                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 23 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    RAMON H. MARTINEZ,

                Plaintiff-Appellant,

    v.                                                   No. 99-2228
                                                   (D.C. No. CIV-97-523-JC)
    AMERICAN OIL AND SUPPLY                               (D. N.M.)
    COMPANY and AMERICAN
    TELEPHONE & TELEGRAPH
    COMPANY,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before TACHA , EBEL , and BRISCOE , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Plaintiff Ramon H. Martinez, appearing     pro se , appeals the district court’s

order granting summary judgment in favor of defendants and dismissing his toxic

tort complaint. We affirm.


                                  BACKGROUND

      Plaintiff was employed by defendant American Telephone & Telegraph

Company (AT&T) and its successor, US West Communications, Inc., from 1971

until his retirement in 1994. He was an apparatus cleaner who used cleaning

fluids, lubricants and other solvents manufactured by defendant American Oil and

Supply Company to AT&T’s specifications. Mr. Martinez used a lubricant

identified as KS16832L2 every day from 1975 to 1981 and sporadically from

1981 until approximately 1990. Mr. Martinez alleged that this lubricant caused

him to suffer from chest pain, burning in his lungs and shortness of breath.

Plaintiff was diagnosed in 1994 with a degenerative disorder of the respiratory

and central nervous system and in 1996 with pulmonary fibrosis. Plaintiff alleged

that he discovered in 1996 that the KS16832L2 lubricant was a carcinogenic and

hazardous substance.

      Represented by counsel, plaintiff filed his diversity complaint against

defendants in May 1997, asserting claims for strict liability in tort, prima facie

tort, and negligence, and seeking benefits under the Employee Retirement Income

Security Act (ERISA), all arising out of injuries he alleged were caused by his use

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of lubricant KS16832L2 while employed by AT&T. Plaintiff amended his

complaint in March 1998, deleting his ERISA claim and dropping some

defendants. Soon after plaintiff’s deposition was taken in June 1998, plaintiff’s

first attorney withdrew, citing financial considerations. The magistrate judge

assigned to preside over discovery matters extended the case management and

discovery deadlines, and shortly thereafter, a second attorney entered an

appearance on plaintiff’s behalf. This second attorney, however, withdrew in

December 1998.

      Plaintiff, now appearing   pro se , was given additional extensions of the case

management and discovery deadlines by the magistrate judge, based on plaintiff’s

assurances that entry of new counsel was imminent. On April 16, 1999, after no

new counsel had made an appearance on plaintiff’s behalf, the magistrate judge

denied plaintiff’s request for a further extension of the deadline for disclosure of

plaintiff’s expert witnesses and other case management deadlines. The magistrate

judge noted in his order that plaintiff’s complaint had been pending for two years;

that he had extended the case management and discovery deadlines at plaintiff’s

request on three prior occasions; and that he had granted plaintiff four extensions

of time to designate his expert witnesses and to produce expert reports in

accordance with Fed. R. Civ. P. 26. The magistrate judge further noted that

defendants had “complied with the Court’s case management schedule, even


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submitting expert reports without the benefit of [plaintiff’s] expert reports.”

R. Vol. III, Doc. 91, at 2. Plaintiff filed objections to the magistrate judge’s

order, which were denied by the district court.

      On May 26, 1999, defendants moved for summary judgment, asserting that

plaintiff lacked the necessary expert testimony to establish either his actual

exposure to the KS16832L2 lubricant or the levels of exposure which is

hazardous to human beings.    See Mitchell v. Gencorp Inc. , 165 F.3d 778, 781

(10th Cir. 1999) (holding that, in order to carry the burden of proving an injury

was caused by exposure to a specified substance, a plaintiff must demonstrate the

level of exposure to the toxic substance that is hazardous to human beings, as

well as the plaintiff’s actual level of exposure to the substance). In response,

plaintiff submitted a statement from one of his fellow employees stating that he

observed plaintiff suffering from a burning sensation in his chest while cleaning

and oiling equipment in the mid-1980’s; a letter from a physician, Dr. George

Schwartz, indicating there is a causal connection between exposure to oil mist and

pulmonary problems; a statement from a chemist, James Lindsay, stating that

KS16832L2 contains toxic chemicals; an excerpt from plaintiff’s pretrial report

listing his witnesses; excerpts of plaintiff’s medical records; and an excerpt from

the Code of Federal Regulations regarding toxic substances.




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       On June 28, 1999, the district court granted defendants’s motion for

summary judgment, finding that plaintiff had failed to submit any evidence that

created a genuine issue establishing the requisite causation. The district court

ruled that neither Dr. Schwartz’s letter nor Mr. Lindsay’s statement provided the

factual basis for their stated opinions nor established that they were competent to

testify as to the matters stated in their submissions; that the list of photocopied

publications was insufficient to establish causation; and that “none of the

complete excerpts suggest[ed] a tie” between pulmonary fibrosis and plaintiff’s

exposure to the KS16832L2 lubricant. R. Vol. III, Doc. 104 at 3-4.


                                      DISCUSSION

       Plaintiff argues that the magistrate judge erred in refusing to extend the

time allowed for expert witness discovery. We review discovery rulings for

an abuse of discretion.   See Cole v. Ruidoso Mun. Sch. , 43 F.3d 1373, 1386

(10th Cir. 1994). “[W]e will not reverse a decision to limit discovery absent

a clear showing that the denial of discovery resulted in actual and substantial

prejudice to the complaining litigant.”   Davoll v. Webb , 194 F.3d 1116, 1139

(10th Cir.1999) (quotations omitted; alteration in original). We conclude the

magistrate judge’s decision to deny further extensions of time was not an abuse

of discretion. The magistrate judge granted plaintiff numerous extensions of time

prior to his eventual order denying further extensions. Plaintiff has not

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demonstrated that, given additional time, he would have been able to obtain the

experts and the expert reports necessary to establish the requisite causation.

Thus, he has not demonstrated that the denial of further extensions of time

resulted in actual and substantial prejudice to him.

       Plaintiff also challenges the district court’s grant of summary judgment

in favor of defendants. We review the grant of summary judgment         de novo ,

applying the same legal standard used by the district court under Fed. R. Civ. P.

56(c). See United States v. Hess , 194 F.3d 1164, 1170 (10th Cir. 1999).

Summary judgment is appropriate if, after viewing the evidence in the light most

favorable to the nonmovant, there is no genuine issue of material fact, and the

movant is entitled to judgment as a matter of law.        See UMLIC-Nine Corp. v.

Lipan Springs Dev. Corp ., 168 F.3d 1173, 1176 (10th Cir. 1999); Fed. R. Civ. P.

56(c). Where the nonmoving party will bear the burden of proof at trial, that

party must go beyond the pleadings and identify specific facts which demonstrate

the existence of an issue to be tried by the jury.     See Mares v. ConAgra Poultry

Co. , 971 F.2d 492, 494 (10th Cir. 1992).

       “Scientific knowledge of the harmful level of exposure to a chemical plus

knowledge that plaintiff was exposed to such quantities are minimal facts

necessary to sustain the plaintiff's burden in a toxic tort case.”   Mitchell, 165 F.3d

at 781 (quotation omitted). “At a minimum, the expert testimony should include


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a description of the method used to arrive at the level of exposure and scientific

data supporting the determination. The expert’s assurance that the methodology

and supporting data is reliable will not suffice.”   Id. Here, we have carefully

reviewed the materials submitted by the parties and the record on appeal, and we

agree with the district court’s determination that plaintiff’s submitted materials,

not in the form of affidavits, fell short of meeting this standard.

       Plaintiff has submitted additional materials on appeal which are dated after

the district court’s order granting summary judgment. Because those materials

were not presented to the district court when its ruling was made, we do not

consider them.    See Boone v. Carlsbad Bancorporation, Inc.   , 972 F.2d 1545, 1549

n.1 (10th Cir. 1992). We AFFIRM the district court’s grant of summary judgment

in favor of defendants for substantially the same reasons stated in the district

court’s thorough order filed June 28, 1999. The mandate shall issue forthwith.



                                                       Entered for the Court



                                                       Mary Beck Briscoe
                                                       Circuit Judge




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