Deborah Zellers v. Nextech Northeast, LLC, No. 12-2267 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-2267 DEBORAH ZELLERS, Plaintiff - Appellant, v. NEXTECH NORTHEAST, LLC, Defendant Appellee, v. RITE AID OF VIRGINIA, INC., Third Party Defendant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Gerald Bruce Lee, District Judge. (1:11-cv-00967-GBL-TRJ) Submitted: June 7, 2013 Decided: July 17, 2013 Before NIEMEYER, SHEDD, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. Davis Hilton Wise, WISE & DONAHUE, PLC, Fairfax, Virginia, for Appellant. Michael Allweiss, ALLWEISS & ALLWEISS, St. Petersburg, Florida; Daniel D. Barks, THE LAW OFFICE OF DANIEL D. BARKS, Alexandria, Virginia; Ellis R. Lesemann, Amanda M. Blundy, HARVEY & VALLINI, LLC, Mt. Pleasant, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: In this negligence action brought by Appellant Deborah Zellars ( Ms. ( NexTech ), an Zellars ) HVAC against contractor, NexTech Ms. Zellars Northeast proffered LLC three expert witnesses to testify that she was injured by allegedly excessive exposure to refrigerant gas at her employment, a Rite Aid in Arlington, Virginia. place of The district court excluded the testimony of each proffered expert, leaving Ms. Zellars causation. without any Accordingly, expert the testimony district judgment in favor of NexTech. on court the element granted of summary On appeal, Ms. Zellars asserts that the district court abused its discretion in excluding the testimony of each of the three proffered causation experts and that, therefore, the district court also erred in granting summary judgment in favor of NexTech. However, because we agree with of the proffered district causation court that experts none offered Ms. Zellars s relevant or three reliable scientific testimony, we affirm. I. Appellant Ms. Zellars worked as a shift supervisor at a Rite Aid store in Arlington, Virginia (the Arlington Rite Aid ). Her duties included, among other things, rearranging and organizing retail products displayed in retail display freezers located throughout the store. Appellee NexTech is a commercial 3 contractor that works in the heating, cooling, and refrigeration business. During all relevant times, NexTech had a contract with Rite Aid pursuant to which NexTech would maintain and, as necessary, repair refrigerators at several area Rite Aid stores. On September 9, 2009, NexTech responded to a service call related to a perceived refrigerant leak. On that visit, NexTech added a disputed quantity of R-404A Freon ( R-404A ) refrigerant to the freezer in question. 1 Two days later, on September 11, 2009, NexTech again responded to a service call from the Arlington Rite Aid about the same freezer. during this visit, NexTech determined that the However, freezer was functioning appropriately and, as a result, did not take any corrective action. Less than one week later, on September 16, 2009, Carrie Hare, the manager of the Arlington Rite Aid, placed a call to the Arlington Fire Department indicating that Rite Aid employees had been complaining of headaches and other symptoms for a period of weeks and suggesting this condition was caused by a leak in the previously-serviced freezer. 1 Members of the Based on an ambiguous billing entry, Ms. Zellars contends that NexTech added 25 lbs. of R-404A refrigerant to the system while NexTech contends that it merely added 2.5 lbs. While the parties vigorously disputed this issue both below and in their briefs, the resolution of this factual dispute is unnecessary to our disposition of this appeal. 4 fire department s hazardous materials team proceeded to store, where they detected a small leak in the freezer. 2 the After the hazardous materials team had completed its assessment, a call was placed to NexTech, technician to the store. who responded by dispatching a The technician determined that a valve on the refrigerator was leaking refrigerant gas and repaired the leak. Minutes before the NexTech technician repairing the freezer, Ms. Zellars reported to work. finished Soon after arriving, she reported to Ms. Hare that she was feeling ill, specifically complaining of shortness of breath, dizziness, and a headache. emergency In response, Ms. Zellars was taken to the local room, where she was diagnosed with anemia. Her treating physicians then offered her a blood transfusion, which she refused, indicating that her condition had improved. Ms. Zellars and Ms. Hare commenced the present action in the United States District Court for the Eastern District of Virginia in 2011, 3 alleging that NexTech had breached its common law duty of care in failing to properly service the freezer and 2 At that time, the hazardous materials team members also noted that oxygen levels in the store around the freezer were normal. Accordingly, they opted not to close the store. 3 Ms. Hare s action was disposed of in the same order as Ms. Zellars s; however, only Ms. Zellars s case is presently before us on appeal. 5 in failing to detect and September 16, 2009. repair the refrigerant leak before Additionally, the complaint alleges that this breach proximately caused a variety of personal injuries, and plaintiffs proffered testimony from each of their treating physicians and other experts in attempt to support this assertion. Of offered relevance written to reports the and present deposition appeal, Ms. testimony Zellars from the following expert witnesses: (1) Dr. Vandana Sharma, M.D., Ms. Zellars s treating physician, who opined that Ms. Zellars s condition was caused by exposure to a neurotoxin, possibly a refrigerant gas; 4 (2) Dr. Robert Simon, Ph.D., a chemist who testified that Ms. Zellars had experienced symptoms that were consistent with the adverse health effects of overexposure to R404A refrigerant; (3) Dr. Raymond Singer, Ph.D., a neurotoxicologist who testified that Ms. Zellars s symptoms were both consistent with and caused by exposure to R-404A; and (4) 4 In her initial report, Dr. Sharma specifically opined that Ms. Zellars s condition was caused by refrigerant gas exposure. However, as the district court observed, Dr. Sharma backed away from that statement at her deposition, testifying only that Ms. Zellars s condition was caused by neurotoxin exposure and that refrigerant gas was merely one possible source. Zellars v. NexTech Northeast, LLC, 895 F. Supp. 2d 734, 746 (E.D. Va. 2012) ( Dr. Sharma maintains that Ms. Zellars s neurological condition was caused by some toxicity or toxic event, but she no longer offers exposure to refrigerant gas as the specific cause to a reasonable degree of medical certainty. ) 6 Ronald Bailey, an HVAC engineer who testified that NexTech had breached the applicable standard of care in its maintenance of the display refrigerators. In response, NexTech filed several motions, including motions in limine to plaintiffs proffered judgment. The exclude requesting an experts, plaintiffs adverse the and filed inference spoliation of evidence. 5 testimony a of motion a motion based on each of for summary for the sanctions, NexTech s alleged The district court held a hearing on all of these motions on July 13, 2012. On July 19, 2012, the district court granted NexTech s motions as to three of the four proffered experts: Dr. Sharma, Dr. Simon, and Dr. Singer. This left Ms. Zellars without any expert testimony on the issue of causation. Thus, the district court determined that Ms. Zellars could not sustain her burden to prove that her injuries were caused by NexTech s alleged negligence and, therefore, granted NexTech s motion for summary judgment. Finally, the district 5 court denied Ms. Zellars s Specifically, Ms. Zellars points to the fact that, on August 24, 2011, NexTech evacuated the disputed freezer, removing and replacing all of the existing refrigerant. Ms. Zellars argues that this amounts to spoliation of the evidence, as the type of refrigerant in place in the system in September 2009 is relevant to its case. Accordingly, Ms. Zellars requested the district court to permit an adverse inference against NexTech. 7 motion for sanctions as moot. Ms. Zellars timely noted this appeal. II. We review a district court s award of summary judgment de novo. Dooley v. Hartford Acc. & Indem. Co., 716 F.3d 131, 135 (4th Cir. 2013). decision to admit However, we review a district court s or exclude evidence, testimony, for an abuse of discretion. including expert Belk, Inc. v. Meyer Corp., U.S., 679 F.3d 146, 161 (4th Cir. 2012). Similarly, a district court s refusal to apply an adverse inference based on a party s alleged spoliation of evidence must stand unless it was an abuse of its broad discretion in this regard. Vulcan Materials Co. v. Massiah, 645 F.3d 249, 260 (4th Cir. 2011) (citations omitted). III. A. Expert Testimony Ms. Zellars first argues that the district court abused its discretion in excluding the testimony of Dr. Sharma, Dr. Singer, and Dr. Simon. In toxic tort cases, [i]n order to carry the burden of proving a plaintiff s injury was caused by exposure to a specified substance, the plaintiff must demonstrate the levels of exposure that are hazardous to human beings generally as well as plaintiff s 8 actual level of exposure. Westberry v. Gislaved Gummi AB, 178 F.3d 257, 263 (4th 1999) Cir. omitted). 6 (internal citations and quotations marks Generally, this must be done through the use of relevant and reliable expert testimony. See, e.g., Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir. 2001) ( [A]ll of Cooper s claims required expert medical testimony that the Rogozinski System was the proximate cause of his injuries[.] ) Rule 702 of the Federal Rules of Evidence, which governs the admissibility of expert witness testimony, provides: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise 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. Pursuant to this rule, the trial judge is assigned the task of ensuring that an expert s testimony both rests on a reliable foundation and is relevant to the task at hand. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 588 (1993). 6 These two levels of causation are known as general causation and specific causation. See, e.g., Bourne ex rel. Bourne v. E.I. Dupont de Nemours & Co., Inc., 189 F. Supp. 2d 482, 485 (S.D. W. Va. 2002) ( In a toxic tort case, a plaintiff must generally establish both general and specific causation for his injuries. ), aff d, 85 F. App x 964 (4th Cir. 2004). 9 This district involves court must a two-pronged determine inquiry. whether the testimony concerns scientific knowledge. First, proffered the expert Second, the district court must determine whether that testimony will assist in the determination of a fact in issue. Daubert, 509 U.S. at 592. In other words, [t]he first prong of this inquiry necessitates an examination of whether the reasoning or methodology underlying the expert s proffered opinion is reliable, and [t]he 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. Applying this test to the facts at hand, the district court concluded proffered that causation inadmissible. the testimony experts was of each unreliable of the and, three therefore, We agree on all counts. 1. Exclusion of Dr. Sharma Dr. maintains Sharma a practice is in a board general certified neurologist neurology. In a who report completed on February 24, 2012, Dr. Sharma indicated that she first evaluated Ms. Zellars in August 2011 for neck and back pain, muscle tenderness and stiffness, extremities, body tremors, and other symptoms. jerking In of the that report, Dr. Sharma opined, to a reasonable degree of medical certainty, that Ms. Zellars s symptoms were caused by exposure to R-404A 10 refrigerant gas in September 2009. However, at her subsequent deposition, Dr. Sharma softened this testimony, opining instead that Ms. Zellars s condition was caused by a toxic event but declining to specifically identify the chemical involved. 403 ( [T]oxicity is a reasonable medical certainty. related to Freon itself, I cannot opine on that. ). 7 J.A. Is it Despite Dr. Sharma equivocal testimony, Ms. Zellars maintains, both before the district court and on appeal, that Dr. Sharma s testimony is sufficiently relevant and reliable. We disagree. First, as the district court held, Dr. Sharma lacks the requisite qualifications to offer expert testimony in the field of toxicology. Dr. Sharma is a neurologist. By her own admission, she does not have any specialized training in the field of toxicology. J.A. 404 (Dr. Sharma: I do not have any training in toxicology. ). that, during knowledge of her This is further evinced by the fact deposition, refrigerant gas Dr. Sharma toxicity indicated primarily that came her from a survey of scientific articles downloaded from the internet. Ms. Zellars argues that Dr. Sharma s lack of toxicology expertise is immaterial, as her testimony is offered along with the testimony of Dr. Singer and Dr. Simon, both of 7 Citations to the Joint Appendix ( J.A. ) refer to the joint appendix filed by the parties in this appeal. 11 whom have more training in the field of toxicology. While it is true that there is no prohibition on utilizing multiple experts to establish various components of a party s case, this does not change Daubert s based on command more speculation. than that an expert s subjective testimony belief Daubert, 509 U.S. at 590. or must be unsupported Because she lacks specific training in the field in which she seeks to testify, and because she was unable to state with specificity that any of Ms. Zellars s alleged injuries were caused by exposure to refrigerant gas, Dr. Sharma simply cannot overcome this hurdle. Second, the district court properly held Sharma s methodology was not sufficiently reliable. employed a method known as differential that Dr. Dr. Sharma diagnosis in evaluating Ms. Zellars. Differential diagnosis is a standard scientific identifying technique of the cause of a medical problem by eliminating the likely causes until the most probable one is isolated. differential Westberry, 178 F.3d at 262. diagnosis is performed Typically, a after physical examinations, the taking of medical histories, and the review of clinical tests, including laboratory tests. Id. When performed properly, expert testimony employing this methodology is admissible. Westberry, 178 F.3d at 263 ( We previously have upheld the admission of an expert opinion on causation based upon a differential diagnosis. ) 12 However, in this case, Dr. Sharma did not reliably apply the differential diagnosis technique. As the district court observed, Dr. Sharma could not even identify the intensity and duration of Ms. Zellars s exposure R-404A. See, e.g., J.A. 448 ( [Dr. Sharma]: She put that she was exposed for a duration of time for several multiple times. weeks or months going into the freezer But . . . I m not able to opine on that because I don t know the exact exposure. ) While it is true, as Ms. Zellars argues, that precise information regarding a plaintiff s level of exposure is not always available, or necessary[,] Westberry, 178 F.3d at 264, 8 it is also true that a plaintiff must demonstrate the levels of exposure that are hazardous to 8 Ms. Zellars s reliance on Westberry on this point is inapposite. Specifically, in Westberry, we held that the plaintiff s expert did not need to cite specific quantitative evidence regarding the plaintiff s level of exposure because the record in that case clearly established that the plaintiff had been substantially exposed to the allegedly harmful substance in such a way that specific evidence was unnecessary. Westberry, 178 F.3d at 263. In particular, the allegedly harmful substance in that case was talc powder, and the record was replete with evidence of the plaintiff s substantial exposure to talc. See, e.g., id. at 264 ( Westberry testified that the talc that settled from the air around his work area was so thick that one could see footprints in it on the floor. He further stated that he worked in clouds of talc and that it covered him and his clothes. ) Here, there is no evidence of such substantial exposure. Thus, Westberry does not support Ms. Zellars s claim that she need not put forth specific evidence regarding her level of exposure. 13 human beings generally as well as the plaintiff's actual level of exposure. Id. at 263. Thus, the district court did not abuse its discretion in excluding her testimony. 2. Exclusion of Dr. Simon Dr. chemistry, Robert K. Simon toxicology, and is an expert environmental in analytical assessment. His opinion was offered to establish that Ms. Zellars was exposed to excessive levels of R-404A and that she experienced symptoms consistent with such exposure. agree, that Dr. Simon s The district court held, and we proffered testimony is inadmissible under Daubert. First, Dr. Simon has no scientific or technical knowledge that qualifies him to offer expert testimony in this case. While Dr. Simon is a toxicologist, he has no expert training with regard to the toxicity of refrigerants. Moreover, by his own admission, Dr. Simon does not know the level of R404A exposure that would be necessary to cause Ms. Zellars s alleged health effects. that is required calculations scientific for on. ). support, J.A. 297 ( But what the dose would be Ms. Zellars Rather, that he refrigerant under certain circumstances. to respond, simply I have asserts, exposure can be no without deadly Similar to Dr. Sharma, Dr. Simon s 14 lack of expert knowledge on the subject of refrigerant toxicity renders his testimony entirely speculative and, therefore, inadmissible under Daubert. Dr. Simon also fails to identify any facts or data regarding Ms. Zellars s level of R-404A exposure. In his initial report, Dr. Simon opined that the concentration of R404A in the freezer reached multiples of 1000 parts per million on numerous occasions due to the leaking Shrader valve, particularly between September 9, 2009 and September 16, 2009. J.A. 1865 (alterations omitted). on the report of the Dr. Simon based this opinion engineering expert, Ronald Bailey. However, by his own admission, Dr. Simon did not review Mr. Bailey s calculations as to the concentration of R-404A in the freezer. J.A. 290 ( [Defense Bailey s calculations? Counsel]: [Dr. calculations. ). you seen Mr. [Dr. Simon]: No, I have seen his report. [Defense Counsel]: But no calculations? calculations? Have Simon]: He hasn t You ve not seen any provided me with any Additionally, Dr. Simon indicated that he did not know how much time Ms. Zellars spent working in the freezer. J.A. 184 ( [Defense Counsel]: Did she give you a time estimate of how much percentage? time she spent [working in the freezer] or a [Dr. Simon]: No, all she would say is this is what I did when I came into work. ). Thus, he has no reliable basis for determining the level of Ms. Zellars s R-404A exposure. 15 Ms. Zellars argues that, in formulating his opinion, Dr. Simon permissibly relied on the testimony of Mr. Bailey to ascertain the level exposure in this case. However, the portion of Dr. Simon s opinion that is based on Mr. Bailey s work does not speak to Ms. Zellars s level of exposure. Rather, it simply speaks to the levels of R-404A that were present in the freezer. Thus, even assuming Mr. Bailey s calculations are accurate, Dr. Simon s opinion was not based on any specific information regarding Ms. Zellars s level of R-404A exposure. Accordingly, the district court did not abuse its discretion in excluding Dr. Simon s testimony. 3. Exclusion of Dr. Singer Dr. Raymond Singer, Ph.D., is a neuropsychologist and neurotoxicologist whose opinion was offered to show that Ms. Zellars has a nervous and system consistent with caused containing fluorocarbons. dysfunction by J.A. poisoning 1866 from neurotoxicity with refrigerant (alterations omitted). Thus, unlike Dr. Simon, who merely testified that Ms. Zellars s symptoms Singer were goes a consistent step with further excessive by R-404A indicating that exposure, Ms. Dr. Zellars s condition was, in fact, caused by her exposure to R-404A in the Arlington Rite Aid. 16 However, as the district court properly held, Dr. Singer is not qualified to diagnose the cause of Ms. Zellars s alleged symptoms. Dr. Singer is not a medical doctor. Moreover, Dr. Singer did not arrive at his own medical opinion. Instead, he based his opinion on Dr. Sharma s initial report. J.A. 1036 ( [Dr. Singer]: I m relying on Dr. Sharma to offer a neurological opinion conditions. ). about the cause of Ms. Zellars s However, as discussed above, Dr. Sharma is no longer of the view that Ms. Zellars s condition was caused by refrigerant gas exposure. R-404A exposure condition. is one Rather, Dr. Sharma s opinion is that possible cause of Ms. Zellars s Thus, the entire basis for Dr. Singer s opinion on specific causation has been undermined as merely speculative. Accordingly, the district court did not abuse its discretion in excluding his testimony. B. Motion for Summary Judgment Having excluded all three of Ms. Zellars s causation experts, the district court held that Ms. Zellars could not satisfy the causation element of her claim and, accordingly, granted NexTech s motion for summary judgment. Summary judgment is appropriate We agree. if the available evidence reveals no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. 17 Fed. R. Civ. P. 56(a). burden The of party moving establishing the for summary absence of judgment a bears genuine issue the of material fact, and a reviewing court must draw all reasonable inferences and resolve all disputed factual matters in favor of the nonmoving party. 2006). Carr v. Deeds, 453 F.3d 593, 608 (4th Cir. Importantly, a complete failure of proof concerning an essential element of the plaintiff s case necessitates a grant of summary judgment in favor of the defendant. Celotex Corp v. Catrett, 477 U.S. 317, 322-23 (1986). In Virginia, a plaintiff who seeks to establish actionable negligence must plead the existence of a legal duty, violation of that duty, and proximate causation which results in injury. Kellermann v. McDonough, 684 S.E.2d 786, 790 (Va. 2009)(citations omitted). To prove causation in a toxic tort action, offer a plaintiff must relevant testimony, as the health effects of toxic are beyond layperson. the knowledge and and reliable expert exposure to chemicals experience of the average Here, with the exclusion of all three of plaintiff s causation experts, there is a complete failure of proof on the critical element of causation. Thus, the district court s grant of summary judgment was proper. 9 9 Because we affirm the district court s grant of summary judgment in favor of NexTech on the element of causation, we need not determine whether the district court properly denied (Continued) 18 IV. For district court the is foregoing affirmed. reasons, We the dispense judgment with oral of the argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED Ms. Zellars s motion for sanctions. Even if we were to permit an adverse inference to be drawn against NexTech for spoliation, that inference would go only toward the element of breach. It would not aid Ms. Zellars on the element of causation. Accordingly, because Ms. Zellars would still fail to establish this element regardless of the adverse inference, we do not address this issue. 19

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