     Case: 14-20603      Document: 00513067518         Page: 1    Date Filed: 06/04/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-20603                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
DEVEREAUX MACY; JOEL SANTOS,                                                 June 4, 2015
                                                                           Lyle W. Cayce
              Plaintiffs - Appellants                                           Clerk

v.

WHIRLPOOL CORPORATION, doing business as Kitchenaid,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CV-1861




Before WIENER, SOUTHWICK, and GRAVES, Circuit Judges.
PER CURIAM:*
       In this products liability suit filed by Plaintiffs-Appellants Devereaux
Macy and Joel Santos (collectively, “Plaintiffs”), the district court (1) struck
Plaintiffs’ expert reports for failure to comply with Federal Rule of Evidence
702; and (2) granted the motion for summary judgment filed by Defendant-
Appellee Whirlpool Corporation (“Whirlpool”). 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                      No. 14-20603
                               I. Facts & Proceedings
       In April 2008, Ms. Macy purchased and moved into a residence located
in the Woodlands, Texas. Mr. Santos, whom she referred to as her boyfriend,
moved in with her at the same time. The residence was equipped with a
KitchenAid gas range which had been designed and manufactured by
Whirlpool, doing business as KitchenAid. The individuals from whom she
purchased the residence had used the gas range without incident for
approximately eight years. Ms. Macy had used the gas range for about four
months, when, on July 23, 2008, she phoned Center Point Energy, complaining
of fatigue and dizziness—symptoms consistent with carbon monoxide
poisoning. That same day, a Center Point Energy service representative, Mr.
Holmes, visited Ms. Macy’s residence and identified the gas range as the
culprit. 1 He “red-tagged” the range and turned off the gas valve. The range
was removed from the kitchen and stored in Ms. Macy’s garage. Ms. Macy and
Mr. Santos reported to the hospital the next day; her carboxyhemoglobin
(COHb) blood level was 0.8%, which is a normal reading for non-smokers. 2
       Plaintiffs filed a products liability lawsuit in Harris County District
Court, Texas, naming Whirlpool, Sears, Roebuck and Company (“Sears”), and
the individual sellers from whom Ms. Macy had purchased the residence as
defendants. After the individual sellers were dismissed from the lawsuit at
Plaintiffs’ request, Whirlpool removed the case to the district court on the basis
of complete diversity. 3       Approximately three years later, in May 2013,
Plaintiffs filed a motion for partial summary judgment. Two months later,



       1 Mr. Holmes testified that he inserted a probe into the oven while it was running and
recorded a 2,000 ppm carbon monoxide reading. He did not perform any tests of the air inside
the house.
       2 Mr. Santos’s COHb blood level was 1.7%, which falls within the normal range for a

non-smoker.
       3 Sears was dismissed by joint oral motion of both parties.

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                                        No. 14-20603
Whirlpool filed a motion to exclude Plaintiffs’ experts, Paul Carper and Dr.
David Penney. They also filed a motion for summary judgment, claiming that
the evidence demonstrated that when operated as intended, the gas range met
all industry standards and was not defective. The district court eventually
struck Plaintiffs’ expert reports and granted Whirlpool’s motion for summary
judgment on the basis that Plaintiffs had failed to adduce any evidence that
(1) the symptoms they suffered were caused by carbon monoxide poisoning or
(2) the gas range produced amounts of carbon monoxide in excess of applicable
industry standards. Plaintiffs timely appealed both rulings.
                                        II. Analysis
A.     Expert testimony
       Plaintiffs contend that the district court abused its discretion in striking
the experts reports prepared by Dr. Penney and Mr. Carper. We review the
exclusion of expert testimony for abuse of discretion, 4 and we will not overturn
such a decision unless it is “manifestly erroneous.” 5 A manifest error is one
“that is plain and indisputable, and that amounts to a complete disregard of
the controlling law.” 6 If a trial court excludes evidence essential to maintain a
cause of action, the propriety of summary judgment depends entirely on the
evidentiary ruling. 7




       4 Brown v. Ill. Cent. R.R. Co., 705 F.3d 531, 535 (5th Cir. 2013) (citation omitted); see
Knight v. Kirby Inland Marine, Inc., 482 F.3d 347, 354 (5th Cir. 2007) (“[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.”).
       5 United States v. Wen Chyu Liu, 716 F.3d 159, 167 (5th Cir. 2013) (citation and

internal quotation marks omitted); see also Gen. Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997)
(“In applying an overly ‘stringent’ review to that [exclusion], [the appellate court] failed to
give the trial court the deference that is the hallmark of abuse-of-discretion review.” (citation
omitted)).
       6 Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004) (citation and internal

quotation marks omitted).
       7 Allen v. Penn. Eng’g Corp., 102 F.3d 194, 196 (5th Cir. 1996) (citation omitted).

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       Federal Rule of Evidence 702 states that an expert 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”:
              (1) 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; (2) the testimony is based upon sufficient facts
              or data; (3) the testimony is the product of reliable
              principles and methods; and (4) the witness has
              applied the principles and methods reliably to the facts
              of the case. 8
Rule 702 embodies the Supreme Court’s decision in Daubert v. Merrell Dow
Pharmaceuticals, Inc., which emphasizes the trial courts’ role as “gatekeepers”
to ensure that proffered expert testimony is “not only relevant, but reliable.” 9
“The reliability prong mandates that expert opinion ‘be grounded in the
methods and procedures of science and . . . be more than unsupported
speculation or subjective belief.’” 10 “The relevance prong requires that the
proponent demonstrate that the expert’s ‘reasoning or methodology can be
properly applied to the facts in issue.’” 11
       1.     Dr. Penney
       Dr. Penney’s report expresses the following opinions: (1) Regarding
general causation, low-level exposure to carbon monoxide can cause serious
neurological damages of the type that Ms. Macy and Mr. Santos complain; and


       8 FED. R. EVID. 702.
       9 See Brown, 705 F.3d at 535 (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
579, 589 (1993)).
       10 Johnson v. Arkema, Inc., 685 F.3d 452, 459 (5th Cir. 2012) (citation omitted). When

assessing reliability, courts consider the following non-exclusive list of factors: (1) whether
the theory or technique has been tested; (2) whether the theory or technique has been
subjected to peer review and publication; (3) the known or potential rate of error of the
method used and the existence and maintenance of standards controlling the technique’s
operation; and (4) whether the theory or method has been generally accepted by the scientific
community. Id. (citation and internal quotation marks omitted).
       11 Id. (citation omitted).

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                                       No. 14-20603
(2) Regarding specific causation, Ms. Macy’s and Mr. Santos’s injuries were
caused by the gas range.
       We first consider whether the district court erred in striking Dr.
Penney’s general causation conclusion. If we conclude that the district court
correctly excluded the general causation opinion, we need not proceed to
specific causation. 12
       The district court stated that it struck Dr. Penney’s general causation
opinion because “[h]is only evidence for this conclusion is that he says that the
World Health Organization has adopted his [6.5 ppm] standard.”                           This
observation by the court is inaccurate. Our review of Dr. Penney’s expert
report reflects that he relied on scientific literature, some of which he authored,
to support his general causation opinion: (1) An article he prepared for the
World Health Organization (“WHO”) indicating that the upper limit for carbon
monoxide over a 24 hour period should be set at 6.5 ppm; (2) two studies, one
of which he authored, demonstrating that relatively low-level carbon monoxide
exposure over an extended period of time can lead to serious health effects;
and, (3) three studies prepared by other individuals indicating that COHb
measurements are not an accurate metric for carbon monoxide poisoning.
Although Dr. Penney did rely on more than just his one article published in
the WHO compilation, as indicated by the district court, our review of the cited
studies compels the conclusion that the district court did not abuse its
discretion in striking Dr. Penney’s opinion on general causation. 13
       As an initial matter, the three studies that address the viability of
relying on COHb measurements to determine carbon monoxide poisoning do


       12 See Knight, 482 F.3d at 352 (citing Miller v. Pfizer, Inc., 356 F.3d 1326, 1329 (10th
Cir. 2004)).
       13 Dr. Penney did not attach any of the studies to his expert report. Neither are they

contained elsewhere in the record. We rely on Dr. Penney’s summations of the studies in his
expert report.
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                                       No. 14-20603
not appear to assess the relationship between low-level carbon monoxide
exposure and the symptoms reported by Ms. Macy and Mr. Santos. Rather,
they provide only an “inferential starting point for doing so,” and a district
court may permissibly conclude that such studies do not support an expert’s
conclusion. 14
       The two case series studies that Dr. Penney claimed address the
relationship between low levels of carbon monoxide exposure and serious
health effects do not present facts analogous to those presented by this case
because the majority of the studies’ subjects were exposed to much higher
levels of carbon monoxide and for longer periods of time than those at issue
here. In Dr. Penney’s study, which appeared in a book that he edited, 43 non-
smokers were exposed to carbon monoxide for a mean average of 27.5 months
in amounts between 24.2 and 150.5 ppm. 15 The second study, which appeared
in that same book, addressed 21 individuals who were chronically exposed to
carbon monoxide in amounts between 123.0 and 123.6 ppm. Because the
highest reading recorded during Mr. Carper’s testing conducted at Ms. Macy’s
residence was 42.6 ppm, 16 which occurred at the conclusion of a six-hour period
in which the gas range was running continuously with the residence’s air-
conditioning turned off, both studies lack relevance to this case—or, at least,
Dr. Penney’s expert report does not adequately explain their relevance to his
conclusion.


       14 See LeBlanc ex rel. Estate of LeBlanc v. Chevron USA, Inc., 396 F. App’x 94, 99 (5th
Cir. 2010) (per curiam) (citing Knight, 482 F.3d at 353).
       15 See David G. Penney, Chronic Carbon Monoxide Poisoning: A Case Series, in

CARBON MONOXIDE POISONING 551, 552-53 (David G. Penney ed. 2008).
       16 As later discussed, we hold that the district court properly excluded Mr. Carper’s

opinion because he is not qualified to render an opinion as to whether the gas range complied
with the American National Standards Institute (“ANSI”) Z21.1 standard. Assuming that
the results of Mr. Carper’s field test of the gas range were admissible, the studies cited by
Dr. Penney do not present analogous facts because they involve much higher concentrations
of carbon monoxide and for significantly longer periods.
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                                        No. 14-20603
       Finally, there is the article that was published by the European Office
for the WHO, in which Dr. Penney proposes a 6.5 ppm guideline. As the district
court observed, this is a recommended standard that has not been adopted by
any domestic agency and that the WHO did not endorse. 17 Moreover, that
standard is irrelevant to the question whether low-level carbon monoxide
exposure causes the type of alleged injuries at issue in this case.
       Mindful that under Daubert and Federal Rule of Evidence 702, a district
court has broad discretion to determine whether a body of evidence relied on
by an expert is sufficient to support that expert’s opinion, we conclude that the
district court did not abuse its discretion in striking Dr. Penney’s general
causation opinion. 18 We do not suggest that an expert must support his opinion
with published studies that “unequivocally support” his conclusions. 19
Nevertheless, an expert’s testimony must be reliable at every step, including
the methodology employed, the facts underlying the expert’s opinion, and the
link between the facts and the conclusion. 20 The district court did not abuse
its discretion in concluding that Dr. Penney’s proffered expert opinion on
general causation failed this test. 21
       2.      Mr. Carper
       The district court struck Mr. Carper’s expert report on the ground that
he was not qualified to render an opinion on whether the range was defectively



       17  “The views expressed by authors, editors, or expert groups do not necessarily
represent the decisions or the stated policy of the World Health Organization.”
       18 See Knight, 482 F.3d at 354. Moreover, we may affirm a district court’s exclusion of

evidence on any ground supported by the record. See MCI Commc’ns Servs., Inc. v. Hagan,
641 F.3d 112, 117 (5th Cir. 2011).
       19 See Knight, 482 F.3d at 354 (citation omitted).
       20 Id. at 354-55.
       21 See Joiner, 522 U.S. at 146 (“A court may conclude that there is simply too great an

analytical gap between the data and the opinion proffered.” (citation omitted)); see also id.
(“[N]othing 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.”).
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                                   No. 14-20603
designed because it failed to comply with the applicable American National
Standards Institute (“ANSI”) Z21.1 standard for gas ranges.              We agree.
Although Rule 702 does not require that an expert must be “highly qualified,”
at the end of the day, the district court must be assured that a witness is
qualified to testify by virtue of his “knowledge, skill, experience, training, or
education.” 22 Our review of Mr. Carper’s qualifications satisfies us that the
district court did not abuse its discretion in determining that he does not meet
this threshold.
      Mr. Carper is an accomplished engineer with significant expertise in
vehicular accident reconstruction and fire and explosion analysis; however, he
has no significant experience or training that relates to carbon monoxide
monitoring or defective gas appliances. Out of thirty-seven separate listings
related to his qualifications on his five-page curriculum vitae, only one
tangentially relates to the allegedly defective gas range in this case: a
presentation on “gas systems and the investigation of gas appliance fires.” No
gas appliance fire is at issue in this case; rather, the core claim here is that the
gas range was defective because it emitted carbon monoxide in excess of an
amount that is safe.     We require that a “‘witness’s qualifying training or
experience, and resultant specialized knowledge, are sufficiently related to the
issues and evidence before the trier of fact [such] that the witness’s proposed
testimony will help the trier of fact.” 23 Mr. Carper’s qualifications, while
impressive, are not sufficiently relevant to the instant issues and evidence to




      22 See FED. R. EVID. 702.
      23 See Wen Chyu Liu, 716 F.3d at 167 (emphasis supplied) (citation and internal
quotation marks omitted).
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                                       No. 14-20603
make his proposed testimony probative. 24 For these reasons we affirm the
district court’s striking of Mr. Carper’s opinion.
B.     Summary judgment
       Plaintiffs’ contention that the district court erred in granting summary
judgment relies on the evidence that we have just ruled was properly excluded
by the district court. Accordingly, we affirm the district court’s judgment in
Whirlpool’s favor, dismissing Plaintiffs’ action with prejudice. 25
                                     III. Conclusion
       The judgment of the district court, and all rulings related to it, are
AFFIRMED.




       24  Moreover, even were Mr. Carper qualified, the record indicates that his field testing
of the gas range did not comply with the ANSI Z21.1 protocol, rendering his opinion that the
gas range did not comply with ANSI Z21.1 the product of unreliable methodology.
        25 See, e.g., Wells v. SmithKline Beecham Corp., 601 F.3d 375, 381 (5th Cir. 2010).

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