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

217 F. App'x 895
CourtCourt of Appeals for the Eleventh Circuit
DecidedFebruary 13, 2007
Docket06-15389
StatusUnpublished
Cited by3 cases

This text of 217 F. App'x 895 (Jazairi v. Royal Oaks Apartment Associates, L.P.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jazairi v. Royal Oaks Apartment Associates, L.P., 217 F. App'x 895 (11th Cir. 2007).

Opinion

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, 125 L.Ed.2d 469 (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 several genus of mold: Strachybotrys chartarum, Aspergiluss, Aureobasidium, Cladosprium, and Alternarían.

In August, Jazairi went to the emergency room complaining of memory loss, fatigue and malaise. An x-ray revealed *897 interstitial tMckening 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.

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 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 *898 U.S. 136, 141, 118 S.Ct. 512, 517, 139 L.Ed.2d 508 (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).

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 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.

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217 F. App'x 895, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jazairi-v-royal-oaks-apartment-associates-lp-ca11-2007.