     Case: 13-30281      Document: 00512442797         Page: 1    Date Filed: 11/15/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                       Fifth Circuit

                                                                                    FILED
                                                                              November 15, 2013
                                      No. 13-30281
                                                                                 Lyle W. Cayce
                                                                                      Clerk
CRAIG MOORE, Individually and on behalf of minor child, A.D.M.; TONI
JEANNE LABAT MOORE, Individually and on behalf of minor child A.D.M,

                                                 Plaintiffs-Appellants,
v.

INTERNATIONAL PAINT, L.L.C.,

                                                 Defendant-Appellee.




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                          Civil Action No. 2:11-CV-1001


Before STEWART, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
       Appellants Craig Moore (“Moore”) and Toni Jeanne Labat Moore sued
Appellee International Paint, L.L.C. (“IP”) under the Louisiana Products
Liability Act (“LPLA”), alleging that Moore developed multiple myeloma due
to his exposure to benzene contained in IP’s paints and paint thinners during
his work at the Avondale Shipyards (“Avondale”) from 1988 to 1990. In support
of their claims, Appellants retained Dr. Bhaskar Kura to provide expert


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 13-30281
testimony concerning, among other things, Moore’s cumulative benzene
exposure while using IP’s products at Avondale.
      After Dr. Kura submitted his expert report, IP filed a motion in limine
to exclude Dr. Kura’s opinion under Federal Rule of Evidence 702 and Daubert
v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). On November 30, 2012,
the district court issued a 21-page order granting the motion. Among other
things, the district court found that Dr. Kura’s opinion as to Moore’s
cumulative benzene exposure was insufficiently reliable to pass muster under
Daubert because Dr. Kura lacked a sufficient factual basis for his conclusions.
Five days later, the court granted IP’s motion for summary judgment with
respect to all the LPLA claims, partly on the ground that without Dr. Kura’s
testimony, the Appellants could not prove essential elements of those claims.
On appeal, Appellants contend that the district court erred in excluding Dr.
Kura’s testimony and granting IP’s motion for summary judgment. For the
following reasons, we AFFIRM.
                                       I.
      This court reviews rulings on the admissibility of expert testimony for
abuse of discretion. Moore v. Ashland Chem. Inc., 151 F.3d 269, 274 (5th Cir.
1998) (en banc). “[W]e have recognized that district courts are given wide
latitude in determining the admissibility of expert testimony, and the
discretion of the trial judge will not be disturbed on appeal unless manifestly
erroneous.” United States v. Cooks, 589 F.3d 173, 179 (5th Cir. 2009) (internal
alteration and quotation marks omitted). In particular, “a district court has
broad discretion to determine whether a body of evidence relied upon by an
expert is sufficient to support that expert’s opinion.” Knight v. Kirby Inland
Marine Inc., 482 F.3d 347, 354 (5th Cir. 2007).
      Accordingly, we cannot reverse the district court’s decision to exclude Dr.
Kura’s opinion unless we find that the court committed a “plain and
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                                        No. 13-30281
indisputable” error “that amounts to a complete disregard of the controlling
law.” Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004) (quoting
Venegas-Hernandez v. Sonolux Records, 370 F.3d 183, 195 (1st Cir. 2004))
(internal quotation marks omitted).             Further, although the district court’s
summary judgment order relied primarily on its exclusion of Dr. Kura’s opinion
as to the amount of benzene in IP’s products, neither party disputes that the
Appellants cannot succeed on their LPLA claims without Dr. Kura’s testimony
concerning Moore’s cumulative benzene exposure. Indeed, in their brief, 1 the
Appellants concede that “[t]he district court’s grant of summary judgment was
a foregone conclusion after it granted IP’s motion in limine and excluded the
testimony of Dr. Kura” and that “[w]ithout Dr. Kura’s testimony, [Appellants]
had no expert to testify that . . . Moore had been harmed as a result of the
products’ unreasonably dangerous characteristics.”
                                              II.
      Among the conditions imposed by the Federal Rules of Evidence on the
admissibility of expert opinion testimony is that the testimony be “based on
sufficient facts or data.” FED. R. EVID. 702(b). Under the framework explained
in the Supreme Court’s Daubert decision, “Rule 702 assigns to the district
judge a gatekeeping role to ensure that scientific testimony is both reliable and
relevant.” Johnson v. Arkema, Inc., 685 F.3d 452, 459 (5th Cir. 2012) (internal
quotation marks omitted). The Daubert reliability analysis applies to, among
other things, “the facts underlying the expert’s opinion.” Knight 482 F.3d at
355 (internal quotation marks omitted). In particular, an opinion based on
“insufficient, erroneous information,” fails the reliability standard. Paz v.
Brush Engineered Materials, Inc., 555 F.3d 383, 389 (5th Cir. 2009) (affirming
exclusion of expert opinion that relied on false assumptions rebutted by


      1   Appellants did not submit a reply brief.
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                                   No. 13-30281
undisputed record evidence).       Although the Daubert reliability analysis is
flexible and the proponent of the expert evidence need not satisfy every one of
its factors, United States v. Hicks, 389 F.3d 514, 525 (5th Cir. 2004), “the
existence of sufficient facts . . . is in all instances mandatory,” Hathaway v.
Bazany, 507 F.3d 312, 318 (5th Cir. 2007).
        Of course, “[w]hen facts are in dispute, experts sometimes reach different
conclusions based on competing versions of the facts.” FED. R. EVID. 702
advisory committee’s note. Generally, the “fact-finder is entitled to hear [an
expert’s] testimony and decide whether . . . the predicate facts on which [the
expert] relied are accurate.” Pipitone v. Biomatrix, Inc., 288 F.3d 239, 250 (5th
Cir. 2002).    At the same time, however, expert testimony that relies on
“completely unsubstantiated factual assertions” is inadmissible. Hathaway,
507 F.3d at 319 n.4. When an expert’s testimony is “not based upon the facts
in the record but on altered facts and speculation designed to bolster [a party’s]
position,” the trial court should exclude it. Guillory v. Domtar Indus., Inc., 95
F.3d 1320, 1331 (5th Cir. 1996).
                                        III.
        The district court identified numerous aspects of Dr. Kura’s cumulative
exposure analysis that either had no support in the record or were flatly
contradicted by all the available evidence. In particular, the district court
noted the following:
        Dr. Kura estimated the total number of hours Moore spent in proximity
to the products allegedly containing benzene in 1988 (when the bulk of the
alleged exposure took place) by dividing Moore’s total earnings from his work
at Avondale by an hourly rate of $6.00. The undisputed evidence, however,
showed that Moore was paid at hourly rates of $6.99, $7.44, and $8.00 that
year.


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         Dr. Kura’s analysis assumed that when Moore was using IP’s products,
he was always indoors.       In his deposition testimony, which was the only
evidence on this point, Moore stated that he used IP’s deck grey paint and IP’s
paint thinner outdoors while working at Avondale. On top of his erroneous
assumption that Moore only used IP’s products indoors, Dr. Kura also assumed
that the indoor spaces where Moore worked were always unventilated. The
available evidence on this point came from the deposition testimony of
Avondale employee Danny Joyce as well as from Moore’s deposition. Joyce
testified that Avondale had an extensive ventilation system, while Moore’s
testimony was that the ventilation was good at times and nonexistent at other
times. There was nothing in the record to suggest that Moore always worked
without ventilation.
         Moore worked as both a painter and a sandblaster at Avondale. There
was no evidence as to what percentage of his Avondale work was sandblasting
as opposed to painting. Moore also testified that when he was painting, he first
prepared the surface to be painted by grinding, scraping, or using sandpaper
on it.     Dr. Kura’s analysis purported to account for Moore’s work as a
sandblaster by allocating 90% (as opposed to 100%) of the hours he spent at
Avondale to painting, but it did not account for any of the preparatory tasks
Moore testified that he performed.
         Moore testified that he always used a respirator while painting, but it
sometimes became clogged after an hour of painting. He also testified that
when his respirator became clogged, he would get a new one during lunch. Dr.
Kura’s analysis assumed that Moore’s respirator always failed within one hour
and that he never obtained a replacement respirator.
         In addition to the assertions described above, which the district court
correctly found to be not only lacking in evidentiary support but also in conflict
with all the available evidence, Dr. Kura made a number of other assumptions
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                                 No. 13-30281
that, while not strictly inconsistent with the evidence, had no basis in the
record. Appellants argue that “[t]he district court simply disagreed with the
professor’s expert judgment about the underlying facts and the weight given to
them.” Appellants might have a point if Dr. Kura had identified some reason
for assuming the facts he did for his analysis. At his deposition, however, the
only basis Dr. Kura cited for many of his assumptions was the absence of any
testimony from Moore on that particular point.        But, where the primary
witness’s deposition testimony reflects “uncertain[ty] regarding many details
necessary” to the expert’s analysis, the expert may not “overcome th[e]
evidentiary lack” with “the furtive inclusion . . . of supposed facts not in the
record.” Hathaway, 507 F.3d at 318—19.
      To be sure, reliable expert testimony often involves estimation and
reasonable inferences from a sometimes incomplete record. Further, a few
scattered errors in an expert report are not necessarily grounds for exclusion.
Here, however, the universe of facts assumed by the expert differs frequently
and substantially from the undisputed record evidence.        Additionally, the
expert made numerous assumptions with no apparent underlying rationale.
Accordingly, the district court did not abuse its discretion in holding that Dr.
Kura’s opinion concerning Moore’s cumulative benzene exposure was
inadmissible under Federal Rule of Evidence 702.
                                      IV.
      For the foregoing reasons, we AFFIRM the judgment of the district court.




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