UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HANNELORE ANDERSON,
Administratrix of the Estate of
Wesley G. Anderson, deceased, and
Hannelore Anderson, in her own
right,
                                                                   No. 98-2240
Plaintiff-Appellant,

v.

QUALITY STORES, INCORPORATED;
UNITED COATINGS, INCORPORATED,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CA-97-38-5)

Argued: April 8, 1999

Decided: June 14, 1999

Before WILKINS, WILLIAMS, and KING, Circuit Judges.

_________________________________________________________________

Reversed and remanded for further proceedings by unpublished per
curiam opinion.

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COUNSEL

ARGUED: David Bennet Rodes, GOLDBERG, PERSKY, JEN-
NINGS & WHITE, P.C., Pittsburgh, Pennsylvania, for Appellant.
James Robert Miller, DICKIE, MCCAMEY & CHILCOTE, P.C.,
Pittsburgh, Pennsylvania, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Hannelore Anderson brought this action on behalf of herself and as
Administratrix of the Estate of Wesley G. Anderson (Anderson)*
against Quality Stores, Incorporated and United Coatings, Incorpo-
rated (collectively, "Defendants"), claiming that they were liable for
damages the Andersons suffered as a result of Defendants' failure to
warn of the danger of a component of spray paint used by Anderson.
The district court granted summary judgment in favor of Defendants,
ruling that the two expert opinions proffered by Anderson in support
of causation were unreliable and that without these opinions Ander-
son had failed to present evidence sufficient to raise a genuine issue
of material fact concerning causation. Concluding that the district
court abused its discretion in refusing to consider the experts' opin-
ions and that with these opinions the evidence was sufficient to raise
a genuine issue of material fact on causation, we reverse the decision
of the district court and remand for further proceedings.

I.

On April 26, 1995, Anderson, a 67-year-old retired truck driver,
used a number of 11-ounce cans of black flat spray paint purchased
by his wife from Quality Stores, Incorporated and manufactured by
United Coatings, Incorporated to paint 22 window shutters that had
been removed from his house and placed in his yard. The following
_________________________________________________________________
*For ease of reference, we refer to Anderson as having prosecuted this
action.

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evening, Anderson began to experience a number of physical prob-
lems, principally breathing difficulties. These breathing difficulties
led him to sit near an open window during the nights of April 27 and
28. On April 29, Anderson was admitted to the hospital with com-
plaints of generalized weakness in his legs and arms, chest conges-
tion, and indigestion. He was diagnosed with Adult (or Acute)
Respiratory Distress Syndrome (ARDS), continued to deteriorate, and
died approximately three weeks later. Subsequently, this diversity
action was filed alleging strict liability, negligence, and breach of
warranty and claiming that Anderson's death resulted from the inhala-
tion of toxic chemicals, specifically toluene, in the spray paint.

II.

The introduction of expert opinion testimony is governed by Fed-
eral Rule of Evidence 702, which provides:

          If scientific, technical, or other specialized knowledge
          will assist the trier of fact to understand the evidence or to
          determine a fact in issue, a witness qualified as an expert ...
          may testify thereto in the form of an opinion or otherwise.

Expert testimony is admissible under Rule 702, then, if it concerns (1)
scientific, technical, or other specialized knowledge that (2) will aid
the jury or other trier of fact to understand or resolve a fact at issue.
See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592 (1993).
The first prong of this inquiry necessitates an examination of whether
the reasoning and methodology underlying the expert's proffered
opinion is reliable--that is, whether it is supported by validation ade-
quate to render it trustworthy. See id. at 590 & n.9. The second prong
of the inquiry requires an analysis of whether the opinion is relevant
to the facts at issue. See id. at 591-92. Thus, an expert's testimony is
admissible under Rule 702 if it "rests on a reliable foundation and is
relevant." Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167, 1171
(1999) (internal quotation marks omitted). This court reviews the
decision of a district court to admit or exclude expert evidence for an
abuse of discretion. See General Elec. Co. v. Joiner, 522 U.S. 136,
139 (1997).

Defendants contend that the proffered opinions of Anderson's
experts on causation were not based on a reliable methodology. Con-

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sequently, they maintain that the district court properly refused to
consider them in determining whether Anderson had raised a genuine
issue of material fact on causation. Specifically, Defendants argue
that (1) in light of the lack of data on the level of Anderson's expo-
sure to the chemicals in the spray paint, any opinion on causation is
conjecture; (2) the medical literature offered by Anderson's experts
in support of their conclusions was inadequate to support a conclusion
that toluene could cause ARDS; and (3) an expert opinion based upon
the temporal relationship between the onset of Anderson's ARDS and
his exposure to the spray paint and on a differential diagnosis is not
reliable. These arguments echo the ruling of the district court, which
found the opinion of one expert to be unreliable because he was
unable to quantify Anderson's exposure and because"the temporal
connection between Mr. Anderson's exposure to the paint fumes and
his subsequent death [was not] so compelling as to allow this Court
to permit the expert to set aside any standard methods used in deter-
mining the cause of death." J.A. 250a. The district court similarly
rejected the other expert's opinion based on a differential diagnosis,
again focusing on the fact that there was no evidence quantifying the
level of exposure.

In Westberry v. Gislaved Gummi AB, No. 98-1540(L) (4th Cir.
May 20, 1999), we held that an expert's opinion based upon a reliable
differential diagnosis and a strong temporal proximity between the
exposure and the onset or worsening of symptoms is sufficiently trust-
worthy to satisfy the reliability prong of Rule 702. It is undisputed
that the Material Data Safety Sheet and medical literature supported
a conclusion that the presence of significant amounts of chemicals
from the spray paint in the lungs could result in pulmonary problems
and that Anderson painted 22 shutters with spray paint; thus, his
exposure was substantial. See id. at ___ (holding that although there
must be a sufficient basis to conclude that exposure to a substance at
a given level is harmful to humans, hard evidence on level of expo-
sure is not necessary to support expert testimony on causation so long
as substantial exposure is harmful and plaintiff's exposure was sub-
stantial). Because the expert opinions proffered by Anderson were
based on a reliable differential diagnosis and a strong temporal rela-
tionship between a substantial exposure to the paint fumes and the
onset of Anderson's symptoms, the district court abused its discretion
in rejecting the opinions as unreliable.

                    4
Defendants also complain that the experts' opinions submitted by
Anderson could not be considered in the summary judgment equation
because he did not submit the opinions in the appropriate format. In
his response to Defendants' motion for summary judgment, Anderson
submitted the experts' reports with accompanying cover letters setting
forth their opinion that exposure to the spray paint caused Anderson's
ARDS. Initially, however, Anderson did not file affidavits from the
experts. In their reply, Defendants maintained that the experts' opin-
ions could not be considered because they had not been presented
properly. Anderson then submitted affidavits from both experts attest-
ing to the correctness of the previously filed material. The district
court ruled that the affidavits were untimely, and because no motion
seeking to file the untimely material had been made, the court refused
to consider the experts' affidavits.

Defendants are correct that the initial materials submitted by
Anderson--the reports and cover letter of the experts unaccompanied
by affidavits attesting to their authenticity--did not comply with the
requirements of Federal Rule of Civil Procedure 56(e) and therefore
could not properly be considered in opposition to summary judgment.
See Fed. R. Civ. P. 56(e); Evans v. Technologies Applications & Serv.
Co., 80 F.3d 954, 962 (4th Cir. 1996) (explaining "that affidavits sub-
mitted on summary judgment [must] contain admissible evidence and
be based on personal knowledge"). Nevertheless, Federal Rule of
Civil Procedure 56(c) permits the filing of opposing affidavits any-
time prior to the day of the hearing on a motion for summary judg-
ment. Here, the docket sheet indicates that no hearing was conducted
on the motion for summary judgment. Under these circumstances,
affidavits submitted in adequate time to permit the district court to
consider them prior to issuing a ruling should be considered. Accord-
ingly, the district court erred in failing to consider the experts' affida-
vits, which were submitted by Anderson well in advance of the ruling
on summary judgment.

III.

In light of our decision in Westberry holding that a reliable differ-
ential diagnosis and a temporal relationship between substantial expo-
sure and onset of symptoms demonstrate trustworthiness of expert
opinions on causation, the district court abused its discretion in hold-

                     5
ing that the experts' opinions proffered by Anderson were unreliable
and thus inadmissible under Rule 702. Further, the affidavits of
Anderson's experts, which cured the initial defect in Anderson's sum-
mary judgment submissions, should have been considered by the dis-
trict court. Taking into account the experts' opinions, we conclude
that the grant of summary judgment was improper because the evi-
dence is sufficient to raise a genuine issue of material fact concerning
causation. See Fed. R. Civ. P. 56(c) (explaining that summary judg-
ment is proper "if the pleadings, depositions, answers to interrogato-
ries, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the mov-
ing party is entitled to a judgment as a matter of law"); Higgins v. E.I.
DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir. 1988)
(holding that this court reviews de novo the decision of the district
court to grant summary judgment). Thus, we reverse the decision of
the district court and remand for further proceedings.

REVERSED AND REMANDED
FOR FURTHER PROCEEDINGS

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