     Case: 10-10169 Document: 00511316382 Page: 1 Date Filed: 12/08/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                     No. 10-10169                            FILED
                                   Summary Calendar                      December 8, 2010

                                                                           Lyle W. Cayce
                                                                                Clerk
STEPHEN M. AVDEEF, Individually and
as next friends of A.A., a minor;
MELISSA A. AVDEEF, Individually and
as next friends of A.A., a minor;
SHIRLEY A. AVDEEF

                                                   Plaintiffs-Appellants
v.

ROCKLINE INDUSTRIES, INC.;
SAM’S EAST INC., doing business as
Sam’s Club; WAL-MART STORES TEXAS LLC

                                                   Defendants-Appellees




                    Appeal from the United States District Court
                         for the Northern District of Texas
                               USDC No. 3:08-cv-2157


Before JONES, Chief Judge, and SMITH and CLEMENT, Circuit Judges.
PER CURIAM:*




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
     Case: 10-10169 Document: 00511316382 Page: 2 Date Filed: 12/08/2010



                                      No. 10-10169

       Stephen M. Avdeef, Melissa A. Avdeef, and Shirley A. Avdeef
(“Appellants”), proceeding pro se, appeal the district court’s grant of summary
judgment in favor of defendants Rockline Industries, Inc., Sam’s East, Inc. d/b/a
Sam’s Club, and Wal-Mart Stores Texas, LLC (“Appellees”). At the district
court, Appellants alleged a series of claims for injuries suffered after being
exposed to baby wipes allegedly contaminated with B. cepacia bacteria.1
Appellees–who designed, manufactured, packaged, marketed, distributed, and
sold the wipes–moved for summary judgment on Appellants’ claims. The district
court granted Appellees’ motion for summary judgment and dismissed
Appellants’ claims with prejudice. This appeal followed.
       Appellants claim to raise three issues on appeal, all of which are without
merit. The first two issues essentially amount to a claim of judicial bias, the
appropriate remedy for which would be recusal. Appellants did not, however,
seek recusal at the district court, and thus we decline to entertain this argument
on appeal. Appellants have not shown good cause for not filing an affidavit
requesting the trial judge to recuse himself pursuant to 28 U.S.C. § 144, nor
exceptional circumstances why we should consider this issue for the first time
now. See Clay v. Allen, 242 F.3d 679, 681 (5th Cir. 2001). Thus, this issue is
waived.
       The third issue relates to the district court’s grant of summary judgment
against Appellants’ claims. This court reviews grants of summary judgment de
novo, applying the same standards as the district court. Chieftain Int’l (U.S.),
Inc. v. Se. Offshore, Inc., 553 F.3d 817, 819 (5th Cir. 2008). The applicable



       1
         The claims alleged were: product liability, negligence and gross negligence, common
law fraud, breach of contract, violation of the Texas Deceptive Trade Practices Act (“DTPA”),
breach of express warranty, breach of implied warranty of merchantability, and breach of the
implied warranty of fitness. Appellees were originally suing on behalf of their daughter, but
the district court properly dismissed their “next friend” status when they became pro se
plaintiffs. This dismissal is not appealed.

                                             2
    Case: 10-10169 Document: 00511316382 Page: 3 Date Filed: 12/08/2010



                                  No. 10-10169

standard indicates that summary judgment is appropriate against a party who
“fails to make a showing sufficient to establish the existence of an element
essential to that party's case, and on which that party will bear the burden of
proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552
(1986). Here, an essential element of all Appellants’ claims required proof that
the wipes in question were contaminated.
      In moving for summary judgment, Appellees offered evidence that the
wipes were not contaminated.       They submitted lab results from Accutrace
Testing–which disclosed no evidence of bacteria on the wipes that Appellants
had turned over for testing–and two letters regarding the recall and an affidavit
suggesting that the baby wipes complained of by Appellants were not included
within the recall by the manufacturer. Once Appellees offered this evidence, the
burden shifted to Appellants to provide competent summary judgment evidence
establishing the existence of a genuine fact issue. See Matsushita Elec. Indus.
Co. v. Zenith Radio, 475 U.S. 574, 586-87, 106 S. Ct. 1348, 1356 (1986). Despite
this burden, Appellants offered no affirmative evidence admissible in court and
tending to show the wipes were contaminated. Appellants instead rely upon
bald assertions that the district court should not have trusted the credibility of
the author of the affidavit, Alan Perlman, and that the Accutrace Testing results
were unreliable. However, conclusory allegations that a witness lacks credibility
cannot defeat a motion for summary judgment. Thomas v. Great Atl. & Pac. Tea
Co., Inc., 233 F.3d 326, 331 (5th Cir. 2000). And, since Appellants fail to provide
any evidence showing that the Accutrace Testing results were incorrect or that
the wipes were contaminated, they fail to raise any issue of material fact.
      We thus AFFIRM the district court’s grant of summary judgment.
                                                                    AFFIRMED.




                                        3
