UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-60784 Summary Calendar
ANTIONETTE ABRAM, ET AL.,
Plaintiffs,
WILEY AUSTIN BOND, ET AL.,
Plaintiffs-Appellants,
versus
REICHHOLD CHEMICALS, INC., FICTITIOUS DEFENDANTS, A, B AND C
Defendants-Appellees.
Appeal from the United States District Court for the Southern District of Mississippi (2:92-CV-122)
July 2, 1996 Before POLITZ, Chief Judge, SMITH and BARKSDALE, Circuit Judges.
POLITZ, Chief Judge:*
* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. Seven plaintiffs1 appeal an adverse summary judgment dismissing their toxic tort
complaint. Eight plaintiffs2 appeal a dismissal of their complaint as a sanction for failure to
comply with the court’s pretrial orders. For the reasons assigned, we affirm in part and
vacate and remand in part.
This appeal arises out of complex litigation involving Reichhold’s former chemical
production site in Columbia, Mississippi. The proceedings at bar seek damages for exposure
to toxic substances. Reichhold has settled with over 4000 claimants; only the 15 appellants
remain in the litigation.
Reichhold moved for dismissal as a sanction for the eight appellants’ failure to
comply with the court’s Case Management Order. It also sought summary judgment
dismissing the claims of the seven who attempted to comply with the Case Management
Order. The trial court granted both motions, dismissing the complaint of the eight plaintiffs
for failure to comply with its standing court order and the complaint of the other seven for
their failure to raise a genuine issue of material fact concerning exposure and causation.
Analysis
We first consider whether the district court’s dismissal order, entered for failure to
1 Wiley Austin Bond, Johnny Lamar Hibley, Joy Ann Hibley, Charles Ernest Johnson, Julius C. Parker, Joe Thomas Owens, and Charity Fortenberry Roberts. 2 Charlotte Hibley, Vernon D. Hibley, Vernon L. Hibley, Ida Johnson, N.C. Magee Jr., Jessie James Peavey, Peggy Pittman, and Hoyt Shelby Forbes.
2 comply with the Case Management Order, was an abuse of discretion.3 The sanction of
dismissal with prejudice contemplated by Federal Rule of Civil Procedure 41(b) is
appropriate “only if the failure to comply with the court order was the result of purposeful
delay or contumaciousness and the record reflects that the district court employed lesser
sanctions before dismissing the action.”4 The record before us does not reflect the required
prior recourse to lesser sanctions and we necessarily must conclude that the dismissal order
was granted improvidently.
The district court recited as an alternative ground for its dismissal of the eight
plaintiffs a sua sponte grant of adverse summary judgment. While that procedure was
available to the district court, the record does not reflect that these plaintiffs received the
required ten day notice and an opportunity to respond. Absent these mandatory procedural
protections, the grant of summary judgment must be vacated.5 Accordingly, the order
dismissing the claims of these eight plaintiffs is vacated and their claims are remanded to the
district court for further consideration.
Proceeding de novo,6 we next examine the district court’s grant of summary judgment
3 Berry v. Cigna/RSI-CIGNA, 975 F.2d 1188 (5th Cir. 1992). 4 Long v. Simmons, 77 F.3d 878, 880 (5th Cir. 1996) (emphasis added). 5 Balogun v. Immigration and Naturalization Service, 9 F.3d 347 (5th Cir. 1993); Jackson v. Procunier, 789 F.2d 307 (5th Cir. 1986). We express no opinion on the merits of the district court’s summary judgment ruling as to these plaintiffs. 6 Weyant v. Acceptance Ins. Co., 917 F.2d 209 (5th Cir. 1990).
3 against the seven remaining plaintiffs. The district court found that these plaintiffs had
presented no competent summary judgment evidence that their illnesses were caused by
exposure to chemicals from the Reichhold site. On appeal these plaintiffs underscore that
they lived or worked in close proximity to the Reichhold site and over time became ill. As
the district court observed, however, the mere fact that some plaintiffs and Reichhold’s
chemicals may have been at the same place at the same time, without more, is insufficient
to establish actual exposure.7
Plaintiffs advance the expert testimony of Dr. P. Lance Barnes, D.O., opining that the
plaintiffs were harmed by exposure to chemicals at the Reichhold site. Proffered expert
testimony, to be considered competent summary judgment evidence, must be admissible at
trial.8 The district court concluded that the testimony of plaintiffs’ expert, Dr. Barnes,9
would be inadmissible at trial because his opinion is merely unsupported speculation.10 We
7 See Thompson v. Southern Pacific Trans. Co., 809 F.2d 1167 (5th Cir.), cert. denied, 484 U.S. 819 (1987). 8 Christophersen v. Allied-Signal Corp., 939 F.2d 1106 (5th Cir.) (en banc), cert. denied, 503 U.S. 912 (1992). 9 Plaintiffs also point to the affidavit of Dr. LaCuyetunia Todd, a board-certified dermatologist, as supportive of their position. Dr. Todd’s affidavit merely stated that plaintiffs “could have” been exposed to toxic chemicals at the Reichhold site. We conclude, as did the district court, that this affidavit, particularly given its vagueness and lack of specificity regarding the chemicals involved, fails to create a fact issue on causation. 10 Fed.R.Evid. 702; Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786 (1993).
4 review that determination for an abuse of discretion.11
To be admissible, expert opinion must reflect knowledge gleaned through a
scientifically valid method that can be and has been tested and is subject to peer review.12
Dr. Barnes’ opinion is based solely upon the plaintiffs’ histories, a physical examination, and
“general medical knowledge.” Dr. Barnes, who is not board certified and has received no
specialized training in the myriad medical fields in which he expresses his opinion,
apparently did not consult any medical or scientific literature before reaching his
conclusions. During his deposition Dr. Barnes was unable to identify either the particular
chemical agent to which these plaintiffs were exposed or the duration or extent of any
plaintiff’s exposure at the Reichhold site.13 In short, the proffered testimony gave the district
court no clue whatever as to how Dr. Barnes’ opinions were formulated or derived. While
Free access — add to your briefcase to read the full text and ask questions with AI
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-60784 Summary Calendar
ANTIONETTE ABRAM, ET AL.,
Plaintiffs,
WILEY AUSTIN BOND, ET AL.,
Plaintiffs-Appellants,
versus
REICHHOLD CHEMICALS, INC., FICTITIOUS DEFENDANTS, A, B AND C
Defendants-Appellees.
Appeal from the United States District Court for the Southern District of Mississippi (2:92-CV-122)
July 2, 1996 Before POLITZ, Chief Judge, SMITH and BARKSDALE, Circuit Judges.
POLITZ, Chief Judge:*
* Pursuant to Local Rule 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 Local Rule 47.5.4. Seven plaintiffs1 appeal an adverse summary judgment dismissing their toxic tort
complaint. Eight plaintiffs2 appeal a dismissal of their complaint as a sanction for failure to
comply with the court’s pretrial orders. For the reasons assigned, we affirm in part and
vacate and remand in part.
This appeal arises out of complex litigation involving Reichhold’s former chemical
production site in Columbia, Mississippi. The proceedings at bar seek damages for exposure
to toxic substances. Reichhold has settled with over 4000 claimants; only the 15 appellants
remain in the litigation.
Reichhold moved for dismissal as a sanction for the eight appellants’ failure to
comply with the court’s Case Management Order. It also sought summary judgment
dismissing the claims of the seven who attempted to comply with the Case Management
Order. The trial court granted both motions, dismissing the complaint of the eight plaintiffs
for failure to comply with its standing court order and the complaint of the other seven for
their failure to raise a genuine issue of material fact concerning exposure and causation.
Analysis
We first consider whether the district court’s dismissal order, entered for failure to
1 Wiley Austin Bond, Johnny Lamar Hibley, Joy Ann Hibley, Charles Ernest Johnson, Julius C. Parker, Joe Thomas Owens, and Charity Fortenberry Roberts. 2 Charlotte Hibley, Vernon D. Hibley, Vernon L. Hibley, Ida Johnson, N.C. Magee Jr., Jessie James Peavey, Peggy Pittman, and Hoyt Shelby Forbes.
2 comply with the Case Management Order, was an abuse of discretion.3 The sanction of
dismissal with prejudice contemplated by Federal Rule of Civil Procedure 41(b) is
appropriate “only if the failure to comply with the court order was the result of purposeful
delay or contumaciousness and the record reflects that the district court employed lesser
sanctions before dismissing the action.”4 The record before us does not reflect the required
prior recourse to lesser sanctions and we necessarily must conclude that the dismissal order
was granted improvidently.
The district court recited as an alternative ground for its dismissal of the eight
plaintiffs a sua sponte grant of adverse summary judgment. While that procedure was
available to the district court, the record does not reflect that these plaintiffs received the
required ten day notice and an opportunity to respond. Absent these mandatory procedural
protections, the grant of summary judgment must be vacated.5 Accordingly, the order
dismissing the claims of these eight plaintiffs is vacated and their claims are remanded to the
district court for further consideration.
Proceeding de novo,6 we next examine the district court’s grant of summary judgment
3 Berry v. Cigna/RSI-CIGNA, 975 F.2d 1188 (5th Cir. 1992). 4 Long v. Simmons, 77 F.3d 878, 880 (5th Cir. 1996) (emphasis added). 5 Balogun v. Immigration and Naturalization Service, 9 F.3d 347 (5th Cir. 1993); Jackson v. Procunier, 789 F.2d 307 (5th Cir. 1986). We express no opinion on the merits of the district court’s summary judgment ruling as to these plaintiffs. 6 Weyant v. Acceptance Ins. Co., 917 F.2d 209 (5th Cir. 1990).
3 against the seven remaining plaintiffs. The district court found that these plaintiffs had
presented no competent summary judgment evidence that their illnesses were caused by
exposure to chemicals from the Reichhold site. On appeal these plaintiffs underscore that
they lived or worked in close proximity to the Reichhold site and over time became ill. As
the district court observed, however, the mere fact that some plaintiffs and Reichhold’s
chemicals may have been at the same place at the same time, without more, is insufficient
to establish actual exposure.7
Plaintiffs advance the expert testimony of Dr. P. Lance Barnes, D.O., opining that the
plaintiffs were harmed by exposure to chemicals at the Reichhold site. Proffered expert
testimony, to be considered competent summary judgment evidence, must be admissible at
trial.8 The district court concluded that the testimony of plaintiffs’ expert, Dr. Barnes,9
would be inadmissible at trial because his opinion is merely unsupported speculation.10 We
7 See Thompson v. Southern Pacific Trans. Co., 809 F.2d 1167 (5th Cir.), cert. denied, 484 U.S. 819 (1987). 8 Christophersen v. Allied-Signal Corp., 939 F.2d 1106 (5th Cir.) (en banc), cert. denied, 503 U.S. 912 (1992). 9 Plaintiffs also point to the affidavit of Dr. LaCuyetunia Todd, a board-certified dermatologist, as supportive of their position. Dr. Todd’s affidavit merely stated that plaintiffs “could have” been exposed to toxic chemicals at the Reichhold site. We conclude, as did the district court, that this affidavit, particularly given its vagueness and lack of specificity regarding the chemicals involved, fails to create a fact issue on causation. 10 Fed.R.Evid. 702; Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786 (1993).
4 review that determination for an abuse of discretion.11
To be admissible, expert opinion must reflect knowledge gleaned through a
scientifically valid method that can be and has been tested and is subject to peer review.12
Dr. Barnes’ opinion is based solely upon the plaintiffs’ histories, a physical examination, and
“general medical knowledge.” Dr. Barnes, who is not board certified and has received no
specialized training in the myriad medical fields in which he expresses his opinion,
apparently did not consult any medical or scientific literature before reaching his
conclusions. During his deposition Dr. Barnes was unable to identify either the particular
chemical agent to which these plaintiffs were exposed or the duration or extent of any
plaintiff’s exposure at the Reichhold site.13 In short, the proffered testimony gave the district
court no clue whatever as to how Dr. Barnes’ opinions were formulated or derived. While
a “history” and a physical examination may justify suspicion about a connection between
plaintiffs’ alleged maladies and toxic chemicals at the Reichhold site, relevant professional
experience or data susceptible to objective review must exist to transform such inchoate
subjective musing into admissible expert opinion.14 We perceive no abuse of discretion in
11 United States v. Pettigrew, 77 F.3d 1500 (5th Cir. 1996). 12 United States v. Posado, 57 F.3d 428 (5th Cir. 1995). 13 Dr. Barnes did not review even the plaintiffs’ medical records prior to rendering his opinion that the source of their illnesses was exposure to toxic chemicals at the Reichhold site. 14 Pedraza v. Jones, 71 F.3d 194 (5th Cir. 1995); Zarecki v. National Railroad Passenger Corp., 914 F.Supp. 1566 (N.D.Ill. 1996); In re Hanford Nuclear Reservation
5 the treatment accorded this proffered evidence.
Finally, plaintiffs contend that the district court erred in dismissing their claims of fear
of future illness. In this diversity action we apply Mississippi law. The Mississippi Supreme
Court has held that “emotional distress based on the fear of a future illness must await a
manifestation of that illness or be supported by medical or scientific evidence so that there
is a rational basis for the emotional fear.”15 The paucity of plaintiffs’ medical and scientific
evidence concerning the cause of their illnesses, both present and prospective, persuades that
the district court did not err.
Based on the foregoing, we affirm the district court’s judgment insofar as it dismisses
the complaint of the seven plaintiffs against whom summary judgment was granted. We
vacate, however, that portion of the judgment dismissing the claims of the eight named
plaintiffs for failure to comply timely with the court’s Case Management Order and,
alternatively, on the basis of the sua sponte summary judgment grounds. On remand the
district court is free to consider, within the procedural confines of Rule 56, whether summary
judgment may be warranted as to the remaining plaintiffs, and it may revisit, if appropriate,
sanctions for failure to comply with the court’s orders and directives.
AFFIRMED IN PART, VACATED IN PART, and REMANDED.
Litigation, 894 F.Supp. 1436 (E.D.Wash. 1995). 15 Leaf River Forest Products, Inc. v. Ferguson, 662 So.2d 648, 650 (Miss. 1995).