Seaman v. Seacor Marine L.L.C. , 326 F. App'x 721 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 08-30911 April 30, 2009
Charles R. Fulbruge III
Clerk
LARRY SEAMAN
Plaintiff-Appellant
v.
SEACOR MARINE L.L.C.
Defendant-Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:07-CV-3354
Before WIENER, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Larry Seaman sued his former employer Defendant-
Appellee Seacor Marine, L.L.C., alleging that its negligence caused Seaman’s
bladder cancer. The district court excluded the testimony of Seaman’s only
causation expert and granted summary judgment in favor of Seacor. Holding
that the district court acted within its discretion in excluding the expert
testimony and that Seacor is entitled to summary judgment, we affirm.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-30911
I. FACTS AND PROCEEDINGS
From 1982 until March 2003, Seaman worked as a captain aboard several
of Seacor’s vessels. In 2003, Seaman, complaining of hematuria — blood in his
urine — went to a doctor. The doctor told Seaman to see a urologist if his urine
did not clear. Then, in August 2005, Seaman went to an infectious disease
specialist because of continued hematuria. Seaman told the specialist he had
been experiencing hematuria and urethral discharge for seven to ten years. The
specialist recommended that Seaman see a urologist. When Seaman did so in
2006, the urologist diagnosed Seaman with bladder cancer. Seaman had
surgery, and the cancer is currently in remission.
In June 2007, Seaman filed the instant suit in district court alleging that
while aboard Seacor’s vessels he “inhaled and was otherwise exposed to a host
of hazardous and toxic chemicals including drilling mud, caustic soda, barium
sulfate, Barite, ammonia, muriatic acid, and others.” Seaman pursues his claim
under the Jones Act and general maritime law and alleges that he developed
bladder cancer as a result of the chemical exposures. Seaman specifically
contends that Seacor’s negligence caused his injuries. He also alleges that
Seacor had a duty to detect his bladder cancer and failed to do so.
Seacor simultaneously filed motions (1) to exclude the testimony of Dr.
Perri Prellop, Seaman’s sole causation expert and (2) for summary judgment.
The district court, holding that Dr. Prellop’s opinion was neither factually
supported nor scientifically reliable, excluded her testimony. The court then
granted summary judgment in Seacor’s favor. Seaman filed a motion to alter or
amend the district court’s judgment, which the court denied.
Seaman timely filed a notice of appeal.
2
No. 08-30911
II. STANDARDS OF REVIEW
“We review the district court’s determination of admissibility of expert
evidence under Daubert for abuse of discretion.” 1 “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.” 2 If the trial court abused its discretion,
the harmless error doctrine applies, and we reverse the ruling only if it affected
the substantial rights of the complaining party.3
Once we make the necessary evidentiary determinations, “[t]hen, with the
record defined, we must review de novo the order granting judgment as a matter
of law.”4
III. ANALYSIS
A. Exclusion of Dr. Prellop’s Testimony
1. Applicable Law
“Scientific knowledge of the harmful level of exposure to a chemical, plus
knowledge that the plaintiff was exposed to such quantities, are minimal facts
necessary to sustain the plaintiffs’ burden in a toxic tort case.” 5 A plaintiff in
such a case cannot expect lay fact-finders to understand medical causation;
expert testimony is thus required to establish causation.6
1
Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 351 (5th Cir. 2007); see Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
2
Knight, 482 F.3d at 351 (internal quotation marks omitted).
3
Id.4
Curtis v. M&S Petrol., Inc., 174 F.3d 661, 668 (5th Cir. 1999).
5
Allen v. Pa. Eng’g Corp., 102 F.3d 194, 199 (5th Cir. 1996).
6
Id. (demanding not just knowledge but scientific knowledge); Atkins v. Ferro Corp.,
534 F. Supp. 2d 662, 666 (M.D. La. 2008) (concluding that there was no genuine issue of
material fact for trial because “plaintiffs [had] not produced any expert testimony or report to
establish that[] plaintiffs: (1) were actually exposed to a harmful level of the chemical, or (2)
were physically injured by the [chemical] allegedly released from the plant” (emphasis added)),
aff’d No. 08-30295, 2009 WL 605743, at *1 (5th Cir. Mar. 10, 2009) (per curiam) (unpublished)
3
No. 08-30911
Courts use “a two-step process in examining the admissibility of causation
evidence in toxic tort cases. First, the district court must determine whether
there is general causation. Second, if it concludes that there is admissible
general-causation evidence, the district court must determine whether there is
admissible specific-causation evidence.” 7 “General causation is whether a
substance is capable of causing a particular injury or condition in the general
population, while specific causation is whether a substance caused a particular
individual’s injury.”8
Attempting to establish these requisite facts, Seaman proffered the report
and deposition testimony of Dr. Perri Prellop, his only medical-causation expert.
As the proponent of Dr. Prellop’s testimony, Seaman had the burden of
establishing by a preponderance of the evidence that the proffered testimony was
admissible. 9 A district court assesses expert testimony under Federal Rule of
Evidence 702:
If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form
of an opinion or otherwise, if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product of reliable
(“Because plaintiffs presented no expert testimony in support of causation, there is no error
in the summary judgment . . . .” (citing Allen, 102 F.3d at 199)); see Templet v. HydroChem
Inc., 367 F.3d 473, 484 n.15 (5th Cir. 2004) (Dennis, J., dissenting) (emphasizing the need for
expert testimony to prove a complex toxic tort case); Wills v. Amerada Hess Corp., 379 F.3d
32, 50 (2d Cir. 2004) (“Absent admissible expert testimony on the issue of causation, [a
plaintiff is] unable to sustain her burden to prove causation.”).
7
Knight, 482 F.3d at 351 (emphases added).
8
Id.9
United States v. Fullwood, 342 F.3d 409, 412 (5th Cir. 2003) (citing FED . R. EVID .
104(a), cmt.); Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998) (en banc).
4
No. 08-30911
principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.10
Rule 702 was most recently amended in 2000 in response to the Supreme Court’s
decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., which “charged trial
judges with the responsibility of acting as gatekeepers to exclude unreliable
expert testimony.” 11 Pursuant to Daubert, a trial court ensures that testimony
is “supported by appropriate validation — i.e., ‘good grounds,’ based on what is
known.” 12 And, “a district court has broad discretion to determine whether a
body of evidence relied upon by an expert is sufficient to support that expert’s
opinion.”13
In carrying out its gate-keeping function, the trial court “ensures that the
proffered evidence is both ‘reliable’ and ‘relevant.’ Reliability is determined by
assessing ‘whether the reasoning or methodology underlying the testimony is
scientifically valid.’ Relevance depends upon ‘whether [that] reasoning or
methodology properly can be applied to the facts in issue.’”14
“[T]he expert’s testimony must be reliable at each and every step or else
it is inadmissible. The reliability analysis applies to all aspects of an expert’s
testimony: the methodology, the facts underlying the expert’s opinion, the link
between the facts and the conclusion, et alia.”15 “Where an expert’s opinion is
10
FED . R. EVID . 702.
11
Advisory Committee Notes to FED . R. EVID . 702 (2000 Amendments) (citing Daubert,
509 U.S. 579 (1993)).
12
Allen v. Pa. Eng’g Corp., 102 F.3d 194, 196 (5th Cir. 1996) (quotation omitted).
13
Knight, 482 F.3d at 354 (emphasis added)
14
Id. at 352 (quoting Daubert, 509 U.S. at 589, 592–93) (internal citations omitted).
15
Id. at 355 (internal quotation marks omitted).
5
No. 08-30911
based on insufficient information, the analysis is unreliable.” 16 Still, there is no
bright-line standard and when an expert “otherwise reliably utilizes scientific
methods to reach a conclusion, lack of textual support may go to the weight, not
the admissibility of the expert’s testimony.” 17 The Supreme Court has offered a
non-exhaustive list of Daubert factors that trial courts should consider: “[1]
whether the theory or technique the expert employs is generally accepted; [2]
whether the theory has been subjected to peer review and publication; [3]
whether the theory can and has been tested; [4] whether the known or potential
rate of error is acceptable; and [5] whether there are standards controlling the
technique’s operation.” 18
2. District Court Acted Within Its Discretion
Dr. Prellop, a radiation oncologist who completed her residency in
radiation oncology in 2006, has never before provided expert testimony. She
does not have a particular expertise in bladder cancer and its causes, and, in her
career, has only treated three patients diagnosed with bladder cancer.19 She is
also the sister-in-law of Seaman’s trial counsel (who continues to represent
Seaman in the instant appeal). Dr. Prellop submitted a two-page report that
concluded:
16
Paz v. Brush Engineered Materials, Inc., 555 F.3d 383, 388 (5th Cir. 2009); see Knight,
482 F.3d at 355 (stating that if the data relied on by a party’s expert “fail[s] to provide a
‘relevant’ link with the facts at issue, his expert opinion was not based on ‘good grounds’”).
17
Knight, 482 F.3d at 354 (internal quotation marks omitted).
18
Id. at 351 (citing Daubert, 509 U.S. at 593); see id. at 355 (“District courts must
carefully analyze the studies on which experts rely for their opinions before admitting their
testimony.”).
19
Although Seacor challenged Dr. Prellop’s qualifications to render an opinion on
causation, the district court instead excluded the evidence under the Daubert standard. The
district court also noted, however, that “[i]t is clear from Dr. Prellop’s deposition that she has
no specific expertise in the causes or diagnosis of bladder cancer.” Seaman v. Seacor Marine
LLC, 564 F. Supp. 2d 598, 601 n.2 (E.D. La. 2008).
6
No. 08-30911
Mr. Seaman’s history of occupational exposure to diesel exhaust and
chemicals including aromatic hydrocarbons[, particularly a chemical
called Ferox,] put him at increased risk for bladder cancer. Of
course, we could never be certain that these occupational exposures
were the definite cause of Mr. Seaman’s bladder cancer but I have
no information suggesting that Mr. Seaman’s cancer was caused by
other external agents.
Dr. Prellop based her opinion on (1) her “understand[ing] that Mr. Seaman’s
occupational history includes regular exposure to diesel exhaust and exposure
to Ferox at least once a week, twenty-six weeks per year, over more than a
decade” and (2) her determination that Mr. Seaman has no risk factor for
bladder cancer, e.g., smoking, family history, or age, other than his male gender.
To arrive at her conclusion, Dr. Prellop reviewed Seaman’s deposition and
medical records, the material safety data sheet (“MSDS”) for Ferox,20 and two
scholarly articles about the risk factors for bladder cancer. She never saw or
spoke with Seaman, whose complaint and deposition testimony mentioned
nothing about either Ferox or diesel exhaust. Dr. Prellop based her
“understanding” of Seaman’s regular exposure to Ferox and diesel exhaust on
nothing more than the suggestion to her by Seaman’s counsel that another
Seacor employee said that Seaman had been exposed to the substances.
The district court determined that Dr. Prellop’s assumption of regular
exposure without any “facts upon which Dr. Prellop could have possibly
surmised exposure levels, rendered her causation opinion mere guesswork.”21
The court also noted that Dr. Prellop never discussed, in either her report or her
deposition testimony, the studies on which her two cited journal articles were
20
According to Dr. Prellop, Ferox contains the aromatic hydrocarbons benzene, xylene,
and ethylbenzene.
21
Seaman, 564 F. Supp. 2d at 604.
7
No. 08-30911
based.22 In excluding Dr. Prellop’s testimony, the district court concluded that
her “opinion is neither factually supported nor scientifically reliable.” 23 We agree
and hold that the district court acted well within its discretion in excluding Dr.
Prellop’s testimony. Here is why.
First, Dr. Prellop does not establish general causation. Her Ferox-related
testimony relies on no scholarly studies and merely recites her opinion that
Ferox contains aromatic hydrocarbons, which are known carcinogens. Yet, Dr.
Prellop makes no connection between Ferox and bladder cancer specifically.24
And, she provides no clue regarding what would be a harmful level of Ferox
exposure.25 Without some showing of a “statistically significant” link between
Ferox and bladder cancer, Dr. Prellop’s testimony does not establish general
causation for Ferox.26
As for her opinion that diesel exhaust causes bladder cancer, Dr. Prellop
cites two articles as support: An Updated Review of the Literature: Risk Factors
for Bladder Cancer with Focus on Occupational Exposures (“Updated Review”),27
and Projecting Individualized Probabilities of Developing Bladder Cancer in
White Individuals (“Projecting Probabilities”).28 Updated Review is an overview
of bladder-cancer literature which notes that one analysis found that “[w]orkers
with high exposure to diesel exhaust” (the term “high exposure” is left
22
Id.23
Id.24
See Allen v. Pa. Eng’g Corp., 102 F.3d 194, 197 (5th Cir. 1996) (noting that causation
evidence of cancer generally — rather than the specific cancer from which the plaintiff suffers
— is insufficient).
25
See id. at 199 (making clear that such a showing is required).
26
See id. at 195.
27
Sandra M. Olfert et al., Updated Review, 99 S. MED . J. 1256 (2006).
28
Xifeng Wu et al., Projecting Probabilities, 25 J. CLINICAL ONCOLOGY 4974 (2007).
8
No. 08-30911
undefined) have an increased risk of bladder cancer.29 The article cautions that
research of occupational bladder cancer is complicated because smoking is the
main risk for bladder cancer and it is difficult to separate bladder cancer caused
by smoking from that caused by occupational exposures.30 Updated Review
mentions nothing about the level of exposure that over time might increase one’s
risk of bladder cancer.
The authors of Projecting Probabilities created a model that was
“consistent with diesel exhaust exposure . . . having a strong etiologic role in
[bladder cancer], with numerous studies showing an excess incidence of [bladder
cancer] in truck drivers and those exposed to diesel exhausts.” 31 Like Updated
Review, Projecting Possibilities is silent on the level of exposure to diesel exhaust
that would be significant. These articles thus do not assist Dr. Prellop in
meeting Seaman’s “minimal” burden of establishing by “[s]cientific knowledge
. . . the harmful level of exposure to a chemical.”32 Without any facts that would
establish the allegedly harmful level of exposure (or even some link to bladder
cancer), as with her Ferox opinion, Dr. Prellop’s opinion regarding diesel exhaust
does not establish general causation.
Neither does Dr. Prellop establish specific causation. Seaman makes the
contention — with which we disagree — that our opinion in Bocanegra v. Vicmar
29
Updated Review at 1261.
30
See id. at 1261–62.
31
Projecting Probabilities at 4979. The Projecting Probabilities model, however, still
requires “validation . . . in an external population [as] an essential next step towards practical
use in the clinical setting.” Id.32
Allen v. Pa. Eng’g Corp., 102 F.3d 194, 199 (5th Cir. 1996); see also id. (citing Wright
v. Willamette Indus., Inc., 91 F.3d 1105, 1107–08 (8th Cir. 1996) (rejecting an expert’s
testimony that “was not based on any knowledge about what amounts of [a chemical] involve
an appreciable risk of harm to human beings who breathe them”)). But see Knight v. Kirby
Inland Marine Inc., 482 F.3d 347, 354 (5th Cir. 2007) (noting that not every expert must back
his opinion with published studies that unequivocally support that opinion).
9
No. 08-30911
Services, Inc.33 mandates that any shortcomings in Dr. Prellop’s opinion go to its
weight, not its admissibility. In that vehicle-collision case, the plaintiff used a
toxicology expert to testify about the effects of marijuana on a motorist’s
perception, reaction time, and overall driving ability.34 Stressing that “[t]he real
world . . . does not operate like a controlled study,” we held that the expert’s
testimony was admissible despite unknown variables related to the potency and
quantity of the marijuana ingested by the defendant.35 In Bocanegra, the reason
that these unknown variables went to the weight and not to the admissibility of
the expert’s testimony is because the record also contained sufficient exposure
information: It was undisputed both that (1) being high on marijuana impairs
perception, viz., it generally has that effect, and (2) the defendant driver had
been high within the relevant twelve-hour window, viz., the specific effect.36 We
cautioned that we were “not concluding that a trial court may never exclude
testimony in a . . . case based on the fact that unknown variables render the
testimony unhelpful to the jury.” 37 Instead, we “simply [held] that in th[at] case,
the variables d[id] not undermine the expert’s testimony to the point that it
[was] of no assistance to the jury.”38
33
320 F.3d 581 (5th Cir. 2003).
34
Id. at 586. The plaintiff used a separate accident-reconstruction expert to connect impaired
driving ability to an increased likelihood of a crash. Id.35
Id. at 588–90.
36
Id. at 587–89.
37
Id. at 589–90 n.5.
38
Id.10
No. 08-30911
Unlike in Bocanegra,39 the unknown variables of the instant case do
render Dr. Prellop’s testimony unhelpful. Dr. Prellop’s opinion is based on
nothing other than counsel for Seaman informing her that Seaman was exposed
to Ferox and diesel exhaust “at least once a week, twenty-six weeks per year,
over more than a decade.” Even if reliance on counsel’s suggestion were
permitted, Dr. Prellop still had no information about the amount of exposure to
which Seaman was subjected “at least once a week,” viz., duration,
concentration, and other circumstances of the exposure. She provided nothing
that would offer the fact-finder a clue as to Seaman’s exposure to the allegedly
dangerous chemicals.
In short, Dr. Prellop’s “background information concerning [Seaman’s]
exposure . . . is so sadly lacking as to be mere guesswork. The expert[] did not
rely on data concerning [Seaman’s] exposure that suffices to sustain [her]
opinions” under Daubert or Rule 702.40 Dr. Prellop’s testimony does not come
close to establishing either general or specific causation. The district court did
not abuse its discretion in excluding her testimony.41
39
Our holding in Curtis v. M&S Petroleum, Inc., 174 F.3d 661 (5th Cir. 1999) is
consistent with that of Bocanegra. In Curtis, although the precise level of chemical exposure
was unknown, there was “sufficient information of the level” of exposure, e.g., (1) abnormally
high, albeit imprecise, readings on an exposure measuring device, (2) work practices conducive
to high exposure, and (3) inadequate factory design. Curtis, 174 F.3d at 671–72. Determining
that the expert’s exposure testimony was supported by more than a mere “paucity of facts,”
we held that it was admissible. Id. at 672 (citing Moore v. Ashland Chem., Inc., 151 F.3d 269,
279 n.10 (5th Cir. 1998) (en banc) (questioning as suspect causation testimony based on a
“paucity of facts”)).
40
See Allen v. Pa. Eng’g Corp., 102 F.3d 194, 198–99 (5th Cir. 1996) (discussing the
shortcoming of an expert opinion under Federal Rule of Evidence 703, which requires that if
an expert relies on inadmissible facts, they be of a type “reasonably relied on by other experts
in the field” (citing FED . R. EVID . 703)).
41
The reduced burden of establishing proximate cause in Jones Act cases, see, e.g.,
Landry v. Two R. Drilling Co., 511 F.2d 138, 142 (5th Cir. 1975) (describing the burden as
“featherweight”), is irrelevant to our holding. The standards of reliability and credibility to
determine the admissibility of expert testimony under Daubert and Rule 702 apply regardless
whether a seaman’s burden on proximate causation is reduced. See Wills v. Amerada Hess
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B. Summary Judgment
1. Applicable Law
Having defined the record, we next determine whether summary judgment
was proper. “Summary judgment is appropriate only ‘if the pleadings, the
discovery and disclosure materials on file, and any affidavits show that there is
no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law.’” 42 In making our determination, we view the
evidence in the light most favorable to the non-moving party, here, Seaman.43
“[W]e are not limited to the district court’s reasons for its grant of summary
judgment. We may affirm the district court’s summary judgment on any ground
raised below and supported by the record.” 44
2. Seacor is Entitled to Summary Judgment
Deprived of Dr. Prellop’s testimony, Seaman nevertheless urges that
summary judgment was improper for two principal reasons: (1) Other sources
provide sufficient causation evidence, and (2) the district court erred by granting
summary judgment sua sponte on Seacor’s purported duty to detect Seaman’s
cancer irrespective of causation by chemicals aboard Seacor’s vessels. In
rejecting these arguments we hold that Seaman failed to establish a genuine
issue of material fact that would justify denial of summary judgment.
Corp., 379 F.3d 32, 47 (2d Cir. 2004) (stating this rule and emphasizing that the Federal Rules
of Evidence and the applicable standard of causation are “distinct issues and do not affect one
another”) (quotation omitted); see also Knight v. Kirby Inland Marine Inc., 482 F.3d 347 (5th
Cir. 2007) (applying Daubert to an expert’s causation testimony in a Jones Act case).
42
Gray Law LLP v. Transcont. Ins. Co., 560 F.3d 361, 365 (5th Cir. 2009) (quoting FED .
R. CIV . P. 56(c)).
43
Id.44
Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 478 (5th Cir. 2008).
12
No. 08-30911
i. Lack of Expert Causation Evidence
Seaman first contends that the deposition testimony of Seacor’s own
expert, Dr. Richard Airhart, establishes both general and specific causation.
Our review of Dr. Airhart’s deposition makes clear that his testimony does no
such thing and instead fully supports his expert report, which emphasized that
he was “unable to find any direct carcinogen for Mr. Seaman’s disease based on
the evidence of his records.” The report focused on Seaman’s childhood second-
hand exposure to cigarette smoke as a more significant risk factor than any
demonstrated occupational risk. Dr. Airhart’s deposition testimony contains the
following representative statements: (1) diesel exhaust has potential
carcinogens in it but that “[w]hen you look at how much of a potential it is,
especially for bladder cancer, it’s not proven”; (2) “I think [second-hand smoke]
caused his cancer . . . . That’s a little stronger than more probable [than not]. . . .
I feel very strongly that this is the most likely cause of [Seaman’s cancer]”; and
(3) if Seaman worked around carcinogens, information about parts per million,
length of exposure, and type of ventilation would all be relevant. In summary,
the testimony and report of Seacor’s expert, Dr. Airhart, does not support
Seaman’s position at all. Dr. Airhart’s deposition does not reveal the requisite
causal link between Seaman’s cancer and either Ferox or diesel exhaust. And,
without admissible expert evidence in this toxic-tort case, Seaman cannot prove
causation.45
In an effort to establish his exposure to Ferox and diesel exhaust, Seaman
points to the declarations of three of Seaman’s co-workers.46 Each co-worker
45
See, e.g., Allen, 102 F.3d at 199; Atkins v. Ferro Corp., 534 F. Supp. 2d 662, 666 (M.D.
La. 2008), aff’d No. 08-30295, 2009 WL 605743 (5th Cir. Mar. 10, 2009) (per curiam)
(unpublished).
46
We re-emphasize that Dr. Prellop relied on only the suggestion of Seaman’s counsel.
The co-workers executed their declarations after the dates of Dr. Prellop’s report and
deposition, so she could not have relied on them.
13
No. 08-30911
submitted a similar declaration that said: (1) Seacor’s vessel was supplied with
Ferox; (2) Seaman applied Ferox “regularly,” “usually two or three times every
week” using a brush or a pneumatic spray gun; (3) the crew never wore safety
gear; (3) half of the time that the crew applied Ferox, it did so in enclosed spaces;
(4) Seaman inhaled diesel exhaust fumes every day that he served aboard the
vessel; (5) the smell of diesel exhaust was noticeable at all times; and (6) Seacor’s
vessel routinely carried benzene and other chemicals. Without expert testimony
to place these declarations in context, they do not demonstrate that Seaman was
exposed to whatever may be the allegedly harmful level of Ferox or diesel
exhaust.47
Seaman lacks competent summary judgment evidence that would create
a genuine fact issue regarding the causation of his cancer.
ii. Seaman’s Duty-to-Detect Claim
The district court dismissed all of Seaman’s claims based on his failure to
offer evidence that exposure to chemicals while aboard Seacor’s vessels caused
his cancer. Seaman asserts, however, that Seacor never sought summary
judgment on his independent cause of action related to Seacor’s alleged duty to
discover Seaman’s symptoms irrespective of whether Ferox or diesel exhaust
caused his cancer. According to Seaman, the district court erred in granting
summary judgment sua sponte on this issue.48 We hold that to the extent that
47
In the absence of complementary expert evidence, we are skeptical that the
declarations of lay co-workers might be of any assistance to Seaman’s case. See Wills v.
Amerada Hess Corp., 379 F.3d 32, 49–50 (2d Cir. 2004) (“Absent some technical or professional
expertise in detecting and quantifying toxic emissions, [the seaman’s] testimony was
insufficient to establish dosage amount.”).
48
See Lozano v. Ocwen Fed. Bank, FSB, 489 F.3d 636, 641 (5th Cir. 2007) (stating that
generally a district court may not grant summary judgment sua sponte unless it gives the
parties ten days notice).
14
No. 08-30911
an independent claim existed,49 the district court did not reversibly err in
rejecting that claim.
Seaman’s memorandum in opposition to Seacor’s motion for summary
judgment described his theory related to Seacor’s alleged duties to detect his
cancer and to provide him medical monitoring. By raising these issues in his
opposition brief, Seaman, who makes no representation that he was deprived of
an opportunity to present additional evidence, placed them at issue for summary
judgment.50
According to Seaman, Seacor’s duty to detect his bladder cancer fell under
Seacor’s fundamental Jones Act duty to provide a “reasonably safe place to
work.”51 Even assuming arguendo that Seacor had a duty to provide medical
monitoring to Seaman,52 he has offered no summary judgment evidence that
would establish that Seacor’s alleged breach of that duty caused his cancer, i.e.,
49
Seaman’s complaint offers almost no indication of this claim and merely alleges that
Seacor failed to provide a safe place to work and to “investigate, remedy, and/or warn Mr.
Seaman of all hazards.”
50
See O’Hara v. Gen. Motors Corp., 508 F.3d 753, 763–64 (5th Cir. 2007) (recognizing
a harmless error exception to the ten-day notice rule when the non-movant had an adequate
opportunity to brief the issue and to present its evidence, i.e., notice would have served no
valid purpose); Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 28
F.3d 1388, 1399 (5th Cir. 1994) (“Because the homeowners have not identified a material fact
issue regarding their [claim], it would be a useless procedure to reverse the [d]istrict [c]ourt
because it did not allow ten days to elapse before entering summary judgment.” (internal
quotation marks omitted)).
51
See Ober v. Penrod Drilling Co., 726 F.2d 1035, 1037 (5th Cir. 1984) (per curiam)
(discussing this general duty).
52
Vessels that carry benzene of greater than 0.5% by volume as bulk cargo must provide
medical monitoring to those employees expected to be exposed to a specific quantity of benzene
in a given year. See 46 C.F.R. § 197.560(b)–(c) (detailing medical-examination requirements);
see also id. § 197.501 (outlining to which vessels the requirement applies); § 197.505 (defining
levels of benzene exposure). It is unclear whether Seaman would have been entitled to
medical monitoring. Seaman submitted the report of John Edgar, who described relevant
safety guidelines and regulations but who also conceded that he had no data on Seaman’s
actual exposure.
15
No. 08-30911
that Seacor’s non-detection “played any part — however small — in the
development of his” cancer.53 No one disputes that early diagnosis of bladder
cancer is important. And, Seaman contends that Seacor was at fault for his not
receiving treatment for bladder cancer until 2006. Seaman disregards the fact,
however, that he did see a doctor for hematuria in 2003 and that the doctor
recommended seeing a urologist if Seaman’s urine did not clear. Yet, it was not
until 2006 that Seaman saw a urologist. Seaman offers no evidence that routine
medical monitoring would have altered his prognosis any more than did seeing
his doctor in 2003, particularly given that Seaman had been experiencing
symptoms for seven to ten years before his 2005 visit to the infectious disease
specialist. As Seaman has not established a genuine issue of material fact in
support of this cause of action, Seacor is entitled to summary judgment on all of
Seaman’s claims.54
IV. CONCLUSION
We affirm the district court’s Daubert-based exclusion of Dr. Prellop’s
expert testimony as unreliable. We also affirm the court’s grant of summary
judgment in favor of Seacor because Seaman failed to demonstrate the presence
of a disputed issue of material fact.
AFFIRMED.
53
Davis v. Odeco, Inc., 18 F.3d 1237, 1242–43 (5th Cir. 1994) (requiring evidence of
medical causation in a Jones Act case where the plaintiff alleged, inter alia, failure to
medically monitor).
54
Seaman also urges that the district court erred in denying his motion to alter or
amend the judgment. Determining that that contention is meritless, we affirm the district
court’s denial of Seaman’s motion.
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