Mitchell v. Gencorp Inc., 97-3219

• Decision Date: 07 January 1999
• Docket Number: No. 97-3219,97-3219
• Citation: 165 F.3d 778
• Parties: Prod.Liab.Rep. (CCH) P 15,421, 1999 CJ C.A.R. 1113 Jeffrey A. MITCHELL and Verna Mitchell, individually and as executors of the estate of Jeffrey A. Mitchell, Bryan A. Mitchell, a minor, by and through their mother, next friend, Plaintiffs-Appellants, v. GENCORP INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 778

165 F.3d 778

Prod.Liab.Rep. (CCH) P 15,421, 1999 CJ C.A.R. 1113

Jeffrey A. MITCHELL and Verna Mitchell, individually and as executors of the estate of Jeffrey A. Mitchell Bryan A. Mitchell, a minor, by and through their mother, next friend, Plaintiffs-Appellants, v. GENCORP INC., Defendant-Appellee.

No. 97-3219.

United States Court of Appeals Tenth Circuit.

Jan. 7, 1999.

David O. Alegria of McCullough, Wareheim & Labunker, P.A., Topeka, Kansas, for Plaintiffs-Appellants.

Robert P. Numrich (Martha E. Madden with him on the brief) of Evans and Dixon, Kansas City, Missouri, for Defendant-Appellee.

Before BALDOCK, McKAY, and HENRY, Circuit Judges.

BALDOCK, Circuit Judge.

Plaintiffs Jeffrey A. Mitchell and Verna Mitchell appeal the district court's grant of summary judgment in favor of Defendant Gencorp. Specifically, Plaintiffs argue that the district court erroneously excluded the testimony of their expert witnesses and, as a result, granted summary judgment in favor of Defendant because Plaintiffs failed to establish causation. Our jurisdiction arises under 28 U.S.C. § 1291. We affirm.

I.

Jeffrey A. Mitchell worked as a warehouseman and truck driver for Midway Sales and Distribution, Inc. from 1988 until 1993. Mitchell's positions with Midway required him to stock, organize and fill orders from the company's "flammable room." The "flammable room" is twelve feet wide by thirty feet long with a ten-foot ceiling. The room has no forced ventilation and the evidence before the district court suggests that some barrels leaked in the room. During Mitchell's tenure, the room contained, among other things, products manufactured by Defendant which contained Toluene, Xylene, Hexane and Haptene. Mitchell entered the "flammable room" several times each day and remained for periods varying from less than one minute to as many as fifteen minutes.

In 1992, doctors diagnosed Mitchell with chronic myelogenous leukemia. After some investigation, Mitchell concluded that his exposure to Defendant's products caused him to develop chronic myelogenous leukemia. Accordingly, Mitchell filed suit seeking compensatory and punitive damages from Defendant for negligence, breach of express and implied warranties, and strict liability. Mitchell died on June 1, 1995, at which time his executor and several additional parties were substituted as Plaintiffs.

Plaintiffs proposed to introduce five expert witnesses at trial. Plaintiff first proposed to introduce the testimony of Steve Herron, an industrial hygienist. In forming his opinion, Herron studied photographs of the "flammable room" and material safety data sheets listing the chemicals contained in Defendant's products. From this and his general knowledge of chemicals, Herron opined that Mitchell's exposure to Defendant's products probably caused him to develop chronic myelogenous leukemia. Herron never visited the flammable room and conducted no air tests to demonstrate Mitchell's level of exposure to the chemicals. Moreover, he did not attempt to recreate the level of exposure through computer modeling.

Plaintiff also proposed to call four physicians at trial. Each physician examined Mitchell and the material safety data sheets listing the chemicals contained in Defendant's products. The physicians had no information suggesting Mitchell had been exposed to benzene, a substance thought to cause certain types of leukemia, and relied largely on Mitchell's personal recollection to determine his level of exposure to the chemicals in the "flammable room." In forming their opinions, the physicians reviewed several published articles suggesting a relationship between benzene exposure and certain types of leukemia. No article the physicians produced, however, showed a supportable link between benzene exposure and chronic myelogenous leukemia; the type of leukemia from which Mitchell suffered.

Prior to trial, Defendant filed a motion in limine seeking to prevent Plaintiffs' experts from testifying. After a lengthy hearing held pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the district court determined that "the opinions of plaintiffs' expert witnesses [were not] based on scientifically valid principles and, therefore, [did] not meet the reliability requirements of Rule 702 as interpreted by the Supreme Court in Daubert." Based on this determination, the district court excluded the evidence. Also pending before the court was Plaintiffs' motion for summary judgment. The district court determined that without the assistance of their expert witnesses, Plaintiffs could not prove Mitchell's exposure to Defendant's products caused him to develop chronic myelogenous leukemia. Therefore, the court granted Defendant's motion for summary judgment.

Where a trial court excludes "evidence essential to maintain a cause of action, the propriety of summary judgment depends, as here, entirely on the evidentiary ruling." Allen v. Pennsylvania Engineering Corp., 102 F.3d 194, 196 (5th Cir.1996). Thus, we focus on the district court's evidentiary ruling, which we review for an abuse of discretion. General Electric v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 519, 139 L.Ed.2d 508 (1997). Once we determine the propriety of the district court's decision to exclude evidence, we must then determine whether the district court correctly granted summary judgment in Defendant's favor. This we review de novo. Aramburu v. The Boeing Co., 112 F.3d 1398, 1402 (10th Cir.1997).

II.

Federal Rule of Evidence 702 allows the parties to present scientific testimony through a qualified expert where such evidence "will assist the trier of fact to understand the evidence or to determine a fact in issue." In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court defined the role of the trial judge in admitting scientific testimony under Rule 702. Describing the trial judge's role as that of a "gatekeeper," the Court listed several non-exclusive factors which it deemed relevant in deciding whether to admit expert scientific testimony. Id. at 589 n. 7, 593-94, 113 S.Ct. 2786. First, the Court stated that the subject of the expert's testimony must be based on scientific knowledge. Id. at 590, 113 S.Ct. 2786. Scientific knowledge, the court explained "implies a grounding in the methods and procedures of science" which must be based on actual knowledge and not "subjective belief or unsupported speculation." Id. In other words, "an inference or assertion must be derived by the scientific method ... [and] must be supported by appropriate validation--ie. 'good grounds,' based on what is known." Id. The Court also suggested that the trial court should consider a theory's susceptibility to testing and whether the theory has been subjected to such testing. Id. at 593, 113 S.Ct. 2786.

The Court next noted that a trial court may consider whether the theory has been subjected to peer review. Id. Although not dispositive, subjecting a theory to the scrutiny of the scientific community may help validate an otherwise infirm theory by decreasing the likelihood that substantive flaws in the methodology exist. Id. at 593-94, 113 S.Ct. 2786. The Court also noted the importance of any known or potential rate of error associated with the theory and the maintenance and existence of any standards controlling the technique's operation. Id. at 594, 113 S.Ct. 2786. Finally, the Court advised that a theory's level of acceptance in the scientific community may have some bearing on admissibility. Id. "Widespread acceptance can be an important factor in ruling particular evidence admissible, and a known technique which has been able to attract only minimal support within the community may properly be viewed with skepticism." Id. (internal quotations omitted).

The court also noted that the proposed expert testimony must be sufficiently tied to the facts of the case. Id. at 591, 113 S.Ct. 2786. The court described this aspect of the district court's inquiry as one of "fit." Id. " 'Fit' is not always obvious, and scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes." Id.

III.

A.

It is well established that a plaintiff in a toxic tort case must prove that he or she was exposed to and injured by a harmful substance manufactured by the defendant. Wright v. Willamette Industries, Inc., 91 F.3d 1105, 1106 (8th Cir.1996); Wintz By and Through Wintz v. Northrop Corp., 110 F.3d 508, 515 (7th Cir.1997); Allen v. Pennsylvania Engineering Corp., 102 F.3d 194, 199 (5th Cir.1996). In order to carry this burden, a plaintiff must demonstrate "the levels of exposure that are hazardous to human beings generally as well as the plaintiff's actual level of exposure to the defendant's toxic substance before he or she may recover." Wright, 91 F.3d at 1106. Although the district court, in this case, did not focus on Mitchell's level of exposure to Defendant's chemicals, our review of the record suggests that the information relied upon by Plaintiffs' experts with respect to Mitchell's level of exposure was "so sadly lacking as to be mere guesswork." See Allen, 102 F.3d at 194.

The record demonstrates that Plaintiffs attempted to establish Mitchell's level of exposure in two ways. First, Plaintiffs attempted to establish Mitchell's level of exposure through his own statements describing the number and length of visits he made to the "flammable room." Second, Plaintiffs attempted to set the level of exposure through Steve Herron, an industrial hygienist, who after studying material safety data sheets and pictures showing some chemical spillage, opined that Mitchell's exposure to Defendant's products caused him to develop chronic myelogenous leukemia. These attempts fall short.

While Mitchell's testimony could be relevant to proving that the "flammable room" contained chemicals, it does not...