                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 12-2267


DEBORAH ZELLERS,

                Plaintiff - Appellant,

          v.

NEXTECH NORTHEAST, LLC,

                Defendant – Appellee,

          v.

RITE AID OF VIRGINIA, INC.,

                Third Party Defendant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:11-cv-00967-GBL-TRJ)


Submitted:   June 7, 2013                   Decided:   July 17, 2013


Before NIEMEYER, SHEDD, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Davis Hilton Wise, WISE & DONAHUE, PLC, Fairfax, Virginia, for
Appellant.   Michael  Allweiss,   ALLWEISS  &   ALLWEISS,  St.
Petersburg, Florida; Daniel D. Barks, THE LAW OFFICE OF DANIEL
D. BARKS, Alexandria, Virginia; Ellis R. Lesemann, Amanda M.
Blundy, HARVEY & VALLINI, LLC, Mt. Pleasant, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

               In this negligence action brought by Appellant Deborah

Zellars        (“Ms.   Zellars”)         against        NexTech         Northeast          LLC

(“NexTech”),      an   HVAC    contractor,        Ms.   Zellars      proffered         three

expert witnesses to testify that she was injured by allegedly

excessive       exposure      to    refrigerant         gas     at      her        place   of

employment, a Rite Aid in Arlington, Virginia.                             The district

court excluded the testimony of each proffered expert, leaving

Ms.    Zellars    without     any   expert       testimony      on   the       element     of

causation.        Accordingly,       the    district         court   granted         summary

judgment in favor of NexTech.                   On appeal, Ms. Zellars asserts

that the district court abused its discretion in excluding the

testimony of each of the three proffered causation experts and

that,    therefore,     the    district         court   also     erred        in    granting

summary judgment in favor of NexTech.                   However, because we agree

with     the    district    court    that       none    of    Ms.    Zellars’s         three

proffered       causation      experts      offered          relevant      or       reliable

scientific testimony, we affirm.

                                           I.

               Appellant Ms. Zellars worked as a shift supervisor at

a Rite Aid store in Arlington, Virginia (the “Arlington Rite

Aid”).     Her duties included, among other things, rearranging and

organizing retail products displayed in retail display freezers

located throughout the store.               Appellee NexTech is a commercial

                                            3
contractor that works in the heating, cooling, and refrigeration

business.       During all relevant times, NexTech had a contract

with Rite Aid pursuant to which NexTech would maintain and, as

necessary, repair refrigerators at several area Rite Aid stores.

            On September 9, 2009, NexTech responded to a service

call related to a perceived refrigerant leak.             On that visit,

NexTech added a disputed quantity of R-404A Freon (“R-404A”)

refrigerant to the freezer in question. 1             Two days later, on

September 11, 2009, NexTech again responded to a service call

from the Arlington Rite Aid about the same freezer.               However,

during   this    visit,   NexTech   determined    that   the   freezer   was

functioning appropriately and, as a result, did not take any

corrective action.

            Less   than   one   week   later,   on   September   16,   2009,

Carrie Hare, the manager of the Arlington Rite Aid, placed a

call to the Arlington Fire Department indicating that Rite Aid

employees had been complaining of headaches and other symptoms

for a period of “weeks” and suggesting this condition was caused

by a leak in the previously-serviced freezer.             Members of the


     1
       Based on an ambiguous billing entry, Ms. Zellars contends
that NexTech added 25 lbs. of R-404A refrigerant to the system
while NexTech contends that it merely added 2.5 lbs. While the
parties vigorously disputed this issue both below and in their
briefs, the resolution of this factual dispute is unnecessary to
our disposition of this appeal.



                                       4
fire       department’s     hazardous      materials         team   proceeded    to   the

store, where they detected a small leak in the freezer. 2                          After

the hazardous materials team had completed its assessment, a

call       was   placed    to   NexTech,       who   responded      by   dispatching    a

technician to the store.              The technician determined that a valve

on the refrigerator was leaking refrigerant gas and repaired the

leak.

                 Minutes     before      the       NexTech     technician       finished

repairing the freezer, Ms. Zellars reported to work.                        Soon after

arriving, she reported to Ms. Hare that she was feeling ill,

specifically complaining of shortness of breath, dizziness, and

a headache.          In response, Ms. Zellars was taken to the local

emergency        room,     where   she   was       diagnosed    with     anemia.      Her

treating physicians then offered her a blood transfusion, which

she refused, indicating that her condition had improved.

                 Ms. Zellars and Ms. Hare commenced the present action

in the United States District Court for the Eastern District of

Virginia in 2011, 3 alleging that NexTech had breached its common

law duty of care in failing to properly service the freezer and


       2
       At that time, the hazardous materials team members also
noted that oxygen levels in the store around the freezer were
normal. Accordingly, they opted not to close the store.
       3
       Ms. Hare’s action was disposed of in the same order as Ms.
Zellars’s; however, only Ms. Zellars’s case is presently before
us on appeal.


                                               5
in   failing      to    detect    and   repair          the   refrigerant     leak     before

September 16, 2009.              Additionally, the complaint alleges that

this breach proximately caused a variety of personal injuries,

and plaintiffs proffered testimony from each of their treating

physicians        and    other     experts         in     attempt     to     support       this

assertion.

             Of    relevance       to    the       present        appeal,     Ms.     Zellars

offered     written       reports       and    deposition          testimony        from    the

following expert witnesses: (1) Dr. Vandana Sharma, M.D., Ms.

Zellars’s      treating     physician,         who       opined     that    Ms.     Zellars’s

condition was caused by exposure to a neurotoxin, possibly a

refrigerant gas; 4 (2) Dr. Robert Simon, Ph.D., a chemist who

testified that Ms. Zellars had experienced symptoms that were

consistent with the adverse health effects of overexposure to R-

404A       refrigerant;          (3)     Dr.       Raymond         Singer,        Ph.D.,     a

neurotoxicologist who testified that Ms. Zellars’s symptoms were

both consistent with and caused by exposure to R-404A; and (4)

       4
       In her initial report, Dr. Sharma specifically opined that
Ms. Zellars’s condition was caused by refrigerant gas exposure.
However, as the district court observed, Dr. Sharma backed away
from that statement at her deposition, testifying only that Ms.
Zellars’s condition was caused by neurotoxin exposure and that
refrigerant gas was merely one possible source.       Zellars v.
NexTech Northeast, LLC, 895 F. Supp. 2d 734, 746 (E.D. Va. 2012)
(“Dr. Sharma maintains that Ms. Zellars’s neurological condition
was caused by some toxicity or toxic event, but she no longer
offers exposure to refrigerant gas as the specific cause to a
reasonable degree of medical certainty.”)



                                               6
Ronald Bailey, an HVAC engineer who testified that NexTech had

breached the applicable standard of care in its maintenance of

the display refrigerators.

              In response, NexTech filed several motions, including

motions      in   limine     to   exclude    the    testimony     of    each    of   the

plaintiffs’        proffered      experts,      and     a    motion     for     summary

judgment.          The     plaintiffs   filed       a   motion       for     sanctions,

requesting        an   adverse    inference     based       on   NexTech’s     alleged

spoliation of evidence. 5           The district court held a hearing on

all of these motions on July 13, 2012.

              On July 19, 2012, the district court granted NexTech’s

motions as to three of the four proffered experts: Dr. Sharma,

Dr. Simon, and Dr. Singer.              This left Ms. Zellars without any

expert testimony on the issue of causation.                      Thus, the district

court determined that Ms. Zellars could not sustain her burden

to   prove    that     her   injuries   were    caused      by   NexTech’s     alleged

negligence and, therefore, granted NexTech’s motion for summary

judgment.         Finally,    the   district       court    denied     Ms.    Zellars’s


      5
       Specifically, Ms. Zellars points to the fact that, on
August 24, 2011, NexTech “evacuated” the disputed freezer,
removing and replacing all of the existing refrigerant.     Ms.
Zellars argues that this amounts to spoliation of the evidence,
as the type of refrigerant in place in the system in September
2009 is relevant to its case.        Accordingly, Ms. Zellars
requested the district court to permit an adverse inference
against NexTech.



                                            7
motion for sanctions as moot.                  Ms. Zellars timely noted this

appeal.

                                       II.

            We review a district court’s award of summary judgment

de novo.     Dooley v. Hartford Acc. & Indem. Co., 716 F.3d 131,

135 (4th Cir. 2013).             However, we review a district court’s

decision     to   admit     or     exclude      evidence,       including    expert

testimony, for an abuse of discretion.                    Belk, Inc. v. Meyer

Corp., U.S., 679 F.3d 146, 161 (4th Cir. 2012).                      Similarly, a

district court’s refusal to apply an adverse inference based on

a party’s alleged spoliation of evidence “must stand unless it

was an abuse of its broad discretion in this regard.”                        Vulcan

Materials Co. v. Massiah, 645 F.3d 249, 260 (4th Cir. 2011)

(citations omitted).

                                       III.

                                        A.

                                 Expert Testimony

            Ms.   Zellars    first     argues      that    the    district    court

abused its discretion in excluding the testimony of Dr. Sharma,

Dr. Singer, and Dr. Simon.           In toxic tort cases, “[i]n order to

carry the burden of proving a plaintiff’s injury was caused by

exposure     to   a    specified       substance,         the    plaintiff       must

demonstrate the levels of exposure that are hazardous to human

beings     generally   as    well     as       plaintiff’s      actual   level    of

                                           8
exposure.”        Westberry v. Gislaved Gummi AB, 178 F.3d 257, 263

(4th       Cir.   1999)    (internal    citations    and       quotations   marks

omitted). 6       Generally, this must be done through the use of

relevant and reliable expert testimony.                  See, e.g., Cooper v.

Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir. 2001) (“[A]ll

of Cooper’s claims required expert medical testimony that the

Rogozinski System was the proximate cause of his injuries[.]”)

              Rule   702   of   the    Federal   Rules    of    Evidence,   which

governs the admissibility of expert witness testimony, provides:

       A witness who is qualified as an expert by knowledge,
       skill, experience, training, or education may testify
       in the form of an opinion or otherwise if (a) the
       expert’s scientific, technical, or other specialized
       knowledge will help the trier of fact to understand
       the evidence or to determine a fact in issue; (b) the
       testimony is based on sufficient facts or data; (c)
       the testimony is the product of reliable principles
       and methods; and (d) the expert has reliably applied
       the principles and methods to the facts of the case.

Fed. R. Evid. 702.          Pursuant to this rule, the trial judge is

assigned the task of “ensuring that an expert’s testimony both

rests on a reliable foundation and is relevant to the task at

hand.”       Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 588

(1993).

       6
       These two levels of causation are known as “general
causation” and “specific causation.” See, e.g., Bourne ex rel.
Bourne v. E.I. Dupont de Nemours & Co., Inc., 189 F. Supp. 2d
482, 485 (S.D. W. Va. 2002) (“In a toxic tort case, a plaintiff
must generally establish both general and specific causation for
his injuries.”), aff’d, 85 F. App’x 964 (4th Cir. 2004).



                                         9
            This     involves       a       two-pronged       inquiry.            First,     the

district    court     must    determine             whether    the   proffered          expert

testimony concerns scientific knowledge.                        Second, the district

court must determine whether that testimony will assist in the

determination of a fact in issue.                     Daubert, 509 U.S. at 592.                In

other words, “[t]he first prong of this inquiry necessitates an

examination of whether the reasoning or methodology underlying

the expert’s proffered opinion is reliable,” and “[t]he second

prong of the inquiry requires an analysis of whether the opinion

is relevant to the facts at issue.”                    Westberry, 178 F.3d at 260.

            Applying this test to the facts at hand, the district

court   concluded      that     the          testimony    of    each        of    the       three

proffered    causation        experts          was     unreliable      and,        therefore,

inadmissible.       We agree on all counts.

                                               1.

                             Exclusion of Dr. Sharma

            Dr.     Sharma     is       a     board     certified      neurologist           who

maintains    a     practice     in          general    neurology.            In    a    report

completed on February 24, 2012, Dr. Sharma indicated that she

first evaluated Ms. Zellars in August 2011 for neck and back

pain,   muscle       tenderness             and      stiffness,      jerking           of    the

extremities, body tremors, and other symptoms.                         In        that report,

Dr. Sharma opined, to a reasonable degree of medical certainty,

that Ms. Zellars’s symptoms were caused by exposure to R-404A

                                               10
refrigerant gas in September 2009.                     However, at her subsequent

deposition, Dr. Sharma softened this testimony, opining instead

that Ms. Zellars’s condition was caused by a toxic event but

declining to specifically identify the chemical involved.                          J.A.

403   (“[T]oxicity       is   a   reasonable       medical     certainty.      Is    it

related to Freon itself, I cannot opine on that.”). 7                     Despite Dr.

Sharma’ equivocal testimony, Ms. Zellars maintains, both before

the district court and on appeal, that Dr. Sharma’s testimony is

sufficiently relevant and reliable.                We disagree.

             First, as the district court held, Dr. Sharma lacks

the requisite qualifications to offer expert testimony in the

field of toxicology.          Dr. Sharma is a neurologist.                 By her own

admission, she does not have any specialized training in the

field of toxicology.          J.A. 404 (Dr. Sharma: “I do not have any

training in toxicology.”).           This is further evinced by the fact

that,     during   her    deposition,      Dr.     Sharma      indicated    that    her

knowledge    of    refrigerant      gas    toxicity       primarily   came    from    a

survey of scientific articles downloaded from the internet.

             Ms.    Zellars       argues        that     Dr.   Sharma’s     lack     of

toxicology expertise is immaterial, as her testimony is offered

along with the testimony of Dr. Singer and Dr. Simon, both of


      7
       Citations to the Joint Appendix (“J.A.”) refer to the
joint appendix filed by the parties in this appeal.



                                           11
whom have more training in the field of toxicology.                              While it is

true that there is no prohibition on utilizing multiple experts

to establish various components of a party’s case, this does not

change   Daubert’s        command      that    an     expert’s      testimony          must    be

based    on       “more      than      subjective          belief      or        unsupported

speculation.”         Daubert, 509 U.S. at 590.                     Because she lacks

specific training in the field in which she seeks to testify,

and because she was unable to state with specificity that any of

Ms.   Zellars’s       alleged        injuries       were    caused    by     exposure         to

refrigerant gas, Dr. Sharma simply cannot overcome this hurdle.

              Second,     the   district           court   properly      held         that    Dr.

Sharma’s methodology was not sufficiently reliable.                               Dr. Sharma

employed      a     method      known     as        “differential        diagnosis”            in

evaluating Ms. Zellars.               Differential diagnosis is “a standard

scientific        technique     of    identifying          the   cause      of    a    medical

problem by eliminating the likely causes until the most probable

one is isolated.”            Westberry, 178 F.3d at 262.                     Typically, a

differential         diagnosis          “is         performed        after             physical

examinations, the taking of medical histories, and the review of

clinical      tests,      including      laboratory          tests.”             Id.         When

performed properly, expert testimony employing this methodology

is admissible.         Westberry, 178 F.3d at 263 (“We previously have

upheld the admission of an expert opinion on causation based

upon a differential diagnosis.”)

                                              12
            However, in this case, Dr. Sharma did not reliably

apply the differential diagnosis technique.                 As the district

court observed, Dr. Sharma could not even identify the intensity

and duration of Ms. Zellars’s exposure R-404A.              See, e.g., J.A.

448 (“[Dr. Sharma]: She put that she was exposed for a duration

of   time   for   several   weeks   or    months   going   into   the   freezer

multiple times.      But . . . I’m not able to opine on that because

I don’t know the exact exposure.”)             While it is true, as Ms.

Zellars argues, that precise information regarding a plaintiff’s

level of exposure “is not always available, or necessary[,]”

Westberry, 178 F.3d at 264, 8 it is also true that a “plaintiff

must demonstrate the levels of exposure that are hazardous to




      8
       Ms. Zellars’s reliance on Westberry on this point is
inapposite.    Specifically, in Westberry, we held that the
plaintiff’s expert did not need to cite specific quantitative
evidence regarding the plaintiff’s level of exposure because the
record in that case clearly established that the plaintiff had
been substantially exposed to the allegedly harmful substance in
such a way that specific evidence was unnecessary.    Westberry,
178 F.3d at 263. In particular, the allegedly harmful substance
in that case was talc powder, and the record was replete with
evidence of the plaintiff’s substantial exposure to talc. See,
e.g., id. at 264 (“Westberry testified that the talc that
settled from the air around his work area was so thick that one
could see footprints in it on the floor. He further stated that
he worked in clouds of talc and that it covered him and his
clothes.”)    Here, there is no evidence of such substantial
exposure. Thus, Westberry does not support Ms. Zellars’s claim
that she need not put forth specific evidence regarding her
level of exposure.



                                         13
human beings generally as well as the plaintiff's actual level

of exposure.”         Id. at 263.

               Thus, the district court did not abuse its discretion

in excluding her testimony.

                                              2.

                                 Exclusion of Dr. Simon

               Dr.    Robert      K.     Simon     is    an    expert    in        analytical

chemistry,       toxicology,           and   environmental        assessment.               His

opinion was offered to establish that Ms. Zellars was exposed to

excessive levels of R-404A and that she experienced symptoms

consistent with such exposure.                   The district court held, and we

agree,    that       Dr.   Simon’s       proffered       testimony      is    inadmissible

under Daubert.

               First,      Dr.     Simon     has    no    scientific         or     technical

knowledge that qualifies him to offer expert testimony in this

case.         While Dr. Simon is a toxicologist, he has no expert

training with regard to the toxicity of refrigerants.                              Moreover,

by his own admission, Dr. Simon does not know the level of R-

404A exposure that would be necessary to cause Ms. Zellars’s

alleged health effects.                 J.A. 297 (“But what the dose would be

that     is    required      for       Ms.   Zellars      to   respond,        I    have    no

calculations         on.”).            Rather,     he    simply      asserts,           without

scientific       support,        that    refrigerant       exposure      can       be   deadly

under certain circumstances.                 Similar to Dr. Sharma, Dr. Simon’s

                                              14
lack of expert knowledge on the subject of refrigerant toxicity

renders     his    testimony       entirely          speculative       and,    therefore,

inadmissible under Daubert.

            Dr. Simon also fails to identify any facts or data

regarding    Ms.     Zellars’s      level       of    R-404A    exposure.         In    his

initial report, Dr. Simon opined that the concentration of R-

404A in the freezer “reached multiples of 1000 parts per million

on   numerous      occasions       due     to    the     leaking       Shrader     valve,

particularly between September 9, 2009 and September 16, 2009.”

J.A. 1865 (alterations omitted).                     Dr. Simon based this opinion

on   the    report    of     the     engineering         expert,       Ronald    Bailey.

However, by his own admission, Dr. Simon did not review Mr.

Bailey’s calculations as to the concentration of R-404A in the

freezer.      J.A.    290    (“[Defense         Counsel]:       Have     you    seen    Mr.

Bailey’s calculations?           [Dr. Simon]: No, I have seen his report.

[Defense Counsel]: But no calculations?                         You’ve not seen any

calculations?        [Dr.    Simon]:       He    hasn’t    provided       me    with    any

calculations.”).          Additionally, Dr. Simon indicated that he did

not know how much time Ms. Zellars spent working in the freezer.

J.A. 184 (“[Defense Counsel]: Did she give you a time estimate

of   how   much    time    she     spent    [working       in    the    freezer]       or   a

percentage?       [Dr. Simon]: No, all she would say is this is what

I did when I came into work.”).                 Thus, he has no reliable basis

for determining the level of Ms. Zellars’s R-404A exposure.

                                           15
            Ms. Zellars argues that, in formulating his opinion,

Dr. Simon permissibly relied on the testimony of Mr. Bailey to

ascertain the level exposure in this case.                           However, the portion

of Dr. Simon’s opinion that is based on Mr. Bailey’s work does

not speak to Ms. Zellars’s level of exposure.                           Rather, it simply

speaks to the levels of R-404A that were present in the freezer.

Thus, even assuming Mr. Bailey’s calculations are accurate, Dr.

Simon’s    opinion          was    not    based        on   any     specific       information

regarding Ms. Zellars’s level of R-404A exposure.

            Accordingly,            the     district        court    did     not    abuse   its

discretion in excluding Dr. Simon’s testimony.

                                                 3.

                                  Exclusion of Dr. Singer

            Dr. Raymond Singer, Ph.D., is a neuropsychologist and

neurotoxicologist whose opinion was offered to show that Ms.

Zellars    “has       a    nervous    system          dysfunction     from     neurotoxicity

consistent       with       and     caused       by     poisoning       with       refrigerant

containing       fluorocarbons.”             J.A.       1866      (alterations       omitted).

Thus, unlike Dr. Simon, who merely testified that Ms. Zellars’s

symptoms    were       consistent         with    excessive         R-404A    exposure,     Dr.

Singer    goes    a       step    further    by       indicating      that    Ms.    Zellars’s

condition was, in fact, caused by her exposure to R-404A in the

Arlington Rite Aid.



                                                 16
            However,    as    the   district          court    properly         held,   Dr.

Singer is not qualified to diagnose the cause of Ms. Zellars’s

alleged    symptoms.         Dr.    Singer       is    not     a        medical    doctor.

Moreover, Dr. Singer did not arrive at his own medical opinion.

Instead, he based his opinion on Dr. Sharma’s initial report.

J.A. 1036 (“[Dr. Singer]: I’m relying on Dr. Sharma to offer a

neurological      opinion     about        the    cause        of        Ms.      Zellars’s

conditions.”).        However, as discussed above, Dr. Sharma is no

longer of the view that Ms. Zellars’s condition was caused by

refrigerant gas exposure.           Rather, Dr. Sharma’s opinion is that

R-404A     exposure    is    one    possible          cause    of        Ms.      Zellars’s

condition.     Thus, the entire basis for Dr. Singer’s opinion on

specific causation has been undermined as merely speculative.

            Accordingly,      the   district          court    did       not    abuse   its

discretion in excluding his testimony.

                                           B.

                       Motion for Summary Judgment

            Having excluded all three of Ms. Zellars’s causation

experts,    the   district    court    held      that    Ms.       Zellars      could   not

satisfy the causation element of her claim and, accordingly,

granted NexTech’s motion for summary judgment.                      We agree.

            Summary     judgment      is    appropriate            if     the     available

evidence reveals no genuine issue of material fact and that the

movant is entitled to judgment as a matter of law.                          Fed. R. Civ.

                                           17
P.    56(a).         The   party    moving     for    summary       judgment      bears    the

burden     of       establishing        the   absence    of     a    genuine      issue    of

material fact, and a reviewing court must draw all reasonable

inferences and resolve all disputed factual matters in favor of

the nonmoving party.           Carr v. Deeds, 453 F.3d 593, 608 (4th Cir.

2006).     Importantly, a complete failure of proof concerning an

essential element of the plaintiff’s case necessitates a grant

of summary judgment in favor of the defendant.                          Celotex Corp v.

Catrett, 477 U.S. 317, 322-23 (1986).

               In     Virginia,      “a    plaintiff     who     seeks      to    establish

actionable negligence must plead the existence of a legal duty,

violation of that duty, and proximate causation which results in

injury.”        Kellermann         v.   McDonough,      684    S.E.2d      786,    790    (Va.

2009)(citations omitted).                 To prove causation in a toxic tort

action,    a    plaintiff      must       offer     relevant    and     reliable     expert

testimony, as the health effects of toxic                      exposure to chemicals

are    beyond        the    knowledge         and    experience       of    the     average

layperson.          Here, with the exclusion of all three of plaintiff’s

causation experts, there is a complete failure of proof on the

critical element of causation.                  Thus, the district court’s grant

of summary judgment was proper. 9


       9
       Because we affirm the district court’s grant of summary
judgment in favor of NexTech on the element of causation, we
need not determine whether the district court properly denied
(Continued)
                                               18
                                     IV.

           For     the   foregoing   reasons,    the    judgment     of   the

district   court    is   affirmed.    We   dispense    with   oral   argument

because the facts and legal contentions are adequately presented

in the materials before this court and argument would not aid

the decisional process.

                                                                     AFFIRMED




Ms. Zellars’s motion for sanctions.   Even if we were to permit
an adverse inference to be drawn against NexTech for spoliation,
that inference would go only toward the element of breach.    It
would not aid Ms. Zellars on the element of causation.
Accordingly, because Ms. Zellars would still fail to establish
this element regardless of the adverse inference, we do not
address this issue.



                                     19
