Viterbo v. Dow Chemical Co., 86-2806

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Citation: 826 F.2d 420
• Docket Number: No. 86-2806,86-2806
• Parties: , 23 Fed. R. Evid. Serv. 1222 Jules R. VITERBO, et ux, (Patricia Viterbo), Plaintiffs-Appellants, v. The DOW CHEMICAL CO., Defendant-Appellee.
• Decision Date: 11 September 1987

Page 420

826 F.2d 420 56 USLW 2220, 23 Fed. R. Evid. Serv. 1222 Jules R. VITERBO, et ux, (Patricia Viterbo), Plaintiffs-Appellants,
v.
The DOW CHEMICAL CO., Defendant-Appellee. No. 86-2806. United States Court of Appeals,
Fifth Circuit. Sept. 11, 1987.

Page 421

Jeff Branick, Provost, Umphrey, Swearingen & Eddins, Port Arthur, Tex., for plaintiffs-appellants.

Michael A. Makulski, in-house counsel, Midland, Mich., Joseph J. Ortego, Stanley Pierce and Josh H. Kardisch of Rivkin, Radler, Dunne & Bayh, Uniondale, N.Y., John G. Bissell, of Strong, Pipkin, Nelson & Bissell, Beaumont, Tex., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before WRIGHT, ^* GEE and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

In this case today we consider the question whether it is so if an expert says it is so. Although the plaintiff's expert here said it was so, the district court excluded the expert's opinion and granted summary judgment in favor of the defendant, 646 F.Supp. 1420 (E.D.Tex.1986). We uphold the district court because the plaintiff's expert brought to court little more than his credentials and a subjective opinion.

I

From April to September 1981, Jules Viterbo used Tordon 10K, a pesticide manufactured by Dow Chemical Company (Dow), to eliminate tallow trees on a 700 acre tract of land in Jefferson County, Texas. On weekends he would pour the Tordon 10K pellets into a bucket and walk through the fields throwing the pellets on the ground. On Christmas Eve 1981, Viterbo experienced his first alleged symptoms of exposure to Tordon 10K. On that day, he cried, was nervous, and had itching on his arms and legs. The symptoms continued until April 1983, at which time he "felt [he] was more or less out of the woods." At the time of his deposition in July 1984, he stated that he still suffered from a rash and felt "about 80 percent mentally aware [as he] was before [he] got sick." Beginning in 1982, Viterbo saw a number of doctors, including psychiatrists. These doctors diagnosed a variety of ailments, including endogenous depression, depressive neurosis, essential hypertension, and allergies.

In April 1984, Viterbo was admitted to Northeast Community Hospital where he underwent a battery of tests conducted by Dr. Alfred Raymond Johnson to determine the source of his ailment. At that time, he was exposed to a diluted form of Tordon 10K and showed no reaction. Blood tests revealed a high level of certain chemicals, including dieldrin, a herbicide. A fat biopsy was also performed but misplaced by the lab before it could be analyzed. Additionally, tests were performed indicating renal failure and hypertension, for which Viterbo was already taking medication. Finally, an electrocardiogram, CAT scan and immune system studies all produced normal results although allergy tests revealed sensitivity to a variety of molds.

The Viterbos initiated this action to recover damages for the alleged toxic effects on Jules Viterbo of Tordon 10K. After discovery had ended, Dow moved for summary judgment on the ground that the Viterbos were unable to prove the necessary causation and alternatively that the Viterbos' expert testimony was not admissible under Federal Rules of Evidence 703 and 403. ¹ The district court agreed with Dow and granted summary judgment.

II

In granting Dow's motion for summary judgment, the district court concluded that the expert testimony of Dr. Johnson was inadmissible under Federal Rule of Evidence 703. The district court examined the underlying data on which the experts' opinion

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was based, and found them to be lacking in reliability and probative value. Specifically, the district court held that Dr. Johnson lacked objectivity in that he diagnosed Viterbo's condition as resulting from exposure to Tordon 10K based only on the patient's oral history and without the benefit of medical tests. Additionally, Dr. Johnson had no scientific literature to support his position and the tests which Dr. Johnson performed did not establish a causal link between Viterbo's symptoms and Tordon 10K. The district judge further noted that Dr. Johnson had no experience with Tordon 10K and that none of the four of Viterbo's treating physicians would diagnose Tordon 10K as the cause of Viterbo's condition. III

Whether summary judgment was appropriate in this case is solely dependent upon whether the district court erred in excluding the testimony of Dr. Johnson. In rulings on the admissibility of expert opinion evidence the trial court has broad discretion and its rulings must be sustained unless manifestly erroneous. Crawford v. Worth, 447 F.2d 738, 740-41 (5th Cir.1971); Rodrigues v. Olin Corporation, 780 F.2d 491, 494 (5th Cir.1986). There is no dispute here that Dr. Johnson was properly qualified as an expert. The dispute centers on the source and basis of the expert opinion that he tendered. We first look therefore to Federal Rule of Evidence 703, which reads:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by...