IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 13, 2009
No. 08-60085 Charles R. Fulbruge III
Clerk
GEORGE PAZ ET AL.
Plaintiffs
v.
BRUSH ENGINEERED MATERIALS INC ET AL.
Defendants
-------------------------------------------------------------------------------------------------
JOSEPH P. HARRIS ET AL.
Plaintiffs - Appellants
v.
BRUSH WELLMAN INC. ET AL.
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Mississippi
Before JONES, Chief Judge, JOLLY, Circuit Judge, and MONTALVO, District
Judge.*
FRANK MONTALVO, District Judge:
In this negligence, product liability, and breach of warranty case, Joseph
*
United States District Judge, Western District of Texas, sitting by designation.
No. 08-60085
Harris (“Harris”), Terry Lemon (“Lemon”), Marlin Moran (“Moran”), Rodney
Sorapuru (“Sorapuru”), and Alvin Pittman, Sr. (“Pittman”) (collectively,
“employees”) alleged Brush Wellman Inc.’s (“Brush”) beryllium-containing
products, which Brush sold to The Boeing Company (“Boeing”) to use at the
Stennis Space Center, in Stennis, Mississippi, caused the employees personal
injuries, including beryllium sensitization (“BeS”) and chronic beryllium disease
(“CBD”).1 Margaret Ann Harris, Judith A. Lemon, and Hermelinda Sorapuru
alleged derivative claims for loss of consortium as a result of the alleged injuries
to their husbands. The district court excluded certain evidence presented by the
employees because of its unreliability pursuant to Daubert2 and the employees’
violation of the district court’s discovery order. The district court found none of
the employees presented a compensable injury pursuant to Mississippi law and
dismissed their claims and the derivative claims of their wives. We agree.
BACKGROUND
The employees sued to recover compensatory and punitive damages for
alleged personal injuries suffered as a result of exposure to beryllium-containing
products at the Stennis Space Center. They contend exposure to beryllium-
containing products have resulted in injuries, which include CBD and BeS. On
November 17, 2004, the district court consolidated this matter with Paz v. Brush
Engineered Materials, Inc., No. 1:04-CV-597-GuRo, in which the plaintiffs
alleged a medical monitoring cause of action against Brush and Boeing.
Brush and Boeing jointly moved for dismissal on the medical monitoring
cause of action, which the district court granted. Paz v. Brush Engineered
1
CBD is a disease that erodes the lungs and may result in death by suffocation.
2
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d
469 (1993) (setting forth the multi-factor test to determine the reliability of an expert).
2
No. 08-60085
Materials, Inc., 351 F. Supp. 2d 580, 586-87 (S.D. Miss. 2005) (“Paz I”). The Paz
plaintiffs appealed to this court, which certified the question to the Mississippi
Supreme Court of whether Mississippi law recognized a cause of action for
medical monitoring without proof of physical injury. Paz v. Brush Engineered
Materials, Inc., 445 F.3d 809, 815 (5th Cir. 2006) (“Paz II”). The Mississippi
Supreme Court answered “[c]reating a medical monitoring action would be
contrary to Mississippi common law, which does not allow recovery for
negligence without showing an identifiable injury, and, further, strongly
indicates that a claim for medical monitoring, as Plaintiffs present it, lacks an
injury.” Paz v. Brush Engineered Materials, Inc., 949 So. 2d 1, 3 (Miss. 2007)
(“Paz III”). This court concluded the Paz case was controlled by the Mississippi
Supreme Court’s holding in Paz III, and accordingly affirmed the district court’s
decision. Paz v. Brush Engineered Materials, Inc., 483 F.3d 383 (5th Cir. 2007).
On September 6, 2005, Brush moved for summary judgment on the
employees’ remaining claims, arguing the employees failed to allege a
compensable injury pursuant to Mississippi law. Boeing joined in Brush’s
summary judgment motion.3 In August 2006, eight months after Brush filed for
summary judgment, the employees filed a supplemental opposition to the
summary judgment motion, claiming Dr. Lisa Maier (“Dr. Maier”), an expert in
the field of CBD and BeS, diagnosed Pittman with CBD, in consultation with Dr.
Jerrold Abraham (“Dr. Abraham”), and submitting Dr. Maier’s testimony and
report as evidence. Brush sought discovery on the diagnosis.
The district court entered a discovery order on October 16, 2006, directing
the employees to provide Brush with slides and samples related to Pittman’s
biopsy by November 14, 2006, and permitting Brush to depose Drs. Maier and
3
Hereinafter, Brush and Boeing collectively will be referred to as “Brush.”
3
No. 08-60085
Abraham. Contrary to this order, the employees did not produce slides or
samples related to Pittman’s biopsy until May 2007. On April 20, 2007, after
Brush had deposed Drs. Maier and Abraham, Brush moved the district court to
exclude Dr. Maier’s testimony and report regarding Pittman’s diagnosis. On
June 8, 2007, Brush moved the district court to exclude two slides of Pittman’s
biopsy because the employees failed to produce the slides in accordance with the
October 16, 2006, discovery order.
In its October 30, 2007, Order and Reasons, the district court, relying on
Daubert, found Dr. Maier’s testimony and report unreliable and excluded them.
Based on its Rule 37 discretion and the slides’ unreliability, the district court
excluded the two slides. The district court concluded the Mississippi Supreme
Court would find BeS is not a compensable injury as a matter of law.
The district court granted summary judgment on Harris’, Pittman’s,
Lemon’s, Sorapuru’s, and the wives’ claims. It found, however, there was a
dispute of material fact regarding whether Moran had CBD and denied
summary judgment on Moran’s claim. On November 2, 2007, the employees
moved the district court to reconsider its entire October 30, 2007, Order and
Reasons, which the district court denied in its entirety on November 27, 2007.
On November 6, 2007, Brush moved the district court to reconsider its denial of
summary judgment on Moran’s claim, which the district court granted.
The district court entered a final judgment, and the employees have
appealed. On appeal, the employees contend the district court erred in (1)
excluding Dr. Maier’s expert testimony and report; (2) excluding two additional
slides from evidence; (3) finding BeS is not a compensable injury pursuant to
Mississippi law; and (4) finding Moran did not have CBD.
4
No. 08-60085
DISCUSSION
A. Exclusion of Expert Testimony and Report and Evidentiary Slides
1. Standard of Review
“This court reviews a district court’s decision to admit or exclude evidence
for abuse of discretion.” Compaq Computer Corp. v. Ergonome Inc., 387 F.3d
403, 408 (5th Cir. 2004) (citation omitted). “‘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.’” Knight v. Kirby Inland Marine Inc., 482 F.3d 347,
351 (5th Cir. 2007) (quoting Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584
(5th Cir.2003)).
2. The Exclusion of Dr. Maier’s Testimony and Report Regarding Pittman’s
Diagnosis
The admissibility of evidence “is governed by the same rules, whether at
trial or on summary judgment.” First United Fin. Corp. v. U.S. Fid. & Guar.
Co., 96 F.3d 135, 136-37 (5th Cir. 1996). The proponent of an expert’s testimony
need not prove the testimony is factually correct, but rather need only prove by
a preponderance of the evidence the testimony is reliable. Moore v. Ashland
Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998) (citations omitted). The Supreme
Court set out the standard of reliability of expert testimony in Daubert, 509 U.S.
579, 113 S. Ct. 2786.
“The subject of an expert’s testimony must be ‘scientific . . . knowledge.’”
Id. at 589-90 (notation omitted). The testimony must be “ground[ed] in the
methods and procedures of science” and “more than subjective belief or
unsupported speculation.” Id. at 590. This is not to say it “must be ‘known’ to
a certainty; arguably, there are no certainties in science.” Id. (citation omitted).
5
No. 08-60085
“[I]n order to qualify as ‘scientific knowledge,’ an inference or assertion must be
derived by the scientific method.” Id.
Pursuant to Daubert, the district court may consider
whether the theory or technique the expert employs is generally
accepted; whether the theory has been subjected to peer review and
publication; whether the theory can and has been tested; whether
the known or potential rate of error is acceptable; and whether there
are standards controlling the technique’s operation.
Knight, 482 F.3d at 351 (citation omitted). Where an expert relies on sound
scientific methodology, “lack of textual support may ‘go to the weight, not the
admissibility’ of the expert’s testimony.” Id. at 354 (citation omitted). “[A]ny
step that renders the analysis unreliable . . . renders the expert testimony
inadmissible.” Curtis v. M&S Petroleum, Inc., 174 F.3d 661, 670-71 (5th Cir.
1999) (citation omitted). Where an expert’s opinion is based on insufficient
information, the analysis is unreliable. See id. at 671.
After the district court considers the Daubert factors “the [District C]ourt
then can consider whether other factors . . . are relevant to the case at hand.”
Black v. Food Lion, Inc., 171 F.3d 308, 312 (5th Cir. 1999). The district court has
the discretion to exclude evidence if it has not been properly authenticated. R.R.
Mgmt. Co. v. CFS La. Midstream Co., 428 F.3d 214, 220 (5th Cir. 2005).
The district court found Dr. Maier’s March 22, 2006, evaluation of
Pittman’s lung biopsy identified no interstitial or bronchial wall granulomas, but
that further evaluation based on the presence of multi-nucleated giant cells on
biopsy was warranted. The district court determined Dr. Maier sent four of
Pittman’s pathology slides and one of his tissue blocks to Dr. Abraham, who
examined the slides and reported on June 15, 2006, that lung tissues in the block
revealed small granulomas. The district court found Dr. Maier assumed Dr.
6
No. 08-60085
Abraham made additional cuts of the biopsy for his evaluation, and based on
those additional cuts, Dr. Maier concluded Pittman had CBD, without additional
evaluation.
The district court concluded Dr. Maier’s testimony and diagnosis, as it
related to Pittman, should be excluded because it was unreliable pursuant to
Daubert. The district court found Dr. Maier’s diagnosis of Pittman to be
unreliable because she had based it on a false assumption. She assumed Dr.
Abraham made additional cuts, upon which he noted granulomas, whereas Dr.
Abraham’s testimony confirmed he made no additional cuts. The district court
found Dr. Maier had not made her own independent evaluation of Dr. Abraham’s
findings, but rather based her diagnosis on Dr. Abraham’s report, which he later
was unable to substantiate. The district court determined Dr. Maier’s testimony
and report were based on insufficient, erroneous information, and excluded them
as unreliable evidence.
Alternatively the district court found Dr. Maier’s diagnosis of Pittman as
having CBD based only on the presence of multi-nucleated giant cells, without
any indication of granulomas or mononuclear cellular interstitial infiltrates, was
also unreliable under Daubert. The district court found the employees’ proffer
of articles, which stated a diagnosis of CBD could be based on the presence of
multi-nucleated giant cells found in combination with either or both granulomas
and mononuclear cell interstitial infiltrates, was unavailing because none of the
articles supported a diagnosis of CBD on the basis of multi-nucleated giant cells
alone. The district court found Dr. Maier’s assertion that the presence of multi-
nucleated giant cells alone could lead to a diagnosis of CBD failed to satisfy the
Daubert standard because the basis of such a diagnosis had not been tested or
subjected to peer review or publication, and otherwise was not generally
7
No. 08-60085
accepted in the medical community, and her “mere assurances” her methodology
for diagnosis was “generally accepted” in the scientific community was
insufficient to render her testimony and report reliable pursuant to Daubert.
The district court’s decision to exclude Dr. Maier’s report and testimony
was not an abuse of discretion. The record demonstrated Dr. Maier sought Dr.
Abraham’s assistance in reviewing Pittman’s biopsy. Dr. Abraham
acknowledged receiving only four slides from Dr. Maier. The record indicated
Dr. Abraham’s report to Dr. Maier noted “small granulomas” and no significant
foreign material. The record revealed Dr. Abraham could not remember making
additional slides or cuts and could not recall noting “small granulomas” on the
four slides he did receive. The record supported the contention that Dr. Maier
relied upon Dr. Abraham’s finding of granulomas on biopsy. The record
demonstrated Dr. Maier believed Dr. Abraham had made an evaluation of
“additional lung tissue,” which “did reveal small granulomas.” The record
showed Dr. Abraham made no such slides. Dr. Maier admitted in her own
deposition testimony she was unaware of whether Dr. Abraham made additional
cuts and slides, but still believed Dr. Abraham’s report was correct.
The district court did not abuse its discretion in finding Dr. Maier’s report
and testimony of Pittman’s diagnosis with CBD was unreliable because it was
based on erroneous information. The record demonstrated Dr. Maier predicated
her diagnosis of Pittman, in part, on Dr. Abraham’s supposed analysis of
additional slides. Dr. Maier’s diagnosis was fundamentally based on insufficient
information, rendering her conclusion unreliable, see Curtis, 174 F.3d at 670-71.
Therefore, the district court properly excluded the testimony and report.
The district court committed no reversible error in finding Dr. Maier’s
reliance on the presence of multi-nucleated giant cells to diagnose Pittman with
8
No. 08-60085
CBD was unreliable. The record demonstrated Dr. Maier’s initial review of his
biopsy revealed only “multi-nucleated giant cells which is concerning for
progression to [CBD]” and not granulomas on biopsy. During her deposition, Dr.
Maier confirmed she did not see granulomas on slides she reviewed at National
Jewish.
The district court reviewed the record to determine whether it supported
a diagnosis of CBD based on multi-nucleated giant cells. See Knight, 482 F.3d
at 351 (finding expert testimony may be unreliable if not generally accepted in
the scientific community). The district court reviewed the articles Dr. Maier
submitted to the district court to support her “independent” finding of CBD in
Pittman based on multi-nucleated giant cells and found they did not support Dr.
Maier’s contention. The district court committed no reversible error because the
record demonstrated Dr. Maier’s own research asserts a diagnosis of CBD
requires both an indication of BeS and either granulomas or mononuclear
infiltrates. Newman et al., Beryllium Sensitization Progresses to Chronic
Beryllium Disease: A Longitudinal Study of Disease Risk, 171 AM. J. OF
RESPIRATORY & CRITICAL CARE MEDICINE 54, 55 (2005) (“Newman et al. I”)
(“[CBD] was defined as evidence of BeS with granulomas and/or mononuclear
cell infiltrates in lung tissue.”). The district court also found no evidence in the
record that Dr. Maier’s diagnosis based on multi-nucleated giant cells had been
tested or peer reviewed. Therefore, the district court did not abuse its discretion
in excluding Dr. Maier’s testimony and report about her diagnosis of Pittman as
having CBD.
3. Admissibility of Pittman’s Two Additional Slides
In its Order and Reasons, the district court explained its October 16, 2006,
discovery order required the employees to “provide [Brush] . . . any tissue slides
9
No. 08-60085
or samples relating to Mr. Pittman” by November 14, 2006. The district court
found the employees’ failure to provide Brush the two slides of Pittman’s tissue,
which were purportedly the subject of Dr. Abraham’s report, a violation of the
discovery order and reviewed the employees’ failure to comply under Barrett’s4
four-part test. Barrett’s four-part test includes consideration of:
(1) the explanation, if any, for the party’s failure to comply with
the discovery order;
(2) the prejudice to the opposing party of allowing the witnesses
to testify;
(3) the possibility of curing such prejudice by granting a
continuance; and
(4) the importance of the witnesses’ testimony.
95 F.3d at 380 (citation omitted).
The district court found the employees failed to offer a persuasive
explanation for their failure to provide Brush the slides. The district court
determined the introduction of the slides would materially prejudice Brush
because it could lead to a continuance, which would result in further delay and
expense in defending the lawsuit. The district court acknowledged the potential
importance of the slides to Pittman had they been reliable. However, the district
court found the slides were unreliable because it remained unknown “who
prepared the slides, where they were prepared, when they were prepared, or if
they even originated from Pittman’s biopsy.” Therefore, the district court
concluded the additional slides should be excluded for plaintiffs’ “unexcused
failure” to comply with the October 16, 2006, discovery order and their
unreliability. The district court affirmed this decision in its denial of the
employees’ motion to reconsider.
4
Barrett v. Atl. Richfield Co., 95 F.3d 375 (5th Cir. 1996).
10
No. 08-60085
In light of the record as a whole, the district court did not abuse its
discretion in excluding the two additional slides. The district court found the
employees’ explanation for the failure to obtain the slides for Brush insufficient
in light of the clear language of the district court’s October16, 2006, discovery
order. The record supports that Dr. Maier, in her position at National Jewish,
had reasonable access to the slides to have them produced for Brush.5
The district court did not abuse its discretion in finding the introduction
of the slides into evidence would prejudice Brush, despite the employees’
contention there would be no prejudice because the district court could simply
order production of the slides. What the employees omit, in briefing this
argument, is that the district court did order production of the slides in its
October 16, 2006, discovery order. In fact, the district court ordered the
employees to “provide [Brush] . . . any tissue slides or samples relating to Mr.
Pittman” by November 14, 2006. Based on the employees’ previous violation of
the October 16, discovery order, the district court reasonably concluded a second
order would further delay the proceedings.
The record supported the slides were unreliable because Dr. Abraham and
employees’ counsel acknowledged Dr. Abraham made no additional cuts on
Pittman’s biopsy, and therefore there should have been no additional slides to
review. The district court reasonably concluded there was no information
regarding where, when, and who prepared the slides and whether they even
contained Pittman’s tissue. Dr. Maier asserts the chain of custody had been
followed, but her own email disputes the chain of custody remained intact.
Therefore, the district court did not abuse its discretion in finding the two
5
The record indicates Dr. Maier had the wherewithal to dispatch the slides to experts
for review, as she herself (or a lab technician at her direction) sent the slides and tissue block
to Dr. Abraham in order for him to review the slides.
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No. 08-60085
additional slides to be unreliable and exercising its Rule 37 discretion to exclude
the slides.
B. Dismissal of All Claims Based Upon Finding No Employees Had
Compensable Injuries Pursuant to Mississippi Law
1. Standard of Review
This court reviews a district court’s grant of summary judgment de novo,
applying the same standards as the trial court. Langhoff Props., LLC v. BP
Prods. N. Am. Inc., 519 F.3d 256, 260 (5th Cir. 2008) (citing Priester v. Lowndes
County, 354 F.3d 414, 419 (5th Cir. 2004)). Summary judgment is merited when
the record demonstrates “that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law.” FED. R.
CIV. P. 56(c)). “A genuine issue of material fact exists ‘if the evidence is such
that a reasonable jury could return a verdict for the non-moving party.’”
Crawford v. Formosa Plastics Corp., La., 234 F.3d 899, 902 (5th Cir. 2000) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed.2d
202 (1986)).
This court reviews pleadings, depositions, admissions, and answers to
interrogatories, together with affidavits, to determine no genuine issue of
material fact remains. Barrett, 95 F.3d at 383 (citing Celotex Corp. v. Catrett,
477 U.S. 317, 323, 106 S. Ct. 2548, 2552-53, 91 L. Ed.2d 265 (1986)). This court
reviews all evidence in a light most favorable to the non-moving party and draws
all reasonable inferences in favor of the non-moving party. Jenkins v. Cleco
Power, LLC, 487 F.3d 309, 313-14 (5th Cir. 2007) (citing Crawford, 234 F.3d at
902). This court will not assume, however, in the absence of any proof, that the
nonmoving party could or would prove the necessary facts. Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). “Rule 56(c) mandates the entry of
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No. 08-60085
summary judgment, after adequate time for discovery and upon motion, against
a party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case.” Celotex Corp., 477 U.S. at 322, 106 S. Ct.
at 2553.
This matter presents an issue of Mississippi state law. In reviewing de
novo the district court’s application of Mississippi law pursuant to the Erie
doctrine, this court must examine Mississippi law to determine whether “any
final decisions of the Mississippi Supreme Court are dispositive.” See Centennial
Ins. Co. v. Ryder Truck Rental, Inc., 149 F.3d 378, 382 (5th Cir. 1998) (citation
omitted). If there is no apposite decision, this court must forecast how the
Mississippi Supreme Court would rule. See id. (citation omitted). This
prediction may be based on Mississippi case law, dicta, general rules on the
issue, decisions of other states, and secondary sources.6 Id. (citations omitted).
If there is no evidence to the contrary, this court will presume a Mississippi
court would adopt the prevailing rule if the case was before it. Id. (citation
omitted).
2. Possible Injuries to Maintain Any of the Employees’ Claims
Pursuant to Mississippi law, claims of negligence, products liability, and
breach of warranty all require an identifiable injury.7 According to Dr. Maier,
6
The Mississippi Supreme Court relies on the Restatement (Second) of Torts
(“Restatement”) when reviewing a negligence cause of action, see Causey v. Sanders, — So. 2d
—, 2008 WL 4664642, at *10 (Miss. Oct. 23, 2008) (relying on Restatement), products liability
cases, see Lane v. R.J. Reynolds Tobacco Co., 853 So. 2d 1144 (Miss. 2003) (“Mississippi’s
products liability law is based on Restatement § 402A.”); and breach of warranty cases brought
as tort actions, see State Stove Mfg. Co. v. Hodges, 189 So. 2d 113, 122 (Miss. 1966) cert. denied
386 U.S. 912, 87 S. Ct. 860, 17 L. Ed. 2d 784 (1967).
7
See Paz III, 949 So. 2d at 3 (citation omitted) (Mississippi law “does not allow recovery
for negligence without showing an identifiable injury”); Early-Gary, Inc. v. Walters, 294 So. 2d
181, 186 (Miss. 1974) (requiring injury for products liability claim); Bennett v. Madakasira, 821
So. 2d 794, 809 (Miss. 2002) (holding breach of warranty theory claim cannot be submitted to
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No. 08-60085
“[BeS] is by definition the demonstration of an abnormal immune response to
beryllium, usually, though not always based on an abnormal [beryllium
lymphocyte proliferation test (“BeLPT”)].” The BeLPT is used to determine
whether an individual is at risk for developing CBD. Stange et al., The
Beryllium Lymphocyte Proliferation Test: Relevant Issues in Beryllium Health
Surveillance, 46 AM. J. OF INDUSTRIAL MEDICINE 453, 453 (2004) (citations
omitted). According to the employees’ evidence, BeS is diagnosed with the
presence of two positive BeLPTs.8 Id. at 455. The admissible evidence in the
record shows an appropriate diagnosis of CBD includes the presence of either
granulomas or mononuclear cell infiltrates and BeS. Dr. Maier’s own body of
research supports this.9
the jury without proof of a defect, which caused an injury).
8
Dr. Repsher, Brush’s expert agrees the BeLPT is the appropriate method for assessing
the presence of BeS, and two positive BeLPTs warrant a diagnosis of BeS. Repsher’s Affidavit
was inadvertently omitted from the certified record, but is properly before the court because
it is an exhibit to Record Number 70.
9
An article bearing Dr. Maier’s name states “[c]hronic beryllium disease (CBD) was
defined as evidence of BeS with granulomas and/or mononuclear cell infiltrates in lung tissue.”
Newman et al. I, supra, at 55. Dr. Repsher agrees a diagnosis of CBD requires “a finding of
granulomas on biopsy, as well as a finding, through lymphocyte proliferation tests . . . that a
person has become ‘sensitized’ to beryllium or has ‘[BeS].’”
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No. 08-60085
Based on a de novo review of the record, Pittman,10 Sorapuru,11 Lemon,12
and Moran13 are sensitized to beryllium. The evidence in the record
demonstrates there is a dispute of material fact regarding whether Harris has
been sensitized to beryllium.14 The record reveals Pittman,15 Sorapuru,16
10
In the March 31, 2002, evaluation report of Pittman, Dr. Harber stated “[t]he
available data indicate that Alvin Pittman can be best classified as sensitization, non-specific
in.” In Pittman’s followup examination in March 2005, Dr. Swift noted “Pittman has been
classified as exhibiting sensitization, non-specific, to Beryllium.”
11
In his affidavit, Sorapuru avows he had two abnormal BeLPTs in 2002 and therefore
was properly diagnosed with BeS. An examination of other evidence in the record reveals a
2002 evaluation by Dr. Taquino showed Sorapuru had two positive BeLPT examinations, but
exhibited “[n]o clinical signs of [CBD].”
12
This is based on the testimony of Brush’s expert, which the employees do not dispute.
A report on Lemon’s examination stated Lemon at best had BeS.
13
In Dr. Harber’s November 12, 2002, examination of Moran, he noted Moran had “two
out of three blood tests, which are positive for beryllium lymphocyte reactivity. This makes
it medically probable that he does have [BeS].” Dr. Harber concluded “Moran can be best
classified as Sensitized, early CBD.”
14
In September 2002, Dr. Swift’s report of Harris demonstrated he had a positive
response in July 2002, a positive response on August 1, 2002, and two positive responses on
August 9, 2002. A July 1, 2002, report indicates another “borderline” response to beryllium.
An August 1, 2002, report states Harris had a “single significant response” to beryllium
sulfate, which suggested “a borderline response to beryllium” but required further
interpretation. In 2003, Dr. Hansen’s impression of Harris was that he exhibited signs of
chronic obstructive pulmonary disease, not CBD.
Dr. Repsher disputed Harris had BeS on the basis of his medical record, which indicated
only one positive BeLPT. Despite this dispute of material fact, however, the district court’s
grant of summary judgment on Harris’ claim was appropriate because BeS is not a
compensable injury pursuant to Mississippi law.
15
In the March 31, 2002, evaluation report of Pittman, based on results of a pulmonary
function test, Dr. Harber found Pittman had “normal physiology.” He noted that “[i]t does not
show a restrictive order (the pattern typically seen in advanced [CBD]).” Dr. Harber also noted
that “no granulomas were observed.” Dr. Harber concluded “[t]he current data suggest that
[CBD] (the disease of the lungs) is not present. There were no granulomas, and there was no
diffuse mononuclear infiltrate.”
In Pittman’s followup examination in March 2005, Dr. Swift noted Pittman showed “no
evidence of any pulmonary disease on the pulmonary function studies.” He also noted, “[t]he
patient has no evidence of [CBD] by Dr. Phil Harber’s assessment in 2003.” Dr. Swift did not
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No. 08-60085
Lemon,17 and Moran do not have CBD. In its October 30, 2007, decision, the
district court held there was a dispute of material fact regarding whether Moran
had CBD, and therefore denied Brush’s motion for summary judgment on
Moran’s claim. In addressing Brush’s motion for reconsideration, the district
court reversed its previous ruling and found Dr. Harber’s “possible CBD”
diagnosis for Moran to be unreliable, “where there was no indication of
granulomas or mononuclear infiltrates.”
On appeal, the employees dispute the district court’s finding regarding
Moran’s claim. Based on a review of the record, however, the employees’
argument is unavailing. No evidence submitted by any of the parties
demonstrates Moran exhibits the diagnostic criteria for CBD.18 Absent a finding
offer his own opinion with respect to these issues, but suggested Pittman remain in the
Beryllium surveillance program. The employees argue Pittman has CBD based on Dr. Maier’s
finding he had granulomatous inflammation on biopsy because of the presence of interstitial
infiltration with mononuclear cells and the presence of granuloma. However, as discussed
supra, the district court properly excluded Dr. Maier’s report and testimony regarding
Pittman’s diagnosis and the additional two slides as unreliable.
16
During Dr. Taquino’s 2002 evaluation of Sorapuru, Dr. Taquino concluded Sorapuru
exhibited “[n]o clinical signs of [CBD].”
17
Evidence in the record regarding Lemon’s health showed Lemon had “calcified
granuloma but no signs of malignancy,” and Dr. Rizk’s impression Lemon suffered from chronic
obstructive pulmonary disease, but not CBD.
18
In Dr. Harber’s 2002 evaluation of Moran, Dr. Harber noted the pulmonary function
test showed Moran’s diffusing capacity was consistent with CBD, but the ratio of diffusing
capacity to alveolar volume was normal. Dr. Harber noted “[u]sually if there is actual
interstitial or pulmonary vascular disease, this is [sic] ratio is reduced.” Dr. Harber stated he
found no granulomas on Moran’s transbronchial biopsy.
Dr. Harber indicated “[t]he current data suggest that [CBD] is possible, but not definite.
Based on the currently, widely used criteria, he would not be considered to have disease
involving the lungs.” According to Dr. Harber, “current practices [sic] is to take a diagnosis of
CBD if there are two characteristics present-histiopathological changes of granulomas or
definite mononuclear cellular infiltrate[,] as well as definite immunologic reactivity within the
lung to beryllium. In his case, the biopsy is [sic] did not show either granuloma or
mononuclear infiltrate.”
16
No. 08-60085
of granulomas or mononuclear cellular infiltrate on biopsy for Moran, the
evidence demonstrates there is no dispute of material fact that Moran has CBD.
See Newman et al. I, supra, at 55. Therefore, the district court did not err in
granting Brush’s motion for reconsideration and summary judgment on Moran’s
claims.
3. Is BeS a Compensable Injury Pursuant to Mississippi Law?
The issue that remains before the court is whether the BeS Moran,
Sorapuru, Lemon, and Pittman exhibit is a compensable injury pursuant to
Mississippi law, therefore rendering the district court’s grant of summary
judgment inappropriate. The district court found Mississippi law had not
spoken on whether BeS was a compensable injury, but determined, “[a]bsent
clear guidance from Mississippi courts, and due to the conflicts among states as
to the necessary showing for a compensable injury, [it could not] find that an
immune response such as BeS creates a new or separate compensable injury or
cause of action under Mississippi law.”
The employees argue BeS is a present injury and “the beginning of an
actual disease process,” specifically the beginning stage of CBD, and therefore
there is a reasonable probability of future consequences from BeS. Brush
contends BeS is not an injury Mississippi law recognizes, and therefore any
future consequences from BeS are not compensable. Brush argues the
employees’ characterization of BeS as an injury is irrelevant because the issue
of whether it is “compensable” is a question of law and not of fact.
Dr. Harber concluded “[a]t the current time, the most appropriate classification is
Sensitized, possible/probable early CBD. If he has the disorder, it is very early.” Dr. Swift
noted in his March 2005 report on Moran that Moran exhibited “no evidence of any interstitial
lung disease.” The employees present no statements or reports from medical experts that
document granulomas or mononuclear infiltrates on Moran’s biopsy.
17
No. 08-60085
The employees’ expert, Dr. Maier, is an occupational pulmonologist.19 Dr.
Maier believes BeS is a “present injury,” which “is an important precursor to the
impairing lung disease, [CBD].” Dr. Maier concludes “[BeS] is a physiologic
immune response or injury that occurs . . . to those individuals who have been
exposed to beryllium in the workplace or from spouse or community exposure
due to industrial beryllium facilities.”
Dr. Maier’s own chapter on beryllium, however, states “BeS precedes the
formation of granulomas and clinical illness.” LEE S. NEWMAN & LISA A. MAIER,
Chapter 79: Beryllium, in CLINICAL ENVIRONMENTAL HEALTH AND TOXIC
EXPOSURES 919, 922 (John B. Sullivan, Jr. & Gary R. Krieger eds., 2d ed. 2001).
Dr. Maier’s work also indicates “[i]ndividuals with [BeS] exhibit evidence of an
immune response to beryllium but have no evidence of lung pathology or
impairment.” MARTYNY ET AL., Beryllium-Related Industries: Historical
Perspective, in OCCUPATIONAL, INDUSTRIAL, AND ENVIRONMENTAL TOXICOLOGY
468, 470 (Michael I. Greenberg et al. eds, 2d ed. 2003). Likewise, during her
deposition, when describing the nature of CBD, Dr. Maier distinguished between
BeS and CBD, noting a difference between the disease itself and “beryllium-
related health effects.”
19
Dr. Maier is an Associate Professor at National Jewish Medical and Research Center
in the Division of Environmental and Occupational Heath and Sciences in the Department of
Medicine with a joint appointment at the University of Colorado at Denver and Health
Sciences Center in the Division of Pulmonary and Critical Care Sciences in the Department
of Medicine and in the Department of Preventive Medicine and Biometrics. She is certified in
internal medicine, pulmonary medicine, critical care medicine, and occupational medicine. Dr.
Maier has specialized in environmental and occupational lung disease, with an emphasis in
CBD, for more than ten years.
18
No. 08-60085
Brush’s expert, Dr. Repsher, is a board-certified pulmonary physician.20
Dr. Repsher opines BeS is a response in the immune system, which makes an
individual capable of having a reaction to beryllium. Dr. Repsher explains
“[BeS] is the response of a person’s immune system to a material it recognizes
as an antigen,” however he notes a person with BeS has no “impairment” or
“injury” until the person develops CBD.
The evidence clearly establishes excessive exposure to beryllium provokes
a physical change in the body, causing BeS, and both parties’ experts agree this
takes place.21 That there is a change, however, is not relevant for purposes of
determining whether the employees may proceed past the summary judgment
phase with their claims. The quintessential issue is whether any physiologic
change in the body rises to the level of compensable injury pursuant to
Mississippi law. The Mississippi Supreme Court holds “where . . . there is no
dispute as to the facts of a case, the issues to be decided become questions of
law.” Total Transp., Inc. of Miss. v. Shores, 968 So. 2d 400, 406 (Miss. 2007)
(citations omitted). The question of whether BeS is a compensable injury,
therefore, is a question of law.
Mississippi law does “not recognize a cause of action for fear of possibly
contracting a disease at some point in the future.” Brewton v. Reichhold Chems.,
Inc., 707 So. 2d 618, 620 (Miss. 1998) (citations omitted). Although, the
Mississippi Supreme Court has previously acknowledged “where it is established
20
Dr. Repsher has specialized in environmental and occupational lung disease for more
than thirty years. Dr. Repsher has treated individuals with CBD since 1974. The employees
contend his testimony is unreliable pursuant to Daubert. An analysis of the reliability of Dr.
Repsher’s testimony need not be undertaken pursuant to Daubert because this court can rely
on the employees’ expert to reach its decision on whether Mississippi law recognizes BeS as a
compensable injury.
21
This finding adheres apart from any consideration of Dr. Repsher’s findings.
19
No. 08-60085
that future consequences from an injury to a person will ensue, recovery . . . may
be had, but such future consequences must be established in terms of reasonable
probabilities.” Entex, Inc. v. Raspberry, 355 So. 2d 1102, 1104 (Miss 1978)
(citation omitted). Where a party fails to proffer “‘substantial proof of exposure
and medical evidence’ that indicates the plaintiffs may contract any disease at
any point in time in the future” summary judgment is appropriate. Brewton, 707
So. 2d at 620 (citation omitted).
Based on the record, there is simply no dispute the rate of progression
from BeS to CBD is unknown to any degree of reasonable medical certainty.22
22
According to Dr. Maier’s affidavit,
approximately six to eight percent per year of individuals with sensitization who
are followed over time developed CBD. It is likely that the majority of
individuals with sensitization will eventually develop CBD. Some of these
individuals have subsequently gone on to develop physiologic impairment and
require therapy for CBD. Thus, [BeS] is not a normal response, as it is not found
in normal individuals.
In 2003, however, Dr. Maier and her colleagues noted “BeS has been shown to precede CBD,
but the frequency and rate of progression from sensitization to disease is unknown.” Newman
et al., The Fourth “Practical Approach to Chronic Beryllium Disease. Prevention, Medical
Evaluation, and Management” Conference: Abstracts: Beryllium Sensitization Progresses to
Chronic Beryllium Disease, 20 SARCOIDOSIS VASCULITIS & DIFFUSE LUNG DISEASES 155, 155
(2003). Dr. Maier and her colleagues surmised “BeS progresses into CBD at a rate of
approximately 8% per year, though not all BeS may progress. Beryllium-sensitized patients
merit medical counseling and surveillance for signs of progression to disease.” Id. In 2005, Dr.
Maier and her colleagues noted the range of the rate of conversion from sensitivity to beryllium
was “between 5.8 and 8.1%/year. Notably, in the average follow-up period of 4.5 years, 69%
of all BeS subjects have not developed CBD.” Newman et al. I, supra, at 56. Dr. Maier
concluded her own study on the rate of progression to CBD demonstrated “that BeS progresses
to CBD over time at a rate of about 6 to 8%/year after initial diagnosis.” Id. at 58. Dr. Maier
has found the rate of progression from BeS to CBD, if at all, could occur from 3.5 years to 44.5
years. Id. at 59.
Other scientific literature submitted into evidence bearing Dr. Maier’s name as co-
author indicates “[b]eryllium-sensitized (BeS) individuals possess a beryllium-specific immune
response limited to the blood and show no evidence of lung disease. Only a subset of these
individuals progress to [CBD].” Pott et al., Frequency of Beryllium-Specific, TH 1-Type
Cytokine-Expressing CD4+ T Cells In Patients with Beryllium-Induced Disease, 115 J. ALLERGY
CLIN. IMMUNOL. 1036, 1036 (2005). According to one of her articles, “[d]epending on the nature
20
No. 08-60085
The employee’s own evidence demonstrates this best. The record is rife with Dr.
Maier’s and other experts’ mere conjecture that BeS leads to CBD. This
speculation is premised upon studies that at best show it is possible for BeS to
lead to CBD. Mere possibility is insufficient. Daughtery v. Conley, 906 So. 2d
108, 110 (Miss. App. 2004) (“[T]estimony in terms of medical probability, rather
than possibility, is required by Mississippi law.”) Reasonable medical certainty
is required. Catchings v. State, 648 So. 2d 591, 596 (Miss. 1996) (“[O]nly
opinions formed by medical experts . . . which can be stated with reasonable
medical certainty have probative value.”). Therefore, the employees’ argument
there is a reasonable probability of future consequences from BeS is simply not
backed by evidence in the record.
Nonetheless, the Mississippi Supreme Court has held damages could be
assessed where physical injury is absent if a defendant’s conduct was outrageous
and foreseeably would cause emotional distress or “there [wa]s a resulting
physical illness or assault upon the mind, personality or nervous system of the
plaintiff which is medically cognizable and which requires or necessitates
treatment by the medical profession.” Leaf River Forest Prods., Inc. v. Ferguson,
662 So. 2d 648, 658 (Miss. 1995) (citations omitted). In Ferguson, the plaintiffs
feared disease from dioxin but failed to produce any evidence of their exposure
to it. Id. The Mississippi Supreme Court found the plaintiffs’ lack of evidence
of exposure to “dangerous or harmful agent[s]” and the lack of “medical evidence
of the exposure and the genetic susceptibility of the individual, it is estimated that disease
develops in 1% to 16% of exposed individuals.”
Based on the substantial uncertainty in Dr. Maier’s work regarding the progression of
BeS to CBD, the fact that Dr. Repsher states “[t]he published literature indicates that only a
small percentage of the overall population can ever develop [BeS]. And not all sensitized
persons develop CBD,” and “[t]here is no basis in the existing medical literature for predicting
that a person who is only sensitized to beryllium is more likely than not, much less reasonably
certain, to develop CBD,” id, need not be considered or assessed for its reliability.
21
No. 08-60085
pointing to possible or probable future illness” failed to sufficiently support
either type of emotional distress claim. Id. Ferguson’s guidance here is
unavailing because the record is devoid of any allegation or evidence of
intentional or outrageous conduct leading to emotional distress in the employees,
nor have the employees shown “resulting physical illness or assault upon the
mind, personality or nervous system” “which is medically cognizable and which
requires or necessitates treatment by the medical profession.” Id.
The Mississippi Supreme Court’s decision in Paz III provides the best
insight into whether BeS is a compensable injury pursuant to Mississippi law.
The Mississippi Supreme Court faced the question of “[w]hether the laws of
Mississippi allow for a medical monitoring cause of action, whereby a plaintiff
can recover medical monitoring costs for exposure to a harmful substance
without proving current physical injuries from that exposure?” Paz III, 949 So.
2d at 2. The Mississippi Supreme Court framed the issue as this: “Plaintiffs
claim they should be able to recover damages in the form of medical monitoring
costs solely on the basis that they have been exposed to harmful levels of
beryllium and are in danger of suffering from latent diseases.” Id. at 3 (citation
omitted).
In answering the certified question, the Mississippi Supreme Court made
clear that whether it would answer in the affirmative depended upon whether
the “cause of action includes a compensable injury.” Id. at 5. The Mississippi
Supreme Court noted “exposure to a dangerous substance is not an injury.” Id.
(citation omitted). In particular, the Mississippi Supreme Court found
“[e]xposure to a potentially harmful substance does not in itself constitute a
personal injury.” Id. (citation omitted).
22
No. 08-60085
The question before the Mississippi Supreme Court in Paz III was based
on allegations very similar to what the employees have alleged in this matter.
For instance, the employees in the instant matter have alleged
[h]armful exposure to the hazardous substance beryllium causes
various personal injuries from sub-clinical, cellular, and sub-cellular
damage, to acute and chronic lung disease, dermatologic disease and
cancer. Respiratory diseases are most commonly seen from harmful
exposure to beryllium and manifest themselves on a continuum
from acute inhalation injury to acute pneumonitis to [BeS] and the
chronic indolent form of [CBD].
The Paz plaintiffs similarly alleged “[h]armful exposure to the hazardous
substance beryllium causes various personal injuries from sub-clinical, cellular,
and sub-cellular damage, to acute and chronic lung disease, dermatologic disease
and cancer.” Likewise, they alleged “[r]espiratory diseases are most commonly
seen from exposure to beryllium and manifest themselves on a continuum from
acute inhalation injury to acute pneumonitis to BeS and the chronic indolent
form of [CBD].”
The employees in the instant matter also allege
[a]s a foreseeable, direct and proximate result of their exposure to
the hazardous substance beryllium, those plaintiffs and other
Stennis Space Center workers, contract or outside workers, invitees,
and their families already suffer and will suffer in the future
personal injuries in the form of sub-clinical, cellular, and sub-
cellular damage and some have suffered from acute and chronic
lung disease, and [CBD].
Similarly, the Paz plaintiffs alleged
[a]s a foreseeable, direct and proximate result of their exposure to
the hazardous substance beryllium, plaintiffs and other Boeing and
DCMA employees who work or have worked at Stennis and Canoga
Park, and their families, already have suffered and will suffer in the
future personal injuries in the form of sub-clinical, cellular, sub-
23
No. 08-60085
cellular damage, and some will suffer from acute and chronic lung
disease, dermatologic disease, and [CBD].
Hence, the allegations before the district court in this matter were strikingly
similar to the allegations before the Mississippi Supreme Court in Paz III.
In answering this court’s certified question in Paz III, the Mississippi
Supreme Court stated “a claim for medical monitoring, as Plaintiffs present it,
lacks an injury.” 949 So. 2d at 3 (emphasis added). The Mississippi Supreme
Court concluded that because “Mississippi requires the traditional elements of
proof in a tort action, it has refused to recognize a category of potential illness
actions.” Id. at 7 (emphasis added). The Mississippi Supreme Court noted
“[n]one of the plaintiffs ha[d] suffered physical injury from the alleged exposure.”
Id. at 3 (emphasis added). Pursuant to Mississippi law, “exposure” is “a claim
for harm which is not compensable under Mississippi law.” Id. at 5.
The Mississippi Supreme Court’s decision in Paz III appears to answer the
question of whether BeS is a compensable injury as a matter of Mississippi law.
Based on the nearly identical allegations, including sub-clinical and sub-cellular
changes, which none of the parties dispute, and which the Mississippi Supreme
Court refused to recognize as “physical injur[ies],” the logical conclusion is BeS
is not a compensable injury pursuant to Mississippi law. The Mississippi
Supreme Court refused to recognize the same injuries in Paz III to afford those
plaintiffs a cause of action for medical monitoring. This court cannot circumvent
that holding by declaring BeS, the same “sub-clinical, cellular, and sub-cellular”
changes alleged by the Paz plaintiffs, can now constitute a legal injury, without
completely ignoring the Mississippi Supreme Court’s holding in Paz III.
Nonetheless, because the holding in Paz III is not directly on point, this
24
No. 08-60085
court may look to other available sources, such as treatises and legal
commentaries. See Centennial Ins. Co., 149 F.3d at 382. Mississippi courts rely
on the Restatement, and therefore, its provisions warrant review in an attempt
to shed light on how the Mississippi Supreme Court might act.
The Restatement defines “injury” as “the invasion of any legally protected
interest of another,” RESTATEMENT (SECOND) OF TORTS § 7(1), which is
distinguishable from “harm,” “the existence of loss or detriment in fact of any
kind to a person resulting from any cause” id. § 7(2). “Injury” connotes a legally
protectable interest. Id. § 7 cmt. a. According to comment d of section 7,
“[h]arm, like injury, is not necessarily actionable.” Id. § 7 cmt. d. “[H]arm . . .
gives rise to a cause of action only when it results from the invasion of a legally
protected interest, which is to say an injury.” Id.
The parties agree when an individual has BeS, a physiologic change in the
blood has occurred. But even if this could be construed as a harm pursuant to
the Restatement, this does not necessarily lead to the conclusion BeS is
actionable. A review of the Restatement simply poses the same question before
this court: whether BeS amounts to “the invasion of a legally protected interest,”
id. § 7 cmt. a, such that it is a “compensable injury.”
The employees contend the Eleventh Circuit’s holding in Parker v.
Wellman, 230 Fed. Appx. 878 (11th Cir. 2007) should guide the decision here.
It does not.23 The Eleventh Circuit found an issue of material fact because the
parties’ experts disagreed on whether BeS was a current disease and likely to
develop into CBD. Id. at 884. The Eleventh Circuit concluded these disputes
should be settled by a jury. Id. The Eleventh Circuit’s holding is unpersuasive
here, however, for it, like this court must do, determined its decision pursuant
23
Both Dr. Maier and Dr. Repsher were experts in Parker.
25
No. 08-60085
to state law. The Eleventh Circuit’s decision, based on Georgia law, is simply
inapposite.
The rationale of the Mississippi Supreme Court’s decision in Paz III and
its common law analysis leads this court to conclude the Mississippi Supreme
Court would find BeS is not a compensable injury. The Mississippi Supreme
Court did not permit the Paz plaintiffs to rely upon sub-cellular, cellular, or sub-
clinical changes without more, or in and of themselves, to support their cause of
action for medical monitoring. This seems to be the Mississippi Supreme Court’s
line in the sand for a plaintiff’s “legally protected interest.” Therefore the
district court did not err in granting summary judgment.
CONCLUSION
For the reasons stated, the judgment of the district court is AFFIRMED.24
24
This does not preclude the employees from filing suit if they ever develop CBD.
See Ferguson, 662 So. 2d at 658.
26