     Case: 19-30126      Document: 00515187796         Page: 1    Date Filed: 11/05/2019




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

                                      No. 19-30126                         FILED
                                                                    November 5, 2019
                                                                      Lyle W. Cayce
ROBERT SCHINDLER,                                                          Clerk

              Plaintiff - Appellant

v.

DRAVO BASIC MATERIALS COMPANY, INCORPORATED,

              Defendant - Appellee




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                            USDC No. 2:17-CV-13013


Before STEWART, CLEMENT, and HO, Circuit Judges.
PER CURIAM:*
       In this asbestos-exposure case, the district court excluded the testimony
of plaintiff’s two expert witnesses on specific causation. With no admissible
evidence on this element of plaintiff’s claim, the court then granted defendant’s
motion for summary judgment. Because we conclude that the district court did
not err in either respect, we AFFIRM its judgment.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-30126
                                        I
      Plaintiff Robert Schindler worked on various vessels during his long
career as a merchant marine. In 2016, he was diagnosed with mesothelioma.
He sued 42 defendants in California state court, alleging that they caused his
mesothelioma by exposing him to asbestos. One defendant, Dravo Basic
Materials Co., challenged the California court’s personal jurisdiction, and
Schindler voluntarily dismissed Dravo from that case. The remaining
California defendants later settled with Schindler.
      Schindler then filed this Jones Act personal-injury suit against Dravo in
the Eastern District of Louisiana. Schindler alleges that he was exposed to
asbestos during the approximately six weeks in 1973 when he worked for
Dravo in the engine room of the “Avocet,” a dredge that collected clam shells
from the bottom of Lake Pontchartrain. Dravo, however, denies that there was
asbestos on the Avocet—a difficult fact to verify now that the dredge sits at the
bottom of the ocean. Dravo had no use for the Avocet once clam-shell dredging
on Lake Pontchartrain was prohibited, so Dravo scuttled the dredge in 1991 to
create an artificial reef off the Florida coast. Nearly 30 years later, Dravo no
longer has any records relating to the Avocet.
      During discovery, Schindler submitted reports from medical experts Dr.
Robert Harrison and Dr. David Tarin. He anticipated that they would testify
that exposure to asbestos can cause mesothelioma—“general causation”—and
that exposure to asbestos on the Avocet was one cause of Schindler’s disease—
“specific causation.” After Harrison and Tarin’s depositions, Dravo filed
Daubert motions to exclude their testimony. Dravo also moved for summary
judgment, arguing that Schindler could not prove causation with the expert
testimony excluded.
      The district court granted Dravo’s Daubert motions in part and excluded
Harrison and Tarin’s specific-causation testimony. The court held that their
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testimony was not reliable because, among other reasons, their opinions were
not “based on sufficient facts or data” regarding whether and to what degree
Schindler was exposed to asbestos on the Avocet. See Fed R. Evid. 702(b). With
no admissible expert testimony in the record to prove specific causation, the
court granted Dravo’s motion for summary judgment. Schindler then filed a
timely notice of appeal.
                                           II
      The Jones Act gives “[a] seaman injured in the course of employment” a
cause of action for his employer’s negligence. 46 U.S.C. § 30104; see also
Chandris, Inc. v. Latsis, 515 U.S. 347, 354 (1995). Proving negligence in a toxic-
tort case requires evidence of two types of causation: “General causation is
whether a substance is capable of causing a particular injury or condition in
the general population, while specific causation is whether a substance caused
a particular individual’s injury.” Knight v. Kirby Inland Marine Inc., 482 F.3d
347, 351 (5th Cir. 2007) (quoting Merrell Dow Pharm., Inc. v. Havner, 953
S.W.2d 706, 714 (Tex. 1997)). The Jones Act reduces the degree of proof
required to show these two types of causation to a “very light” or
“featherweight” standard. In re Cooper/T. Smith, 929 F.2d 1073, 1076 (5th Cir.
1991).
      Because the district court’s summary judgment ruling stemmed from its
evidentiary rulings, we must first address whether the district court erred in
excluding Harrison and Tarin’s specific-causation testimony. We review the
exclusion of expert testimony for abuse of discretion. Muñoz v. Orr, 200 F.3d
291, 300 (5th Cir. 2000). 1 We then review de novo whether the specific-


      1  Schindler argues that neither the Supreme Court nor this court have addressed
whether the exclusion of expert testimony should be reviewed de novo when the exclusion
results in entry of summary judgment against the plaintiff. This is clearly wrong. The
Supreme Court rejected this very argument in General Electric Co. v. Joiner, 522 U.S. 136,
142–43 (1997).
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causation evidence properly before the district court was sufficient to defeat
Dravo’s motion for summary judgment. See id.
                                           III
      A qualified expert witness may testify 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. The district court plays
an important gatekeeping role by verifying that expert testimony meets this
threshold standard of reliability before the jury hears it. See, e.g., Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993).
      Schindler argues that the lower threshold for proving causation in a
Jones Act case also lowers the “reliability” bar for admitting expert testimony
to prove causation. If he is correct, then the district court abused its discretion
in applying the ordinary Rule 702 standard. See Bocanegra v. Vicmar Servs.,
Inc., 320 F.3d 581, 584 (5th Cir. 2003) (“A trial court abuses its discretion when
its ruling is based on an erroneous view of the law . . . .”). But Schindler is
wrong. As this court has explained, “[t]he standards of reliability and
credibility to determine the admissibility of expert testimony under Daubert
and Rule 702 apply regardless [of] whether a seaman’s burden on proximate
causation is reduced.” Seaman v. Seacor Marine L.L.C., 326 F. App’x 721, 728
n.41 (5th Cir. 2009) (unpublished). 2 The question, then, is whether the district




      2 While Seaman is not binding, the clear weight of authority on this point convinces
us that Seaman was correct. See Claar v. Burlington N.R.R. Co., 29 F.3d 499, 503 (9th Cir.
1994) (“The standard of causation under FELA and the standards for admission of expert
testimony under the Federal Rules of Evidence are distinct issues and do not affect one
another.”); Taylor v. Consol. Rail Corp., 114 F.3d 1189, 1997 WL 321142 at *6–7 (6th Cir.
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court’s application of the correct Rule 702 standard involved “a clearly
erroneous assessment of the evidence.” Bocanegra, 320 F.3d at 584.
                                             A
       We first address Harrison’s specific-causation testimony. At his
deposition, Harrison offered his opinion that “Mr. Schindler’s six-week
exposure aboard the Avocet is a contributing factor . . . to his cumulative
asbestos fiber exposure, and therefore contributed to his risk of developing
mesothelioma.” The district court did not abuse its discretion in concluding
that this opinion was not supported by sufficient facts or data.
       Harrison’s only evidence that Schindler was even exposed to asbestos on
the Avocet came from one of Schindler’s interrogatory responses from a
different case in California and a discussion with Schindler whose contents are
not in the record. And when Schindler’s interrogatory response stated that
insulation around pipes in the Avocet’s engine room contained asbestos,
Harrison admitted that he simply assumed Schindler was correct. Harrison
never reviewed any of Schindler’s deposition testimony from this case—where
Schindler conceded that he had no specific recollection of even seeing
insulation on the Avocet. In short, Harrison’s opinion—proffered as proof that
asbestos on the Avocet contributed to Schindler’s cancer—rested on the
assumption that Schindler was even exposed to asbestos on the Avocet.
       Harrison’s testimony is much like the excluded testimony in Seaman.
See 326 F. App’x at 725–28. The district court there did not permit a doctor to
testify that Seaman’s cancer was likely caused by chemical exposure on the
defendant’s vessels because the doctor’s “assumption of regular exposure
without any ‘facts upon which [the doctor] could have possibly surmised


1997) (unpublished table decision) (following Claar); Willis v. Amerada Hess Corp., 379 F.3d
32, 74 (2d Cir. 2004) (following Claar and Taylor); see also Knight, 482 F.3d at 352–55
(applying ordinary Daubert standard to causation testimony in a Jones Act case).
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                                 No. 19-30126
exposure levels, rendered her causation opinion mere guesswork.’” Id. at 726.
As in Seaman, we hold that the district court here acted within its discretion
in concluding that such a significant assumption rendered the expert’s
testimony unreliable.
                                       B
      Our analysis of Tarin’s testimony is much the same. Like Harrison,
Tarin never reviewed the depositions from this case and did not know that
Schindler admitted to not having any specific recollection of seeing insulation
on the Avocet. Tarin’s expert report said nothing about Schindler’s time on the
dredge at all.
      Tarin’s deposition makes it even clearer that his specific-causation
opinion rested on an assumption—rather than evidence—that Schindler was
exposed to asbestos on the Avocet. Schindler’s counsel asked: “If Mr. Schindler
alleges that he was exposed to asbestos in 1973 on a dredge called the Avocet
while working in Lake Pontchartrain, would that exposure to asbestos have
caused or contributed to his mesothelioma?” Tarin responded: “The probability
is high that that exposure would have contributed, yes.” (Emphasis added.)
Excluding Tarin’s specific-causation testimony based on an assumption of this
central fact was not an abuse of discretion. See Seaman, F. App’x at 726.
                                      IV
      We next review the district court’s entry of summary judgment.
Summary judgment is appropriate “if 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). “Although in Jones Act cases a ‘jury
is entitled to make permissible inferences from unexplained events,’ summary
judgment is nevertheless warranted when there is a complete absence of proof
of an essential element of the nonmoving party’s case.” In re Cooper/T. Smith,


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                                     No. 19-30126
929 F.2d at 1077 (quoting Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d
547, 549 (5th Cir. 1987)). 3
       With Harrison and Tarin’s testimony properly excluded, the record
contains no admissible expert testimony to prove that asbestos on the Avocet
was a contributing cause to Schindler’s cancer. And this court has held that
toxic-tort cases—even under the Jones Act—require expert testimony to prove
causation. See Seaman, 326 F. App’x at 723–24. Schindler apparently agreed
with this when he argued to the district court that his case should survive
summary judgment if either Harrison or Tarin’s specific-causation testimony
was admitted. But he now reverses course, arguing to us that the Jones Act
permits him to prove specific causation even without expert testimony. We will
not consider an argument on appeal that contradicts Schindler’s position in the
district court.
      Schindler also argues that summary judgment was inappropriate
because Dravo should be equitably estopped from denying that asbestos
exposure on the Avocet was one cause of Schindler’s cancer. Schindler points
to a federal regulation issued in 1972 that required employers to monitor their
employees’ exposure to asbestos in “every place of employment where asbestos
fibers are released.” 29 C.F.R. § 1910.93a(f)(1) (1973). Because Dravo has no
records of this monitoring, Schindler argues that Dravo must have failed to do
it, and thus should not benefit from the lack of evidence created by its own
failure.
      This argument fails for at least two reasons. First, if Dravo did any
asbestos-exposure monitoring in 1973, it only had to keep the associated
records until 1976. See id. § 1910.93a(h)(2)(i) (“Records shall be maintained for


       3 Schindler argues that summary judgment was inappropriate because a jury trial is
“part of the remedy” in a Jones Act case. If he means that Rule 56 is inapplicable to Jones
Act cases, he is clearly wrong.
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a period of at least 3 years . . . .”). The current absence of records, then, tells us
nothing about whether Dravo failed to conduct any monitoring this regulation
may have required. Second, the regulation wouldn’t require Dravo to monitor
asbestos-exposure levels on the Avocet unless the Avocet was a place “where
asbestos fibers [were] released.” Id. § 1910.93a(f)(1). And that’s the very fact
Dravo contests. 4
      Accordingly, we AFFIRM the district court’s judgment. Schindler’s
motion to expedite the appeal is DENIED as moot.




      4   Schindler’s brief discusses an additional regulation that he never raised in the
district court. We will not address it for the first time on appeal.

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