                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
                  UNITED STATES COURT OF APPEALS
                           FIFTH CIRCUIT                       June 28, 2007

                                                           Charles R. Fulbruge III
                                                                   Clerk
                           No. 06-30445


             ADA M. ANDERSON; CYNTHIA Y.   ANDERSON;
           DAVID E. ANDERSON, real party   in interest
             David Louis McElroy; DONALD   ANDERSON;
                   JENNIFER ANDERSON; ET   AL.,

                                              Plaintiffs-Appellants,

                              versus

                      DOW CHEMICAL COMPANY,

                                                 Defendant-Appellee.



          Appeal from the United States District Court
              for the Middle District of Louisiana
                          (3:02-CV-12)


Before KING, DAVIS, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Appellants   challenge   subject-matter     jurisdiction,       the

exclusion of their expert witnesses’ affidavits, and the summary

judgment awarded Dow Chemical Company.    See Anderson v. Dow Chem.

Co., No. 02-12-C (M.D. La. 23 March 2006).     AFFIRMED.




                                I.

     *
       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this opinion should not be published and is not precedent except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.
     Appellants are approximately 600 former residents of, and

former visitors to, the now-closed Myrtle Grove Trailer Park (MGTP)

in Plaquemine, Louisiana.     They filed this diversity action in

January 2002, claiming strict liability and negligence because of

Dow’s alleged vinyl-chloride contamination of the groundwater in

and surrounding MGTP, and seeking injunctive relief, as well as

compensatory and punitive damages. After their claims for physical

injuries requiring immediate and long-term medical treatment were

dismissed with prejudice, Appellants’ operative (fourth-amended)

complaint requested compensatory and punitive damages arising only

from:   mental distress associated with actual or perceived vinyl-

chloride exposure; increased risk of future diseases, including

various   forms   of    cancer;   discomfort,   inconvenience,   and

environmental injustice; and loss of consortium.

     In October 2004, after extensive discovery, Dow moved for

summary judgment.      Supporting its motion were a statement of

uncontested facts and exhibits, including a 17 May 2004 report by

the United States Department of Health and Human Services Agency

for Toxic Substances and Disease Registry (ATSDR), providing the

groundwater sampling results for the MGTP.      Among other things,

this report stated: “the total vinyl chloride exposures at MGTP

were not high enough to produce any of the known adverse health

effects attributable to vinyl chloride”; complaints of headaches,

skin rashes, numbness, stomach problems, asthma, miscarriages,



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nosebleeds, and coughing, and lumps throughout the body were

incompatible with the maximum vinyl-chloride exposure sustained by

MGTP residents and visitors; and the MGTP presented “No Apparent

Public Health Hazard”.

     Appellants opposed summary judgment by relying, in part, on

the affidavits of Dr. C. B. Scrignar (psychiatrist), Dr. Nachman

Brautbar    (physician),   and   Dr.    Kenneth   Rudo   (environmental

toxicologist).    These affidavits stated, inter alia:      a sampling

of Appellants showed most suffered from fear and anxiety resulting

from an awareness of vinyl-chloride exposure; some would develop a

mental disorder; and all have a significantly increased risk of

certain forms of cancer due to Dow’s vinyl-chloride contamination

of MGTP’s water supply.

     In March 2006, pursuant to Dow’s motion, the magistrate judge

excluded these expert affidavits, under Federal Rule of Evidence

702 (requiring expert testimony to be based on reliable methods and

sufficient facts or data).   That same day, the magistrate judge, in

a comprehensive report, recommended granting Dow’s summary-judgment

motion.    Later that month, in response to Appellants’ appeal from

the evidentiary ruling and over their objections to the report and

recommendation, the district court both affirmed the exclusion of

the affidavits and awarded summary judgment to Dow.



                                  II.


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     Appellants claim the district court:      lacked subject-matter

jurisdiction; erred under Rule 702 by excluding the affidavits; and

improperly awarded summary judgment.    For the reasons that follow,

these claims are totally without merit.

                                 A.

     Appellants filed this action in district court.      Accordingly,

their original and first through third amended complaints asserted

diversity jurisdiction was proper pursuant to 28 U.S.C. § 1332:

“The amount in controversy exceeds, exclusive of interest and

costs, the sum of $75,000 per Complainant”.        After Dow moved for

summary judgment, however, Appellants reversed course and filed a

fourth amended complaint, stating:      “The amount in controversy,

inclusive   of   punitive   damages,   is   less   than   $75,000   per

Complainant”.

     Based on this last, and quite belated, damages assessment, and

although Appellants’ counsel, of course, claim their jurisdictional

allegations in the first four complaints were “in good faith”,

Appellants maintain § 1332(b)’s amount-in-controversy requirement

is no longer satisfied; and, therefore, the district court should

have dismissed this action for lack of subject-matter jurisdiction.

As Appellants correctly state, jurisdictional requirements must be

met throughout all phases of litigation.           See FED. R. CIV. P.

12(h)(3).




                                  4
       On the other hand, as Dow notes, it is well established that,

with few exceptions, diversity jurisdiction is determined as at the

time   an   action   is   filed;   an     amendment      to    the   complaint    or

stipulation reducing the amount in controversy does not divest a

federal court of such jurisdiction.                 See St. Paul Mercury Indem.

Co. v. Red Cab Co., 303 U.S. 283, 289-90 (1938) (“Events occurring

subsequent to the institution of suit which reduce the amount

recoverable below the statutory limit do not oust jurisdiction.”);

Hensgens v. Deere & Co., 833 F.2d 1179, 1181 (5th Cir. 1987)

(“amendment of pleadings to below the jurisdictional amount ...

will not divest the court of jurisdiction”); Garza v. Rodriguez,

559 F.2d 259, 260 (5th Cir. 1977) (same).

       Appellants do not reply concerning this fundamental point.

Their inadequate briefing on this issue reflects adversely not only

on this point, but on their other contentions as well.

                                         B.

       Appellants next contend the district court erred in excluding

Drs. Scrignar, Brautbar, and Rudo’s affidavits.                 Appellants claim

the affidavit testimony of the three proffered experts satisfied

the    strictures    of   Rule     702        and    Daubert   v.    Merrell     Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993).

       The exclusion of expert testimony is reviewed for an abuse of

discretion.    E.g., Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243

(5th Cir. 2002).      “A trial court abuses its discretion when its

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ruling is based on an erroneous view of the law or a clearly

erroneous assessment of the evidence.” Bocanegra v. Vicmar Servs.,

Inc., 320 F.3d 581, 584 (5th Cir. 2003).

     The   magistrate   judge’s   quite   detailed   and   comprehensive

exclusion ruling, affirmed on appeal by the district court, held,

inter alia: Dr. Scringar’s psychiatric evaluations of only ten out

of approximately 600 plaintiffs were neither sufficiently reliable

nor relevant because they were not based on any objective method of

testing or verification; Dr. Brautbar’s conclusions concerning

increased cancer risks were methodologically unsound and filled

with irrelevant information, such as cancer statistics associated

with hepatitis B (not vinyl-chloride exposure); and Dr. Rudo’s

environmental toxocological conclusions regarding heightened cancer

risks were unsupported by peer-reviewed literature, incapable of

repetition, and employed methodology lacking any known error rate.

     Appellants fail to show any error in this analysis.        In this

regard, they do not reply to Dow’s detailed briefing on their

failure to satisfy Rule 702.      In sum, for the reasons carefully

articulated by the magistrate judge, the district court did not

abuse its discretion in ruling these affidavits fail to satisfy

Rule 702 and Daubert.




                                   6
                                      C.

     Finally, Appellants contest the summary judgment awarded Dow.

Such judgment is reviewed de novo.         E.g., Celotex Corp. v. Catrett,

477 U.S. 317, 330 (1986).

     Summary judgment is appropriate “if ... there is no genuine

issue as to any material fact and the mov[ant] ... is entitled to

a judgment as a matter of law".         FED. R. CIV. P. 56(c).    The movant

must demonstrate the absence of such material-fact issues, but need

not negate the elements of the nonmovant’s case.             E.g., Boudreaux

v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005).

When the movant has met its Rule 56(c) burden, the nonmovant must

identify specific evidence in the summary judgment record giving

rise to a material-fact issue and articulate the manner in which

the evidence supports its claim.          E.g., Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247 (1986). All reasonable inferences are made

in the light most favorable to the nonmovant, e.g., Calbillo v.

Cavender Oldsmobile, Inc., 288 F.3d 721, 725 (5th Cir. 2002); but,

summary   judgment   is   proper   if      the   nonmovant   “‘fails    ...   to

establish the existence of an element essential to [its] case, and

on which [it] will bear the burden of proof at trial’”.               Little v.

Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (quoting

Celotex Corp., 477 U.S. at 322).

     Appellants   assert    summary       judgment   was   improper    because:

their discovery was cut short; Dow failed to demonstrate the

                                      7
absence of material-fact issues; mental-distress claims cannot be

properly decided on summary judgment; and Appellants identified

specific evidence establishing a material-fact issue concerning

their mental distress.

                                1.

     Regarding Appellants’ assertion that they “were not afforded

the opportunity to complete discovery”, they once again fail to

adequately brief this point.     For example, they do not state

whether, pursuant to Rule 56(f), they sought to delay a summary-

judgment ruling.   In this regard, the docket reflects additional

discovery was permitted after Dow moved for summary judgment.   For

instance, nearly a year and a half elapsed between Dow’s filing its

motion and the district court’s ruling.   The court postponed that

ruling several times to allow plaintiffs time to complete discovery

or otherwise obtain evidence in opposition to the summary-judgment

motion.

                                2.

     Among other evidence supporting summary judgment, the district

court relied on the above-described ATSDR report, which concluded:


          [The] data on the toxicology, epidemiology,
          and physical chemistry of vinyl chloride
          indicate that exposures at MGTP were of
          insufficient magnitude and duration to cause
          adverse health effects.      ATSDR therefore
          concludes that the total vinyl chloride
          exposures at MGTP were not high enough to
          produce any of the know[n] adverse health
          effects attributable to vinyl chloride.

                                8
Because appellants failed to present competent summary-judgment

evidence   to   dispute   these   conclusions,   the   district   court

jettisoned their claims for increased risk of future disease and

mental anguish; and, without any remaining basis for medical

monitoring and punitive damages, these claims were dismissed as

well. For these and other reasons stated in the magistrate judge’s

well-reasoned analysis, summary judgment was proper.

                                  III.

     For the foregoing reasons, judgment is

                                                          AFFIRMED.




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