Moore v. Ashland Chemical Inc., 95-20492

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation151 F.3d 269
Docket NumberNo. 95-20492,95-20492
PartiesBob T. MOORE; Susan Moore, Plaintiffs-Appellants Cross-Appellees, v. ASHLAND CHEMICAL INC.; Ashland Oil Inc., Defendants-Appellees Cross-Appellants, and Dow Corning Corporation; Cdc Services, Inc., Defendants.
Decision Date14 August 1998

Robert Dale Green, Michael L. Davis, Green, Davis & Barton, Houston, TX, for Bob and Susan Moore.

Debora M. Alsup, Julie Caruthers Parsley, Thompson & Knight, Austin, TX, William Lowell Banowsky, Thompson & Knight, Dallas, TX, William Kyle Carpenter, Woolf, McClane, Bright, Allen & Carpenter, Knoxville, TN, for Ashland Chemical, Inc. and Ashland Oil, Inc.

Terry Lynn Jacobson, Dawson, Sodd, Moe & Means, Corsicana, TX, for Dow Corning Corp. and CDC Services, Inc.

David G. Matthiesen, Houston, TX, for CDC Services, Inc.

David John Schenck, Danny S. Ashby, Bert Black, Heather Kern, Hughes & Luce, Dallas, TX, for Chemical Manufacturers Ass'n and Chamber of Commerce of the U.S.

Hugh F. Young, Jr., Product Liability Advisory Council, Reston, VA, Mary Alice Wells, L. Michael Brooks, Jr., Wells, Anderson & Rice, Denver, CO, for Product Liability Advisory Council, Inc.

James B. Irwin, Quentin F. Urquhart, Jr., New Orleans, LA, for Louisiana Ass'n of Defense Counsel, Amicus Curiae.

Gerald Edward Meunier, Gainsburgh, Benjamin, David, Meunier, Noriea & Warshauer, New Orleans, LA, for Louisiana Trial Lawyers Ass'n, Amicus Curiae.

Martin S. Kaufman, Douglas Foster, Edwin L. Lewis, III, Atlantic Legal Foundation, New York City, for Adair, Angell, Buffler, Cormack, Hamilton, Holton, Langer, Lederberg, Seitz, Trichopoulos, Watson, and Wilson, Amicus Curiae.

Monica T. Surprenant, Baldwin & Haspel, New Orleans, LA, for Bristol Myers-Squibb Co., Inc.


W. EUGENE DAVIS, Circuit Judge:

In this toxic tort case, we consider whether the district court abused its discretion in excluding the opinion of a physician on the causal relationship between Plaintiff's exposure to industrial chemicals and his pulmonary illness. We find no abuse of discretion and affirm.


Bob T. Moore was employed as a delivery truck driver for Consolidated Freightways, Inc. ("Consolidated"), a motor freight company. On the morning of April 23, 1990, Moore delivered several drums of chemicals manufactured by Dow Corning Corp. ("Dow") to Ashland Chemical Inc.'s ("Ashland") terminal in Houston. When Moore opened the back door of his trailer, he smelled a chemical odor that caused him to suspect that a drum was leaking. Moore and the Ashland plant manager, Bart Graves, identified two leaking drums and removed them from the trailer. Mr. Graves contacted Dow and requested cleanup instructions and a copy of the material safety data sheet ("MSDS") for the spilled chemicals. The MSDS identified the contents of the leaking drum and health hazards associated with the contents. 1 The After Moore and Graves obtained cleanup instructions, they put the leaking drums into larger salvage drums. Moore and another Consolidated employee then proceeded to place absorbent material on the spilled chemicals, sweep them up, and dispose of them. The men were engaged in this cleanup for forty-five minutes to an hour. After the cleanup, Moore returned to the Consolidated terminal. At trial, he testified that about an hour after finishing the cleanup, he began experiencing symptoms, including dizziness, watery eyes, and difficulty in breathing. However, Moore was able to drop off another Consolidated trailer as requested by his supervisor.

MSDS stated that the chemical solution included hazardous ingredients, most notably Toluene. It warned that depending upon the level and duration of the exposure to fumes from the chemicals, irritation or injury to various organs, including the lungs, could result.

When he completed this delivery, Moore returned to Consolidated's terminal and told his supervisor that he was sick. The supervisor sent Moore to the company doctor. The next day, Moore saw his family physician. After two to three weeks of treatment by the family physician, Moore placed himself under the care of a Dr. Simi, a pulmonary specialist. Dr. Simi released Moore to return to work on the 11th day of June, 1990. After working several days, Moore terminated his employment due to difficulty breathing. On three occasions in the summer of 1990, Moore also consulted Dr. Daniel E. Jenkins, a pulmonary specialist. Dr. Jenkins diagnosed Moore's condition as reactive airways dysfunction syndrome ("RADS"), an asthmatic-type condition. In November of 1990, Moore consulted another pulmonary specialist, Dr. B. Antonio Alvarez, who became his primary treating physician. Dr. Alvarez confirmed Dr. Jenkins's diagnosis and treated Moore for RADS.

Moore reported to his physicians that he had smoked approximately a pack of cigarettes a day for approximately twenty years, and he continued to smoke at the time of trial. He also reported that on April 23, 1990, when he was exposed to the Dow chemical, he had just returned to work following a bout with pneumonia. Moore also related a history of childhood asthma to his treating physician.

Moore and his wife filed suit against Ashland Chemical, Inc., Ashland Oil, Inc., and others, primarily on grounds that Ashland was negligent in insisting that Moore expose himself to vapors created by the chemical spill. More specifically, Moore complained that Ashland's employee, Bart Graves, should have permitted Moore to return to Consolidated's terminal where other employees could have cleaned up the spill. He also complained that Graves did not permit him to use a respirator during the cleanup. Ashland removed the suit to federal court on the basis of diversity jurisdiction.

After extensive discovery and motion practice dealing particularly with whether Moore's expert physicians, Dr. Jenkins and Dr. Alvarez, would be permitted to testify, the case proceeded to trial before a jury. At the conclusion of the trial, the jury answered the following interrogatory in the negative: "Do you find, from a preponderance of the evidence, that the negligence, if any, of the person named below proximately caused the injury in question: ... (b) Ashland Chemical, Inc. and/or Ashland Oil, Inc." Thereafter, the district court entered a take nothing judgment against Moore. On appeal, a divided panel of this Court concluded that the district court had erred in refusing to allow Dr. Jenkins, one of Moore's experts, to give an opinion on the cause of Moore's illness, and reversed the district court's judgment and remanded the case for a new trial. Moore v. Ashland Chem., Inc., 126 F.3d 679 (5th Cir.1997). We granted rehearing to

consider this case en banc and to clarify the standards district courts should apply in determining whether to admit expert testimony.


In this appeal we focus on the trial court's refusal to permit one of Moore's medical witnesses, Dr. Daniel E. Jenkins, to give an opinion on the cause of Moore's illness. Some factual and procedural background is necessary to understand the arguments of the parties.

Moore sought to call two medical witnesses, Dr. Jenkins and Dr. Antonio Alvarez. Dr. Jenkins, a well-qualified medical specialist, was certified by the American Board of Internal Medicine in 1947. He also had special training and taught in the fields of pulmonary disease, allergy, and environmental medicine. 2 Dr. Jenkins saw Moore on three occasions. He examined Moore, performed a series of tests, and reviewed Moore's medical records. He concluded that Moore was suffering from RADS. Based upon his examination and tests, Dr. Jenkins expressed the opinion that Moore's RADS had been caused by Moore's exposure to vapors from the chemical spill at Ashland's facility in April of 1990. We will discuss later in more detail the reasons Dr. Jenkins assigned for his opinion. Generally, he relied upon the MSDS, which warned that exposure to the Toluene solution could be harmful to the lungs, his examination and test results, and the close, temporal connection between Moore's exposure to the Toluene solution and the onset of symptoms.

Dr. Alvarez, who was a former student of Dr. Jenkins, agreed with Dr. Jenkins about the cause of Moore's RADS. Dr. Alvarez was Moore's primary treating physician. In addition to the reasons relied on by Dr. Jenkins, Dr. Alvarez supported his theory of causation with a report of a study on RADS co-authored by Dr. Stuart Brooks that he found in a medical magazine. 3 One case study in the report involved a clerk who was exposed to a Toluene mixture in a small, enclosed room for two and one-half hours. Dr. Jenkins initially stated in his deposition that he knew of no reported literature that supported his causation opinion. During his in limine testimony outside the presence of the jury at trial, Dr. Jenkins, for the first time, pointed to the Brooks study relied on by Dr. Alvarez.

Dr. Jenkins admitted that Moore was his first RADS patient with a history of exposure to Toluene. He had conducted no research on this subject. Dr. Jenkins had previously treated other patients whose RADS he attributed to exposure to chemicals that were known to irritate the airways. However, he conceded that the chemicals involved with these previous patients were stronger and more irritating than the Toluene solution to which Moore was exposed. Dr. Jenkins made no attempt to explain how any of the other chemicals that he believed caused RADS in his earlier patients had properties similar to the Dow Toluene solution.

The district court, after reviewing Dr. Jenkins's deposition and listening to his in limine testimony, decided to exclude his causation opinion. The court did permit Dr. Jenkins to testify about his examination of Moore, the tests he...

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