Lillian Washington, Individually and as Administratrix of the Estate of Arsane Washington v. Armstrong World Industries, Inc.

839 F.2d 1121, 25 Fed. R. Serv. 298, 10 Fed. R. Serv. 3d 1189, 1988 U.S. App. LEXIS 3342, 1988 WL 15204
CourtCourt of Appeals for the Fifth Circuit
DecidedMarch 16, 1988
Docket87-4774
StatusPublished
Cited by251 cases

This text of 839 F.2d 1121 (Lillian Washington, Individually and as Administratrix of the Estate of Arsane Washington v. Armstrong World Industries, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lillian Washington, Individually and as Administratrix of the Estate of Arsane Washington v. Armstrong World Industries, Inc., 839 F.2d 1121, 25 Fed. R. Serv. 298, 10 Fed. R. Serv. 3d 1189, 1988 U.S. App. LEXIS 3342, 1988 WL 15204 (5th Cir. 1988).

Opinion

PER CURIAM:

Lillian Washington filed suit against Armstrong World Industries and other manufacturers of asbestos for damages arising from the death of her husband, Arsane Washington. Mr. Washington died in December 1982 of colon cancer which Mrs. Washington alleges resulted from 32 years of occupational exposure to asbestos. She claims damages under theories of strict liability, negligence and breach of warranty.

Armstrong filed for summary judgment on the basis of affidavits from three physicians. Dr. Gunn, who performed cancer surgery on Mr. Washington, testified that he saw no evidence of asbestos exposure during the surgical procedure and that there was no reasonable basis to conclude that asbestos exposure played a part in the development of Washington’s cancer. Dr. O’Neal, who reviewed pathology specimens made available from the surgical procedures, concluded that:

“Since there were no demonstration of asbestos bodies or asbestos fibers in any tissue examined, there is no pathologic basis to even speculate that asbestos was a factor in the development of this tumor.”

Dr. Morris, Mr. Washington’s personal physician for many years, testified that at no time during his treatment of Mr. Washington was asbestosis diagnosed or referred to in his medical records.

Mrs. Washington presented no evidence to contradict these affidavits and the district court granted summary judgment for Armstrong and the other defendants. Mrs. Washington then filed a motion to reconsider on the basis of an affidavit submitted by Dr. Comstock, a Texas physician. Dr. Comstock had never actually interviewed or treated Mr. Washington but had reviewed his medical records. He concluded that there was a reasonable medical probability that asbestos exposure caused Mr. Washington’s cancer. He based his conclusion on his finding that Mr. Washington had been exposed to asbestos for 32 years and that there was a statistically significant association between asbestos dust inhalation and cancer of the colon. He concluded that Mr. Washington’s treating physicians may not have found asbestos fibers in samples of Mr. Washington’s tissue because the customary examination procedures used in pathology may not have been sensitive enough to detect asbestos fibers.

The district court reviewed Comstock’s testimony and concluded that it was pure speculation and fundamentally unreliable. The court excluded the testimony under Fed.R.Evid. 703. The court stated that the testimony was lacking in reliability and probative value because it was based on possibilities that might exist as a result of lack of certain tests Dr. Comstock could have performed on Mr. Washington while he was alive rather than specific findings or evaluations of test results that were available. Having excluded Comstock's testimony, the court reentered summary judgment for Armstrong and the other defendants. Mrs. Washington appeals the district court’s order. We affirm.

The Supreme Court has recently interpreted the standards which should be applied in considering the entry of summary judgment. We consider Washington’s appeal under these standards. The Court has stated that Fed.R.Civ.P. 56(c) mandates summary judgment in any case where a party fails to establish the existence of an element essential to his case and on which he bears the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). A complete failure of proof on an essential element renders all other facts immaterial because there is no longer a genuine issue of material fact. Id. Rule 56(c) requires the district court to enter summary judgment if the evidence favoring the nonmoving par *1123 ty is not sufficient for the jury to enter a verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). When the moving party has carried his burden under Rule 56(c), his opponent must present more than a metaphysical doubt about the material facts. Matsushita Electric Industrial Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). A claim that further discovery or a trial might reveal facts which the plaintiff is currently unaware of is insufficient to defeat the motion. Woods v. Federal Home Loan Bank Bd., 826 F.2d 1400, 1414-15 (5th Cir.1987).

In considering a Rule 56(c) motion opposed by expert testimony, the trial court has broad discretion to rule on the admissibility of the expert’s evidence and its ruling must be sustained unless manifestly erroneous. Crawford v. Worth, 447 F.2d 738, 740-41 (5th Cir.1971); Rodriguez v. Olin Corp., 780 F.2d 491, 494 (5th Cir.1986). The district court may inquire into the reliability and foundation of any expert’s opinion to determine its admissibility. Soden v. Freightliner Corp., 714 F.2d 498, 502 (5th Cir.1983). In this case, the district court properly excluded Dr. Comstock’s expert testimony as unreliable under Fed.R. Evid. 703.

Mrs. Washington argues that the court discredited Dr. Comstock’s testimony without even examining the facts and reasoning upon which it was based. She argues that Dr. Comstock’s affidavit was supported by reliable medical literature and by his own well-documented expertise in toxicology. However, the district court did not exclude Dr. Comstock’s affidavit because the data that he used was unreliable or his statistics incorrect. Rather, the district court excluded the affidavit because Comstock never actually concluded that Mr. Washington’s cancer was caused by asbestos exposure. He simply states that such a link is statistically probable and cannot be ruled out on the basis of the tests performed by the treating physicians. A plaintiff bringing an action under strict liability, breach of warranty or negligence action under Mississippi law bears the burden of proving that the deceased sustained an actionable injury caused by the acts or omissions of the defendants. Mozingo v. Correct Mfg. Corp., 752 F.2d 168, 176 (5th Cir.1985); Early-Gary, Inc. v. Walters, 294 So.2d 181, 186 (Miss.1974). Because Comstock never actually demonstrates causation and never states that he could produce evidence of causation at trial, Mrs. Washington has failed to carry her burden of proof on an essential element. Under Celotex, Anderson and

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839 F.2d 1121, 25 Fed. R. Serv. 298, 10 Fed. R. Serv. 3d 1189, 1988 U.S. App. LEXIS 3342, 1988 WL 15204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lillian-washington-individually-and-as-administratrix-of-the-estate-of-ca5-1988.