Slaughter v. Southern Talc Co., 89-7031

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation919 F.2d 304
Docket NumberNo. 89-7031,89-7031
Parties, 31 Fed. R. Evid. Serv. 1509 Gerald S. SLAUGHTER, et al., Plaintiffs-Appellants, v. SOUTHERN TALC CO., et al., Defendants-Appellees.
Decision Date14 December 1990

Page 304

919 F.2d 304
20 Fed.R.Serv.3d 1462, 31 Fed. R. Evid. Serv. 1509
Gerald S. SLAUGHTER, et al., Plaintiffs-Appellants,
v.
SOUTHERN TALC CO., et al., Defendants-Appellees.
No. 89-7031.
United States Court of Appeals,
Fifth Circuit.
Dec. 14, 1990.

Page 305

Mike Davis, Daniel W. Andrews, Byrd, Davis & Eisenberg, Austin, Tex., for plaintiffs-appellants.

J. Frank Kinsel, Jr., Cantey & Hanger, Fort Worth, Tex., for Southern Talc.

Elizabeth Thompson, Donald J. Verplancken, Butler & Binion, Houston, Tex., for the Celotex Co.

Frank Bean, Rick W. Thamm, Houston, Tex., for Eagle-Pitcher Industries, Inc.

John A. Stephens, Fulbright, Winniford, Bice & Marable, Waco, Tex., for John Crane (Houdaille, Inc.).

Vic Fields, Floyd T. Getz, Ramey, Flock, Jeffus, Crawford, Harper & Collins, Tyler, Tex., for A.W. Chesterton Co.

Kevin J. Keith, Bailey & Williams, Dallas, Tex., for Owens-Corning Fiberglass Corp.

Kevin J. Cook, Gary D. Elliston, DeHay & Blanchard, Dallas, Tex., for Armstrong World Industries, Flexitallic Gasket Co., Keene Corp. and GAF Corp.

Thomas L. Kelly, Jr., Patterson, Lamberty, Kelly & Stanford, Dallas, Tex., for Anchor Packing Co.

Karl Van Gardner, Edward J. Hennessy, Hennessy & Zito, Houston, Tex., for Garlock, Inc.

Appeals from the United States District Court for the Western District of Texas.

Before GOLDBERG, KING, and DUHE, Circuit Judges.

DUHE, Circuit Judge:

In this asbestos injury suit, the appellants challenge the district court's grant of partial summary judgment, arguing that the court improperly assessed the credibility of their expert witnesses. Finding that

Page 306

the district court acted within its authority in evaluating the reliability of this evidence, we affirm.

Facts and District Court Proceedings

The 451 plaintiffs in this action are members of the National Rubber Workers Union. Through the efforts of the National Tire Workers Litigation Project, these workers participated in diagnostic screenings to detect the presence of asbestos-related disease. These screenings, conducted in mobile units, consisted of X-rays and workplace questionnaires completed by the workers. The screenings did not include physical examinations.

After two years of discovery, the appellees filed a motion for partial summary judgment accompanied by 310 pages of X-ray examination reports and the affidavit of the appellees' pulmonary specialist, Dr. Bradley. Bradley's affidavit stated his conclusion that based upon his review of the X-rays and reports attached as exhibits, 421 plaintiffs showed no signs of pulmonary disease. In reply, the appellants submitted the affidavits of their pulmonary specialists, Drs. Gelbard and Rao. Although these affidavits referenced the X-rays, questionnaires, and examination reports as exhibits, these items were never submitted as summary judgment evidence.

At the hearing on the summary judgment motion, the appellees identified several inconsistencies between the examination reports and the conclusions later reached by the appellant's experts. 1 Disturbed by the district judge's comments at the end of the hearing, the appellants submitted additional affidavits from other experts. The court refused to consider this proffer, characterizing those affidavits as "uninvited and untimely." The trial court granted the appellees' motion for summary judgment, which was later certified as a final judgment. This appeal followed.

The Requirements of Rule 703

The appellants argue that in granting the summary judgment motion, the district court improperly judged the credibility of their expert witnesses, a function typically within the purview of the jury. 2 Because the diagnostic methods employed by the appellants' experts are widely accepted in the medical community, the appellants argue that the jury should have been permitted to hear and evaluate the evidence. We are unpersuaded.

As a general rule, questions regarding the scientific bases of an expert's opinion "affect the weight to be assigned that opinion rather than its admissibility and should be left for the jury's consideration." Viterbo v. Dow Chemical Co., 826 F.2d 420, 422 (5th Cir.1987). See also, Dixon v. International Harvester Co., 754 F.2d 573, 580 (5th Cir.1985). However, this general rule yields when "the source upon which an expert's opinion relies is of such little weight ... that [the] testimony would not actually assist the...

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    ...whether they satisfy the threshold established by Rule 703." Christophersen, 939 F.2d at 113 (quoting Slaughter v. Southern Talc Co., 919 F.2d 304, 306-07 (5th Cir.1990)). Such critical evaluation of the bases of an expert's opinion furthers the court's interest in providing relevant, accur......
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    ...court's evidentiary rulings, Lavespere v. Niagara Mach. & Tool Works, 910 F.2d 167, 175-76 (5th Cir.1990); Slaughter v. Southern Talc Co., 919 F.2d 304, 306-07 (5th Cir.1990); Washington v. Armstrong World Indus., 839 F.2d 1121, 1123 (5th Cir.1988); Viterbo, 826 F.2d at 422. 2 Thus an appea......
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    ...Plaintiffs' Post-Hearing Surreply Supplement. Orsi v. Kirkwood, 999 F.2d 86, 91 (4th Cir.1993); see also Slaughter v. Southern Talc, Co., 919 F.2d 304, 307 (5th Cir.1990) (court does not abuse its discretion when it refuses to accept out-of-time 9. The Maryland Wage Payment Collection Law, ......
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