                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 07a0646n.06
                                Filed: September 4, 2007

                                            No. 06-1416

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


THOMAS A. KOLESAR,                                       )
                                                         )
       Plaintiff-Appellant,                              )
                                                         )
v.                                                       )    ON APPEAL FROM THE UNITED
                                                         )    STATES DISTRICT COURT FOR
                                                         )    THE WESTERN DISTRICT OF
UNITED AGRI PRODUCTS, INC. and UAP                       )    MICHIGAN
DISTRIBUTION, INC., f/k/a GROWER SERVICE                 )
CORP. (NEW YORK),                                        )
                                                         )
       Defendants-Appellees.


Before: SILER, MOORE, and GILMAN, Circuit Judges.

       SILER, Circuit Judge. Plaintiff Thomas A. Kolesar filed suit against United Agri Products,

Inc. and UAP Distribution, Inc. (collectively, “Defendants” or “UAP”) alleging that as a result of

Defendants’ negligence, Kolesar was exposed to a toxic chemical and thereafter contracted Reactive

Airways Dysfunction Syndrome (“RADS”). The district court granted Defendants’ motions in

limine to exclude Kolesar’s proffered expert testimony and also granted Defendants’ summary

judgment motion, reasoning that Kolesar could not support his claims that chemical exposure caused

him permanent injury without qualified expert testimony. Kolesar appeals the district court’s

decision, asserting: (1) the district court abused its discretion by excluding the testimony of his

treating physician, Dr. Taiwan Chen, because her opinions were based on a valid differential

diagnosis; (2) even without the expert testimony, a jury question exists as to causation, and therefore
No. 06-1416
Kolesar v. United Agri Prods

summary judgment is improper; and (3) the district court erroneously cited alternative grounds for

summary judgment – Kolesar’s contributory negligence and Wisconsin public policy – that usurped

the jury’s function in deciding disputed issues of fault allocation. For the reasons set forth below,

we AFFIRM.

                                         BACKGROUND

       Thomas A. Kolesar was employed as a hazardous materials tanker driver for Aero Bulk

Carrier, Inc., a trucking company based in Grand Rapids, Michigan. On September 22, 2001,

Kolesar delivered a shipment of Nemasol ® 42, or metam sodium, to Defendants’ facility in

Plainfield, Wisconsin. Metam sodium is a pesticide classified by the government as an Acute

Toxicity Category III substance, where Category I is the most toxic ranking. Aero Bulk provided

Kolesar with a Material Safety Data Sheet (“MSDS”) describing the makeup of the chemical and

health hazards associated with exposure to the chemical. The MSDS detailed the type of personal

protective equipment (“PPE”) that should be worn when transferring the product.

       When Kolesar reached his destination, he was met by Brian Cullen, UAP Production

Manager, who directed him to pull his truck onto the unloading pad. Cullen was wearing his PPE

– rubber boots, rubber gloves, rubber apron, and safety goggles – while Kolesar remained in street

clothes, although he initially did use chemical gloves. Kolesar admits that he knew metam sodium

was a corrosive liquid and that the MSDS recommended PPE, but claims that he deferred to Cullen

who allegedly told him, “Don’t worry about [the PPE], it’s no big deal.” Cullen, on the other hand,

maintains that he told Kolesar to wear the PPE and that Kolesar responded, “Oh, I don’t need it.”

The two men proceeded to connect hoses linking Kolesar’s truck to the receiving tank and then to

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the storage silo. Kolesar activated the pump on the tanker truck, and Cullen opened the valve to the

storage silo to begin the unloading process.

       After completing the unloading tasks, Kolesar assumed that Cullen had “[done] his job” and

had closed off the valve to the receiving tank to prevent the chemical from flushing back through the

hose. Cullen had not, however, shut the valve. Therefore, when Kolesar disconnected the hose, the

pressure from the product that was backflowing through the pump caused the hose to “come out in

a circle, like a garden hose when it’s running” and spray Kolesar’s legs, hair, and arms with metam

sodium.

       Soon thereafter, Kolesar began to feel ill, stating that “every breath burned . . . . My nose

started watering. My eyes started watering. I started getting really dizzy and nauseated . . . .” He

began vomiting and called 911. An ambulance transported him to the local hospital where he was

immediately given a decontamination shower.           Hospital records indicate that Kolesar was

experiencing bilateral expiratory wheezes, the skin on his face was irritated, and he was treated with

an Albuterol nebulizer for his bronchospasm. He was observed overnight and was “well and

asymptomatic” when he was discharged the next day.

       Once back in his hometown of Pittsburgh, Pennsylvania, Kolesar met with pulmonologist

Dr. Chen. Dr. Chen’s first examination of Kolesar was on October 8, 2001, slightly more than two

weeks after the chemical spill. During that visit, Kolesar explained to Dr. Chen that he had been

suffering shortness of breath and wheezing since the exposure, and that he had no prior history of

respiratory difficulty, other than smoker’s cough. In fact, Kolesar had a long history of serious

asthma that had required him to be hospitalized only six months before the chemical spill. Kolesar

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also neglected to tell Dr. Chen that he was HIV positive. Based on Kolesar’s clinical presentation,

clinical examination, pulmonary function tests, x-rays, and what Dr. Chen knew of his medical

history, she concluded that Kolesar’s symptoms were caused by the metam sodium spill and

diagnosed him with RADS.

       Kolesar planned to present the expert testimony of Dr. Chen to support his claim at trial that

chemical exposure to metam sodium caused him permanent injury. At the end of discovery,

however, UAP filed a Daubert motion to exclude Dr. Chen’s anticipated testimony. The district

court granted UAP’s motion and excluded Dr. Chen’s conclusions as to causation, holding that her

opinions would have been unreliable and not helpful to the jury under Rule 702 of the Federal Rules

of Evidence. Kolesar v. United Agri Prods, Inc., 412 F. Supp. 2d 686, 698 (W.D. Mich. 2006).

       UAP was granted summary judgment. The district court reasoned that under Wisconsin law,

because Kolesar did not present qualified expert testimony to prove causation, he could not carry his

burden of proof for that element. Kolesar now contends that even if the testimony of Dr. Chen is

excluded, summary judgment was not appropriate.

       After the district court had completed its discussion of causation, thereby ending the suit, it

proceeded to discuss an alternative basis for granting summary judgment. Id. It noted that under

Wisconsin Statute Ann. § 895.045, which states that a plaintiff may not recover from defendants

when he is more negligent than those defendants, Kolesar was more liable than UAP as a matter of

law and, therefore, could not prevail against them. Id. at 698-99. In his appeal, Kolesar argues that

by barring his recovery as a matter of law based on contributory negligence and Wisconsin public

policy, the district court usurped the jury’s function in deciding fault allocation.

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                                     STANDARD OF REVIEW

        We review the district court’s decision to admit or exclude expert witness testimony for

abuse of discretion. General Electric Co. v. Joiner, 522 U.S. 136, 143 (1997). This is a “highly

deferential” standard of review, Hardyman v. Norfolk & W. Ry. Co., 243 F.3d 255, 267 (6th Cir.

2001), and “the appellate court will not reverse in such a case, unless the ruling is manifestly

erroneous,” Joiner, 522 U.S. at 142 (quoting Spring Co. v. Edgar, 99 U.S. 645, 658 (1879)).

However, “[a] district court abuses its discretion if it bases its ruling on an erroneous view of the law

or a clearly erroneous assessment of the evidence.” Brown v. Raymond Corp., 432 F.3d 640, 647

(6th Cir. 2005) (internal quotation marks omitted).

        We review summary judgment de novo, construing the record in the light most favorable to

the nonmovant and resolving all reasonable inferences in the nonmovant’s favor. Turner v. City of

Taylor, 412 F.3d 629, 637 (6th Cir. 2005).

                                            DISCUSSION

A. Expert Testimony

        Kolesar maintains that under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and

Rule 702 of the Federal Rules of Evidence, the testimony of Dr. Chen is admissible because “her

opinions are both relevant and have a reliable foundation in the knowledge and experience of Dr.

Chen’s medical discipline.” The district court disagreed, citing “defects in Dr. Chen’s methodology

used to reach [her] conclusions, the absence of supporting medical data and scientific literature, the

absence of a valid basis for a differential diagnosis and the contrary scientific information and

literature in the field.” Kolesar, 412 F. Supp. 2d at 698.

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       The admissibility of expert testimony is governed by Federal Rule of Evidence 702. In

Daubert, the Supreme Court described the “gatekeeping role” of trial judges and held that when

considering a proffer of expert scientific testimony, Rule 702 requires that the judge “ensure that any

and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert, 509

U.S. at 589. The Daubert Court identified several factors to aid the reliability assessment including:

(1) whether the theory or technique can be or has been tested; (2) whether the theory has been

subject to peer review and publication; (3) the known or potential rate of error; and (4) whether the

theory or technique is generally accepted by the scientific community. Id. at 593-94.

      The district court correctly identified these factors and analyzed the reliability of Dr. Chen’s

testimony pursuant to each factor. Kolesar, 412 F. Supp. 2d at 696-98. Kolesar’s only explicit

challenge to the district court’s exclusion of Dr. Chen’s testimony is his contention that Dr. Chen

conducted a valid differential diagnosis.

       A differential diagnosis is “[o]ne appropriate method for making a determination of

causation for an individual instance of disease.” Hardyman, 243 F.3d at 260. In Hardyman, the 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 a thorough case history.

Id. (quoting Federal Judicial Center, Reference Manual on Scientific Evidence 214 (1994)).

       Kolesar claims that Dr. Chen “made her differential diagnosis based on the acute onset of

Kolesar’s respiratory distress immediately following his exposure to metam sodium and the known


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symptoms associated with metam sodium exposure,” but never explains how this satisfies the

definition of “differential diagnosis.” Dr. Chen’s diagnosis cannot be a differential diagnosis

because she failed to consider or rule out alternative causes for Kolesar’s illness, including his

preexisting asthma and long history of cigarette smoking that he had failed to disclose to her.

       Dr. Chen conceded that asthma can cause the same type of pulmonary obstruction that she

observed in Kolesar and that the symptoms of RADS are similar to those of asthma. After learning

of Kolesar’s asthma, during her deposition on June 12, 2002, Dr. Chen concluded that the chemical

exposure must have exacerbated his preexisting disease. She continued to assert that Kolesar

suffered from RADS. Dr. Chen’s conclusion was not the result of a careful study of Kolesar’s prior

medical records, however. Instead, she changed her diagnostic criteria for RADS so that her initial

diagnosis could remain intact.1 As the district court noted, her diagnosis lacks supporting medical

data and scientific literature. In light of the methodological deficiencies in Dr. Chen’s hypothesis,

the district court did not abuse its discretion in excluding her expert testimony.

B. Causation Without Expert Testimony

       Kolesar’s next argument is that even if the district court correctly excluded expert testimony

as to what caused Kolesar’s injuries, summary judgment was not proper. Under Wisconsin law,

“[e]xpert testimony is required to prove causation if the matter does not fall within the realm of

ordinary experience and lay comprehension.” Menick v. City of Menasha, 547 N.W.2d 778, 782


       1
         Dr. Chen even provided two definitions of RADS, one that excludes persons suffering from
prior serious pulmonary conditions (the medically accepted definition) and one that can include
patients with pulmonary conditions (the definition she gave after learning that Kolesar has asthma).
Kolesar, 412 F. Supp. 2d at 697.

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(Wis. Ct. App. 1996); see also Weiss v. United Fire & Cas. Co., 541 N.W.2d 753, 758 (Wis. 1995)

(stating that “[t]he lack of expert testimony in cases which are so complex or technical that a jury

would be speculating without the assistance of expert testimony constitutes an insufficiency of

proof”). Kolesar classifies his case as involving “a simple negligence claim” and emphasizes that

a lay jury would be able to understand causation “based on [his] undisputed exposure to metam

sodium, the known effects of such exposure, and his treatment and symptoms after he was exposed

to metam sodium.” Conversely, UAP asserts that this case involves an extraordinary and non-lay

matter of causation because the metam sodium to which Kolesar was exposed was in liquid, not

gaseous, form. Understanding the effect of the exposure would therefore require intricate knowledge

of, among other things, the rate at which liquid metam sodium vaporizes into its more dangerous

gaseous form.

       Kolesar objects to UAP’s argument, contending that elsewhere in its brief UAP admitted that

the spilled metam sodium was dangerous without the need for expert testimony to establish as much.

In its contributory negligence discussion, UAP essentially argues that because metam sodium is a

known hazardous chemical, Kolesar should have known better than to act as he did. However,

whether metam sodium is dangerous is not the issue requiring expert testimony in this case. Expert

testimony is necessary to explain how Kolesar’s exposure to an admittedly corrosive, although

nonvolatile, liquid metam sodium resulted in a significant exposure to an inhalable gas or vapor such

that a juror could conclude Kolesar’s post-incident pulmonary symptoms were caused by the spill,

rather than by his preexisting asthma. Without proof of causation, Kolesar cannot succeed on his



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negligence claim. See Menick, 547 N.W.2d at 783. Therefore, the district court correctly granted

summary judgment.

C. Contributory Negligence and Wisconsin Public Policy

       Kolesar’s final argument is that the district court usurped the jury’s role in fault allocation

when it stated that Kolesar is more liable than Defendants as a matter of law and that Wisconsin

public policy supports barring Kolesar’s recovery. We need not reach this argument because

regardless of whether the district court erred on this point, summary judgment was still proper.

       AFFIRMED.




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