     Case: 11-60406     Document: 00511783155         Page: 1     Date Filed: 03/09/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                           March 9, 2012

                                       No. 11-60406                        Lyle W. Cayce
                                                                                Clerk

DUVALL SAVAGE,

                                                  Plaintiff - Appellant
v.

PILOT TRAVEL CENTERS, L.L.C.; JOHN DOES 1–10,

                                                  Defendants - Appellees


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:10-CV-208


Before JOLLY, DAVIS, and BARKSDALE, Circuit Judges.
PER CURIAM:*
        In this diversity action for which Mississippi law applies, Duvall Savage
challenges an adverse summary judgment in his premises-liability action
against Pilot Travel Centers, L.L.C., and numerous “John Does”. Savage
contends the district court erred in ruling that: the doctrine of res ipsa loquitur
was inapplicable; and expert testimony was necessary to establish causation for
his injuries. AFFIRMED.




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-60406   Document: 00511783155      Page: 2   Date Filed: 03/09/2012



                                  No. 11-60406

                                        I.
      The Pilot Travel Center in Jackson, Mississippi, is an 18-wheeler truck
stop equipped with bathrooms, showers, and an area to park the trucks. On 18
February 2009, Savage entered the restroom of the Pilot Travel Center, wearing,
inter alia, pajama bottoms and boxer shorts. Savage was not aware that a Pilot
employee had recently cleaned the floors, walls, and toilets of the bathroom
using bleach. Savage dropped his pajama bottoms and boxer shorts to the floor
while sitting on the toilet. After a few minutes, Savage noticed his clothes
becoming discolored. He immediately pulled up his pajama bottoms and boxer
shorts and notified a manager.
       The manager offered him a shower, a new set of pajamas, and a jar of
Vaseline, as Savage had begun to experience what became a painful stinging
sensation hours later, as described below. Savage accepted; he took a shower,
applied the entire jar of Vaseline to his groin, and put on the new pajama
bottoms, as well as boxer shorts he had retrieved from his truck.
      Hours after leaving the Pilot station on 18 February, Savage first began
to experience a painful stinging sensation around his genitals. On 20 February,
he noticed “pinkish, gooey, bloodyish” lesions on his genitals; and, the next day,
he entered the Providence Medical Center’s emergency room in Kansas City,
Kansas, seeking medical assistance.
      There, Savage informed personnel he had a “chemical burn” from bleach
exposure. He was subsequently diagnosed with chemical burns by a nurse
practitioner. While at Providence Medical Center, Savage was also tested for two
sexually-transmitted diseases (STDs), gonorrhea and chlamydia; the results
were negative.
      A week later in California, he was examined by Dr. Lopez, who also
diagnosed chemical burns. Dr. Lopez referred Savage to a dermatologist.



                                        2
   Case: 11-60406    Document: 00511783155     Page: 3    Date Filed: 03/09/2012



                                  No. 11-60406

      On 4 March 2009, Savage was examined by Dr. Sison, a dermatologist. In
his examination note, Dr. Sison stated the cause of the lesions was “unclear” and
described them as “very unusual” and “difficult to understand”. When deposed
approximately two years later, in January 2011, Dr. Sison testified that Savage
presented “an unusual case”, recalling that the lesions “didn’t look like a burn”.
When asked if the lesions were caused by exposure to bleach, Dr. Sison
expressed “a heavy amount of doubt”, stating: he would first have to rule out
STDs as the cause; and he could not say, “to a reasonable degree of medical
probability”, that bleach exposure caused the injuries.
      Savage filed this diversity action in state court, claiming Pilot was
negligent because, inter alia, it failed to: maintain its premises in a reasonably
safe condition; warn Savage of the dangerous condition of bleach in the
restrooms; prevent the incident; and abide by OSHA regulations. Pilot removed
this action to federal court.
      In district court, Savage twice moved to extend the expert-designation
deadline. Then, he designated only one expert–a psychiatrist who would testify
to Savage’s mental injuries. Subsequently, that expert refused to testify, leading
Savage to obtain a third extension of the expert-designation deadline. But,
Savage never designated an expert.
      Pilot, on the other hand, designated Dr. Sison and one other dermatologist
as experts. Both were expected to testify that an STD was a possible cause of
Savage’s lesions and, therefore, they could not say to a reasonable degree of
medical probability that bleach caused his injuries.
      After discovery, Pilot moved for summary judgment on the basis that
Savage was required, but had failed, to provide expert testimony that the lesions
were caused by bleach exposure. In opposition, Savage contended: the doctrine
of res ipsa loquitur applied; and, in the alternative, expert testimony was not
required. Summary judgment was granted in May 2011. Duvall Savage v. Pilot

                                        3
   Case: 11-60406    Document: 00511783155      Page: 4    Date Filed: 03/09/2012



                                  No. 11-60406

Travel Ctrs., L.L.C., No. 3:10-CV-208 (S.D. Miss. 19 May 2011) (Memorandum
Opinion and Order).
                                        II.
      For this diversity action, Mississippi law controls. See, e.g., Erie R.R. Co.
v. Tompkins, 304 U.S. 64, 78-79 (1938). Savage contends, as he did in district
court, that: res ipsa loquitur should apply; and, in the alternative, he is not
required to provide expert testimony on causation.
      A summary judgment is reviewed de novo. E.g., Cates v. Dillard Dep’t
Stores, Inc., 624 F.3d 695, 696 (5th Cir. 2010). It is appropriate when “the
movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law”. Fed. R. Civ. P. 56(a). A
“genuine dispute” over a “material fact” exists where the evidence would allow
a “reasonable jury [to] return a verdict for the nonmov[ant]”. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmovant may not meet its
burden of establishing a genuine dispute by relying on “conclusional allegations
and unsubstantiated assertions”. Carnaby v. City of Houston, 636 F.3d 183, 187
(5th Cir. 2011). For ruling on a summary-judgment motion, the court “view[s]
the evidence and draw[s] reasonable inferences in the light most favorable to the
non-movant”. Id.
      Although Savage first relies on the doctrine of res ipsa loquitur, the expert-
witness issue is addressed first. As reflected below, this reverse order is utilized
because expert testimony vel non bears directly on the elements of res ipsa
loquitur, such as whether the causation basis is within the common knowledge
of laymen.
                                        A.
      Under Mississippi law, actions involving “medically complicated” injuries
require expert testimony on causation. Berry v. Southwest Airlines Co., No. 3:07-
CV-305, 2008 WL 3874368, at *2 (S.D. Miss. 15 Aug. 2008); see also Cole v.

                                         4
   Case: 11-60406   Document: 00511783155       Page: 5   Date Filed: 03/09/2012



                                  No. 11-60406

Superior Coach Corp., 106 So. 2d 71, 72 (Miss. 1958) (expert testimony required
“[i]n all but . . . simple and routine cases”). Because, according to Savage, the
evidence reflects that his injuries developed only a few days after the bleach
exposure and were initially diagnosed as chemical burns, he contends no more
evidence–particularly expert testimony–is needed to prove causation. Instead,
he maintains the chain of events speaks for itself.
      In support, Savage cites Hamburger v. State Farm Mut. Auto Ins. Co., 361
F.3d 875 (5th Cir. 2004), in which our court held expert testimony was
unnecessary to prove causation of a neck injury experienced immediately after
an automobile accident. Id. at 885-86. Savage also cites Morgan v.
Compugraphic Corp., 675 S.W.2d 729 (Tex. 1984), to suggest that causation in
chemical-exposure actions, like automobile-accident actions, can be established
by lay testimony. Id. at 733. Savage’s contentions are unavailing.
      Morgan is inapposite because, inter alia, it applies Texas law to very
different facts from those at hand. There, no expert testimony was offered to
contradict lay testimony on causation. Id. Injuries being caused by automobile
accidents, such as those at issue in Hamburger, “may be understood with only
common sense”, therefore expert testimony is unnecessary for causation. Berry,
2008 WL 3874368, at *2; Ellis v. Packnett, No. 5:06-CV-33, 2007 WL 2900451,
at *1 (S.D. Miss. 28 Sept. 2007) (for purposes of establishing causation, knee and
neck injuries are not medically complicated). On the other hand, common sense,
on its own, cannot rule out an STD as the cause of skin lesions; medical expertise
is required.
      Dr. Sison, a certified dermatologist who treated Savage, was unable to
state to a reasonable degree of medical probability whether Savage’s injuries
were chemical burns, much less whether bleach exposure caused them. Instead,
Dr. Sison stated an STD was a possible cause and described Savage’s injuries as
“very unusual” and “difficult to understand”.

                                        5
   Case: 11-60406    Document: 00511783155      Page: 6   Date Filed: 03/09/2012



                                  No. 11-60406

      In the light of, inter alia, Dr. Sison’s testimony and the general complexity
of diagnosing skin lesions, Savage’s injuries are “medically complicated”; and,
accordingly, he was required to provide expert testimony opining they were
caused by bleach exposure. Savage failed to do so.
                                        B.
      For the doctrine of res ipsa loquitur to apply, Savage must prove: (1) the
causation basis is within the common knowledge of laymen; (2) the
instrumentality causing the damage (here, allegedly bleach) was under the
exclusive control of Pilot; (3) the occurrence, in the ordinary course of things,
would not have happened if Pilot had used proper care; and (4) the occurrence
was not due to any voluntary act on the part of Savage. E.g., Brown v. Baptist
Mem’l Hosp.-DeSoto, Inc., 806 So. 2d 1131, 1135 (Miss. 2002).
      In contending res ipsa loquitur applies, Savage asserts that bleach (the
alleged instrumentality that caused his injuries) used by Pilot was the cause of
his injuries. But, as discussed above, Savage has failed, inter alia, to present
evidence sufficient to create a genuine dispute of material fact on whether bleach
was the cause. Therefore, for the very reasons that Savage is required to provide
expert testimony, res ipsa loquitur is inapplicable. See Redhead v. Entergy Miss.,
Inc., 828 So. 2d 801 (Miss. Ct. App. 2001) (res ipsa loquitur inapplicable because,
inter alia, plaintiff failed to show alleged instrumentality caused fire at issue);
see also Investors Real Estate Trust Prop., Inc. v. Terra Pac. Midwest, Inc., 686
N.W.2d 140, 146 (N.D. 2004) (without evidence identifying“instrumentality” that
caused harm, no showing can be made that instrumentality was in defendant’s
exclusive control, therefore res ipsa loquitur inapplicable).
                                       III.
      For the foregoing reasons, the judgment is AFFIRMED.




                                        6
