                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 17 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



LARRY I. NEWKIRK; RUTH A.                        No. 10-35643
NEWKIRK,
                                                 D.C. No. 2:08-cv-00273-RMP
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM *

CONAGRA FOODS INC., a Delaware
corporation; CHR HANSEN INC.,

              Defendants - Appellees.




                  Appeal from the United States District Court
                     for the Eastern District of Washington
             Rosanna Malouf Peterson, Chief District Judge, Presiding

                        Argued and Submitted June 6, 2011

                                 Seattle, Washington

Before:   W. FLETCHER and RAWLINSON, Circuit Judges, and
      GONZALEZ, Chief District Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Irma E. Gonzalez, Chief District Judge for the U.S.
District Court for the Southern District of California, sitting by designation.
      Larry Newkirk appeals the district court’s order excluding his proffered

expert testimony and granting summary judgment to defendants ConAgra and Chr.

Hansen. We affirm.

      Under Daubert v. Merrell Dow Pharmamaceuticals, Inc., 509 U.S. 579, 597

(1993), the district judge has a “gatekeeping role” and must exclude expert

scientific testimony that is not sufficiently reliable under Fed. R. Evid. 702. Expert

scientific testimony is inadmissible if there is “too great an analytical gap between

the data and the opinion offered.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146

(1997). We review the district court’s decision on the admissibility of an expert’s

opinion for abuse of discretion. Id. at 142-43.

      The district court found that Dr. Egilman’s opinion rested on the

foundational assumption that the vapors emitted when microwave popcorn is

popped are similar to the vapors emitted from large vats of butter-flavored topping

slurry at popcorn factories. Studies at popcorn plants did not conclusively show

whether workers with no exposure to slurry vapors developed bronchiolitis

obliterans. Additionally, one study suggested that chemicals released when

microwave popcorn is popped inhibit the absorption of diacetyl, the likely causal

agent for bronchiolitis obliterans. Dr. Egilman did not sufficiently justify his

foundational assumption or refute the contrary record evidence. Moreover, as the


                                           2
district court observed, there were problems with Dr. Egilman’s and William

Ewing’s estimates of Newkirk’s exposure levels. In light of these concerns, we

hold that the district court did not abuse its discretion in concluding that the

“analytical gap between the existing data and the opinion Dr. Egilman proffers”

was too large. See Joiner, 522 U.S. at 146.

      Because Dr. Egilman could not establish that diacetyl in microwave popcorn

vapors was generally capable of causing bronchiolitis obliterans, he could not rely

on a differential diagnosis to establish that exposure to microwave popcorn had

caused Newkirk’s medical problems. See Clausen v. M/V New Carissa, 339 F.3d

1049, 1057-58 (9th Cir. 2003). We therefore affirm the exclusion of all of Dr.

Egilman's testimony.

      Drs. Pue and Parmet did not offer any opinion on whether diacetyl in

microwave popcorn vapors is generally capable of causing bronchiolitis obliterans.

Moreover, Dr. Pue’s and Dr. Parmet’s specific causation opinions failed to

consider several known causes of bronchiolitis obliterans. Those opinions were

therefore not admissible to show general or specific causation.

      Without the proffered expert testimony, Newkirk cannot show that ConAgra

and Chr. Hansen caused his disease. Because we affirm the exclusion of that




                                            3
testimony, we also affirm the district court’s grant of summary judgment to

defendants.

      AFFIRMED.




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