Ruffin v. Shaw Industries, Inc.

• Decision Date: 16 July 1998
• Docket Number: No. 94-1882,94-1882
• Citation: 149 F.3d 294
• Parties: 28 Envtl. L. Rep. 21,473, 36 UCC Rep.Serv.2d 341, Prod.Liab.Rep. (CCH) P 15,289 Sandra RUFFIN; Catherine Ruffin, by and through her Guardian Ad Litem, C. Timothy Williford, Plaintiffs-Appellants, v. SHAW INDUSTRIES, INCORPORATED; Sherwin-Williams Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 294

149 F.3d 294

28 Envtl. L. Rep. 21,473, 36 UCC Rep.Serv.2d 341,

Prod.Liab.Rep. (CCH) P 15,289

Sandra RUFFIN; Catherine Ruffin, by and through her Guardian Ad Litem, C. Timothy Williford Plaintiffs-Appellants, v. SHAW INDUSTRIES, INCORPORATED; Sherwin-Williams Company Defendants-Appellees.

No. 94-1882.

United States Court of Appeals Fourth Circuit.

Argued Jan. 29, 1996.

Decided July 16, 1998.

ARGUED: M. Lynn Jarvis, Raleigh, North Carolina, for Appellants. Michael Keith Kapp, Maupin, Taylor, Ellis & Adams, P.A., Raleigh, North Carolina, for Appellees. ON BRIEF: Armistead J. Maupin, Craig D. Mills, Maupin, Taylor, Ellis & Adams, P.A., Raleigh, North Carolina, for Appellees.

Before WIDENER and MOTZ, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

Affirmed by published PER CURIAM opinion.

OPINION

PER CURIAM:

Plaintiffs-appellants Sandra Ruffin and her daughter Catherine Ruffin sued defendants-appellees Shaw Industries, Inc. and Sherwin Williams Company, alleging a carpet manufactured by Shaw and sold by Sherwin Williams was defective. Following discovery, defendants moved for summary judgment and also filed a motion to strike the testimony of two of plaintiffs' experts, Dr. Rosalind C. Anderson, Ph.D. and Dr. Allan D. Lieberman, M.D. The district court granted defendants motion to strike the affidavit and testimony of Dr. Anderson on the grounds that her testimony was inadmissible under F.R.E. 702 and the reliability prong of the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Lacking Dr. Anderson's testimony, the court held as well that plaintiffs had failed to establish a genuine issue of material fact that the carpet was defective and granted summary judgment in defendants' favor.

Plaintiffs appeal and we affirm on Judge Dupree's thorough Memorandum of Decision which we adopt as our own and set out below:

Plaintiffs, Sandra Ruffin and her minor daughter, Catherine Ruffin, filed this products liability action against Sherwin Williams Company (Sherwin Williams) and Shaw Industries, Inc. (Shaw Industries) based on the sale and installation of defendants' carpet in plaintiffs' home. Plaintiffs' complaint was originally filed in the Superior Court Division of Wilson County, North Carolina but defendants removed the action to this court based on diversity of citizenship. The action is currently before the court on defendants' motion for summary judgment and their related motion to strike affidavits and testimony of plaintiffs' experts filed in response to defendants' motion for summary judgment.

In early October 1989, defendant Sherwin Williams' Boone, North Carolina store sold "Compelling Everglade" (Everglade) carpet to plaintiff Sandra Ruffin and arranged to have it installed in her home. The Everglade carpet was manufactured and marketed by Salem Carpet Mills, Inc. (Salem Carpet), who in May 1992 merged with Shaw Industries. Plaintiffs allege that shortly after the carpet was installed, they began experiencing physical symptoms such as nosebleeds, rashes, extreme sweating, chills, sleeplessness and racing of the heart. After repeated complaints by plaintiffs defendant Sherwin Williams arranged for the carpet to be removed from plaintiffs' home at the end of October 1989. Plaintiffs allege that they have suffered severe toxic injuries as a result of chemicals in the Everglade carpet installed in their home.

On October 6, 1992, plaintiffs filed the complaint in the present action asserting claims for negligence, breach of implied warranty of merchantability, breach of express warranty and strict liability. Plaintiffs seek to hold Sherwin Williams liable as the retailer of the carpet and Shaw Industries liable as the corporate successor to the manufacturer, Salem Carpet. After discovery in the action had been completed, defendants filed the pending motion for summary judgment. Defendants subsequently moved to strike several affidavits plaintiffs filed in opposition to defendants' summary judgment motion.

I. MOTION TO STRIKE

Because the testimony defendants seek to strike is essential for plaintiffs to withstand defendants' summary judgment motion, the court will address this motion first. Defendants move to strike the affidavit and testimony of plaintiffs' experts, Dr. Rosalind C. Anderson and Dr. Allan D. Lieberman. Defendants assert that pursuant to F.R.Civ.P. 56(e), the court cannot consider these affidavits in adjudicating their summary judgment motion because the designated experts state opinions not admissible under F.R.E. 702 and the standard recently established by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

In Daubert, the Court clarified the standard for admitting expert testimony under F.R.E. 702. Specifically, the Court held that the standard employed in a majority of circuits prior to adoption of the Federal Rules of Evidence, the so-called "Frye test," did not survive adoption of the federal rules. Id. at 587, 113 S.Ct. 2786. The Frye test required that scientific testimony be "generally accepted" as reliable in the relevant scientific community as a prerequisite to admitting such evidence. Id. at 585-86, 113 S.Ct. 2786. The Court held that the Frye test's "rigid 'general acceptance' requirement [was] at odds with the 'liberal thrust' of the Federal Rules and their 'general approach of relaxing the traditional barriers to 'opinion' testimony.' " Id. at 588, 113 S.Ct. 2786 (citing Beech Aircraft Corporation v. Rainey, 488 U.S. 153, 169, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988)).

In rejecting the Frye test, however, the Court noted that the rules did impose a duty on trial judges to make an initial determination, pursuant to F.R.E. 104(a), on the admissibility of scientific evidence. The substance of this determination is based on the language contained in F.R.E. 702 governing admissibility of scientific evidence and requires the court to determine: "whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue." Id. at 592, 113 S.Ct. 2786. The Court stressed that this inquiry should be a "flexible one," and should focus on the "principles and methodology" employed and not the conclusions reached. Id. at 594-95, 113 S.Ct. 2786.

In attempting to delineate the inquiry required by Rule 702, the Supreme Court set forth a non-exclusive list of factors to consider in making the first determination of whether proffered testimony was sufficiently reliable to constitute scientific knowledge: (1) whether the theory or technique has been or could be tested; (2) whether the technique has been subject to peer review and publication; (3) the known or potential rate of error; and (4) the "general acceptance" of the technique by the relevant scientific community. Id. at 593-94, 113 S.Ct. 2786. The court noted that these factors, along with others the trial court considers relevant, should be weighed to determine the evidence's admissibility but stressed that no one factor should be dispositive. Id. at 595, 113 S.Ct. 2786. Thus, the primary significance of the Supreme Court's decision in Daubert was to make the "general acceptance" standard merely one factor in a multi-factor analysis, not the determinative test for admitting scientific evidence.

Further, as the Daubert court noted, in making preliminary determinations pursuant to Rule 104(a), the court is not bound by the rules of evidence. F.R.E. 104(a); Daubert, 509 U.S. at 593 n. 10, 113 S.Ct. 2786. Thus, in determining whether to admit scientific testimony the court may consider materials not admissible in evidence.

The court first addresses defendants' objections to the affidavit and supporting testimony of Dr. Rosalind C. Anderson, which aver the following: Dr. Anderson is president of Anderson Laboratories (Anderson Labs) and received a masters degree and a Ph.D. in physiology from Yale University School of Medicine in 1964 and 1965 respectively. (Anderson Affidavit at Paras. 2 and 3.) At the request of plaintiffs' counsel Dr. Anderson analyzed a sample of the carpet removed from plaintiffs' home and stated that her testing demonstrated that the carpet sample was "biologically active and produced sensory irritation, pulmonary irritation, and neurological changes in mice, which are indicative that human beings would suffer similar biological responses." (Id. at Paras. 4 and 7.)

In her evaluation report, Dr. Anderson summarized the testing methodology she used in analyzing the section of carpet installed in plaintiffs' home (hereinafter referred to as "Anderson test"): A three-square-foot section of the carpet was placed in a sealed glass chamber (carpet chamber) and heated to 98 degrees Fahrenheit. Air was circulated through the carpet chamber into another glass chamber containing four mice (animal exposure chamber) at a rate of seven liters per minute for four, sixty-minute periods (exposure periods). Experimenters recorded the respiratory and pulmonary irritation responses of the four mice before, during and after the four exposure periods. Additionally, experimenters visually observed the mice at the end of each exposure period for visual indications of abnormal behavior or neurological signs and recorded these observations on a standard form. (Anderson Affidavit, Exhibit B, p. 2.)

Defendants have moved to strike Dr. Anderson's affidavit and testimony under the factors specifically identified by the Daubert Court and others not specifically listed but which defendants argue warrant exclusion of the evidence.

1. Independent Testing or Validation

The first factor identified by the Daubert Court as a "key question" in determining whether a technique can be considered reliable scientific knowledge is whether it has been tested and independently validated or replicated. Relating to...