 11, 1994, Todd again tested the air in the bedroom closet for eight hours. During the period between the two tests, no other changes were made in the house: no objects were added or removed, the windows remained closed, and no persons entered or left the by-now empty house. In the second test, Todd found only five types of VOCs present. Four of these were present in levels virtually indistinguishable from the initial readings. Therefore, nine compounds completely disappeared and one (benzene) remained present, but at lower levels. Todd's initial conclusion, in a May 23, 1994, letter to Heller, was that "none of the compounds identified would be expected to typically result in asthmatic or sensitization responses." (Later, however, in his first expert witness report, dated January 16, 1997, he opined that the compounds that disappeared or diminished were emitted from the Shaw carpet, and were "the likely source of [the Hellers'] irritation and related responses.")

The Hellers returned to the home briefly on May 11, 1994. Although the carpet had been removed six days earlier and the May 11 testing would reveal the presence of very few VOCs, Mrs. Heller again experienced "wheezing, shortness of breath and an irritated throat." The Hellers then left the house, never to return. In November 1994, they sold the home for less than they had paid for it a year earlier.

Dr. Papano's expert report stated that he performed a differential diagnosis, which involved ruling out possible causes of Heller's symptoms other than Shaw's carpet (including "an infectious cause"), and, based largely on the temporal relationship between her symptoms and the installation of the Shaw carpet, concluded that the Shaw carpet precipitated Heller's respiratory problems. As noted above, Alan Todd also offered his expert opinion (in his original expert report) that "to a reasonable degree of scientific certainty, ... the illness[es] suffered by the Heller family were caused by their prolonged exposure to the VOC's measured in their home and emitted by the carpeting manufactured by Shaw Industries."

In December 1995, the Hellers brought a diversity action against Shaw in the District Court for the Eastern District of Pennsylvania, under 28 U.S.C. § 1332, alleging breach of warranty, failure to warn, negligent and intentional misrepresentation, defective design, and violation of state consumer protection laws. The complaint sought compensatory and punitive damages for both personal injuries and property damage, as well as a medical monitoring award. To establish defective design and failure to warn, a plaintiff must prove that the defendant's product caused her injuries. Causation therefore was the primary focus of the District Court's inquiry and the primary disputed issue in this case.

Following extensive discovery, Shaw moved for summary judgment and, as an adjunct to that motion, moved in limine to exclude all of Heller's expert witness testimony. The District Court held a Daubert hearing over several days. It then filed an unpublished opinion and order, granting defendant's motions for exclusion of plaintiff's expert testimony and for summary judgment. See Heller v. Shaw Indus., Inc., No. Civ.A.95-7657, 1997 WL 535163 (E.D.Pa. Aug. 18, 1997).

On appeal, we review a District Court's decision to exclude expert testimony for abuse of discretion. See Joiner, 118 S.Ct. at 517. The District Court's interpretation of the requirements of Rule 702, however, is subject to plenary review. See Paoli, 35 F.3d at 749. As to the District Court's entry of summary judgment for defendants, "we exercise plenary review, construing all evidence and resolving all doubts raised by affidavits, depositions, answers to interrogatories, and admissions on file in favor of the non-moving party." Iberia Foods Corp. v. Romeo, 150 F.3d 298, 302 (3d Cir.1998).

Heller does not appear to dispute that, if we determine that the District Court properly excluded all of plaintiff's expert testimony, summary judgment for defendant was the proper course for the key claims of design defect and failure to warn. This is because, without either Dr. Papano's or Alan Todd's testimony, Heller would be left...