UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LISA CAROLINE JONES; JOANNE JONES;

JOHN M. JONES,

Plaintiffs-Appellants,

No. 97-1519

v.

AMERICAN CYANAMID COMPANY,

Defendant-Appellee.

LISA CAROLINE JONES; JOANNE JONES;

JOHN M. JONES,

Plaintiffs-Appellees,

No. 97-1607

v.

AMERICAN CYANAMID COMPANY,

Defendant-Appellant.

Appeals from the United States District Court

for the District of South Carolina, at Greenville.

Henry M. Herlong, Jr., District Judge.

(CA-94-1374-6-20)

Argued: January 30, 1998

Decided: March 17, 1998

Before HAMILTON and LUTTIG, Circuit Judges, and

VOORHEES, Chief United States District Judge

for the Western District of North Carolina,

sitting by designation.

_________________________________________________________________
Affirmed in part and vacated in part by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Marc Simon Moller, KREINDLER & KREINDLER,

New York, New York, for Appellants. Roger William Yoerges, WILMER, CUTLER & PICKERING, Washington, D.C., for Appellee.

ON BRIEF: Stanley P. Kops, KOPS & FENNER, Philadelphia,

Pennsylvania, for Appellants. David P. Donovan, Brigida Benitez,

John E. Smith, WILMER, CUTLER & PICKERING, Washington,

D.C.; William S. Brown, NELSON, MULLINS, RILEY & SCARBOROUGH, Greenville, South Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Plaintiff-appellant Lisa Jones brought suit against defendantappellee American Cyanamid claiming that she contracted polio

through contact with an unknown individual who had recently been

administered with a defective dose of polio vaccine manufactured by

defendant. After discovery, the parties filed cross-motions for summary judgment, both of which were granted in part and denied in part.

Judgment was entered in favor of the defendant, however, because the

district court granted summary judgment for defendant on the issue

of causation, which, under South Carolina law, is an essential element

of plaintiff's tort case. Both parties appeal. Because we conclude that

plaintiff has not presented sufficient evidence tending to show that

any alleged defect in defendant's polio vaccine caused her particular

injury, we affirm the judgment entered in favor of the defendant. We

 2
also vacate as moot the remaining elements of the judgment entered

in favor of Jones.

Plaintiff-appellant claims that she contracted polio through contact

with an unknown individual who had recently received a dose of

defendant's defective polio vaccine. Specifically, plaintiff has presented evidence that defendant American Cyanamid, acting in violation of federal safety regulations, used an overly virulent type III

"polio seed" to derive vaccine lots for type III polio. Plaintiff insists

that this violation of federal regulations constituted negligence per se

under South Carolina law. If this alleged negligence on the part of

American Cyanamid were in fact the true cause of plaintiff's illness,

then plaintiff would have contracted type III polio because there are

three distinct types of polio and each one is caused only by a distinct

type of poliovirus (types I, II, and III).

The district court entered summary judgment in favor of defendant

on the issue of causation because Jones had failed to present any evidence tending to establish that it is more likely than not she contracted

type III polio. The district court reasoned as follows:

During this case, it has been represented to the court that a

determination of the specific type of polio is ascertainable

only if doctors perform definitive tests at an early state in

the onset of polio. Past a certain point in the progression of

polio, it becomes impossible to determine with certainty

which of the three types of polio is involved. . . .

 Jones admits that there is no way to diagnose what specific type of polio she has. Because definitive tests for polio

were never performed on Jones at the onset of her illness,

it is now impossible to determine with 100% accuracy

whether she has type 3 polio.

 Jones claims she has experts who will testify that, historically, type 3 polio is the most common to arise from Cyanamid's vaccine. Apparently, this testimony will be in the

nature of statistics and the experts will assign a percentage

to the likelihood that Jones has type 3 polio. Jones asks the

court to apply the following reasoning: "Since most cases of

 3
contact polio are Type III, and Type III is genetically the

most unstable, with a history of neurovirulence, a jury could

well infer it was the Type III component, in particular, that

caused Lisa Jones' illness." As Cyanamid noted at the February 18, 1997 hearing, it has experts who will testify that

type 1 or type 2 polio is more common in contact cases such

as this one. . . .

Viewing the facts in the light most favorable to Jones, the

court concludes that there is insufficient evidence for a jury

to reasonably determine whether Jones has type 1, type 2,

or type 3 polio. . . .

Jones does not have an expert who can say, based on Jones'

medical history and medical data, that it is more probable

than not that she suffers from type 3 polio. Even though that

would be an impossible task, it would be inappropriate to

allow a jury to make the logical leap from testimony that a

certain percentage of polio victims have type 3 polio to the

conclusion that Jones has type 3 polio. As a result, Jones is

unable to sufficiently demonstrate that a reasonable jury

could find that it is more probable than not that she has type

3 polio.

J.A. at 3432-34. While the district court appears to have based its conclusion upon a view that statistical evidence cannot, as a matter of

law, suffice to make a causation case, and while we are not convinced

that South Carolina courts would refuse to allow plaintiffs to establish

causation through statistical evidence, we nevertheless conclude the

district court reached the proper conclusion in this case because plaintiff has not presented any legally sufficient evidence -- medical history evidence, statistical evidence, or other -- to create a triable issue

of fact that it is more likely than not that Jones contracted type III

polio.

Under South Carolina law, in a tort case "where a medical causation issue is not one within the common knowledge of the layman,"

the plaintiff must present "medical expert testimony" in order to

establish causation. Goewey v. United States, 886 F. Supp. 1268,

1279 (D.S.C. 1995). Clearly, whether plaintiff contracted type III

 4
polio from defendant's allegedly defective vaccine is a causation

question beyond the common knowledge of the layman, and plaintiff

has not presented expert medical testimony sufficient to defeat summary judgment on causation. First, plaintiff has presented no direct

medical history evidence from any experts that she has type III polio.

Plaintiff has designated ten experts, none of whom was designated to

testify that Lisa Jones had type III polio. J.A. at 1190-1204, 1681-89.

Furthermore, when Jones became ill in 1983, presumably before it

became too late to determine what, if any, type of polio she had contracted, she was admitted to a hospital where she received extensive

testing for polio, and neither blood tests, stool samples, nor cerebrospinal fluid tests disclosed that she had type III polio. See J.A. 609-10,

668, 670, 672, 677, 679. In fact, although her treating physician

referred to her paralysis as "polio-like," J.A. at 690, and while other

doctors suspected polio, her 1984 hospital discharge summary concluded that "it was impossible to arrive at a definitive diagnosis" and

thus it did not even diagnose Jones with any type of polio, let alone

type III polio. J.A. at 609-10, 681-82, 684.

Second, although plaintiff purports to rely upon statistical evidence, she has failed to present any expert statistical evidence tending

to establish that it is more likely than not that she has type III polio.

Plaintiff's statistical theory is that, because she contracted her polio

through contact (so-called "contact polio"), and because type III polio

is the most likely type of polio to be transmitted through contact, she

has therefore presented evidence that she likely has type III polio.

However, her only evidence regarding the likelihood of transmitting

type III polio through contact consists of various articles from academic journals and other studies, J.A. 364-69, 695-704, 1025-27,

1254-61, 1227-38, 1361-85, 2025, none of which are accompanied by

any expert witness testimony to interpret the data.* Under South Carolina law, plaintiff cannot create a jury question simply by citing to

an array of medically sophisticated academic journal articles and

_________________________________________________________________

*Although plaintiff does cite to the testimony of Dr. Hackell, one of

the defendant's experts, that testimony does not establish that type III is

more likely to cause contact polio than types I or II. J.A. at 1025-26 ("Q:

Why is there more Type III contact recipient polio than Type I or Type

II? A: It's not known for certain. People have postulated that there may

be a relationship . . . . I don't know that has been proven.").

 5
studies consisting primarily of charts and graphs without offering any

accompanying expert testimony to interpret and explain the data.

Obviously, such a morass of scientific data, without any explanatory

testimony, could not be presented to a jury, and therefore plaintiff has

not created a jury question simply by alerting the court's attention to

such scientific charts and graphs. Plaintiff has therefore failed to present any competent expert medical testimony tending to establish that

it is more likely than not that plaintiff Jones contracted type III polio.

Alternatively, plaintiff insists that once she has shown that defendant's type III vaccine is defective, the burden of proof should then

shift to the defendant to prove that plaintiff does not have type III

polio. Plaintiff's "burden shifting" theory, however, is contrary to the

law of South Carolina which clearly establishes that causation is an

essential element of a plaintiff's tort case upon which the plaintiff

bears the burden of persuasion, Bragg v. Hi-Ranger, Inc., 462 S.E.2d

321, 326 (S.C. Ct. App. 1995), and none of the cases cited by plaintiff

support application of plaintiff's novel "burden shifting" theory under

South Carolina law in a case such as this.

Therefore, because we conclude that the district court properly

entered judgment in favor of defendant Cyanamid on the grounds that

plaintiff failed to present any evidence tending to show that it is more

likely than not that she contracted type III polio, the judgment entered

in favor of defendant is affirmed. Furthermore, because causation is

an essential element of plaintiff's tort case under South Carolina law,

we vacate as moot the remainder of the district court's judgment, particularly as it relates to defendant's liability.

AFFIRMED IN PART AND VACATED IN PART

 6