Zellars v. Nextech Ne., LLC

• Decision Date: 11 September 2012
• Docket Number: Case Nos. 1:11–cv–967,1:11–cv–968.
• Citation: 895 F.Supp.2d 734
• Parties: Deborah ZELLARS, Plaintiff, v. NEXTECH NORTHEAST, LLC, Defendant. Carrie Elaine Hare, Plaintiff, v. NexTech Northeast, LLC, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

895 F.Supp.2d 734

Deborah ZELLARS, Plaintiff,

v.NEXTECH NORTHEAST, LLC, Defendant.

Carrie Elaine Hare, Plaintiff,

v.NexTech Northeast, LLC, Defendant.

Case Nos. 1:11–cv–967, 1:11–cv–968.

United States District Court,

E.D. Virginia,

Alexandria Division.

Sept. 11, 2012.

David Hilton Wise, Aileen Felicia Kilgore, Kaveh Noorishad, Wise & Donahue PLC, Fairfax, VA, for Plaintiff.

Daniel Douglass Barks, The Law Offices of Daniel D. Barks, Alexandria, VA, for Defendant.

MEMORANDUM OPINION

GERALD BRUCE LEE, District Judge.

THIS MATTER is before the Court on the defendant's motions in limine to exclude expert testimony and motions for summary judgment. These related negligence cases involve allegations that personal injuries suffered by the plaintiffs in each case were proximately caused by a refrigerant gas leak in a freezer unit at their workplace that was serviced by the defendant, NexTech Northeast, LLC (“NexTech”).

There are two issues before the Court. The first issue is whether the plaintiffs Deborah Zellars's and Carrie Hare's (collectively, “Plaintiffs”) expert witnesses offer relevant scientific knowledge and scientifically reliable opinions on the question of whether Plaintiffs' injuries were proximately caused by exposure to refrigerant gas that leaked from the system serviced by NexTech. The Court holds that the reports and testimony of Plaintiffs' causation experts are not reliable and, on some points, not relevant to the specific causation issue presented in these cases, and therefore cannot be admitted under Rule 702 of the Federal Rules of Evidence. First, the opinions of Plaintiffs' experts on causation are not based on sufficient facts about Plaintiffs' level of exposure to the refrigerant at issue in these cases, R–404A, and are not based on adequate scientific knowledge of the toxicity of R–404A. Second, the opinions of Plaintiffs' treating physicians, which are offered to establish specific causation in these cases, are not based on reliable application of scientifically valid principles and methods. For these reasons, the Court grants NexTech's motions in limine to exclude the reports and testimony of Plaintiffs' causation experts.

The second issue before the Court is whether NexTech is entitled to summary judgment on Plaintiffs' negligence claims where Plaintiffs offer no admissible expert testimony establishing that the refrigerant leak proximately caused Plaintiffs' personal injuries. The Court holds that, without admissible expert testimony establishing specific causation, NexTech is entitled to judgment as a matter of law on Plaintiffs' negligence claims. Accordingly, the Court grants NexTech's motions for summary judgment in both cases.

I. BACKGROUND

Deborah Zellars and Carrie Hare (collectively, “Plaintiffs”) were employees of Rite Aid of Virginia, Inc., and worked at a Rite Aid store in Arlington, Virginia, in 2009. Ms. Hare was the manager of the Rite Aid store, and Ms. Zellars was a shift supervisor. Plaintiffs' work duties included regularly rearranging and organizing retail products displayed in reach-in refrigerators and freezers in the store, but most of their time at work was spent away from the refrigeration units. NexTech Northeast, LLC (“NexTech”) had a contract with Rite Aid pursuant to which NexTech performed maintenance and repair services on the Rite Aid store's retail display refrigeration system. On September 9, 2009, NexTech performed maintenance on the ice cream freezer at the Rite Aid store in response to an alarm on the freezer, and the NexTech technician added R–404A Freon ¹ refrigerant to the system during that service call. NexTech responded to the freezer's alarm again on September 11, 2009, and determined that the freezer was operating properly during that service call.

On September 16, 2009, Ms. Hare called the Arlington County Fire Department, stating that employees of the Rite Aid store had been complaining of headaches and other symptoms for weeks. After the fire department's hazmat team arrived at the store, it detected Freon in the air near the ice cream freezer but also determined that oxygen levels in the store were normal. A call was placed to NexTech after the fire department left the store. The NexTech technician detected that a valve was leaking refrigerant gas, repaired the valve, and determined that the system was functioning properly again. Minutes before NexTech completed its work, Ms. Zellars reported to work at the store. She reported to Ms. Hare that she was feeling ill and requested medical attention for shortness of breath, dizziness, and a headache. Ms. Zellars was taken to the emergency room at the Virginia Hospital Center in Arlington, Virginia, where she was diagnosed with anemia and was offered a blood transfusion. Ms. Zellars refused the transfusion and reported that she was feeling better at the emergency room.

Ms. Zellars and Ms. Hare each filed suit against NexTech in the Circuit Court of Arlington County for negligence, and both cases were removed to this Court on September 9, 2011.² Plaintiffs allege that NexTech breached its common law duty of care in failing to properly service the ice cream freezer at the Rite Aid store and in failing to detect and repair the refrigerant leak until September 16, 2009. Plaintiffs allege further that their exposure the leaking refrigerant gas caused personal injuries, and they offer the testimony of their treating physicians and other experts to support their theories of causation. Ms. Hare's treating physician Mary Ellen Gallagher, M.D. opines that the leaking refrigerant caused headaches, fatigue, dizziness, nausea, sore throat, chest pain, and stomach and epigastric pain suffered by Ms. Hare between August 2009 and April 2010. Ms. Zellars's treating physician Vandana Sharma, M.D. originally opined, in her written report, that neck and back pain, body tremors, and other neurological symptoms suffered by Ms. Zellars were caused by exposure to refrigerant gas fumes while working at the Rite Aid store in September 2009. At her deposition, however, Dr. Sharma opined that Ms. Zellars's condition was caused by exposure to some neurotoxin and that exposure to refrigerant was merely one possible cause. Chemist Robert K. Simon, Ph.D. opines that Ms. Zellars experienced physical symptoms that were consistent with the adverse health effects of overexposure to R–404A refrigerant. Neurotoxicologist Raymond Singer, Ph.D. opines that Ms. Zellars's neurological condition is consistent with and was caused by toxic exposure to refrigerant gas.

The parties to both cases filed several pre-trial motions, which the Court took under advisement after hearing oral argument on July 13, 2012. On July 19, 2012, the Court entered an order in each case granting NexTech's motions in limine to the exclude the reports and testimony of Plaintiffs' expert witnesses on causation. The Court also granted NexTech's motions for summary judgment in each case and denied all other pending motions as moot. In this Memorandum Opinion, the Court sets forth its reasons for granting NexTech's motions in limine and summary judgment motions.

II. MOTIONS IN LIMINEA. Standard of Review

The Federal Rules of Evidence provide that “[t]he court must decide any preliminary question about whether a witness is qualified ... or evidence is admissible.” Fed.R.Evid. 104(a). Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 588, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Rule 702 provides that

[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify ... if (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

Fed.R.Evid. 702. “[T]he Rules of Evidence ... assign to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand.” Daubert, 509 U.S. at 597, 113 S.Ct. 2786. The subject of an expert's testimony must be “scientific, technical, or other specialized knowledge,” id.; therefore, “subjective belief or unsupported speculation” will not suffice. Daubert, 509 U.S. at 589–90, 113 S.Ct. 2786.See also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (trial court's “gatekeeping” obligation announced in Daubert applies to testimony based on scientific, technical, or other specialized knowledge); Bryte ex rel. Bryte v. Am. Household, Inc., 429 F.3d 469, 477 (4th Cir.2005) (“Daubert aims to prevent expert speculation”). “Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset ... 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.” Daubert, 509 U.S. at 592, 113 S.Ct. 2786 (footnote omitted). “The first prong of this inquiry necessitates an examination of whether the reasoning or methodology underlying the expert's proffered opinion is reliable,” Westberry v. Gislaved Gummi AB, 178 F.3d 257, 260 (4th Cir.1999), or “scientifically valid.” Daubert, 509 U.S. at 592, 113 S.Ct. 2786. “The second prong of the inquiry requires an analysis of whether the opinion is relevant to the facts at issue.” Westberry, 178 F.3d at 260;see also Daubert, 509 U.S. at 592, 113 S.Ct. 2786.

In determining whether the theory or technique is “scientifically valid,” courts generally consider several factors: (1) whether the theory or technique used by expert can be, and has been, tested; (2) whether the theory or technique has been subjected to peer review; (3...