UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-11404
MAXINE BLACK; and,
JAMES BLACK;
Plaintiffs-Appellees,
v.
FOOD LION, INC.;
Defendant-Appellant,
Appeal from the United States District Court for the
Northern District of Texas
March 30, 1999
Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
EDITH H. JONES, Circuit Judge:
While shopping at a Food Lion grocery store, Maxine Black
slipped and fell on the remains of a mayonnaise spill that had been
previously cleaned by Food Lion personnel. In the ensuing damage
action, removed to federal court, a magistrate judge awarded Black
nearly $300,000 -- principally because she had been diagnosed with
fibromyalgia syndrome, an elusive but debilitating affliction.
Whether Black produced reliable expert evidence that her slip-and-
fall injury caused fibromyalgia is the fulcrum of Food Lion’s
appeal. We conclude she did not. The Supreme Court’s recent
decision in Kumho Tire Co., Ltd. v. Carmichael, No. 97-1709, 1999
W.L. 152455, --- U. S. ---, --- S. Ct. --- (March 23, 1999),
reinforces our decision. The case is affirmed in part, reversed in
part, and remanded.
I. BACKGROUND
At a Food Lion Store in Grand Prairie, Texas, a stocker
dropped a jar of mayonnaise on September 9, 1993. The jar broke,
spilling its contents on the floor. The stocker attempted to clean
the spill with a paper towel. The store manager inspected and
approved the clean-up. Unbeknownst to the manager, a film of
mayonnaise remained on the floor.
While escorting her daughter to the restroom a bit later,
Black slipped on the mayonnaise film and fell to the floor. She
immediately complained of lower back and arm pain, a headache, and
dizziness. Black and her husband reported the injury to Food Lion
immediately, and Black sought medical treatment.
Over the next several months, Black was treated and
medicated by Dr. James Pollifrone. Despite extensive testing and
physical therapy, Dr. Pollifrone was unable to identify any
physical basis for Black’s continued complaints of pain. All
objective tests for pain, including an MRI, EMG, and diskogram,
produced results within normal limits.
On May 11, 1994, Black was referred to Dr. Mary Reyna for
an evaluation. Dr. Reyna is a physician certified by the American
Board of Physical Medicine and Rehabilitation and by the American
2
Board of Pain Medicine; she specializes in treating patients with
persistent pain. Following several weeks of treatment, Dr. Reyna
diagnosed Black with a condition known as fibromyalgia syndrome.
Fibromyalgia is characterized by complaints of generalized pain,
poor sleep, an inability to concentrate, and chronic fatigue. The
condition is most common in women between the ages of 30 and 50 and
is often associated with hormonal problems. Dr. Reyna hypothesized
that the fall at Food Lion caused physical trauma to Black, which
caused “hormonal changes,” which caused Black’s fibromyalgia.
Following removal, the case was tried to a magistrate
judge without a jury. Food Lion maintained that its actions were
not negligent and that the evidence was insufficient to support
Black’s claim that the fall caused her fibromyalgia. At the core
of Food Lion’s defense was the contention that Dr. Reyna’s
testimony could not causally link the fall at Food Lion with
Black’s present medical condition with any degree of medical
certainty. Food Lion also challenged Black’s proof regarding her
lost earnings and medical expenses. The trial court rejected Food
Lion’s arguments, allowed Dr. Reyna to testify over objection, and
awarded judgment to Black.
3
II. ANALYSIS
We review the trial court’s factual findings for clear
error and its conclusions of law de novo. See Seal v. Knorpp, 957
F.2d 1230, 1234 (5th Cir. 1992). Food Lion contests only
perfunctorily the determination that it was legally responsible for
the damages arising from its negligence. We find no error and
affirm on liability. The extent of Black’s damages and their
relation to Food Lion’s negligence are hotly disputed.
Black’s burden under Texas law was to prove to a
reasonable degree of medical certainty, based on a reasonable
medical probability and scientifically reliable evidence, that her
fall at Food Lion caused the fibromyalgia syndrome. See Merrell
Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711-12 (Tex. 1997)
(“possibility, speculation, and surmise” insufficient to support
expert testimony regarding causation). She relied on the proffered
expert testimony of Dr. Reyna to carry this burden. The magistrate
judge admitted Dr. Reyna’s expert opinion notwithstanding Food
Lion’s challenge under Fed. R. Evid. 702 and Daubert v. Merrell Dow
Pharms., Inc.1 Without explicitly tying Dr. Reyna’s testimony to
the standards for scientific reliability set out in Daubert, the
magistrate judge based his decision on several factors:
1
See 509 U.S. 579, 113 S. Ct. 2786 (1993).
4
[T]he court looks to the trial testimony presented by Dr.
Reyna as well as that of the other medical experts whose
testimony was presented by deposition.
* * * *
Despite the elusiveness which forecloses an absolute
determination of causality, the specialists in the field
recognize an accepted protocol in rendering an opinion in
terms of reasonable medical probability. See Plaintiff’s
Exhibit 20, at page 536; Causality.
The evidence in this case reflects that Dr. Reyna
followed this protocol in reaching her opinion, by ruling
out other possible causes for Ms. Black’s fibromyalgia.
Specifically, the documentary evidence and the testimony
of Dr. Reyna show that Dr. Reyna fully apprised herself
of Ms. Black’s prior medical history before the accident,
that she determined that no post-accident incident was an
intervening cause for the onset of Ms. Black’s
fibromyalgia, and that no other factors -- based upon her
review of tests performed prior to accepting Ms. Black as
a patient, as well as those tests which Dr. Reyna,
herself, directed to be made -- contributed to Ms.
Black’s fibromyalgia.
Following Daubert, the Supreme Court and this court will
reverse the district court’s admission of expert testimony only for
an abuse of discretion in the trial court’s ultimate determination
of scientific reliability. See Moore v. Ashland Chemical, 151 F.3d
269, 274 (5th Cir. 1998) (en banc). In a just-released opinion,
the Supreme Court explained that abuse of discretion review also
governs a trial court’s decision about how to determine scientific
reliability. See Kumho Tire, 1999 W.L. 152455, at *11. Kumho Tire
affirmed that Daubert’s principles concerning the reliability-
assurance function of Rule 702 apply to technical or specialized
expert testimony as well as to scientific expert testimony. See
5
Kumho Tire, 1999 W.L. 152455, at *9. While Kumho Tire dealt
specifically with engineering testimony, its reasoning fully
supports this court’s en banc conclusion in Moore that Daubert
analysis governs expert medical testimony. See Moore, 151 F.3d at
275 n.6.
Further, Kumho Tire refines in a common-sense way, but
does not undermine, the use of the specific Daubert factors as a
reference point for gauging the reliability of potential expert
testimony. Justice Breyer put it this way:
The petitioners ask more specifically whether a
trial judge determining the “admissibility of an
engineering expert’s testimony” may consider several more
specific factors that Daubert said might “bear on” a
judge’s gate-keeping determination. These factors
include:
--Whether a “theory or technique . . . can be (and
has been) tested”;
--Whether it “has been subjected to peer review and
publication”;
--Whether, in respect to a particular technique,
there is a high “known or potential rate of error”
and whether there are “standards controlling the
technique’s operation”; and
--Whether the theory or technique enjoys “general
acceptance” within a “relevant scientific
community.”
Emphasizing the word “may” in the question, we
answer that question yes.
Kumho Tire, 1999 W.L. 152455, at *9 (citing Daubert, 509 U.S. at
592-94, 113 S. Ct. at 2796-97).
Kumho Tire’s emphasis on the word “may” should not be
misunderstood to grant open season on the admission of expert
6
testimony by permitting courts discretionarily to disavow the
Daubert factors. On the contrary, the Supreme Court simply
recognized the obvious facts that there are many kinds of experts
and expertise, that the Daubert inquiry is always fact-specific,
and that the Daubert factors may not all apply even to the
admissibility of pure scientific testimony. Kumho Tire also
stressed that the Daubert factors may be relevant to the
reliability of experience-based testimony. The overarching goal of
Daubert’s gate-keeping requirement, however,
is to ensure the reliability and relevancy of expert
testimony. It is to make certain that an expert, whether
basing testimony upon professional studies or personal
experience, employs in the courtroom the same level of
intellectual rigor that characterizes the practice of an
expert in the relevant field.
Kumho Tire, 1999 W.L. 152455, at *10.
Applying its articulated principles to the question
presented by Kumho Tire -- whether an engineering expert could
reliably testify on the cause of an automobile tire failure -- the
Supreme Court upheld a district court decision to exclude the
evidence. The district court found that the expert’s methodology
satisfied neither the Daubert criteria nor any other factors
operating in favor of admissibility which could outweigh those
identified in Daubert. The Supreme Court reiterated that the
expert’s self-proclaimed accuracy is insufficient:
[A]s we pointed out in Joiner, “nothing in either Daubert
or the Federal Rules of Evidence requires a district
7
court to admit opinion evidence that is connected to
existing data only by the ipse dixit of the expert.”
Kumho Tire, 1999 W.L. 152455, at *14 (citing General Elec. Co. v.
Joiner, 522 U.S. 136, 146, 118 S. Ct. 512, 519 (1997)).
Kumho Tire thus does not require district courts to
reinvent the wheel every time expert testimony is offered in court.
Just as the Supreme Court relied on the Daubert factors in Kumho
Tire, those factors may be used as a starting-point for analysis in
the usual case. See, e.g., Moore, 151 F.3d at 275 (noting
Daubert’s “five-factor, non-exclusive, flexible test” for
determining the reliability of expert testimony); Watkins v.
Telsmith, Inc., 121 F.3d 984, 988-89, 990-91 (5th Cir. 1997) (“Not
every guidepost outlined in Daubert will necessarily apply to
expert testimony . . . but the district court’s ‘preliminary
assessment of whether the reasoning or methodology underlying the
testimony is scientifically valid . . .’ is no less important.”
(citing Daubert, 509 U.S. at 592-93, 113 S. Ct. at 2796)). In the
vast majority of cases, the district court first should decide
whether the factors mentioned in Daubert are appropriate. Once it
considers the Daubert factors, the court then can consider whether
other factors, not mentioned in Daubert, are relevant to the case
at hand.
The magistrate judge did not have the benefit of Kumho
Tire, or of our en banc decision in Moore, when he admitted Dr.
8
Reyna’s testimony. But as we have noted, both those opinions
represent refinements of Daubert rather than modifications of its
essential holding. More to the point, the magistrate judge’s
opinion does not even cite Daubert, although, giving his above-
quoted statements the benefit of the doubt, the magistrate judge
attempted objectively to justify the admission of Dr. Reyna’s
testimony. Unfortunately, he failed. Dr. Reyna’s testimony does
not bear the necessary indicia of intellectual rigor, whether
measured by Daubert or by the magistrate judge’s reasoning.
Because the magistrate judge misapplied the Daubert tests and
failed to articulate any satisfying alternative standards, we hold
that he abused his discretion in admitting Dr. Reyna’s testimony.
While the medical profession has made significant
advances in the diagnosis and treatment of fibromyalgia, experts
have recognized that the evidence that trauma actually causes
fibromyalgia is “insufficient to establish causal relationships.”
Frederick Wolfe, The Fibromyalgia Syndrome: A Consensus Report on
Fibromyalgia and Disability, 23:3 The Journal of Rheumatology 534,
534 (1996) (“the Vancouver Report”). The Vancouver Report states,
Overall . . . data from the literature are insufficient
to indicate whether causal relationships exist between
trauma and [fibromyalgia]. The absence of evidence,
however, does not mean that causality does not exist,
rather that appropriate studies have not been performed.
9
Id. at 535.2 At least one other commentator has also
2
The Vancouver Report chronicles in detail the apparent lack
of scientific studies regarding the specific causes of
fibromyalgia:
Causality. [Fibromyalgia] in the setting of work
disability or compensation has been the subject of a
number of reports. While the association between work
disability or compensation and [fibromyalgia] is well
established, data regarding causality are largely absent.
The clinical dilemma, whether an injury or workplace
stress caused the patient’s [fibromyalgia], a
retrodictive (or It Did) causal proposition[,] can rarely
be determined to be certainly true or certainly false.
Evidence that trauma can cause [fibromyalgia], a
potential (or It Can) causal proposition, comes from a
few case series or case reports and is insufficient to
establish causal relationships. That trauma might cause
[fibromyalgia] sometimes, a predictive (or It Will)
causal proposition, can only be addressed by
epidemiological studies that measure the risk of
potential exposures on the development of [fibromyalgia].
Epidemiologic studies of trauma and [fibromyalgia] needed
to address potential or predictive causality are
currently not available. The [fibromyalgia] causality
issue, as in other putative work and injury related
syndromes, may be further complicated by the potential
influence of the availability of compensation for the
syndrome. In settings where compensation is widely
available, illnesses similar to [fibromyalgia] have been
shown to increase in apparent prevalence, as measured by
physician visits, then to fall when compensation
availability declines.
Overall, then, data from the literature are
insufficient to indicate whether causal relationships
exist between trauma and [fibromyalgia]. The absence of
evidence, however, does not mean that causality does not
exist, rather that appropriate studies have not been
performed.
See Vancouver Report, 23:3 The Journal of Rheumatology at 534-35.
The Vancouver Report goes on to recommend several courses of action
for fibromyalgia researchers, including: (1) “Eliminate the terms
‘reactive’ and ‘post-traumatic fibromyalgia’.”; (2) “The
10
recognized the severe difficulties associated with
identifying the cause of a given patient’s fibromyalgia.
See Geoffrey Littlejohn, Medicolegal Aspects of
Fibrositis Syndrome, 16 Journal of Rheumatology 169, 171-
72 (Supp. 19 1989) (“[T]here is no scientific evidence to
suggest that the injury itself results in the
pathophysiology of fibrositis syndrome.”). Thus,
“whether an injury . . . caused the patient’s
[fibromyalgia], a retrodictive (or It Did) causal
proposition[,] can rarely be determined to be certainly
true or certainly false.” See Vancouver Report, 23:3 The
Journal of Rheumatology at 534.
Daubert, as noted above, lists four non-exclusive factors
to consider when assessing the scientific validity or reliability
of an expert’s testimony. See 509 U.S. at 593-95, 113 S. Ct. at
2796-97. Dr. Reyna’s theory -- that the fall caused trauma which
caused hormonal damage leading to fibromyalgia -- fails these
tests. First, Dr. Reyna’s theory has not, according to the
evidence at trial,3 been verified by testing and, thus, has not
relationship between [fibromyalgia] and putative precipitating and
aggravating factors should be studied.”; and, (3) “Studies
investigating the pathogenesis of work or injury related
[fibromyalgia] should be undertaken, including those that explore
basic mechanisms.” See id. at 537.
3
Although Black attempted to admit into evidence more recent
studies allegedly demonstrating a causal link between physical
11
been peer-reviewed. In fact, Dr. Reyna acknowledged that
fibromyalgia has no known etiology (i.e., medical science does not
know if the cause of the condition is muscle, nerve, or hormone
damage). See also Vancouver Report, 23:3 The Journal of
Rheumatology at 534 (noting lack of epidemiological studies
regarding trauma and causal link, if any, to fibromyalgia). If
medical science does not know the cause, then Dr. Reyna’s “theory”
of causation, to the extent it is a theory, is isolated and
unsubstantiated. Even Dr. Reyna recognized the limits of her
opinion. When asked whether she had been able to identify the
cause of Black’s fibromyalgia, she stated, “I didn’t find the
cause. I found an event that contributed to the development of the
symptom. I did not find the cause.” On its own terms, Dr. Reyna’s
opinion includes conjecture, not deduction from scientifically-
validated information.
It also follows from the scientific literature that Dr.
Reyna’s theory has failed to gain acceptance within the medical
profession. Experts in the field conclude that the ultimate cause
of fibromyalgia cannot be known, and only an educated guess can be
made based on the patient’s history. See id. at 536. Mere
conjecture does not satisfy the standard for general acceptance,
trauma and fibromyalgia, the trial court excluded the evidence
because the studies had not been properly produced to opposing
counsel during discovery.
12
except to demonstrate general acceptance of a proposition contrary
to Dr. Reyna’s. Finally, Dr. Reyna’s theory of causation, which
has not been verified or generally accepted, also has no known
potential rate of error.
The magistrate judge either substituted his own standards
of reliability for those in Daubert, or he confused the Daubert
analysis by adopting an excessive level of generality in his
gatekeeping inquiry. Thus, the magistrate judge read the Vancouver
Report to approve “an accepted protocol in rendering an opinion in
terms of reasonable medical probability.”4 He then found that Dr.
Reyna followed this protocol by (a) taking a medical history from
Black, (b) ruling out prior or subsequent “causes” of fibromyalgia,
(c) performing or reviewing physical tests [which all turned up
negative], and (d) deducing that the Food Lion fall was the only
possible remaining cause of fibromyalgia that appeared nine months
later.
This analysis amounts to saying that because Dr. Reyna
thought she had eliminated other possible causes of fibromyalgia,
even though she does not know the real “cause,” it had to be the
fall at Food Lion. This is not an exercise in scientific logic but
in the fallacy of post-hoc propter-hoc reasoning, which is as
4
We assume arguendo that the Vancouver Report contains some
protocol, although it does not appear to be specifically
articulated therein.
13
unacceptable in science as in law. By the same “logic,” Dr. Reyna
could have concluded that if Black had gone on a trip to Disney
World and been jostled in a ride, that event could have contributed
to the onset of fibromyalgia. See, e.g., Allen v. Pennsylvania
Eng’g Corp., 102 F.3d 194, 195-96 (5th Cir. 1996) (expert evidence
suggesting connection between exposure to ethylene oxide and brain
cancer insufficient under Daubert).
The court’s task was to determine whether Dr. Reyna’s
methodology tied the fall at Food Lion by some specific train of
medical evidence to Black’s development of fibromyalgia. No one
doubts the utility of medical histories in general or the process
by which doctors rule out some known causes of disease in order to
finalize a diagnosis. But such general rules must, under Daubert,
Kumho Tire, and Moore, be applied fact-specifically in each case.5
5
In Kumho Tire, the Supreme Court points out that
the specific issue before the [district] court was not
the reasonableness in general of a tire expert’s use of
a visual and tactile inspection to determine whether
overdeflection had caused the tire’s tread to separate
from its steel-belted carcass. Rather, it was the
reasonableness of using such an approach, along with
Carlson’s particular method of analyzing the data there
obtained, to draw a conclusion regarding the particular
matter to which the expert testimony was directly
relevant.
1999 W.L. 152455, at *12 (emphasis added). The Supreme Court then
reviewed the expert’s exact methodology and found it imprecise,
based on a superficial examination of the tire, inconsistent with
the expert’s previous statements, and unsupported by any other tire
experts or outside research. The court reiterated:
14
The underlying predicates of any cause-and-effect medical testimony
are that medical science understands the physiological process by
which a particular disease or syndrome develops and knows what
factors cause the process to occur. Based on such predicate
knowledge, it may then be possible to fasten legal liability for a
person’s disease or injury.
In this case, neither Dr. Reyna nor medical science knows
the exact process that results in fibromyalgia or the factors that
trigger the process. Absent these critical scientific predicates,
for which there is no proof in the record, no scientifically
reliable conclusion on causation can be drawn. Dr. Reyna’s use of
a general methodology cannot vindicate a conclusion for which there
is no underlying medical support.
The magistrate judge should have first applied the
Daubert criteria to this case. Had that been done, the utter lack
of any medical reliability of Dr. Reyna’s opinion would have been
quickly exposed. If the magistrate judge thought he was applying
Daubert, however, he fatally erred by applying its criteria at a
standard of meaninglessly high generality rather than boring in on
the question before the trial court was specific, not
general. The trial court had to decide whether this
particular expert had sufficient specialized knowledge to
assist the jurors in deciding the particular issues in
this case.
Id., 1999 W.L. 152455, at *13 (quotation marks and citation
omitted).
15
the precise state of scientific knowledge in this case.
Alternatively, if the magistrate judge decided to depart from
Daubert, he failed to articulate reasons for adopting the test he
used. In particular, he failed to show why an alternate test was
necessary to introduce “in the courtroom the same level of
intellectual rigor that characterizes the practice of an expert in
the relevant field.” Kumho Tire, 1999 W.L. 152455, at *10.
As Dr. Reyna’s testimony was unsupported by a specific
methodology that could be relied upon in this case and contradicted
by the general level of current medical knowledge, the court abused
its discretion by admitting that testimony.
III. CONCLUSION
Without Dr. Reyna’s testimony, Black cannot hold Food
Lion liable for medical expenses, lost wages, or pain and suffering
attributable to her fibromyalgia. Black may only be compensated
for the damages and medical expense incurred for the treatment of
her direct physical injuries caused by her fall at Food Lion. The
case is remanded for recalculation of damages consistent with the
foregoing.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
16