Madej v. Maiden

• Citation: 951 F.3d 364
• Decision Date: 24 February 2020
• Docket Number: No. 18-4132,18-4132
• Parties: Cynthia MADEJ; Robert Madej, Plaintiffs-Appellants, v. Jeff MAIDEN, Athens County Engineer, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

951 F.3d 364

Cynthia MADEJ; Robert Madej, Plaintiffs-Appellants,

v.Jeff MAIDEN, Athens County Engineer, Defendant-Appellee.

No. 18-4132

United States Court of Appeals, Sixth Circuit.

Argued: October 22, 2019

Decided and Filed: February 24, 2020

ARGUED: David T. Ball, ROSENBERG & BALL CO., LPA, Granville, Ohio, for Appellants. Molly Gwin, ISAAC, WILES, BURKHOLDER & TEETOR, LLC, Columbus, Ohio, for Appellee. ON BRIEF: David T. Ball, ROSENBERG & BALL CO., LPA, Granville, Ohio, Fazeel S. Khan, HAYNES, KESSLER, MYERS & POSTALAKIS, INC., Worthington, Ohio, for Appellants. Molly Gwin, Maribeth Meluch, ISAAC, WILES, BURKHOLDER & TEETOR, LLC, Columbus, Ohio, for Appellee. Donald Horak, DIOCESE OF STEUBENVILLE, Athens, Ohio, for Amici Curiae.

Before: GUY, BUSH, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Cynthia Madej is very ill. On top of her other ailments, her doctors say she has "multiple chemical sensitivity

." She thus goes to great lengths to avoid everyday materials that she believes will trigger harmful reactions like burning eyes and throat, dizziness, or nausea. This suit arose because Ms. Madej fears that the use of asphalt on a road near her home will cause more harm still. She and her husband sued the county engineer to stop the roadwork, alleging violations of the Fair Housing Amendments Act of 1988 and the Americans with Disabilities Act of 1990. Applying the well-known rules from Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the district court excluded the opinions of the Madejs' experts that the asphalt would injure Ms. Madej. Without expert causation evidence, the court added, the Madejs could not withstand summary judgment. As far as we are aware, "no district court has ever found a diagnosis of multiple chemical sensitivity ... to be sufficiently reliable to pass muster under Daubert ." Gabbard v. Linn-Benton Hous. Auth. , 219 F. Supp. 2d 1130, 1134 (D. Or. 2002), aff'd sub nom.

Wroncy v. Or. Dep't of Transp. , 94 F. App'x 559 (9th Cir. 2004). We thus see no abuse of discretion in the district court's evidentiary ruling and affirm its judgment for the county engineer.

I.

Cynthia Madej has suffered through decades of debilitating maladies, including chronic fatigue syndrome

, fibromyalgia, anemia, and severe vitamin deficiencies. Since 1997, the Social Security Administration has found her completely disabled and entitled to benefits. Two of her doctors, Barbara Singer (a primary-care physician) and Allan Lieberman (an environmental-medicine specialist), have opined that she also suffers from multiple chemical sensitivity, which is not a disease recognized by the World Health Organization or the American Medical Association. Dr. Lieberman takes the view that the phrase "multiple chemical sensitivity" (like the word "headache") is more description than diagnosis because it conveys that many chemicals negatively affect Ms. Madej's health. Ms. Madej says that she has reacted to countless substances, including fertilizers, pesticides, fragrances, cleaning products, glues, paint, newsprint, polyurethane, varnish, vinyl, gas, oil, propane, rubber, plastics, carpet, wood, and new clothes. Her reactions have included burning eyes and throat, chest tightness, shortness of breath, chronic headaches, nausea, and dizziness.

Ms. Madej takes extraordinary measures to avoid the common materials that trigger these harmful reactions. She is effectively homebound, leaving her home maybe a couple of times per year, largely for medical appointments. She also sleeps in a structure on her property that is lined with glass (floors, walls, and ceiling) to avoid the wood in her house. She stays warm in this glass structure over the winter by using a string of incandescent light bulbs (supplemented by glass bottles filled with hot filtered water on extremely cold nights).

In 2010, given her sensitivities, Ms. Madej and her husband, Robert, moved to a home in rural Athens County, Ohio. Located some 280 feet off of Dutch Creek Road, their home was built for another individual with chemical sensitivities. After moving there, the Madejs gave a letter from Dr. Lieberman to the existing Athens County Engineer asking for advance notice of planned chemical sprayings within three blocks of their home. The letter stated that "[e]xposure to even small doses of" certain substances, including "herb[i]cides, pesticides, fertilizers, oil, road tar, asphalt, diesel exhaust and other petroleum and roadway materials, could create a life-threatening situation [for Ms. Madej]."

A new county engineer, Jeff Maiden, took office in January 2013. In 2014, when Maiden's office paved a nearby road, Ms. Madej reportedly experienced headaches, throat and eye burning, and chest tightness for months. So, beginning in the spring of 2015, her husband repeatedly called the office to remind Maiden's staff of his wife's poor health. Each time, employees responded that the office had no maintenance plans for Dutch Creek Road.

In March 2015, however, dozens of residents had petitioned the county commissioners to improve this pothole-ridden road. Maiden had also received more complaints about the dust on Dutch Creek Road than the dust on any other road in the county. When cars drove on the road in the summertime, billowing dust turned nearby foliage brown. One resident even vandalized a road sign to read "Dust Creek Road" rather than "Dutch Creek Road."

To address these complaints, Maiden decided to "chip seal" the road. The chip-seal process helps maintain rural roads and prevent dust. Workers spray a thin layer of heated asphalt liquid on the surface, place small stones or "chips" on top of the liquid, compress the chips into the liquid, and sweep excess chips off the roadway.

Maiden's staff recalled Ms. Madej having asphalt allergies. In late August 2015, therefore, an employee informed the Madejs that the office planned to start work on the road the next day. The Madejs objected. Maiden agreed to delay things until after a public meeting at which the Madejs could air their concerns to the community. That same day, though, workers patched two smaller areas of the road, located a half mile from the Madejs' home. Even this work reportedly left Ms. Madej feeling ill.

On September 10, the public meeting generated a standing-room-only crowd. Maiden discussed the roadwork while Mr. Madej explained his wife's poor health. Neighbors proposed various accommodations—such as paying for the Madejs' hotel or helping them stay at a campsite during the work—to no avail. Seeing no room for compromise, Maiden chose to start the roadwork on September 14. The parties dispute whether Mr. Madej had told Maiden at or before this meeting about his research into fixing the road with non-asphalt alternatives to chip seal. But we will assume that he did so given the case's procedural posture.

On September 15, the Madejs brought a tort suit against Maiden in his official capacity.

A state court granted preliminary relief halting any chip-seal work within a mile of the Madejs' home. The Madejs later amended their complaint to assert claims under the Fair Housing Amendments Act of 1988 and the Americans with Disabilities Act of 1990. Maiden removed the suit to federal court. He then moved to exclude the opinions of the Madejs' three doctors: her two treating doctors (Drs. Singer and Lieberman) and an expert (Dr. John Molot). Maiden also sought summary judgment on all claims.

The district court initially held that the opinions of the Madejs' doctors did not satisfy the reliability requirements of Federal Rule of Evidence 702. Madej v. Maiden , No. 2:16-cv-658, 2018 WL 5045768, at *4–14 (S.D. Ohio Oct. 17, 2018). Invoking the causation rules from toxic-tort cases, the court noted that the Madejs must show both general causation (that the asphalt in chip seal can cause the type of injury that a plaintiff alleges) and specific causation (that this asphalt will, in fact, cause Cynthia Madej's injury). Id. at *4–5. The court found that the doctors did not offer reliable opinions on specific causation: that chip seal would harm Ms. Madej. Id. at *5–14.

The court next held that the Madejs' lack of expert causation evidence warranted summary judgment for Maiden. Id. at *14–16. It noted that the Fair Housing Amendments Act requires a reasonable accommodation for a person with a handicap when that accommodation is necessary to give the person an equal opportunity to enjoy a dwelling. Id. at *15. Finding that this "necessary" element contains a causation test, the court reasoned that the Madejs could not show that chip seal would harm Ms. Madej and so could not show any need for alternatives. Id. The court rejected the Madejs' claim under the Americans with Disabilities Act for an identical reason. Id.

The Madejs now appeal the district court's evidentiary ruling and its rejection of their federal claims. They have abandoned their state-law claims. And while they separately challenge the court's rejection of what they call their "injunction" count, an injunction is a remedy, not a claim. If they cannot show "actual success" on their claims, they cannot obtain a permanent injunction. Jolivette v. Husted , 694 F.3d 760, 765 (6th Cir. 2012) (citation omitted).

II.

The opinion testimony of a doctor (whether an expert or a treating physician) generally must pass muster under Rule 702. See Gass v. Marriott Hotel Servs., Inc. , 558 F.3d 419, 426 (6th Cir. 2009). Before a "witness who is qualified as an expert by knowledge, skill, experience, training, or education may" testify, the party who seeks to call the witness must prove: (1) that "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"; (2) that "the testimony is based on sufficient facts or data"; (3) that "the testimony is the product of reliable principles and methods"; and (4) that "the expert has...