Anderson v. Dow Chemical Co. , 255 F. App'x 1 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT June 28, 2007
Charles R. Fulbruge III
Clerk
No. 06-30445
ADA M. ANDERSON; CYNTHIA Y. ANDERSON;
DAVID E. ANDERSON, real party in interest
David Louis McElroy; DONALD ANDERSON;
JENNIFER ANDERSON; ET AL.,
Plaintiffs-Appellants,
versus
DOW CHEMICAL COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Middle District of Louisiana
(3:02-CV-12)
Before KING, DAVIS, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Appellants challenge subject-matter jurisdiction, the
exclusion of their expert witnesses’ affidavits, and the summary
judgment awarded Dow Chemical Company. See Anderson v. Dow Chem.
Co., No. 02-12-C (M.D. La. 23 March 2006). AFFIRMED.
I.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Appellants are approximately 600 former residents of, and
former visitors to, the now-closed Myrtle Grove Trailer Park (MGTP)
in Plaquemine, Louisiana. They filed this diversity action in
January 2002, claiming strict liability and negligence because of
Dow’s alleged vinyl-chloride contamination of the groundwater in
and surrounding MGTP, and seeking injunctive relief, as well as
compensatory and punitive damages. After their claims for physical
injuries requiring immediate and long-term medical treatment were
dismissed with prejudice, Appellants’ operative (fourth-amended)
complaint requested compensatory and punitive damages arising only
from: mental distress associated with actual or perceived vinyl-
chloride exposure; increased risk of future diseases, including
various forms of cancer; discomfort, inconvenience, and
environmental injustice; and loss of consortium.
In October 2004, after extensive discovery, Dow moved for
summary judgment. Supporting its motion were a statement of
uncontested facts and exhibits, including a 17 May 2004 report by
the United States Department of Health and Human Services Agency
for Toxic Substances and Disease Registry (ATSDR), providing the
groundwater sampling results for the MGTP. Among other things,
this report stated: “the total vinyl chloride exposures at MGTP
were not high enough to produce any of the known adverse health
effects attributable to vinyl chloride”; complaints of headaches,
skin rashes, numbness, stomach problems, asthma, miscarriages,
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nosebleeds, and coughing, and lumps throughout the body were
incompatible with the maximum vinyl-chloride exposure sustained by
MGTP residents and visitors; and the MGTP presented “No Apparent
Public Health Hazard”.
Appellants opposed summary judgment by relying, in part, on
the affidavits of Dr. C. B. Scrignar (psychiatrist), Dr. Nachman
Brautbar (physician), and Dr. Kenneth Rudo (environmental
toxicologist). These affidavits stated, inter alia: a sampling
of Appellants showed most suffered from fear and anxiety resulting
from an awareness of vinyl-chloride exposure; some would develop a
mental disorder; and all have a significantly increased risk of
certain forms of cancer due to Dow’s vinyl-chloride contamination
of MGTP’s water supply.
In March 2006, pursuant to Dow’s motion, the magistrate judge
excluded these expert affidavits, under Federal Rule of Evidence
702 (requiring expert testimony to be based on reliable methods and
sufficient facts or data). That same day, the magistrate judge, in
a comprehensive report, recommended granting Dow’s summary-judgment
motion. Later that month, in response to Appellants’ appeal from
the evidentiary ruling and over their objections to the report and
recommendation, the district court both affirmed the exclusion of
the affidavits and awarded summary judgment to Dow.
II.
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Appellants claim the district court: lacked subject-matter
jurisdiction; erred under Rule 702 by excluding the affidavits; and
improperly awarded summary judgment. For the reasons that follow,
these claims are totally without merit.
A.
Appellants filed this action in district court. Accordingly,
their original and first through third amended complaints asserted
diversity jurisdiction was proper pursuant to 28 U.S.C. § 1332:
“The amount in controversy exceeds, exclusive of interest and
costs, the sum of $75,000 per Complainant”. After Dow moved for
summary judgment, however, Appellants reversed course and filed a
fourth amended complaint, stating: “The amount in controversy,
inclusive of punitive damages, is less than $75,000 per
Complainant”.
Based on this last, and quite belated, damages assessment, and
although Appellants’ counsel, of course, claim their jurisdictional
allegations in the first four complaints were “in good faith”,
Appellants maintain § 1332(b)’s amount-in-controversy requirement
is no longer satisfied; and, therefore, the district court should
have dismissed this action for lack of subject-matter jurisdiction.
As Appellants correctly state, jurisdictional requirements must be
met throughout all phases of litigation. See FED. R. CIV. P.
12(h)(3).
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On the other hand, as Dow notes, it is well established that,
with few exceptions, diversity jurisdiction is determined as at the
time an action is filed; an amendment to the complaint or
stipulation reducing the amount in controversy does not divest a
federal court of such jurisdiction. See St. Paul Mercury Indem.
Co. v. Red Cab Co., 303 U.S. 283, 289-90 (1938) (“Events occurring
subsequent to the institution of suit which reduce the amount
recoverable below the statutory limit do not oust jurisdiction.”);
Hensgens v. Deere & Co., 833 F.2d 1179, 1181 (5th Cir. 1987)
(“amendment of pleadings to below the jurisdictional amount ...
will not divest the court of jurisdiction”); Garza v. Rodriguez,
559 F.2d 259, 260 (5th Cir. 1977) (same).
Appellants do not reply concerning this fundamental point.
Their inadequate briefing on this issue reflects adversely not only
on this point, but on their other contentions as well.
B.
Appellants next contend the district court erred in excluding
Drs. Scrignar, Brautbar, and Rudo’s affidavits. Appellants claim
the affidavit testimony of the three proffered experts satisfied
the strictures of Rule 702 and Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993).
The exclusion of expert testimony is reviewed for an abuse of
discretion. E.g., Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243
(5th Cir. 2002). “A trial court abuses its discretion when its
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ruling is based on an erroneous view of the law or a clearly
erroneous assessment of the evidence.” Bocanegra v. Vicmar Servs.,
Inc., 320 F.3d 581, 584 (5th Cir. 2003).
The magistrate judge’s quite detailed and comprehensive
exclusion ruling, affirmed on appeal by the district court, held,
inter alia: Dr. Scringar’s psychiatric evaluations of only ten out
of approximately 600 plaintiffs were neither sufficiently reliable
nor relevant because they were not based on any objective method of
testing or verification; Dr. Brautbar’s conclusions concerning
increased cancer risks were methodologically unsound and filled
with irrelevant information, such as cancer statistics associated
with hepatitis B (not vinyl-chloride exposure); and Dr. Rudo’s
environmental toxocological conclusions regarding heightened cancer
risks were unsupported by peer-reviewed literature, incapable of
repetition, and employed methodology lacking any known error rate.
Appellants fail to show any error in this analysis. In this
regard, they do not reply to Dow’s detailed briefing on their
failure to satisfy Rule 702. In sum, for the reasons carefully
articulated by the magistrate judge, the district court did not
abuse its discretion in ruling these affidavits fail to satisfy
Rule 702 and Daubert.
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C.
Finally, Appellants contest the summary judgment awarded Dow.
Such judgment is reviewed de novo. E.g., Celotex Corp. v. Catrett,
477 U.S. 317, 330 (1986).
Summary judgment is appropriate “if ... there is no genuine
issue as to any material fact and the mov[ant] ... is entitled to
a judgment as a matter of law". FED. R. CIV. P. 56(c). The movant
must demonstrate the absence of such material-fact issues, but need
not negate the elements of the nonmovant’s case. E.g., Boudreaux
v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005).
When the movant has met its Rule 56(c) burden, the nonmovant must
identify specific evidence in the summary judgment record giving
rise to a material-fact issue and articulate the manner in which
the evidence supports its claim. E.g., Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986). All reasonable inferences are made
in the light most favorable to the nonmovant, e.g., Calbillo v.
Cavender Oldsmobile, Inc., 288 F.3d 721, 725 (5th Cir. 2002); but,
summary judgment is proper if the nonmovant “‘fails ... to
establish the existence of an element essential to [its] case, and
on which [it] will bear the burden of proof at trial’”. Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (quoting
Celotex Corp., 477 U.S. at 322).
Appellants assert summary judgment was improper because:
their discovery was cut short; Dow failed to demonstrate the
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absence of material-fact issues; mental-distress claims cannot be
properly decided on summary judgment; and Appellants identified
specific evidence establishing a material-fact issue concerning
their mental distress.
1.
Regarding Appellants’ assertion that they “were not afforded
the opportunity to complete discovery”, they once again fail to
adequately brief this point. For example, they do not state
whether, pursuant to Rule 56(f), they sought to delay a summary-
judgment ruling. In this regard, the docket reflects additional
discovery was permitted after Dow moved for summary judgment. For
instance, nearly a year and a half elapsed between Dow’s filing its
motion and the district court’s ruling. The court postponed that
ruling several times to allow plaintiffs time to complete discovery
or otherwise obtain evidence in opposition to the summary-judgment
motion.
2.
Among other evidence supporting summary judgment, the district
court relied on the above-described ATSDR report, which concluded:
[The] data on the toxicology, epidemiology,
and physical chemistry of vinyl chloride
indicate that exposures at MGTP were of
insufficient magnitude and duration to cause
adverse health effects. ATSDR therefore
concludes that the total vinyl chloride
exposures at MGTP were not high enough to
produce any of the know[n] adverse health
effects attributable to vinyl chloride.
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Because appellants failed to present competent summary-judgment
evidence to dispute these conclusions, the district court
jettisoned their claims for increased risk of future disease and
mental anguish; and, without any remaining basis for medical
monitoring and punitive damages, these claims were dismissed as
well. For these and other reasons stated in the magistrate judge’s
well-reasoned analysis, summary judgment was proper.
III.
For the foregoing reasons, judgment is
AFFIRMED.
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