Deborah Zellers v. Nextech Northeast, LLC , 533 F. App'x 192 ( 2013 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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. Zellars”) against NexTech Northeast LLC
(“NexTech”), an HVAC contractor, Ms. Zellars proffered three
expert witnesses to testify that she was injured by allegedly
excessive exposure to refrigerant gas at her place of
employment, a Rite Aid in Arlington, Virginia. The district
court excluded the testimony of each proffered expert, leaving
Ms. Zellars without any expert testimony on the element of
causation. Accordingly, the district court granted summary
judgment in favor of NexTech. 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 the district court that none of Ms. Zellars’s three
proffered causation experts offered relevant or 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. However,
during this visit, NexTech determined that the 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. Members of the
1
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 the
store, where they detected a small leak in the freezer. 2 After
the hazardous materials team had completed its assessment, a
call was placed to NexTech, who responded by dispatching a
technician to the store. The technician determined that a valve
on the refrigerator was leaking refrigerant gas and repaired the
leak.
Minutes before the NexTech technician finished
repairing the freezer, Ms. Zellars reported to work. Soon after
arriving, she reported to Ms. Hare that she was feeling ill,
specifically complaining of shortness of breath, dizziness, and
a headache. In response, Ms. Zellars was taken to the local
emergency 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 repair the refrigerant leak before
September 16, 2009. 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 relevance to the present appeal, Ms. Zellars
offered written reports and deposition testimony 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 R-
404A 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 exclude the testimony of each of the
plaintiffs’ proffered experts, and a motion for summary
judgment. The plaintiffs filed a motion for sanctions,
requesting an adverse inference based on NexTech’s alleged
spoliation of evidence. 5 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 court denied Ms. Zellars’s
5
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). However, we review a district court’s
decision to admit or exclude evidence, including expert
testimony, for an abuse of discretion. 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 actual level of
8
exposure.” Westberry v. Gislaved Gummi AB, 178 F.3d 257, 263
(4th Cir. 1999) (internal citations and quotations marks
omitted). 6 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 involves a two-pronged inquiry. First, the
district court must determine whether the proffered expert
testimony concerns scientific knowledge. 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 that the testimony of each of the three
proffered causation experts was unreliable and, therefore,
inadmissible. We agree on all counts.
1.
Exclusion of Dr. Sharma
Dr. Sharma is a board certified neurologist who
maintains a practice in general neurology. In a 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, jerking of the
extremities, body tremors, and other symptoms. In 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. J.A.
403 (“[T]oxicity is a reasonable medical certainty. Is it
related to Freon itself, I cannot opine on that.”). 7 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.”). This is further evinced by the fact
that, during her deposition, Dr. Sharma indicated that her
knowledge of refrigerant gas toxicity primarily came 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 command that an expert’s testimony must be
based on “more than subjective belief or unsupported
speculation.” Daubert, 509 U.S. at 590. 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 that Dr.
Sharma’s methodology was not sufficiently reliable. Dr. Sharma
employed a method known as “differential diagnosis” in
evaluating Ms. Zellars. Differential diagnosis is “a standard
scientific technique of identifying the cause of a medical
problem by eliminating the likely causes until the most probable
one is isolated.” Westberry, 178 F.3d at 262. Typically, a
differential diagnosis “is performed 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 weeks or months going into the freezer
multiple times. 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. Robert K. Simon is an expert in analytical
chemistry, toxicology, and environmental 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. The district court held, and we
agree, that Dr. Simon’s 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 R-
404A exposure that would be necessary to cause Ms. Zellars’s
alleged health effects. J.A. 297 (“But what the dose would be
that is required for Ms. Zellars to respond, I have no
calculations on.”). Rather, he simply asserts, without
scientific support, that refrigerant exposure can be deadly
under certain circumstances. 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 R-
404A 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). Dr. Simon based this opinion
on the report of the 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 Counsel]: Have you seen Mr.
Bailey’s calculations? [Dr. Simon]: No, I have seen his report.
[Defense Counsel]: But no calculations? You’ve not seen any
calculations? [Dr. Simon]: He hasn’t provided me with any
calculations.”). 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 time she spent [working in the freezer] or a
percentage? [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 system dysfunction from neurotoxicity
consistent with and caused by poisoning with refrigerant
containing fluorocarbons.” J.A. 1866 (alterations omitted).
Thus, unlike Dr. Simon, who merely testified that Ms. Zellars’s
symptoms were consistent with excessive R-404A exposure, Dr.
Singer goes a step further by indicating that Ms. 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 about the cause of Ms. Zellars’s
conditions.”). However, as discussed above, Dr. Sharma is no
longer of the view that Ms. Zellars’s condition was caused by
refrigerant gas exposure. Rather, Dr. Sharma’s opinion is that
R-404A exposure is one possible cause of Ms. Zellars’s
condition. 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. We agree.
Summary judgment is appropriate if the available
evidence reveals no genuine issue of material fact and that the
movant is entitled to judgment as a matter of law. Fed. R. Civ.
17
P. 56(a). The party moving for summary judgment bears the
burden of establishing the absence of a genuine issue of
material fact, and a reviewing court must draw all reasonable
inferences and resolve all disputed factual matters in favor of
the nonmoving party. Carr v. Deeds, 453 F.3d 593, 608 (4th Cir.
2006). 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, a plaintiff must offer relevant and reliable expert
testimony, as the health effects of toxic exposure to chemicals
are beyond the knowledge and experience of the average
layperson. 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 the foregoing reasons, the judgment of the
district court is affirmed. We dispense with oral 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