Deborah Zellers v. Nextech Northeast, LLC
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:11-cv-00967-GBL-TRJ Copies to all parties and the district court/agency. [999152106].. [12-2267]
Appeal: 12-2267
Doc: 33
Filed: 07/17/2013
Pg: 1 of 19
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2267
DEBORAH ZELLERS,
Plaintiff - Appellant,
v.
NEXTECH NORTHEAST, LLC,
Defendant – Appellee,
v.
RITE AID OF VIRGINIA, INC.,
Third Party Defendant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:11-cv-00967-GBL-TRJ)
Submitted:
June 7, 2013
Decided:
July 17, 2013
Before NIEMEYER, SHEDD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Davis Hilton Wise, WISE & DONAHUE, PLC, Fairfax, Virginia, for
Appellant.
Michael
Allweiss,
ALLWEISS
&
ALLWEISS,
St.
Petersburg, Florida; Daniel D. Barks, THE LAW OFFICE OF DANIEL
D. BARKS, Alexandria, Virginia; Ellis R. Lesemann, Amanda M.
Appeal: 12-2267
Doc: 33
Filed: 07/17/2013
Pg: 2 of 19
Blundy, HARVEY & VALLINI, LLC, Mt. Pleasant, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
Appeal: 12-2267
Doc: 33
Filed: 07/17/2013
Pg: 3 of 19
PER CURIAM:
In this negligence action brought by Appellant Deborah
Zellars
(“Ms.
(“NexTech”),
an
Zellars”)
HVAC
against
contractor,
NexTech
Ms.
Zellars
Northeast
proffered
LLC
three
expert witnesses to testify that she was injured by allegedly
excessive
exposure
to
refrigerant
gas
at
her
employment, a Rite Aid in Arlington, Virginia.
place
of
The district
court excluded the testimony of each proffered expert, leaving
Ms.
Zellars
causation.
without
any
Accordingly,
expert
the
testimony
district
judgment in favor of NexTech.
on
court
the
element
granted
of
summary
On appeal, Ms. Zellars asserts
that the district court abused its discretion in excluding the
testimony of each of the three proffered causation experts and
that,
therefore,
the
district
court
also
erred
in
granting
summary judgment in favor of NexTech.
However, because we agree
with
of
the
proffered
district
causation
court
that
experts
none
offered
Ms.
Zellars’s
relevant
or
three
reliable
scientific testimony, we affirm.
I.
Appellant Ms. Zellars worked as a shift supervisor at
a Rite Aid store in Arlington, Virginia (the “Arlington Rite
Aid”).
Her duties included, among other things, rearranging and
organizing retail products displayed in retail display freezers
located throughout the store.
Appellee NexTech is a commercial
3
Appeal: 12-2267
Doc: 33
Filed: 07/17/2013
Pg: 4 of 19
contractor that works in the heating, cooling, and refrigeration
business.
During all relevant times, NexTech had a contract
with Rite Aid pursuant to which NexTech would maintain and, as
necessary, repair refrigerators at several area Rite Aid stores.
On September 9, 2009, NexTech responded to a service
call related to a perceived refrigerant leak.
On that visit,
NexTech added a disputed quantity of R-404A Freon (“R-404A”)
refrigerant to the freezer in question. 1
Two days later, on
September 11, 2009, NexTech again responded to a service call
from the Arlington Rite Aid about the same freezer.
during
this
visit,
NexTech
determined
that
the
However,
freezer
was
functioning appropriately and, as a result, did not take any
corrective action.
Less
than
one
week
later,
on
September
16,
2009,
Carrie Hare, the manager of the Arlington Rite Aid, placed a
call to the Arlington Fire Department indicating that Rite Aid
employees had been complaining of headaches and other symptoms
for a period of “weeks” and suggesting this condition was caused
by a leak in the previously-serviced freezer.
1
Members of the
Based on an ambiguous billing entry, Ms. Zellars contends
that NexTech added 25 lbs. of R-404A refrigerant to the system
while NexTech contends that it merely added 2.5 lbs. While the
parties vigorously disputed this issue both below and in their
briefs, the resolution of this factual dispute is unnecessary to
our disposition of this appeal.
4
Appeal: 12-2267
fire
Doc: 33
Filed: 07/17/2013
department’s
hazardous
Pg: 5 of 19
materials
team
proceeded
to
store, where they detected a small leak in the freezer. 2
the
After
the hazardous materials team had completed its assessment, a
call
was
placed
to
NexTech,
technician to the store.
who
responded
by
dispatching
a
The technician determined that a valve
on the refrigerator was leaking refrigerant gas and repaired the
leak.
Minutes
before
the
NexTech
technician
repairing the freezer, Ms. Zellars reported to work.
finished
Soon after
arriving, she reported to Ms. Hare that she was feeling ill,
specifically complaining of shortness of breath, dizziness, and
a headache.
emergency
In response, Ms. Zellars was taken to the local
room,
where
she
was
diagnosed
with
anemia.
Her
treating physicians then offered her a blood transfusion, which
she refused, indicating that her condition had improved.
Ms. Zellars and Ms. Hare commenced the present action
in the United States District Court for the Eastern District of
Virginia in 2011, 3 alleging that NexTech had breached its common
law duty of care in failing to properly service the freezer and
2
At that time, the hazardous materials team members also
noted that oxygen levels in the store around the freezer were
normal. Accordingly, they opted not to close the store.
3
Ms. Hare’s action was disposed of in the same order as Ms.
Zellars’s; however, only Ms. Zellars’s case is presently before
us on appeal.
5
Appeal: 12-2267
in
Doc: 33
failing
Filed: 07/17/2013
to
detect
and
September 16, 2009.
Pg: 6 of 19
repair
the
refrigerant
leak
before
Additionally, the complaint alleges that
this breach proximately caused a variety of personal injuries,
and plaintiffs proffered testimony from each of their treating
physicians
and
other
experts
in
attempt
to
support
this
assertion.
Of
offered
relevance
written
to
reports
the
and
present
deposition
appeal,
Ms.
testimony
Zellars
from
the
following expert witnesses: (1) Dr. Vandana Sharma, M.D., Ms.
Zellars’s
treating
physician,
who
opined
that
Ms.
Zellars’s
condition was caused by exposure to a neurotoxin, possibly a
refrigerant gas; 4 (2) Dr. Robert Simon, Ph.D., a chemist who
testified that Ms. Zellars had experienced symptoms that were
consistent with the adverse health effects of overexposure to R404A
refrigerant;
(3)
Dr.
Raymond
Singer,
Ph.D.,
a
neurotoxicologist who testified that Ms. Zellars’s symptoms were
both consistent with and caused by exposure to R-404A; and (4)
4
In her initial report, Dr. Sharma specifically opined that
Ms. Zellars’s condition was caused by refrigerant gas exposure.
However, as the district court observed, Dr. Sharma backed away
from that statement at her deposition, testifying only that Ms.
Zellars’s condition was caused by neurotoxin exposure and that
refrigerant gas was merely one possible source.
Zellars v.
NexTech Northeast, LLC, 895 F. Supp. 2d 734, 746 (E.D. Va. 2012)
(“Dr. Sharma maintains that Ms. Zellars’s neurological condition
was caused by some toxicity or toxic event, but she no longer
offers exposure to refrigerant gas as the specific cause to a
reasonable degree of medical certainty.”)
6
Appeal: 12-2267
Doc: 33
Filed: 07/17/2013
Pg: 7 of 19
Ronald Bailey, an HVAC engineer who testified that NexTech had
breached the applicable standard of care in its maintenance of
the display refrigerators.
In response, NexTech filed several motions, including
motions
in
limine
to
plaintiffs’
proffered
judgment.
The
exclude
requesting
an
experts,
plaintiffs
adverse
the
and
filed
inference
spoliation of evidence. 5
testimony
a
of
motion
a
motion
based
on
each
of
for
summary
for
the
sanctions,
NexTech’s
alleged
The district court held a hearing on
all of these motions on July 13, 2012.
On July 19, 2012, the district court granted NexTech’s
motions as to three of the four proffered experts: Dr. Sharma,
Dr. Simon, and Dr. Singer.
This left Ms. Zellars without any
expert testimony on the issue of causation.
Thus, the district
court determined that Ms. Zellars could not sustain her burden
to
prove
that
her
injuries
were
caused
by
NexTech’s
alleged
negligence and, therefore, granted NexTech’s motion for summary
judgment.
Finally,
the
district
5
court
denied
Ms.
Zellars’s
Specifically, Ms. Zellars points to the fact that, on
August 24, 2011, NexTech “evacuated” the disputed freezer,
removing and replacing all of the existing refrigerant.
Ms.
Zellars argues that this amounts to spoliation of the evidence,
as the type of refrigerant in place in the system in September
2009 is relevant to its case.
Accordingly, Ms. Zellars
requested the district court to permit an adverse inference
against NexTech.
7
Appeal: 12-2267
Doc: 33
Filed: 07/17/2013
Pg: 8 of 19
motion for sanctions as moot.
Ms. Zellars timely noted this
appeal.
II.
We review a district court’s award of summary judgment
de novo.
Dooley v. Hartford Acc. & Indem. Co., 716 F.3d 131,
135 (4th Cir. 2013).
decision
to
admit
However, we review a district court’s
or
exclude
evidence,
testimony, for an abuse of discretion.
including
expert
Belk, Inc. v. Meyer
Corp., U.S., 679 F.3d 146, 161 (4th Cir. 2012).
Similarly, a
district court’s refusal to apply an adverse inference based on
a party’s alleged spoliation of evidence “must stand unless it
was an abuse of its broad discretion in this regard.”
Vulcan
Materials Co. v. Massiah, 645 F.3d 249, 260 (4th Cir. 2011)
(citations omitted).
III.
A.
Expert Testimony
Ms.
Zellars
first
argues
that
the
district
court
abused its discretion in excluding the testimony of Dr. Sharma,
Dr. Singer, and Dr. Simon.
In toxic tort cases, “[i]n order to
carry the burden of proving a plaintiff’s injury was caused by
exposure
to
a
specified
substance,
the
plaintiff
must
demonstrate the levels of exposure that are hazardous to human
beings
generally
as
well
as
plaintiff’s
8
actual
level
of
Appeal: 12-2267
Doc: 33
Filed: 07/17/2013
Pg: 9 of 19
exposure.”
Westberry v. Gislaved Gummi AB, 178 F.3d 257, 263
(4th
1999)
Cir.
omitted). 6
(internal
citations
and
quotations
marks
Generally, this must be done through the use of
relevant and reliable expert testimony.
See, e.g., Cooper v.
Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir. 2001) (“[A]ll
of Cooper’s claims required expert medical testimony that the
Rogozinski System was the proximate cause of his injuries[.]”)
Rule
702
of
the
Federal
Rules
of
Evidence,
which
governs the admissibility of expert witness testimony, provides:
A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify
in the form of an opinion or otherwise if (a) the
expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand
the evidence or to determine a fact in issue; (b) the
testimony is based on sufficient facts or data; (c)
the testimony is the product of reliable principles
and methods; and (d) the expert has reliably applied
the principles and methods to the facts of the case.
Fed. R. Evid. 702.
Pursuant to this rule, the trial judge is
assigned the task of “ensuring that an expert’s testimony both
rests on a reliable foundation and is relevant to the task at
hand.”
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 588
(1993).
6
These two levels of causation are known as “general
causation” and “specific causation.” See, e.g., Bourne ex rel.
Bourne v. E.I. Dupont de Nemours & Co., Inc., 189 F. Supp. 2d
482, 485 (S.D. W. Va. 2002) (“In a toxic tort case, a plaintiff
must generally establish both general and specific causation for
his injuries.”), aff’d, 85 F. App’x 964 (4th Cir. 2004).
9
Appeal: 12-2267
Doc: 33
Filed: 07/17/2013
This
district
involves
court
must
a
Pg: 10 of 19
two-pronged
determine
inquiry.
whether
the
testimony concerns scientific knowledge.
First,
proffered
the
expert
Second, the district
court must determine whether that testimony will assist in the
determination of a fact in issue.
Daubert, 509 U.S. at 592.
In
other words, “[t]he first prong of this inquiry necessitates an
examination of whether the reasoning or methodology underlying
the expert’s proffered opinion is reliable,” and “[t]he second
prong of the inquiry requires an analysis of whether the opinion
is relevant to the facts at issue.”
Westberry, 178 F.3d at 260.
Applying this test to the facts at hand, the district
court
concluded
proffered
that
causation
inadmissible.
the
testimony
experts
was
of
each
unreliable
of
the
and,
three
therefore,
We agree on all counts.
1.
Exclusion of Dr. Sharma
Dr.
maintains
Sharma
a
practice
is
in
a
board
general
certified
neurologist
neurology.
In
a
who
report
completed on February 24, 2012, Dr. Sharma indicated that she
first evaluated Ms. Zellars in August 2011 for neck and back
pain,
muscle
tenderness
and
stiffness,
extremities, body tremors, and other symptoms.
jerking
In
of
the
that report,
Dr. Sharma opined, to a reasonable degree of medical certainty,
that Ms. Zellars’s symptoms were caused by exposure to R-404A
10
Appeal: 12-2267
Doc: 33
Filed: 07/17/2013
Pg: 11 of 19
refrigerant gas in September 2009.
However, at her subsequent
deposition, Dr. Sharma softened this testimony, opining instead
that Ms. Zellars’s condition was caused by a toxic event but
declining to specifically identify the chemical involved.
403
(“[T]oxicity
is
a
reasonable
medical
certainty.
related to Freon itself, I cannot opine on that.”). 7
J.A.
Is
it
Despite Dr.
Sharma’ equivocal testimony, Ms. Zellars maintains, both before
the district court and on appeal, that Dr. Sharma’s testimony is
sufficiently relevant and reliable.
We disagree.
First, as the district court held, Dr. Sharma lacks
the requisite qualifications to offer expert testimony in the
field of toxicology.
Dr. Sharma is a neurologist.
By her own
admission, she does not have any specialized training in the
field of toxicology.
J.A. 404 (Dr. Sharma: “I do not have any
training in toxicology.”).
that,
during
knowledge
of
her
This is further evinced by the fact
deposition,
refrigerant
gas
Dr.
Sharma
toxicity
indicated
primarily
that
came
her
from
a
survey of scientific articles downloaded from the internet.
Ms.
Zellars
argues
that
Dr.
Sharma’s
lack
of
toxicology expertise is immaterial, as her testimony is offered
along with the testimony of Dr. Singer and Dr. Simon, both of
7
Citations to the Joint Appendix (“J.A.”) refer to the
joint appendix filed by the parties in this appeal.
11
Appeal: 12-2267
Doc: 33
Filed: 07/17/2013
Pg: 12 of 19
whom have more training in the field of toxicology.
While it is
true that there is no prohibition on utilizing multiple experts
to establish various components of a party’s case, this does not
change
Daubert’s
based
on
command
“more
speculation.”
than
that
an
expert’s
subjective
testimony
belief
Daubert, 509 U.S. at 590.
or
must
be
unsupported
Because she lacks
specific training in the field in which she seeks to testify,
and because she was unable to state with specificity that any of
Ms.
Zellars’s
alleged
injuries
were
caused
by
exposure
to
refrigerant gas, Dr. Sharma simply cannot overcome this hurdle.
Second,
the
district
court
properly
held
Sharma’s methodology was not sufficiently reliable.
employed
a
method
known
as
“differential
that
Dr.
Dr. Sharma
diagnosis”
in
evaluating Ms. Zellars.
Differential diagnosis is “a standard
scientific
identifying
technique
of
the
cause
of
a
medical
problem by eliminating the likely causes until the most probable
one is isolated.”
differential
Westberry, 178 F.3d at 262.
diagnosis
“is
performed
Typically, a
after
physical
examinations, the taking of medical histories, and the review of
clinical
tests,
including
laboratory
tests.”
Id.
When
performed properly, expert testimony employing this methodology
is admissible.
Westberry, 178 F.3d at 263 (“We previously have
upheld the admission of an expert opinion on causation based
upon a differential diagnosis.”)
12
Appeal: 12-2267
Doc: 33
Filed: 07/17/2013
Pg: 13 of 19
However, in this case, Dr. Sharma did not reliably
apply the differential diagnosis technique.
As the district
court observed, Dr. Sharma could not even identify the intensity
and duration of Ms. Zellars’s exposure R-404A.
See, e.g., J.A.
448 (“[Dr. Sharma]: She put that she was exposed for a duration
of
time
for
several
multiple times.
weeks
or
months
going
into
the
freezer
But . . . I’m not able to opine on that because
I don’t know the exact exposure.”)
While it is true, as Ms.
Zellars argues, that precise information regarding a plaintiff’s
level of exposure “is not always available, or necessary[,]”
Westberry, 178 F.3d at 264, 8 it is also true that a “plaintiff
must demonstrate the levels of exposure that are hazardous to
8
Ms. Zellars’s reliance on Westberry on this point is
inapposite.
Specifically, in Westberry, we held that the
plaintiff’s expert did not need to cite specific quantitative
evidence regarding the plaintiff’s level of exposure because the
record in that case clearly established that the plaintiff had
been substantially exposed to the allegedly harmful substance in
such a way that specific evidence was unnecessary.
Westberry,
178 F.3d at 263. In particular, the allegedly harmful substance
in that case was talc powder, and the record was replete with
evidence of the plaintiff’s substantial exposure to talc. See,
e.g., id. at 264 (“Westberry testified that the talc that
settled from the air around his work area was so thick that one
could see footprints in it on the floor. He further stated that
he worked in clouds of talc and that it covered him and his
clothes.”)
Here, there is no evidence of such substantial
exposure. Thus, Westberry does not support Ms. Zellars’s claim
that she need not put forth specific evidence regarding her
level of exposure.
13
Appeal: 12-2267
Doc: 33
Filed: 07/17/2013
Pg: 14 of 19
human beings generally as well as the plaintiff's actual level
of exposure.”
Id. at 263.
Thus, the district court did not abuse its discretion
in excluding her testimony.
2.
Exclusion of Dr. Simon
Dr.
chemistry,
Robert
K.
Simon
toxicology,
and
is
an
expert
environmental
in
analytical
assessment.
His
opinion was offered to establish that Ms. Zellars was exposed to
excessive levels of R-404A and that she experienced symptoms
consistent with such exposure.
agree,
that
Dr.
Simon’s
The district court held, and we
proffered
testimony
is
inadmissible
under Daubert.
First,
Dr.
Simon
has
no
scientific
or
technical
knowledge that qualifies him to offer expert testimony in this
case.
While Dr. Simon is a toxicologist, he has no expert
training with regard to the toxicity of refrigerants.
Moreover,
by his own admission, Dr. Simon does not know the level of R404A exposure that would be necessary to cause Ms. Zellars’s
alleged health effects.
that
is
required
calculations
scientific
for
on.”).
support,
J.A. 297 (“But what the dose would be
Ms.
Zellars
Rather,
that
he
refrigerant
under certain circumstances.
to
respond,
simply
I
have
asserts,
exposure
can
be
no
without
deadly
Similar to Dr. Sharma, Dr. Simon’s
14
Appeal: 12-2267
Doc: 33
Filed: 07/17/2013
Pg: 15 of 19
lack of expert knowledge on the subject of refrigerant toxicity
renders
his
testimony
entirely
speculative
and,
therefore,
inadmissible under Daubert.
Dr. Simon also fails to identify any facts or data
regarding
Ms.
Zellars’s
level
of
R-404A
exposure.
In
his
initial report, Dr. Simon opined that the concentration of R404A in the freezer “reached multiples of 1000 parts per million
on
numerous
occasions
due
to
the
leaking
Shrader
valve,
particularly between September 9, 2009 and September 16, 2009.”
J.A. 1865 (alterations omitted).
on
the
report
of
the
Dr. Simon based this opinion
engineering
expert,
Ronald
Bailey.
However, by his own admission, Dr. Simon did not review Mr.
Bailey’s calculations as to the concentration of R-404A in the
freezer.
J.A.
290
(“[Defense
Bailey’s calculations?
Counsel]:
[Dr.
calculations.”).
you
seen
Mr.
[Dr. Simon]: No, I have seen his report.
[Defense Counsel]: But no calculations?
calculations?
Have
Simon]:
He
hasn’t
You’ve not seen any
provided
me
with
any
Additionally, Dr. Simon indicated that he did
not know how much time Ms. Zellars spent working in the freezer.
J.A. 184 (“[Defense Counsel]: Did she give you a time estimate
of
how
much
percentage?
time
she
spent
[working
in
the
freezer]
or
a
[Dr. Simon]: No, all she would say is this is what
I did when I came into work.”).
Thus, he has no reliable basis
for determining the level of Ms. Zellars’s R-404A exposure.
15
Appeal: 12-2267
Doc: 33
Filed: 07/17/2013
Pg: 16 of 19
Ms. Zellars argues that, in formulating his opinion,
Dr. Simon permissibly relied on the testimony of Mr. Bailey to
ascertain the level exposure in this case.
However, the portion
of Dr. Simon’s opinion that is based on Mr. Bailey’s work does
not speak to Ms. Zellars’s level of exposure.
Rather, it simply
speaks to the levels of R-404A that were present in the freezer.
Thus, even assuming Mr. Bailey’s calculations are accurate, Dr.
Simon’s
opinion
was
not
based
on
any
specific
information
regarding Ms. Zellars’s level of R-404A exposure.
Accordingly,
the
district
court
did
not
abuse
its
discretion in excluding Dr. Simon’s testimony.
3.
Exclusion of Dr. Singer
Dr. Raymond Singer, Ph.D., is a neuropsychologist and
neurotoxicologist whose opinion was offered to show that Ms.
Zellars
“has
a
nervous
and
system
consistent
with
caused
containing
fluorocarbons.”
dysfunction
by
J.A.
poisoning
1866
from
neurotoxicity
with
refrigerant
(alterations
omitted).
Thus, unlike Dr. Simon, who merely testified that Ms. Zellars’s
symptoms
Singer
were
goes
a
consistent
step
with
further
excessive
by
R-404A
indicating
that
exposure,
Ms.
Dr.
Zellars’s
condition was, in fact, caused by her exposure to R-404A in the
Arlington Rite Aid.
16
Appeal: 12-2267
Doc: 33
Filed: 07/17/2013
However,
as
the
Pg: 17 of 19
district
court
properly
held,
Dr.
Singer is not qualified to diagnose the cause of Ms. Zellars’s
alleged
symptoms.
Dr.
Singer
is
not
a
medical
doctor.
Moreover, Dr. Singer did not arrive at his own medical opinion.
Instead, he based his opinion on Dr. Sharma’s initial report.
J.A. 1036 (“[Dr. Singer]: I’m relying on Dr. Sharma to offer a
neurological
opinion
conditions.”).
about
the
cause
of
Ms.
Zellars’s
However, as discussed above, Dr. Sharma is no
longer of the view that Ms. Zellars’s condition was caused by
refrigerant gas exposure.
R-404A
exposure
condition.
is
one
Rather, Dr. Sharma’s opinion is that
possible
cause
of
Ms.
Zellars’s
Thus, the entire basis for Dr. Singer’s opinion on
specific causation has been undermined as merely speculative.
Accordingly,
the
district
court
did
not
abuse
its
discretion in excluding his testimony.
B.
Motion for Summary Judgment
Having excluded all three of Ms. Zellars’s causation
experts,
the
district
court
held
that
Ms.
Zellars
could
not
satisfy the causation element of her claim and, accordingly,
granted NexTech’s motion for summary judgment.
Summary
judgment
is
appropriate
We agree.
if
the
available
evidence reveals no genuine issue of material fact and that the
movant is entitled to judgment as a matter of law.
17
Fed. R. Civ.
Appeal: 12-2267
P.
Doc: 33
56(a).
burden
Filed: 07/17/2013
The
of
party
moving
establishing
the
Pg: 18 of 19
for
summary
absence
of
judgment
a
bears
genuine
issue
the
of
material fact, and a reviewing court must draw all reasonable
inferences and resolve all disputed factual matters in favor of
the nonmoving party.
2006).
Carr v. Deeds, 453 F.3d 593, 608 (4th Cir.
Importantly, a complete failure of proof concerning an
essential element of the plaintiff’s case necessitates a grant
of summary judgment in favor of the defendant.
Celotex Corp v.
Catrett, 477 U.S. 317, 322-23 (1986).
In
Virginia,
“a
plaintiff
who
seeks
to
establish
actionable negligence must plead the existence of a legal duty,
violation of that duty, and proximate causation which results in
injury.”
Kellermann
v.
McDonough,
684
S.E.2d
786,
790
(Va.
2009)(citations omitted).
To prove causation in a toxic tort
action,
offer
a
plaintiff
must
relevant
testimony, as the health effects of toxic
are
beyond
layperson.
the
knowledge
and
and
reliable
expert
exposure to chemicals
experience
of
the
average
Here, with the exclusion of all three of plaintiff’s
causation experts, there is a complete failure of proof on the
critical element of causation.
Thus, the district court’s grant
of summary judgment was proper. 9
9
Because we affirm the district court’s grant of summary
judgment in favor of NexTech on the element of causation, we
need not determine whether the district court properly denied
(Continued)
18
Appeal: 12-2267
Doc: 33
Filed: 07/17/2013
Pg: 19 of 19
IV.
For
district
court
the
is
foregoing
affirmed.
reasons,
We
the
dispense
judgment
with
oral
of
the
argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
AFFIRMED
Ms. Zellars’s motion for sanctions.
Even if we were to permit
an adverse inference to be drawn against NexTech for spoliation,
that inference would go only toward the element of breach.
It
would not aid Ms. Zellars on the element of causation.
Accordingly, because Ms. Zellars would still fail to establish
this element regardless of the adverse inference, we do not
address this issue.
19
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?