Rizzo v. Applied Materials, Inc.

17-3274 (L)
Rizzo v. Applied Materials, Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
New York, on the 27th day of November, two thousand eighteen.
PRESENT:
PETER W. HALL,
GERARD E. LYNCH,
Circuit Judges,
PAUL G. GARDEPHE, *
District Judge.
_____________________________________
Timothy J. Rizzo,
Plaintiff-Appellant,
v. 17-3274 (L)
18-1490 (Con)
Applied Materials, Inc., GlobalFoundries, U.S.,
Inc.
Defendants-Appellees,
GlobalFoundries, Inc., AM Technical Solutions, Inc.,
Defendants.
_____________________________________
FOR PLAINTIFF-APPELLANT: TIMOTHY J. RIZZO, pro se, Johnstown, NY.
* Judge Paul G. Gardephe, of the United States District Court for the Southern District of New
York, sitting by designation.
FOR DEFENDANTS-APPELLEES: Berj Parseghian, Lewis Brisbois Bisgaard &
Smith, LLP, New York, NY (for Applied
Materials, Inc.)
AMANDA K. RICE, Sharyl A. Reisman, Eric P.
Stephens, Jones Day, New York, NY, Traci
L. Lovitt, Jones Day, Boston, MA (for
GlobalFoundries, U.S., Inc.).
Appeal from a judgment of the United States District Court for the Northern District of
New York (D’Agostino, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Appellant Timothy Rizzo, pro se, brought a diversity toxic tort action against
GlobalFoundries, U.S., Inc. and Applied Materials, Inc., alleging that he developed granulomatosis
with polyangiitis (“GPA”), a severe autoimmune disease, after being exposed to several toxic
substances as a result of defendants’ negligence. The district court divided discovery into phases,
with the first phase addressing general causation, that is, whether any of the substances to which
Rizzo was allegedly exposed can cause GPA. The district court excluded the opinions of Rizzo’s
two experts as unreliable and granted summary judgment to defendants because Rizzo had
submitted no other evidence raising a genuine issue of material fact about general causation, which
he had to prove to prevail on his claims. In addition to his appellate arguments challenging the
district court’s summary judgment order, Rizzo moves to set a standard hourly rate for future
expert depositions in the case. We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.
2
We review de novo a grant of summary judgment, with the view that summary judgment
is appropriate only “if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Sousa v. Marquez, 702 F.3d 124, 127
(2d Cir. 2012) (internal quotation marks omitted). We review the exclusion of an expert’s
testimony under a “highly deferential” abuse of discretion standard and will sustain the exclusion
“unless manifestly erroneous.” Restivo v. Hessemann, 846 F.3d 547, 575 (2d Cir. 2017) (internal
quotation marks omitted). We review the denial of leave to amend, denial of a motion to amend
the judgment, and discovery rulings for abuse of discretion. McCarthy v. Dun & Bradstreet Corp.,
482 F.3d 184, 200 (2d Cir. 2007) (leave to amend); Munafo v. Metro. Transp. Auth., 381 F.3d 99,
105 (2d Cir. 2004) (alter judgment); Wills v. Amerada Hess Corp., 379 F.3d 32, 41 (2d Cir. 2004)
(discovery rulings).
Under Federal Rule of Evidence 702, district courts must screen scientific evidence to
“ensure that . . . [it] is not only relevant, but reliable.” Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579, 589 (1993). Under Daubert, factors relevant to determining reliability include the
theory’s testability, the extent to which is has been subjected to peer review and publication, the
extent to which a technique is subject to standards controlling the technique’s operation, the known
or potential rate of error, and the degree of acceptance within the relevant scientific community.
Restivo, 846 F.3d 575-76. “If [an expert’s] opinion is based on data, a methodology, or studies
that are simply inadequate to support the conclusions reached, Daubert and Rule 702 mandate the
exclusion of that unreliable opinion testimony.” In re Pfizer Inc. Sec. Litig., 819 F.3d 642, 662 (2d
Cir. 2016) (internal quotation marks omitted).
Upon review of the whole record, we conclude that the district court properly considered
the factors in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993); excluded the testimony
of Rizzo’s experts; granted summary judgment to defendants; denied leave to amend; and denied
Rizzo’s objection to the magistrate judge’s fee order. We affirm for substantially the reasons given
by the district court in its thorough and well-reasoned September 11, 2017 decision.
We have considered all of Rizzo’s arguments on appeal and find them to be without merit.
Accordingly, we AFFIRM the judgment of the district court and DENY as moot the motion to set
a standard hourly rate for future expert depositions.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk of Court