United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
December 9, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-50650
RAYMOND BURLESON,
Plaintiff-Appellant,
versus
TEXAS DEPARTMENT OF CRIMINAL JUSTICE; ET AL
Defendants
NOLAN GLASS, Plant Manager, Stainless Steel Plant,
Boyd Unit, Texas Department of Criminal Justice - ID;
BILLY WEST; JOE WHITE
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Texas
Before DeMOSS, STEWART, and CLEMENT, Circuit Judges.
CARL E. STEWART, Circuit Judge:
Raymond Burleson (“Burleson”), an inmate in the Texas Department of Criminal Justice,
brought this 42 U.S.C. § 1983 action against prison officials, alleging they violated the Eighth
Amendment’s prohibition against cruel and unusual punishment by exposing him to hazardous
conditions while he was working as a welder in the Boyd Unit Stainless Steel Plant. Burleson appeals
the magistrate judge's decision to grant the Defendants' Motion to Exclude Expert Testimony and
Defendants' Second Motion for Summary Judgment. Burleson also appeals the court's decision to
overrule his Objections to Defendants' Summary Judgment Evidence. For the reasons set forth
below, we AFFIRM.
FACTUAL AND PROCEDURAL BACKGROUND
Raymond Burleson, a Texas inmate, worked as a welder at the Boyd Unit's stainless steel
plant in Teague, Texas, from May 1995 through May 1997. Burleson performed tungsten inert gas
welding act ivities using 2% thoriated tungsten steel welding electrodes. His welding supervisors,
Billy West and Joe White, gave the inmates unlabeled electrodes to work with, but the inmates never
received the boxes in which the electrodes were packaged.
Burleson later learned that the warning labels on the boxes indicated that these 2% thoriated
tungsten electrodes were radioactive and exposure to them may cause cancer. The thorium in the
welding rods used by Burleson is present in the form of thorium dioxide. Thorium dioxide is a
naturally occurring radioactive compound that is distributed in the air during the welding and grinding
processes. The U.S. Department of Health and Human Services has determined that thorium dioxide
is a carcinogen.
In May of 1997, Burleson was diagnosed with throat and lung cancer.1 Four other individuals
employed as welders at the Boyd stainless steel plant were also diagnosed with cancer around the
1
Specifically, Burleson was diagnosed with two primary malignant tumors of the right
respiratory system: squamous cell carcinoma of the right anterior tonsillar pillar in the throat and a
right lung non-small cell of the lung.
2
same time.2 However, Burleson also has a forty-five year, two-pack-per-day history of smoking, and
both his parents and maternal grandparents died of cancer.
Proceeding pro se, Burleson filed a 42 U.S.C. § 1983 action on December 1, 1997, against
the defendants the Texas Department of Criminal Justice ("TDCJ"), Texas Correctional Industries
("TCI"), Gary Johnson, John Benestante, former plant manager Nolan Glass, and welding supervisors
West and White. Burleson's § 1983 claim asserted a violation of his Eighth Amendment right to be
free from cruel and unusual punishment on the grounds that his conditions of confinement posed an
unreaso nable risk of damage to his health. Specifically, Burleson claims that the defendants were
deliberately indifferent to his health when they allowed him to weld with 2% thoriated tungsten
electrodes during the two years he worked as a welder at the Boyd Unit's plant, the exposure to
which caused him to develop lung and throat cancer.
To support his causation claim, Burleson presented the expert witness testimony of Dr. Arch
Carson, a well-credentialed3 toxicologist and expert in occupational medicine. Dr. Carson opined that
Burleson inhaled hazardous radioactive particles while engaging in welding operations at the Boyd
2
Ervin Blansit was diagnosed with throat cancer at age 45, Manuel Cerda was diagnosed with
throat cancer at age 50, Danny Osbourne was diagnosed with lung cancer at age 47, and David
Clemmer was diagnosed with multiple myeloma at age 45 and died two years later.
3
Dr. Carson received his Ph.D in Environmental Health — Toxicology from the Kettering
Laboratory, University of Cincinnati College of Medicine in 1987 and his medical degree from The
Ohio State University College of Medicine in 1990. In 1991, Dr. Carson completed a postgraduate
internship in Internal Medicine at New York University Medical Center and Bellevue Hospital Center.
In 1992, he completed his residency in Occupational Medicine at the University of Texas Health
Science Center. Dr. Carson has served as an instructor, lecturer and adjunct assistant professor of
Industrial Toxicology at the Universit y of Cincinnati College of Medicine, a clinical instructor,
consultant physician, attending physician, and assistant professor in the area of occupational medicine
and toxicology. He currently serves as the Corporate Medical Director for Chevron Phillips Chemical
Company and as the Director of the Occupational and Environmental Medicine Residency at the
University of Texas Health Science Center in Houston.
3
Unit, in turn exposing him to a significant risk for the development of respiratory tract cancers. Dr.
Carson further opined that this risk exceeded other risk factors, including Burleson's significant
smoking history, and led to the occurrence of his cancers.
Under Dr. Carso n's so-called "radiation hot spot" theory or "microscopic flux" theory, the
primary risk factor for cancer is the local microscopic dose of radiation that is received by the one
cell that transforms into cancer, not the total dose of radiation to the body. In Dr. Carson's opinion,
the thorium dust Burleson inhaled contained particles which lodged in his airways and damaged the
surrounding cells. These particles were a continual radiation hazard to the few local cells near it. Dr.
Carson concedes that he has never calculated an individual's radiation exposure from exposure to
thoriated tungsten welding electrodes, nor does Dr. Carson have any specialties or medical
certifications in any radiation related disciplines or medical physics. Instead, Dr. Carson states that
his "radiation hot spot" theory has been proven in practice4 and that published scientific and
epidemiological studies show that patients who received Thorotrast — a form of thorium dioxide
used as a medical imaging dye — during its thirty year use, developed multiple types of cancers. Dr.
Carson ultimately concludes that because studies and practice show that Thorotrast resulted in
tumors, this conclusively links thorium dioxide — the same substance allegedly inhaled by Burleson
during the welding process — to cancer as a causative agent.
In June of 2000, Burleson's claims against defendants Benestante, TDCJ, and TCI were
dismissed. On December 20, 2000, Magistrate Judge Dennis G. Green granted summary judgment
in favor of defendants Glass, West, and White.
4
Specifically, Dr. Carson states that “if you implant a radioactive source in the location, you
get local tumors at the site of implantation. That’s well described. I didn’t even think it was
necessary to provide references.”
4
On November 14, 2001, this Court reversed and remanded on the grounds that the summary
judgment evidence before it at the time created a genuine issue of material fact as to whether the
levels of the carcinogens Burleson was exposed to were sufficient to pose an unreasonable risk of
serious damage to his future health. See Burleson v. TDCJ, 277 F.3d 1374 (5th Cir. 2001)
(unpublished). Additionally, this Court also concluded that summary judgment was not appropriate
on the subject of qualified immunity because there was a genuine issue of material fact as to whether
the defendants acted with deliberate indifference to significant risks to Burleson's health, such that
their conduct was not objectively reasonable in light of clearly established law at the time Burleson
worked at the Boyd Unit. Id.
On remand, Burleson acquired counsel and the case was reassigned to Magistrate Judge
Jeffrey C. Manske. On August 12, 2002, defendants Glass, West, and White moved to exclude the
expert testimony of Dr. Carso n. The defendants did not challenge Dr. Carson's qualifications or
competency, rather the defendants contended "that Dr. Carson's opinion was not reliable because (1)
it is not based upon any scientific or epidemiological studies showing any statistically significant link
between exposure to thoriated tungsten electrodes and lung and throat cancer, and (2) that Dr.
Carson's application of the ‘radiation hot spot' theory is not grounded in established science." The
defendants also asserted that Dr. Carson's opinion was not relevant "because his opinion is not based
on any reliable data about the extent of Mr. Burleson's exposure, if any, to radiation from the
thoriated tungsten welding rods during the relevant time period." Because the defendants sought to
have Dr. Carson's testimony excluded, the defendants also moved for a second motion for summary
judgment. The magistrate judge did not conduct a Daubert hearing because both parties declined the
court's request to present oral argument or testimony on behalf of their respective positions.
5
On May 7, 2003, the magistrate judge granted both of the defendants' motions and entered
a final judgment dismissing Burleson's claims. The court dismissed Dr. Carson's testimony as
unreliable and irrelevant under the Daubert standards. Without Dr. Carson's testimony, the court
found that there was no genuine issue of material fact as to whether Burleson's lung and throat
cancers were caused by exposure to thoriated tungsten electrodes, rather than his extensive smoking
history. Since Burleson did not establish thoriated tungsten welding electrodes caused cancer, the
court concluded that Burleson was unable to make out a constitutional claim. The court therefore
granted summary judgment in favor of Glass, West, and White. This appeal followed.
DISCUSSION
On appeal, Burleson challenges the district court's decision to exclude the testimony of Dr.
Carson under the standard set forth in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.
Ct. 2786, 125 L. Ed. 2d 469 (1993). Burleson also contends the court erred in overruling his
Objections to Defendants' Summary Judgment Evidence and in granting the Defendant's Second
Motion for Summary Judgment.
I. Exclusion of Dr. Carson's Expert Testimony
A. Standard of Review
We review the trial court's determination of admissibility of expert evidence under Daubert for
abuse of discretion. Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243 (5th Cir. 2002) (citing Kumho
Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)). "A trial court
abuses its discretion when its ruling is based on an erroneous view of the law or a clearly erroneous
assessment of the evidence." Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003).
If this court finds an abuse of discretion in admitting or excluding evidence, we "review the error
6
under the harmless error doctrine, affirming the judgment, unless the ruling affected substantial rights
of the complaining party." Id.
B. Applicable Law
Daubert "provides the analytical framework for determining whether expert testimony is
admissible under Rule 702 of the Federal Rules of Evidence." Pipitone, 288 F.3d at 243. Under
Daubert, trial courts act as gate-keepers overseeing the admission of scientific and non-scientific
expert testimony. Kumho Tires Co. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d
238 (1999). Trial courts must make "a preliminary assessment of whether the reasoning or
methodology underlying the testimony is scientifically valid and of whether that reasoning or
methodology properly can be applied to the facts in issue." Daubert, 509 U.S. at 592-93. Stated
differently, the trial judge must determine whether the expert testimony is both reliable and relevant.
Id. at 589.
Many factors bear on the inquiry into the reliability of scientific and other expert testimony,
including, but not limited to, whether the expert's theory or technique: (1) can be or has been tested;
(2) has been subjected to peer review and publication; (3) has a known or potential rate of error or
standards controlling its operation; and (4) is generally accepted in the relevant scientific community.
Id. at 593-94. The district court's responsibility "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, 526
U.S. at 152.
Burleson argues that the magistrate judge abused his discretion in excluding Dr. Carson's
testimony as both irrelevant and unreliable. Burleson notes that the magistrate judge's memorandum
7
opinion relied exclusively on the four Daubert factors, particularly whether the theory was generally
accepted in the scientific community, notwithstanding Daubert's proposition that those four factors
do not constitute a definitive checklist. Burleson contends that Dr. Carson's affidavit presented
sufficient evidence that thorium dioxide causes cancer because of the profusion of published
epidemiological studies stating that patients who received Thorotrast, which also contained thorium
dioxide, developed multiple types of cancers.
On the other hand, Glass, West, and White contend that the theory offered by Dr. Carson is
unreliable because it is not grounded in established science and has not been subjected to peer review
or scientific study. In short, the defendants argue that Dr. Carson's "radiation hot spot theory" is
nothing more than litigation driven speculation, not science.
The four factors identified in Daubert form the starting point of the inquiry into the admissibility
of expert testimony. Pipitone, 288 F.3d at 245 (quotation omitted). However, "the factors identified
in Daubert may or may not be pertinent in assessing reliability, depending on the nature of the issue,
the expert's particular expert ise, and the subject of his testimony." Kumho, 526 U.S. at 150.
Whether an expert's testimony is reliable is a fact-specific inquiry. Skidmore v. Precision Printing and
Pkg., Inc.,188 F.3d 606, 618 (5th Cir. 1999).
C. The Reliability of Dr. Carson's Testimony
The magistrate judge found that Dr. Carson's testimony "has never been tested and never been
submitted for peer review," "the potential rate of error for [Dr. Carson's] theory of liability is high,"
and "it is not generally accepted within the scientific community that exposure to thoriated tungsten
welding rods causes lung and/or throat cancer." The magistrate judge also found Dr. Carson's
opinion not relevant here because, "as in Allen, there is no direct evidence of the level of Mr.
8
Burleson's exposure, if any, to radiation from the thoriated tungsten welding rods." Accordingly, the
magistrate judge excluded Dr. Carson's testimony consistent with Daubert.
Burleson asserts that it is inappropriate to apply the potential rate of error factor to Dr.
Carson's hypothesis because there is no potential rate of error associated with the theory. Burleson
also argues the magistrate judge erred in finding that Dr. Carson's conclusion was not submitted to
peer review or scientific testing. Burleson contends that Dr. Carson offered epidemiological studies
which link thorium dioxide with multiple cancers.
The magistrate judge relied on Allen v. Pennsylvania Eng’g Corp., 102 F.3d 194 (5th Cir.
1996), in support of its conclusion. In Allen, the deceased died of brain cancer after having been a
maintenance worker at Baton Rouge General Hospital for over twenty years. Id. at 195. The
deceased's widow and son brought a products liability action against the manufacturer of ethylene
oxide ("EtO"), a chemical to which the deceased was exposed while working at the hospital. Id. On
motions for judgment as a matter of law, the district court held both that two of the deceased's three
expert witnesses were not qualified to render opinions that exposure to EtO caused the deceased's
fatal cancer and that the opinions of all three experts were inadmissible for lack of sufficient
grounding. Id. On appeal, this Court affirmed, finding the expert testimony unreliable under Daubert
because, inter alia, "no epidemiological study has found a statistically significant link between EtO
exposure and human brain cancer." Id. Specifically, the Court in Allen observed that the experts
relied on certain epidemiological studies that "suggested" a correlation between EtO and certain
cancers other than brain cancer, although the experts stated these studies were also "suggestive" of
a correlation between EtO and brain cancer. In contrast, there was evidence of other studies
indicating "there is not a correlation between EtO exposure and cancer of the human brain." Id. at
9
197. The Court found that while there may have been evidence suggesting a correlation between EtO
and brain cancer, that evidence was not probative to the issue of causation of brain cancer. Id. at 198.
Burleson claims the case at hand can be distinguished from Allen because there are
epidemiological studies that clearly link thorium dioxide, a known carcinogen, with cancer, and there
are no such studies disproving the theory that welding with thoriated tungsten welding rods causes
lung or throat cancer. Furt hermore, Burleson contends that there is no legal requirement that
Burleson produce epidemiological studies concerning a specific use of the same known carcinogen
in order to create a genuine issue of material fact concerning the causal relationship between lung and
throat cancers and thorium dioxide in welding electrodes.5 Burleson's arguments are unavailing.
Dr. Carson offers no studies which demonstrate a statistically significant link between thorium
dioxide exposure in dust or fumes and Burleson's type of lung or throat cancer. The U.N. report
relied upon by Dr. Carson only reports that liver, spleen and bone cancers were associated with
Thorotrast. Although Dr. Carson presupposes that the thorium dioxide particles in the welding dust
were inhaled by Burleson, lodged in his airways and caused a cancer risk, he could not cite any
studies to confirm that this type of infection is possible.6 Additionally, one of the few, if not the only,
5
Burleson also maintains that the magistrate judge erred in relying on the affidavit of the
defendants’ expert witness, Carol Berger, to defeat causation particularly considering that the
magistrate judge sustained Burleson’s objection to Berger’s opinion on causal connection. However,
we note that the magistrate judge did not have the benefit of the studies relied upon by the plaintiff
in the record. Review of Carol Berger’s affidavit demonstrates that she did have access to the
scientific studies cited by Dr. Carson. In that the magistrate judge relied upon Carol Berger’s
affidavit to point out factual inaccuracies in the plaintiff’s assertions about those studies and counter
the plaintiff’s contentions with alternative scientific studies, we find that the magistrate judge was not
giving undue weight to Berger’s opinion.
6
Q: Can you tell us, from those publications -- and I can’t remember the names of
them -- give us any cases or examples out of those where that theory of radiation
10
epidemiology study which examined the cancer risk to welders from thoriated welding electrodes was
a Danish study that showed no statistically significant link between the exposure to thoriated welding
electrodes and cancer. Here, as in Allen, there are no epidemiological studies supporting a correlation
between the suggested causative agent and the type of cancer experienced by the plaintiff. Allen, 102
F.3d at 197. Accordingly, we find Allen undistinguishable.
Burleson also argues that the magistrate judge erred in concluding that Dr. Carson's
hypothesis is not generally accepted in the scientific community. Burleson contends that Dr. Carson
presented rebuttal evidence that it is generally accepted that thorium dioxide causes lung or throat
cancer. In support of his "radiation hot spot" theory, Dr. Carson relies primarily on two published
studies that he maintains address the radiation hot spot theory as a cancer risk.7 Those studies
reference Thorotrast as a primary source for the epidemiological information. The studies also cite
evidence from radiation exposure seen in Hiroshima and Nagasaki nuclear victims.
It is undisputed that Thorotrast patients and the Japanese nuclear victims had a higher level
lodging in a particular part of the body has resulted in an elevated risk?
A: I can’t specifically cite any cases from those references right now because it’s - -
although I’ve seen them in the past, it’s been quite a while since I’ve reviewed them.
...
Q: Do you know of – in any other papers any examples where that has resulted in an
elevated risk other than the papers that you’ve told us about and which we have the
names recorded in the record?
...
A: Well, yes. There are dozens of them. I’m not sure I could cite any individually.
7
Those two published studies are UNITED NATIONS SCIENTIFIC COMMITTEE ON THE EFFECTS
OF ATOMIC RADIATION, SOURCES, EFFECTS AND RISKS OF IONIZING RADIATION (1993); COMMITTEE
ON THE BIOLOGICAL EFFECTS OF IONIZING RADIATION, NATIONAL RESEARCH COUNCIL, HEALTH
EFFECTS OF EXPOSURE TO LOW LEVELS OF IONIZING RADIATION (1990). Burleson cites another
source, Access Science, which he claims specifically addresses thorium dioxide from thoriated
tungsten welding electrodes.
11
of general radiat ion exposure than people exposed to thoriated tungsten welding electrodes.
Thorotrast had a significantly higher concentration of thorium dioxide than the 2% thoriated welding
electrodes at issue here, and, as the defendants observe, was injected directly into the body or
administered orally. In fact, Dr. Carson concedes his theory assumes a high dose of radiation. In
comparison, the defendants argue that the thoriated tungsten welding electrodes contain very low
levels of radiation which could not have exposed Burleson to the dose of radiation necessary to cause
his cancers. The defendants note that epidemiological studies have demonstrated no adverse health
effects from exposure to small doses of radiation.
We have previously stated in toxic tort cases that scientific knowledge of the harmful level
of exposure to a chemical, and knowledge that the plaintiff was exposed to such quantities "are
minimal facts necessary to sustain the plaintiffs' burden." Allen, 102 F.3d at 199. Dr. Carson is even
quoted affirming in his own scholarly papers that "an important step in studies relating to worker
health and industrial exposure is the estimation of mean exposure level." Dr. Carson admits that the
radiation dose a patient receives is critical to an evaluation of causation. He asserts that the lower
the dose or exposure level, the lower the probability of causation. But even though Burleson's
total dose potential or exposure level can be calculat ed, Dr. Carson has not determine the dose
because he has "satisfied [him]self that it's sufficient."
Dr. Carson's hypothesis rests on a theory of localized exposure to radiation rather than a total
dose of radiation to the body, hence, Burleson asserts, an assessment of total radiation dose is
irrelevant. According to Burleson, the critical question regarding exposure "is not the total dose of
radiation to the body, but the total dose of radiation to the one cell that was transformed into a cancer
cell in two different locations in Mr. Burleson's body." Dr. Carson contends that the radiation dose
12
to that area cannot be calculated individually, although Dr. Carson assures us, "[i]t's just high."
The magist rate judge was not required "to admit opinion evidence that is connected to
existing data only by the ipse dixit of the expert." Gen. Elec. Co. v. Joinder, 522 U.S. 136, 146, 118
S. Ct. 512, 139 L. Ed.2d. 508 (1997). A court may rightfully exclude expert testimony where a
court finds that an expert has extrapolated data, and there is "too great an analytical gap between the
data and the opinion proffered." Id.; see also Moore v. Ashland Chem., Inc., 151 F.3d 269, 279 (5th
Cir. 1998) (en banc). Here, the magistrate judge found that Dr. Carson's opinion was based on
speculation, guesswork, and conjecture to support his theory. The magistrate judge based his
conclusion on the fact that Dr. Carson failed to conduct a dose assessment, there was no scientific
evidence linking thoriated welding electrodes to lung or throat cancer, and the studies Dr. Carson did
rely on concerned Thorotrast. The magistrate judge also noted Ms. Berger's contentions that the
articles Dr. Carson relied on contain statements which either direct ly contradict his conclusion or
don't concern thoriated tungsten. Based on the evidence in the record and the arguments before the
court, we hold that the magistrate judge did not commit reversible error in finding Dr. Carson's
testimony unreliable.
The magistrate judge also concluded that Dr. Carson's testimony was irrelevant in that he had
not presented any reliable evidence regarding the extent of Burleson's level of harmful exposure.
Additionally, the magistrate judge determined Dr. Carson's testimony would not assist the trier of fact
in understanding the evidence because of Dr. Carson’s inability to link Burleson's type of cancer to
the 2% thoriated tungsten welding electrodes. Since Dr. Carson cannot show that the welding
electrodes are more or less probable to be the cause of Burleson's cancers, the testimony is irrelevant
under the Federal Rules of Evidence. FED. R. EVID. 701. Thus, it was not an abuse of discretion
13
for the magistrate judge to exclude Dr. Carson's testimony.
II. Burleson's Objections to Defendants' Exhibits A, B, & C
Next, Burleson challenges the magistrate judge's failure to sustain his objections to the
defendants' exhibits. In their Second Motion for Summary Judgment, the defendants alleged that
Burleson's cancers were not caused by exposure to thoriated tungsten electrodes, but rather, were
caused by his extensive smoking history. In support of this contention, the defendants offered
evidence of Burleson's total radiation exposure from thoriated tungsten electrodes and the effect of
such exposure on Burleson's propensity to develop lung and throat cancer. Specifically, the
defendants offered Exhibit A (Affidavit of Berger dated July 18, 2002), Exhibit B (Affidavit of Berger
dated August 7, 2002), and Exhibit C (Affidavit of Dr. George L. Delclos). We review evidentiary
issues for abuse of discretion. King v. Illinois Cent. R.R. Co., 337 F.3d 550, 555 (5th Cir. 2003).
With regard to Exhibits A and B, Burleson avowed that Berger's analysis of his total radiation
dosage was inaccurate and unreliable because she ignored the amount of time Burleson claimed he
spent grinding electrodes. However, Burleson misses the point. As a certified Health Physicist, with
over 25 years of experience in nuclear and radiological activities, Berger is certainly qualified to
testify as to the adverse health effects from exposure to radiation. Based upon her review of the
materials, Berger concluded that given the small radiation dose Burleson potentially received, it is
unlikely his cancers were caused from his two year exposure to thoriated tungsten welding electrodes
at the stainless steel plant. It was not an abuse of discretion for the magistrate judge to admit Berger's
affidavits because they are relevant to how much radiation Burleson was exposed to and the likely
cause of his cancers.
Burleson also objects to Dr. Delclos's affidavit on the basis of his lack of experience, training,
14
and knowledge in diagnosing patients who have suffered radiation exposure, assessing potential
exposure to carcinogens by welders, and calculating radiation exposure/industrial hygiene and its
possible hazards. Further, Burleson objects on the basis that Dr. Delclos did not prove that he has
a background in or is an expert in determining latency periods for radiation exposure victims.
Dr. Delclos is board certified in internal medicine, pulmonary disease, and occupational
medicine. He concluded that the time lapse between Burleson's first exposure to thoriated tungsten
electrodes at the stainless steel plant and the diagnosis of his lung and throat cancers "is simply an
insufficient period of time for cancer to develop as a consequence of an occupational exposure to
radiation." Developing lung and throat cancer is statistically elevated for people who start smoking
at an early age and who continue smoking throughout their lives. Dr. Delclos, therefore, concluded
that Burleson's cancer was more likely caused by his lengthy smoking history. Hence, like Berger,
Dr. Delclos's testimony is relevant to determining causation. Accordingly, the magistrate judge did
not abuse his discretion by failing to sustain Burleson's objections to Dr. Delclos's affidavit.
III. Defendants' Second Motion for Summary Judgment
Burleson also appeals from the magistrate judge's decision granting summary judgment for
the defendants. The magistrate judge found that because there was no evidence that exposure to
thoriated tungsten caused Burleson’s cancers, Burleson failed to show that thoriated tungsten posed
a substantial risk of harm and as a result that he was incarcerated under conditions which posed an
unreasonable risk of damage to his health. Furthermore, the magistrate judge concluded that, based
on the lack of causation evidence, the defendants could not have been aware of facts from which an
inference of harm could be drawn. Thus, the magistrate judge held Burleson did not demonstrate that
the defendants’ were deliberately indifferent, which is a necessary mens rea for an Eighth Amendment
15
conditions of confinement claim.
Burleson asserts that the magistrate judge improperly applied Adickes v. S.H. Kress & Co.,
398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed.2d 142 (1970), in granting Defendants' Second Motion for
Summary Judgment. Specifically, Burleson claims the magistrate judge erred in not viewing the
evidence in the light most favorable to the party opposing summary judgment, namely Burleson.
We review a magistrate judge's ruling on summary judgment de novo applying the same
criteria used by the magistrate judge. Daniels v. City of Arlington, 246 F.3d 500, 502 (5th Cir. 2001).
Summary judgment is appropriate "if the pleadings, depositi ons, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P.
56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed.2d 265
(1986). If the moving party meets the initial burden of showing there is no genuine issue of material
fact, the burden shifts to the nonmoving party to produce evidence or designate specific facts showing
the existence of a genuine issue for trial. Allen v. Rapides Parish Sch. Bd., 204 F.3d 619, 621 (5th
Cir. 2000) (internal quotations and citations omitted). To support a motion for summary judgment,
"the moving party . . . [has] the burden of showing the absence of a genuine issue as to any material
fact, and for these purposes the material it lodged must be viewed in the light most favorable to the
opposing party." Adickes, 398 U.S. at 157.
In order to establish an Eighth Amendment conditions of confinement claim, Burleson would
have to establish "first, that the deprivation alleged was sufficiently serious (i.e., an official's act or
omission must have resulted in the denial of ‘the minimal civilized measure of life's necessities'); and
second, that the prison official possessed a sufficiently culpable state of mind." Herman v. Holiday,
16
238 F.3d 660, 664 (5th Cir. 2001). The requisite state of mind is whether "the official acted with
deliberate indifference to inmate health or safety." Id. To establish deliberate indifference the
petitioner must show that the officials "(1) were aware of facts from which an inference of excessive
risk to the prisoner's health or safety could be drawn and (2) that they actually drew an inference that
such potential for harm existed." Id. (internal citations omitted). The crucial question in determining
an Eight h Amendment claim "is whether the prison official, acting with deliberate indifference,
exposed a prisoner to a sufficiently substantial risk of serious damage to his future health." Farmer
v. Brennan, 511 U.S. 825, 843 114 S. Ct. 1970, 128 L. Ed.2d 811 (1994) (quoting Helling v.
McKinney, 509 U.S. 25, 35 (1993)).
The magistrate judge held t hat in the absence of Dr. Carson's opinion, Burleson failed to
provide competent summary judgment evidence that established a genuine issue of material fact that
Burleson's exposure to thoriated tungsten electrodes caused his cancer. The studies Dr. Carson relied
upon are not in the reco rd, and the only causation evidence before the court was the excluded
testimony. The magistrate judge also found that the mere fact that thorium dioxide has been classified
by certain regulatory organizations as a carcinogen is not probative on whether Burleson's exposure
to thoriated tungsten electrodes caused his lung and throat cancer.8 Concomitantly, the magistrate
judge concluded that the defendants presented competent summary judgment evidence of an
alternative causation such that there was no material fact issues regarding Burleson's causation claim.
8
The magistrate judge did not consider evidence that other welders who worked with
Burleson were also stricken with cancer, however, it does not help Burleson meet his summary
judgment burden because there is no information about their background, medical history or exposure
to welding electrodes in the record.
17
Without proof of causation, Burleson could not demonstrate that exposure to thoriated
tungsten electrodes posed a substantial risk of harm. Because there was no evidence that exposure
to thoriated tungsten posed a substantial risk of harm, the magistrate judge found that Burleson failed
to show that he was incarcerated under conditions which pose an unreasonable risk of damage to his
health. The magistrate judge further held that the defendants could not have been aware of facts from
which an inference of harm could be drawn because, based on the lack of causation evidence, these
facts apparently do not exist. Therefore, the court held there was no deliberate indifference. On the
record befo re us, we agree with the magistrate judge that Burleson has failed to produce any
competent summary judgment evidence, sans Dr. Carson's testi mony, that goes to the issue of
causation. Without proof of causation, Burleson cannot meet his constitutional burden.9
CONCLUSION
For the foregoing reasons, we AFFIRM the court's rulings granting the Defendants' Motion
to Exclude Expert Testimony, granting the Defendants' Second Motion for Summary Judgment, and
overruling the Plaintiffs' Objections to Defendants' Summary Judgment Evidence.
AFFIRMED.
9
Because we affirm the magistrate judge’s summary judgment ruling, we find it unnecessary
to reach the defendants’ qualified immunity argument.
18