                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 06a0628n.06
                              Filed: August 23, 2006

                                          No. 05-6405

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


CHARLES ROLEN and VIRGINIA ROLEN,                       )
                                                        )
          Plaintiffs-Appellants,                        )
                                                        )
v.                                                      )   On Appeal from the United States
                                                        )   District Court for the Middle
HANSEN BEVERAGE COMPANY,                                )   District of Tennessee
                                                        )
          Defendant-Appellee.                           )




Before:          BOGGS, Chief Judge; KEITH and SUTTON, Circuit Judges.

                 PER CURIAM. Plaintiffs-Appellants Charles and Virginia Rolen brought suit in

Tennessee state court against Defendant-Appellee Hansen Beverage Company (“Hansen”), alleging

that one of Hansen’s juice products had caused Charles Rolen stomach problems for which he

received treatment at a hospital. The Rolens asserted strict liability, negligence, and breach of

warranties claims under Tennessee law. After removing the case to the United States District Court

for the Middle District of Tennessee on diversity grounds, Hansen moved for summary judgment.

The district court ruled that the testimony of the Rolens’ expert witness, Dr. Mark Houston, as to

causation did not meet the threshold requirements for admission of expert evidence under Daubert

v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), and granted summary judgment to Hansen. The

Rolens appeal the exclusion of the expert testimony and the corresponding grant of summary

judgment. For the following reasons, we affirm those rulings by the district court.
No. 05-6405
Rolen v. Hansen Beverage Co.

                                                    I

        Virginia Rolen purchased a package of Hansen’s “Natural Red Berry Juice Blast” from a

Costco on January 10, 2000. The cellophane-wrapped package contained individual boxes of juice.

Charles Rolen (“Rolen”) stated in a deposition that before he drank any of the juice, his son had

consumed a box from the package, and his wife may have as well, and they had not become ill.

        On January 20, 2000, Rolen, then seventy-one years old, consumed a box of Juice Blast over

the course of an hour beginning at noon. Rolen thought it tasted like something might be wrong but

not wrong enough for him to stop drinking it. Rolen had not had anything to eat that day before

consuming the juice. He had had a cup of black coffee at 8 or 9 o’clock that morning. He did not

remember what he and his wife and son had had for supper the previous night.

        Rolen began to feel ill about 20-30 minutes after consuming the Juice Blast; he suffered from

dizziness and dry heaves, and had his son call an ambulance. At the hospital, Rolen was put on

medication and an IV. He stated in a deposition in July 2001 that he had had problems with his

stomach since the incident in January 2000, and got nauseated and dizzy when he did not take the

medicine he had been prescribed.

        Although Rolen and his son took the carton from which Rolen had imbibed the Juice Blast

to the hospital for testing on January 20, 2000, they were told that the hospital did not have facilities

for testing it. The Rolens subsequently called other hospitals and centers to test the box (and

eventually asked Dr. Houston, whose expert testimony is the subject of this appeal, to do so; Dr.

Houston recommended a poison center at Vanderbilt), to no avail. As of at least October 2004, the




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Rolen v. Hansen Beverage Co.

Rolens still possessed the carton that had contained the Juice Blast that Rolen had consumed, as well

as other unopened cartons.

       The Rolens filed suit in Tennessee state court against Hansen in August 2004, alleging

violation of the Tennessee Products Liability Act of 1978, as amended, T.C.A. § 29-28-101 et seq.;

negligence in designing and/or manufacturing the juice; and breach of warranties.

       Hansen removed to the United States District Court for the Middle District of Tennessee on

diversity grounds. Hansen moved for summary judgment in January 2005. To that motion Hansen

attached an affidavit by Patrick Terrazas, Hansen’s Quality Control Manager, who described

standard procedures for producing and testing the Juice Blast drinks. Terrazas stated that Hansen

had asked for the juice box in question, or one from the same package, for testing, that Hansen

received a juice box and had it tested by an independent laboratory, and that the testing had

identified “no organisms of public health concern.” Hansen also attached to its summary judgment

motion, inter alia, an affidavit from Dr. Donna Seger, a Tennessee medical doctor and poison center

medical director retained by Hansen’s counsel as an expert in this case, who opined that the Juice

Blast did not cause Rolen’s illness or food poisoning.

       In response, the Rolens stated that “Mr. Rolen’s complaints were caused by Staphylococcal

food poisoning after ingesting the tainted juice.” The Rolens cited Dr. Houston’s deposition, which

was submitted in full. Dr. Houston concluded in his deposition, which was conducted in June 2003,

that Rolen “probably had a staphylococcal food poisoning from the ingestion of the Juice Blast or

some other type of bacterial infection. But the most likely thing, based on his history, would be

staphylococcal food poisoning.”

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Rolen v. Hansen Beverage Co.

       Dr. Houston, an internal medicine doctor in Tennessee and Rolen’s regular doctor since the

late 1990s, has no specialization in toxicology. Dr. Houston did not see Rolen after the latter had

consumed the Juice Blast until February 14, 2000, about three and a half weeks after Rolen drank

the Juice Blast and received treatment at the hospital. Rolen complained to Dr. Houston of nausea,

vomiting, abdominal pain, and dizziness after drinking the Juice Blast, although he stated that he had

improved somewhat since his visit to the hospital on January 20. Dr. Houston conducted a physical

examination that was “basically normal,” with no abdominal tenderness or fever. Laboratory tests,

such as stool cultures, taken during Rolen’s visit to Dr. Houston turned up negative for any infection

or “other biochemical abnormalities.” Rolen had previously had an endoscopy, and Dr. Houston

was evidently made aware of the results of that endoscopy before or at the time of Rolen’s February

14 visit.1 The upper GI endoscopy showed some gastritis, “which may have been related to his

recent event with the Juice Blast,” according to Dr. Houston, while the lower GI endoscopy showed

diverticulosis, “pouchings in the colon that can sometimes cause abdominal pain, infections, and

bleeding,” which Dr. Houston ruled out as being related to Rolen’s drinking the Juice Blast. During

a follow-up visit on March 7, 2000, Dr. Houston conducted another physical examination, which

again turned up nothing abnormal.

       Dr. Houston explained his conclusion that Rolen had most likely suffered staphylococcal

toxic poisoning resulting from ingestion of the Juice Blast by noting that staphylococcus is a bacteria




       1
         It is unclear from the transcript whether Dr. Houston was given the actual results of the
endoscopy or was told of the results by Rolen, although it is clear that at some point he saw hospital
records.

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No. 05-6405
Rolen v. Hansen Beverage Co.

that produces toxin, which itself is the cause of the GI symptoms. He stated that staphylococcal

poisoning “usually occurs within a few hours after ingestion of food or drink, as opposed to having

an incubation period, which is typical of most of the other type of bacterial gastroenteritis . . . .” The

negative lab results were not significant to Dr. Houston because “typically, staphylococcal food

poisoning is a toxin and you don’t culture anything out usually unless you can actually measure the

toxin from the food or drink from which the patient got sick, which I didn’t have access to, so I

couldn’t do it.”2

        On cross-examination by defendant’s counsel, Dr. Houston acknowledged that he had only

heard about Hansen’s Juice Blast insofar as Rolen stated that he had consumed some, and that he

had no other information about the product or its manufacture. Dr. Houston estimated that the

symptoms of staphylococcal food poisoning usually occur between one and twelve hours after

exposure to the offending food source. He stated that Rolen’s claims to have gotten sick within

twenty minutes of ingesting the Juice Blast did not change his conclusion that Rolen’s problems

most likely resulted from staphylococcal food poisoning related to the Juice Blast, although he did

not explain why such a rapid onset would not undermine his conclusion.

        Dr. Houston said that he had not seen the results of any testing done on the same lot of juice

product from which the carton in question had come, although he acknowledged that that was “very

reasonable information to have.” He suggested that he had tried to obtain samples (or test results


        2
       Dr. Houston’s statement that he did not have access to the box from which Rolen had
consumed the Juice Blast, and so could not test it, seems inconsistent with Rolen’s statement that,
when he asked Dr. Houston to test the particular box, “Dr. Houston said he didn’t have the facilities.
He gave us the number for Vanderbilt. Said they had a poison control center there.”

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No. 05-6405
Rolen v. Hansen Beverage Co.

thereof; it is not clear), but that he “never got that.” Dr. Houston stated that he would have liked to

have had “the container that he actually drank to certify that there was toxin in that container,” and

also that he would have liked to check whether “there weren’t problems with the production of other

lots within the same batch.” He stated that his conclusion that the Juice Blast had caused Rolen’s

stomach ailment nevertheless would not change even if an independent laboratory had tested Juice

Blast from the same lot and found no toxin,“only because I think I would have to see the actual

bottle that he ingested tested, if possible.”

        Asked by defense counsel whether, given that he did not know the ingredients in or

manufacturing process of the Juice Blast, Dr. Houston was comfortable assigning blame for

causation to the Juice Blast, Dr. Houston responded: “Well, the way you phrase it is, it may be a

little harsh. But I think that based on the clinical history and the timing of the ingestion of the Juice

Blast, it would seem a very reasonable assumption that he had a toxic effect from that drink, yeah.”

Dr. Houston acknowledged that when food poisoning occurs, it typically occurs in a number of

people instead of one; that he was not aware of anyone else who had been poisoned by a Juice Blast;

and that he had not read anything about it in the medical literature. Asked where the medical

certainty entered his opinion regarding the Juice Blast as the cause of Rolen’s illness, Dr. Houston

stated: “It’s based on Mr. Rolen’s history to me in the office on that visit, which was that he had the

acute onset of the symptoms related to the ingestion of the Juice Blast, and we couldn’t identify any

other good reasonable reason as to why he would have been sick.”

        The district court granted summary judgment in favor of Hansen in August 2005. The

district court found that Dr. Houston’s expert testimony did not satisfy the requirements of Daubert.

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Rolen v. Hansen Beverage Co.

In so doing it noted that Dr. Houston never tested any Juice Blast product, was not aware of the

manufacturing process of the drink, and could not explain why Rolen had become ill within twenty

minutes of drinking the Juice Blast. Having determined that Dr. Houston’s opinion evidence was

inadmissible under Daubert, and that the Rolens cited no other expert testimony on proximate cause,

the district court granted summary judgment for Hansen.

                                                 II

       The Rolens argue that the district court improperly excluded Dr. Houston’s testimony under

Daubert, and erred in granting summary judgment in favor of Hansen on the ground that no

admissible evidence existed to show causation.

       We review de novo the district court’s grant of summary judgment. Summary judgment is

appropriate where there exists no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. “In considering a motion for summary judgment, the district court

must construe the evidence and draw all reasonable inferences in favor of the nonmoving party.”

Dickenson v. Cardiac & Thoracic Surgery of Eastern Tennessee, P.C., 388 F.3d 976, 978 (6th Cir.

2004) (citations omitted).

       The district court’s decision to admit or exclude expert evidence is reviewed for abuse of

discretion. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 142, 152 (1999); see also Nelson v.

Tennessee Gas Pipeline Co., 243 F.3d 244, 248 (6th Cir. 2001) (This court reviews the district

court’s decision to exclude testimony of an expert witness for abuse of discretion “even when that

decision results in the entry of summary judgment.”). The abuse of discretion standard “applies as




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Rolen v. Hansen Beverage Co.

much to the trial court’s decisions about how to determine reliability [of the expert opinion

evidence] as to its ultimate conclusion.” Kumho, 526 U.S. at 152-53.

        The abuse of discretion standard is highly deferential. Hardyman v. Norfolk & W. Ry. Co.,

243 F.3d 255, 267 (6th Cir. 2001). “An abuse of discretion is found where the reviewing court is

firmly convinced that a mistake has been made.” Dickenson, 388 F.3d at 980.

        Federal Rule of Evidence 702 currently states3:

        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 principles and methods, and
        (3) the witness has applied the principles and methods reliably to the facts of the
        case.

In Daubert, the Supreme Court explained the “gatekeeping role” required of district courts under

the Rules, stating that “the trial judge must ensure that any and all scientific testimony or evidence

admitted is not only relevant, but reliable.” 509 U.S. at 589, 597. “Pertinent evidence based on

scientifically valid principles will satisfy those demands.” Id. at 597. The Court noted that

        in order to qualify as “scientific knowledge,” an inference or assertion must be
        derived by the scientific method. Proposed testimony must be supported by
        appropriate validation–i.e., “good grounds,” based on what is known. In short, the
        requirement that an expert’s testimony pertain to “scientific knowledge” establishes
        a standard of evidentiary reliability.

Id. at 590.




        3
        Federal Rule of Evidence 702 was amended in 2000 in response to Daubert and its progeny.
FED. R. EVID. 702 advisory committee’s notes.

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Rolen v. Hansen Beverage Co.

       The trial court, faced with a proffer of expert testimony, must determine at the outset whether

the expert will testify to scientific knowledge that aids the factfinder. The Supreme Court stated that

“[t]his entails a preliminary assessment of whether the reasoning or methodology underlying the

testimony is scientifically valid and of whether that reasoning or methodology properly can be

applied to the facts in issue.” Id. at 592-93. The Court emphasized that in making that assessment,

“[m]any factors will bear on the inquiry.” It provided a non-exclusive set of factors to guide the

assessment: 1) whether the theory or technique can be tested; 2) whether it has been subjected to

peer review and publication; 3) the known or potential rate of error, and the existence and

maintenance of standards controlling the technique’s operation; and 4) the degree to which the

theory or technique is accepted within the relevant scientific community. Id. at 593-94.

       In Kumho, the Supreme Court made clear that the factors listed in Daubert need not be

applied in each instance; the Daubert inquiry is flexible, and the specific factors set out in Daubert

should be considered “where they are reasonable measures of the reliability of expert testimony.”

Kumho, 526 U.S. at 152. See also id. at 141-42, 151. The objective of the Daubert gatekeeping

requirement, the Kumho Court stated, is “to make certain that an expert, whether basing testimony

upon professional studies or personal experience, employs in the courtroom the same level of

intellectual rigor that characterizes the practice of an expert in the relevant field.” Id. at 152. The

Kumho Court emphasized that “‘nothing in either Daubert or the Federal Rules of Evidence requires

a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of

the expert.’” Id. at 157 (quoting General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)). “A court




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Rolen v. Hansen Beverage Co.

may conclude,” the Supreme Court noted in Joiner, 522 U.S. at 146, “that there is simply too great

an analytical gap between the data and the opinion proffered.”

        Expert opinions based upon nothing more than the logical fallacy of post hoc ergo propter

hoc typically do not pass muster under Daubert. See McClain v. Metabolife Intern., Inc., 401 F.3d

1233, 1242-43 (11th Cir. 2005); Downs v. Perstorp Components, Inc., 26 F. App’x 472, 473-76 (6th

Cir. 2002) (unpublished).

        We are not firmly convinced that the district court made a mistake in excluding Dr.

Houston’s expert opinion testimony under Daubert. We therefore conclude that it did not abuse

its discretion in so doing.

        Dr. Houston’s examination and testing of Rolen turned up nothing abnormal. Dr. Houston’s

review of information from an upper GI endoscopy, which had evidently been conducted by

someone else, revealed some gastritis that Dr. Houston stated “may have been related to his recent

event with the Juice Blast,” but with no supporting reasoning or methodology. That analysis is a

slender reed to grasp in attempting to show causation.

        Dr. Houston stated that it would have been “very reasonable” to test Juice Blast from the

same lot as that of the product Rolen had consumed, and subsequently reiterated that he would have

liked to have made sure that “there weren’t problems with the same batch.” But he then stated that

any test of juice product from the same lot that turned up negative–as the testing ordered by Hansen

did–would not have changed his opinion, stating that he would “have to see the actual bottle that he

ingested tested, if possible.” Dr. Houston seemed to indicate that he asked Rolen for the carton from

which Rolen drank, or another carton from the package, or at least information from the testing of

                                               - 10 -
No. 05-6405
Rolen v. Hansen Beverage Co.

either, but did not obtain it. Rolen’s account, however, is that he asked Dr. Houston to test the

specific container in question but that Dr. Houston declined, instead referring Rolen elsewhere.

        All of this indicates, as the district court suggested, that Dr. Houston’s opinion as to

causation was based less on a reasonable chain of evidence than on speculation solely from the

absence of another obvious cause. That view is bolstered by the fact that Dr. Houston stated that

the effects of staphylococcal food poisoning usually occur between one and twelve hours, whereas

Rolen stated that he felt ill within about twenty minutes of drinking the Juice Blast, and Dr. Houston

could not explain the difference. Furthermore, by his own admission Dr. Houston knew nothing

about Hansen’s Juice Blast, including how or with what it was made. Dr. Houston acknowledged

that food poisoning typically affects more than one person, that he was unaware of another case of

poisoning by a Juice Blast, and that he had not seen anything about it in the medical literature.

        In light of the above discussion of Dr. Houston’s deposition, we find that the district court

was within its zone of discretion in determining that–to paraphrase Joiner–too great a gap existed

between the available data and Dr. Houston’s opinion as to causation. That opinion, which the

doctor characterized at one point as “a very reasonable assumption that [Rolen] had a toxic effect

from that drink . . . .” appears to have been based upon the logical fallacy post hoc ergo propter

hoc.4


        4
        Although the Rolens have not raised the point directly, we note that this court has held that
“[o]ne appropriate method for making a determination of causation for an individual instance of
disease is known as ‘differential diagnosis.’” Hardyman, 243 F.3d at 260. The Hardyman court
defined differential diagnosis as “[t]he method by which a physician determines what disease
process caused a patient’s symptoms. The physician considers all relevant potential causes of the
symptoms and then eliminates alternative causes based on a physical examination, clinical tests, and

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Rolen v. Hansen Beverage Co.

                                                 III

       The Rolens acknowledge that the record is devoid of expert evidence on the issue of

causation aside from that of Dr. Houston. We hold that the district court did not abuse its discretion

in ruling that Dr. Houston’s expert opinion did not meet the requirements of Daubert, and we affirm

the district court’s grant of summary judgment to Hansen on the ground that the Rolens are unable

to show proximate cause. See Downs, 26 F. App’x at 477; McCarley v. West Quality Food Serv.,

960 S.W.2d 585, 589 (Tenn. 1998) (holding that causation in negligent food contamination cases

may be established by “either expert testimony or through a combination of both expert and lay

testimony”). The judgment of the district court is therefore AFFIRMED.




a thorough case history.” Ibid. (quoting Federal Judicial Center, Reference Manual on Scientific
Evidence 214 (1994)). The sole indication that Dr. Houston employed anything like a differential
diagnosis methodology in forming his opinion was his statement that his conclusion was “based
upon Mr. Rolen’s history to me in the office on that visit, which was that he had the acute onset of
the symptoms related to the ingestion of the Juice Blast, and we couldn’t identify any other good
reasonable reason as to why he would have been sick.” That statement does not show that Dr.
Houston engaged in the kind of methodological rigor that characterizes acceptable differential
diagnoses. See Hardyman, 243 F.3d at 260-67.

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