Black v. Food Lion, Inc.

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.

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 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.

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 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

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 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.

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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.

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