Jazairi v. Royal Oaks Apartment Associates, L.P.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEB 13, 2007
No. 06-15389 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00091-CV-4
CHRIS JAZAIRI,
Plaintiff-Counter-
Defendant-Appellant,
versus
ROYAL OAKS APARTMENT ASSOCIATES, L.P.,
a Parent Company and Subsidiaries,
MORGAN PROPERTIES, LTD.,
Defendants-Counter-
Claimants-Appellees,
MITCHELL L. MORGAN PROPERTIES, INC.
d.b.a. Royal Oaks Apartment Associates, L.P.,
a.k.a Morgan Properties, Inc.,
Defendant,
JOHN I-X DOES,
MITCHELL L. MORGAN MANAGEMENT, INC.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(February 13, 2007)
Before TJOFLAT, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Chris Jazairi appeals the decision of the district court to exclude the expert
testimony of Dr. Eckhardt Johanning under Daubert v. Merrell Dow
Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786 (1993). Dr. Johanning diagnosed
Jazairi with a “resolved or resolving” allergic inflammatory lung ailment and was
prepared to testify that an indeterminate amount of non-toxic mold or mold-related
bacteria discovered in Jazairi’s apartment, which was owned and operated by
Royal Oaks Apartment Associates, caused this ailment. We affirm.
I. BACKGROUND
Jazairi and her roommate moved into an apartment at Royal Oaks in May
2002. Two months later, they noticed mold on their walls and floors and
complained to the county health department. The health department found
evidence of water intrusion and instructed Royal Oaks to remedy the apartment in
accordance with EPA guidelines. Samples taken by the health department revealed
2
several genus of mold: Strachybotrys chartarum, Aspergiluss, Aureobasidium,
Cladosprium, and Alternarian.
In August, Jazairi went to the emergency room complaining of memory loss,
fatigue and malaise. An x-ray revealed interstitial thickening in her lungs. In
September, Dr. Robert Remler diagnosed Jazairi with interstitial fibrosis–the
scarring of lung tissue between the air sacs–and referred her to Dr. Patricia
Constanzo, a lung specialist. On October 1, 2002, Jazairi left the apartment to live
in a tent on undeveloped property, and then, after a month or two, moved into
another apartment.
On Octrober 24, 2002, Jazairi visited Dr. Constanzo and complained of lung
symptoms such as shortness of breath, coughing, and chest pains. Dr. Constanzo
noted that Jazairi had smoked a pack of cigarettes a day for twenty years and
suggested a series of tests to determine the treatment of her interstitial fibrosis. In
February, 2003, Dr. Constanzo performed a fiberoptic bronchoscopy and
discovered no fungal growth in Jazairi’s lungs. While not ruling out hypersensitive
pneumonitis (HP), an allergic reaction to mold spores, Dr. Constanzo concluded
that the findings were more suggestive of chronic bronchitis caused by cigarette
smoking. Dr. Constanzo prescribed Advair, which would ease breathing regardless
of the cause of the interstitial fibrosis.
3
Jazairi apparently did not fill Dr. Constanzo’s prescription. Instead, two
times over the next year, she visited Dr. Eckerdt Johanning in Albany, New York,
a doctor of environmental and occupational medicine with a specialty in mold-
caused illnesses. Dr. Johanning tested Jazairi for moisture-related allergens, but
not for outdoor allergies, and discovered no allergic reaction. He tested her for
sensitivity to specific mold species and discovered that Jazairi was allergic to
Termoactinomyces, a bacteria, but not any genus of mold. Dr. Johanning found
antibodies in Jazairi’s bloodstream consistent with exposure to bacteria. On her
second visit, Jazairi’s CT scans showed that her interstitial markings had almost
cleared.
Dr. Johanning diagnosed Jazairi with resolved or resolving HP caused by
exposure to a “cocktail” of mold and bacteria. Dr. Johanning reasoned that
smoking effects are usually irreversible, that Jazairi is too young at 38 to have
smoking effects, and that the X-ray findings were more consistent with an allergic
lung problem than with asthmatic bronchitis. Jazairi reported a litany of other
symptoms, as varied as joint pain, panic attacks, and blurred vision, but Dr.
Johanning suggested that those symptoms were due to alcohol consumption or a
psychiatric condition. Although Dr. Johanning observed that Jazairi’s interstitial
markings have cleared, Jazairi continues to complain of coughing, chest pain, and
4
shortness of breath.
Jazairi sued Royal Oaks and submitted the affidavit of Dr. Johanning in
response to a summary judgment motion by Royal Oaks. Royal Oaks moved to
strike Dr. Johanning’s affidavit under Daubert, and the district court granted the
motion. The district court concluded that Dr. Johanning’s diagnosis was not
scientifically acceptable. The district court reasoned that Dr. Johanning failed to
“rule in” mold as the source of Jazairi’s symptoms, failed to “rule out” smoking or
common allergens like pet dander, and over-relied on the temporal proximity
between the mold exposure and the on-set of Jazairi’s symptoms. After discarding
Dr. Johanning’s testimony, the district court held that Jazairi failed to create a
genuine issue of material fact about specific causation and granted summary
judgment for Royal Oaks.
II. STANDARD OF REVIEW
We review the district court’s exclusion of testimony under Daubert, for an
abuse of discretion. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141, 118 S. Ct. 512,
517 (1997). “We recognize a significant range of choice for the district court on
evidentiary issues, which is to say we defer to its decisions to a considerable
extent.” McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1257 (11th Cir.
2002).
5
III. DISCUSSION
Jazairi argues that the district court “applied an artificially elevated standard
in considering the medical opinion of Dr. Johanning” and erroneously made
findings of fact at summary judgment. We disagree. Expert testimony should be
admitted “if (1) the testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods, and (3) the witness has
applied the principles and methods reliably to the facts of the case.” Fed. R. Evid.
702; see also Daubert, 509 U.S. at 590, 113 S. Ct at 2795. “The burden of
establishing qualification, reliability, and helpfulness rests on the proponent of the
expert opinion. . . .” United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir.
2004). The focus of the reliability inquiry should be on methodology but “even
when an expert is using reliable principles and methods . . . there [cannot be] too
great an analytical gap between the data and the opinion proffered.” Id. at 1276.
Expert testimony should not be based solely on temporal proximity and anecdotal
evidence. Allison v. McGhan Med. Corp., 184 F.3d 1300, 1312 (11th Cir. 1999).
The medical community recognizes that an allergic reaction similar to
Jazairi’s can occur when a sensitive individual is exposed to an allergen, so Dr.
Johanning’s testimony is necessary only to show that the moldy conditions of
Jazairi’s apartment were the specific cause of her symptoms. Dr. Johannning
6
employed a differential diagnosis methodology; he identified likely causes of
Jazairi’s symptoms and, by process of elimination, deduced that her symptoms
were most likely caused by exposure to a mix of bacteria and mold. The record
reflects that differential diagnosis is widely accepted by the medical community.
Although recognizing Dr. Johanning’s expertise in environmental illnesses
and crediting the methodology of differential diagnosis, the district court
concluded that Dr. Johanning’s testimony still failed to surpass the Daubert
threshold. We agree. The record shows that HP is an allergic reaction that occurs
when a hypersensitive individual is exposed to high dosages of mold spores. Dr.
Johanning tested Jazairi for mold allergies, found that she had none, and apparently
did not conclude that Jazairi suffered symptoms due to exposure to any of the
molds that were present in her apartment. To the extent that Dr. Johanning was
prepared to testify that the mold in Jazairi’s apartment caused her conditions, Dr.
Johanning’s testimony would have been based solely on temporal proximity and
anecdotal evidence. It was within the discretion of the district court to exclude it.
Although Dr. Johanning identified the bacteria Termoactinomyces as the
cause of Jazairi’s illness, Dr. Johanning’s opinion on that issue did not create a
genuine issue of material fact. As the district court explained, there is no evidence
that Termoactinomyces was present in Jazairi’s apartment because the county
7
health department did not test for bacteria. Jazairi submitted some articles from
medical and scientific journals that show Termoactinomyces can grow in air
conditioners and humidifiers, but there is no evidence linking Termoactinomyces
with indoor mold. In fact, Jaziari’s articles explain that Termoactinomyces is
usually found in hay, straw, and grain. Because there was no evidence that would
allow a reasonable inference that Termoactinomyces was present in Jazairi’s
apartment, summary judgment was appropriate. See, e.g., Sanders v. Cowart, 231
Ga. App. 303, 304, 499 S.E.2d 103, 104 (1998) (“[T]he plaintiff must show a
probability rather than merely a possibility that the alleged negligence caused the
injury.”).
IV. CONCLUSION
Summary judgment in favor of Royal Oaks is AFFIRMED.
8