FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FEB 13, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-15389

Non-Argument Calendar

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D. C. Docket No. 04-00091-CV-4

CHRIS JAZAIRI, 

Plaintiff-CounterDefendant-Appellant, 

versus 

ROYAL OAKS APARTMENT ASSOCIATES, L.P., 

a Parent Company and Subsidiaries, 

MORGAN PROPERTIES, LTD., 

Defendants-CounterClaimants-Appellees, 

MITCHELL L. MORGAN PROPERTIES, INC. 

d.b.a. Royal Oaks Apartment Associates, L.P., 

a.k.a Morgan Properties, Inc., 

Defendant, 

JOHN I-X DOES, 

MITCHELL L. MORGAN MANAGEMENT, INC., 

Defendants-Appellees. 
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________________________

Appeal from the United States District Court

for the Southern District of Georgia

_________________________

(February 13, 2007)

Before TJOFLAT, HULL and PRYOR, Circuit Judges.

PER CURIAM:

Chris Jazairi appeals the decision of the district court to exclude the expert

testimony of Dr. Eckhardt Johanning under Daubert v. Merrell Dow

Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786 (1993). Dr. Johanning diagnosed

Jazairi with a “resolved or resolving” allergic inflammatory lung ailment and was

prepared to testify that an indeterminate amount of non-toxic mold or mold-related

bacteria discovered in Jazairi’s apartment, which was owned and operated by

Royal Oaks Apartment Associates, caused this ailment. We affirm.

I. BACKGROUND

Jazairi and her roommate moved into an apartment at Royal Oaks in May

2002. Two months later, they noticed mold on their walls and floors and 

complained to the county health department. The health department found

evidence of water intrusion and instructed Royal Oaks to remedy the apartment in

accordance with EPA guidelines. Samples taken by the health department revealed
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several genus of mold: Strachybotrys chartarum, Aspergiluss, Aureobasidium,

Cladosprium, and Alternarian. 

In August, Jazairi went to the emergency room complaining of memory loss,

fatigue and malaise. An x-ray revealed interstitial thickening in her lungs. In

September, Dr. Robert Remler diagnosed Jazairi with interstitial fibrosis–the

scarring of lung tissue between the air sacs–and referred her to Dr. Patricia

Constanzo, a lung specialist. On October 1, 2002, Jazairi left the apartment to live

in a tent on undeveloped property, and then, after a month or two, moved into

another apartment.

On Octrober 24, 2002, Jazairi visited Dr. Constanzo and complained of lung

symptoms such as shortness of breath, coughing, and chest pains. Dr. Constanzo

noted that Jazairi had smoked a pack of cigarettes a day for twenty years and

suggested a series of tests to determine the treatment of her interstitial fibrosis. In

February, 2003, Dr. Constanzo performed a fiberoptic bronchoscopy and

discovered no fungal growth in Jazairi’s lungs. While not ruling out hypersensitive

pneumonitis (HP), an allergic reaction to mold spores, Dr. Constanzo concluded

that the findings were more suggestive of chronic bronchitis caused by cigarette

smoking. Dr. Constanzo prescribed Advair, which would ease breathing regardless

of the cause of the interstitial fibrosis.
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Jazairi apparently did not fill Dr. Constanzo’s prescription. Instead, two

times over the next year, she visited Dr. Eckerdt Johanning in Albany, New York,

a doctor of environmental and occupational medicine with a specialty in moldcaused illnesses. Dr. Johanning tested Jazairi for moisture-related allergens, but

not for outdoor allergies, and discovered no allergic reaction. He tested her for

sensitivity to specific mold species and discovered that Jazairi was allergic to 

Termoactinomyces, a bacteria, but not any genus of mold. Dr. Johanning found

antibodies in Jazairi’s bloodstream consistent with exposure to bacteria. On her

second visit, Jazairi’s CT scans showed that her interstitial markings had almost

cleared.

Dr. Johanning diagnosed Jazairi with resolved or resolving HP caused by

exposure to a “cocktail” of mold and bacteria. Dr. Johanning reasoned that

smoking effects are usually irreversible, that Jazairi is too young at 38 to have

smoking effects, and that the X-ray findings were more consistent with an allergic

lung problem than with asthmatic bronchitis. Jazairi reported a litany of other

symptoms, as varied as joint pain, panic attacks, and blurred vision, but Dr.

Johanning suggested that those symptoms were due to alcohol consumption or a

psychiatric condition. Although Dr. Johanning observed that Jazairi’s interstitial

markings have cleared, Jazairi continues to complain of coughing, chest pain, and
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shortness of breath.

Jazairi sued Royal Oaks and submitted the affidavit of Dr. Johanning in

response to a summary judgment motion by Royal Oaks. Royal Oaks moved to

strike Dr. Johanning’s affidavit under Daubert, and the district court granted the

motion. The district court concluded that Dr. Johanning’s diagnosis was not

scientifically acceptable. The district court reasoned that Dr. Johanning failed to

“rule in” mold as the source of Jazairi’s symptoms, failed to “rule out” smoking or

common allergens like pet dander, and over-relied on the temporal proximity

between the mold exposure and the on-set of Jazairi’s symptoms. After discarding

Dr. Johanning’s testimony, the district court held that Jazairi failed to create a

genuine issue of material fact about specific causation and granted summary

judgment for Royal Oaks.

II. STANDARD OF REVIEW

We review the district court’s exclusion of testimony under Daubert, for an

abuse of discretion. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141, 118 S. Ct. 512,

517 (1997). “We recognize a significant range of choice for the district court on

evidentiary issues, which is to say we defer to its decisions to a considerable

extent.” McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1257 (11th Cir.

2002).
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III. DISCUSSION

Jazairi argues that the district court “applied an artificially elevated standard

in considering the medical opinion of Dr. Johanning” and erroneously made

findings of fact at summary judgment. We disagree. Expert testimony should be

admitted “if (1) the testimony is based upon sufficient facts or data, (2) the

testimony is the product of reliable principles and methods, and (3) the witness has

applied the principles and methods reliably to the facts of the case.” Fed. R. Evid.

702; see also Daubert, 509 U.S. at 590, 113 S. Ct at 2795. “The burden of

establishing qualification, reliability, and helpfulness rests on the proponent of the

expert opinion. . . .” United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir.

2004). The focus of the reliability inquiry should be on methodology but “even

when an expert is using reliable principles and methods . . . there [cannot be] too

great an analytical gap between the data and the opinion proffered.” Id. at 1276. 

Expert testimony should not be based solely on temporal proximity and anecdotal

evidence. Allison v. McGhan Med. Corp., 184 F.3d 1300, 1312 (11th Cir. 1999).

The medical community recognizes that an allergic reaction similar to

Jazairi’s can occur when a sensitive individual is exposed to an allergen, so Dr.

Johanning’s testimony is necessary only to show that the moldy conditions of

Jazairi’s apartment were the specific cause of her symptoms. Dr. Johannning
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employed a differential diagnosis methodology; he identified likely causes of

Jazairi’s symptoms and, by process of elimination, deduced that her symptoms

were most likely caused by exposure to a mix of bacteria and mold. The record

reflects that differential diagnosis is widely accepted by the medical community. 

Although recognizing Dr. Johanning’s expertise in environmental illnesses

and crediting the methodology of differential diagnosis, the district court

concluded that Dr. Johanning’s testimony still failed to surpass the Daubert

threshold. We agree. The record shows that HP is an allergic reaction that occurs

when a hypersensitive individual is exposed to high dosages of mold spores. Dr.

Johanning tested Jazairi for mold allergies, found that she had none, and apparently

did not conclude that Jazairi suffered symptoms due to exposure to any of the

molds that were present in her apartment. To the extent that Dr. Johanning was

prepared to testify that the mold in Jazairi’s apartment caused her conditions, Dr.

Johanning’s testimony would have been based solely on temporal proximity and

anecdotal evidence. It was within the discretion of the district court to exclude it.

Although Dr. Johanning identified the bacteria Termoactinomyces as the

cause of Jazairi’s illness, Dr. Johanning’s opinion on that issue did not create a

genuine issue of material fact. As the district court explained, there is no evidence

that Termoactinomyces was present in Jazairi’s apartment because the county
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health department did not test for bacteria. Jazairi submitted some articles from

medical and scientific journals that show Termoactinomyces can grow in air

conditioners and humidifiers, but there is no evidence linking Termoactinomyces

with indoor mold. In fact, Jaziari’s articles explain that Termoactinomyces is

usually found in hay, straw, and grain. Because there was no evidence that would

allow a reasonable inference that Termoactinomyces was present in Jazairi’s

apartment, summary judgment was appropriate. See, e.g., Sanders v. Cowart, 231

Ga. App. 303, 304, 499 S.E.2d 103, 104 (1998) (“[T]he plaintiff must show a

probability rather than merely a possibility that the alleged negligence caused the

injury.”).

IV. CONCLUSION

Summary judgment in favor of Royal Oaks is AFFIRMED.