                                                              NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                                   No. 09-4332
                                   ___________

                  THOMAS BUZZERD; KRISTI COURTNEY,
                                              Appellants

                                         v.

              FLAGSHIP CARWASH OF PORT ST. LUCIE, INC.;
            U-HAUL CO. OF FLORIDA; U-HAUL CO. OF ARIZONA;
                U-HAUL INTERNATIONAL, INC.; AMERICO

                                   ___________

                 On Appeal from the United States District Court
                     for the Middle District of Pennsylvania
                            (D.C. Civ. No. 06-cv-00981)
                  District Judge: Honorable Thomas I. Vanaskie
                                   ___________

                   Submitted Under Third Circuit L.A.R. 34.1(a)
                               on October 4, 2010

            Before: SCIRICA, FUENTES, and JORDAN, Circuit Judges.

                          (Opinion Filed: October 18, 2010)


                            OPINION OF THE COURT


FUENTES, Circuit Judge:




                                         -1-
       This action arises out of Appellants’ contention that they experienced cognitive

and behavioral problems as a result of carbon monoxide exposure that occurred when

they drove a U-Haul truck from Florida to Pennsylvania. The District Court granted the

defendants’ motion for summary judgment, concluding that the testimony of Appellants’

four expert witnesses was inadmissible and that Appellants had thus failed to raise a

genuine factual issue as to whether their injuries were caused by carbon monoxide

exposure in the U-Haul truck. We conclude that the District Court did not abuse its

discretion in so ruling and will affirm.1

                                             I.

       Because we write for the parties, we discuss the facts only to the extent necessary

for resolution of the issues raised on appeal. In November 2004, Thomas Buzzerd and

Kristi Courtney rented a U-Haul truck from Flagship Carwash of Port St. Lucie in order

to move from Florida to Pennsylvania. During the thirty-hour drive, Buzzerd and

Courtney experienced headaches, nausea, disorientation, and confusion, and Buzzerd had

hallucinations that there were deer on the road. Upon their arrival, the two went to sleep,

thinking that they were merely fatigued, but they awoke feeling ill. Buzzerd went to

work the next day, but by that evening both still felt unwell and they went to the

emergency room at Tyler Memorial Hospital. At the hospital, the preliminary diagnosis

was carbon monoxide exposure. Although carboxyhemoglobin tests were ordered to test



       The District Court had jurisdiction over this case pursuant to 28 U.S.C. § 1332.
       1


We exercise jurisdiction pursuant to 28 U.S.C. § 1291.

                                            -2-
for carbon monoxide exposure, the results of these tests did not appear in the hospital

records; carbon monoxide exhale breath tests were within normal limits. Buzzerd and

Courtney were administered oxygen, given Tylenol, and were discharged. Both allegedly

experienced cognitive and behavioral changes thereafter.

       One year later, Buzzerd and Courtney visited Dr. William Jeffreys, a neurologist.

Dr. Jeffreys found that various objective measures to test for carbon monoxide

exposure—including MRIs, CT scans, and EEG tests—were normal for both Buzzerd and

Courtney. Dr. Jeffreys referred Appellants to Dr. Driscoll, a neuropsychologist. Dr.

Driscoll diagnosed Buzzerd with a cognitive disorder and adjustment reaction involving

depressed mood, and he diagnosed Courtney with a cognitive impairment; Dr. Driscoll

attributed these conditions to carbon monoxide exposure based upon Appellants’

description of the drive and their symptoms. Subsequently, Dr. Jeffreys diagnosed

Buzzerd with encephalopathy and he diagnosed Courtney with personality and behavioral

problems; as with Dr. Driscoll, Dr. Jeffreys attributed these conditions to carbon

monoxide exposure as a result of the temporal link between the drive and the onset of the

symptoms as reported by Buzzerd and Courtney.

       Buzzerd and Courtney filed suit in Pennsylvania state court, and Defendants timely

removed the case to federal court on grounds of diversity. Defendants moved for

summary judgment, arguing that Buzzerd and Courtney failed to show that their injuries

were caused by carbon monoxide exposure in the truck because the testimony of their

expert witnesses was inadmissible under Rule 702, Fed. R. Evid., and Daubert v. Merrell

                                            -3-
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The District Court, after conducting a

Daubert hearing, agreed with Defendants and entered summary judgment in their favor.2

                                              II.

       The principal issue raised on appeal is whether the District Court abused its

discretion in excluding the testimony of Appellants’ four expert witnesses. See United

States v. Schiff, 602 F.3d 152, 161 (3d Cir. 2010) (trial court’s decision to exclude expert

witness testimony is reviewed for abuse of discretion). The introduction of expert

opinion testimony is governed by Federal Rule of Evidence 702, under which the

admissibility of expert testimony turns on (1) the qualifications of the expert, (2) the

sufficiency of the data underlying the expert’s testimony, (3) the reliability of the expert’s

methodology and (4) the expert’s application of that methodology to the facts of the case.

See Fed. R. Evid. 702. For the following reasons, as well as the reasons set forth in the

District Court’s cogent memorandum opinion, we conclude that the District Court did not

abuse its discretion in excluding the testimony of Appellants’ expert witnesses.

       Appellants’ most important witness, from the standpoint of proving that they were

exposed to carbon monoxide, was Joseph Cocciardi, an industrial hygienist. Cocciardi

tested the carbon monoxide levels in the U-Haul truck driven by Appellants by running it

       2
         Appellants originally named U-Haul International, Inc. and AMERICO as
defendants, but they voluntarily dismissed their claims against these two defendants.
Additionally, the District Court entered summary judgment in favor of U-Haul of Arizona
on the grounds that Appellants’ claims against it were preempted by the Graves
Amendment, 49 U.S.C. § 30106. Because we affirm the District Court’s determination
that Appellants’ evidence of causation was inadmissible, we do not address the
preemption issue.

                                             -4-
for thirty hours (approximately 2.5 hours of which were on the road, with the truck

running idle for the remainder of the time). Cocciardi’s tests showed (1) that the truck’s

carbon monoxide emissions were far below the average emission levels for this type of

truck, and (2) that the levels in the cab were consistent with safe, naturally occurring

levels of carbon monoxide.3

       Notwithstanding this data, Cocciardi opined that Buzzerd and Courtney had been

exposed to carbon monoxide based upon (1) the fact that automobile exhaust does contain

such a compound, (2) the fact that the exhaust might have entered the cabin, and (3) the

symptoms plaintiffs experienced. But as the District Court correctly reasoned, the first

two of these facts are undisputed (and undisputable), the third is a medical diagnosis not

within the range of Cocciardi’s expertise (as he is not a physician), and, most importantly,

in order to reach his conclusion, Cocciardi had to ignore his own data (which showed safe

levels of carbon monoxide in the cab). Rule 702 expressly requires that expert testimony

be “based upon sufficient facts or data,” and here, as the District Court explained, the data

directly undermined the principal conclusion Cocciardi drew from it. Fed. R. Evid. 702;

see In re TMI Litigation, 193 F.3d 613, 676 (3d Cir. 1999) (an expert’s conclusion that

flies in the face of the data is the “antithesis of good science”). We conclude that the

District Court was well within its discretion to exclude Cocciardi’s testimony.

       3
         In particular, over the course of thirty hours, Cocciardi recorded one isolated
reading of carbon monoxide in the cab in the range of five or six parts per million
(“ppm”). The United States Environmental Protection Agency’s standards indicate that
anything short of nine ppm is safe for an eight-hour period, and, indeed, the level of
carbon monoxide in the exhaled breath of a non-smoker is between zero and six ppm.

                                             -5-
       Appellants likewise sought to introduce the testimony of George Meinschein, an

engineer and former automobile mechanic. Based on his examination of the truck,

Meinschein concluded, in relevant part, that there were pathways through which carbon

monoxide might have reached the passenger cabin of the truck. As the District Court

explained, however, the central issue that the jury would have been called upon to decide

in the case was “not whether there were possible pathways by which emissions could

enter the passenger compartment” but was instead “whether it is probable that vehicle

emissions would enter the passenger compartment under operating conditions.” (App.

16.) Meinschein had no reliable methodology for discerning whether carbon monoxide

likely did enter the cabin—as the District Court noted, he “articulated no expertise in the

field of aerodynamics or air flow”—and so his testimony did not fit the central question at

issue in the case. (Id.); accord In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 751 (3d

Cir. 1994) (“[I]f the plaintiff’s . . . expert cannot form an opinion with sufficient certainty

so as to make a [professional] judgment, there is nothing on the record with which a

[factfinder] can make a decision with sufficient certainty so as to make a legal

judgment.”) (citation omitted). Moreover, the District Court was certainly correct to note

that Meinschein’s unsupported opinion that Cocciardi’s data “understated” the levels of

carbon monoxide in the truck lacked a methodological or factual basis. There was no

abuse of discretion in the District Court’s exclusion of Meinschein’s testimony.

       Finally, the District Court did not abuse its discretion in excluding the testimony of

Appellants’ third and fourth expert witnesses, Drs. Jeffreys and Driscoll. These doctors

                                              -6-
concluded that Appellants suffered encephalopathy caused by carbon monoxide exposure.

But while the doctors could diagnose encephalopathy, it is undisputed that the condition

has any number of potential causes, including viral infections, sleep apnea, and exposure

to other toxins. “[S]cientific knowledge of the harmful level of exposure to a chemical,

plus knowledge that the plaintiff was exposed to such quantities, are minimal facts

necessary to sustain the plaintiffs’ burden in a toxic tort case.” Westberry v. Gislaved

Gummi AB, 178 F.3d 257, 263 (4th Cir. 1999) (emphasis added, citation omitted). The

District Court did not abuse its discretion in concluding that although the doctors had a

basis to diagnose plaintiffs’ conditions, they lacked any scientific basis to testify that

carbon monoxide exposure in the U-Haul caused the injuries. See Wintz v. Northrop

Corp., 110 F.3d 508, 513-14 (7th Cir. 1997); Allen v. Pennsylvania Engineering Corp.,

102 F.3d 194, 198-99 (5th Cir. 1996).

         In the absence of admissible expert testimony that exposure to carbon monoxide in

the cabin of the U-Haul caused their injuries, Appellants’ tort claims were unsustainable.

Having concluded that the District Court did not abuse its discretion in excluding the

testimony of Appellants’ expert witnesses, we agree with the District Court that

Appellees were entitled to summary judgment.

                                              III.

         For the foregoing reasons, we will affirm the District Court’s summary judgment

order.




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