### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-50193

GREGORY SCOTT JOHNSON, Plaintiff – Appellant,
v. ARKEMA, INCORPORATED, Defendant – Appellee.

Appeal from the United States District Court for the Western District of Texas

Before REAVLEY, ELROD, and HAYNES, Circuit Judges. PER CURIAM: In this toxic tort case, we consider whether t h e d i s t rict court erred in: (1) excluding the opinions of Gregory Johnson’s expert witnesses on the element of causation; and (2) granting summary judgment in favor of Arkem a , I n c. because Johnson was unable to prove caus ation without the opinions of his excluded ca u s a tion experts. We AFFIRM the district court’s judgment in all respects except as to Johnson’s claims regarding his acute injuries, on which we REVERSE and REMAND for further proceedings. U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D June 20 , 20 12 Lyle W . Cayce Clerk Case: 11-50193 Document: 00511893048 Page: 1 Date Filed: 06/20/2012No. 11-50193 I. Johnson worked as a mac h i n e repairman at Owens Illinois Inc.’s glass bottling p l a n t i n Waco, Texas from May 1998 to the end of 2008. On two separate occasions, first in early June 2007 and again on July 15, 2007, Johnson

was directed to perform work in close proximity to a device known as a C-4 Hood, which was designed, manufactur ed, and installed by Arkema. C-4 Hoods are utilized by Owens Illinois to apply a chemical known as Certincoat to the glass bottles it produ c e s a s t he bottles are transported along a conveyor belt. 1 Certincoat is composed mostly of monobutyltin trichloride (MBTC), an organometallic compound based on tin. Under the elevated temperatures of the C-4 hoods, MBTC vapor i z e s a n d then decomposes when it contacts the glass bottles on the conveyer belt. Hydrochloric acid (HCl) and tin oxide a r e byproducts of MBTC. Arkema’s C-4 Hoods are designed to vacu u m u p a nd capture any vapors that are not deposited on the glass bottles, thus preventing the escape of MBTC, HCl and tin o x i d e into the workplace environment. According to Johnson, the C- 4 H o o d he worked near on those two occasions in the summer of 2007 failed to perform its proper preventative function, resulting in his exposure to Certincoat and its chemical byproducts. Specifically, Johnson alleges that within fifteen minutes of first approaching the C-4 hood in early June 2007 he: (1) s m elled a sweet, unique chemical odor; (2) noticed chemical buildup on the conveyer belt; (3) developed

a sore throat; (4) f

elt burning and watery eyes; and (5) experienced chest pain and breathing difficulty. Johnso n n evertheless continued to work in these conditions for approximately four to five hours and, thereafter, neither reported the incident to his supervisor nor sought immediate medical attention. A few days later, on June 9, 2007, Johnson’s family doctor diag n osed him with

Ar ke ma is als o t he des igner and man ufac tur er of Cert inco at. 1
2 Case: 11-50193 Document: 00511893048 Page: 2 Date Filed: 06/20/2012No. 11-50193

pneumonia. At his June 18, 2007 follow-up visit, Johnson reported that he “fe[lt]

a lot better” and his doctor concluded that he could return to work the following day. The next month, on July 15, 2007, Johnson was again instructed to work

near the C-4 H o o d

. While doing so for approximately two to three hours, Johnson experienced the same symptoms that h e f e l t during his first alleged instance of Certincoat exposure. This time, however, Johnson reported the incident to his supe rvi s o r a n d sought immediate medical attention at a local emergency room. O n August 8, 2007, upon Johnson’s disclosure of the two exp o s u r e inci d e nt s to his treating physician, Dr. Camille Hinojosa, John s o n w a s di a gno s e d with c h e m ical pneumonitis and advised to see a pulmonologist. According to Johnson, his lung condition progressively worsened over the course of the years following the exposure incidents, culminating in a diagnosis of severe restrictive lung disease and pulmonary fibrosis. 2 II. On November 3, 2008, Johnson filed a personal injury lawsuit against Arkema in the 60 Judicial District Court of Jefferson County, Texas, claiming th
t h a t Arkema’s C-4 Hood proximately caused his restrictive lung disease an d pulmonary fibrosis. Arkema removed the mat t e r to the Eastern District of 3 Texas and, o n Ap r il 30, 2009, this matter was transferred to the Western District of Texas

. In his complaint, Johnson raises theories of negligence and strict liability based on Arkema’s design, manufactur e , marketing, and

Altho ugh Ark em a dis put es this diagno sis , the dis put e is not ma ter ial to the 2 dis pos itio n o f this ap pea l.
Johns on’s brie f def

ines pulm onar y fib ros is as the “inf lam mat ion and pr ogr e ss ive 3 fib ros is of the pulm onar y alveol ar wa lls ”; it is “one of a fam i l y o f r e late d dis eas es call ed inte rs tit ial lung d ise ase s. All of thes e d ise ase s can res ult in lung s carring. ” 3 Case: 11-50193 Document: 00511893048 Page: 3 Date Filed: 06/20/2012No. 11-50193

installation of its C-4 Hoods. Johnson seeks compensatory and punitive damages, including, but not limited to, compensation for past physical pain and medical expenses. Arkema filed motions to exclude the opinions of Dr. Richard Schlesinger, Johnson’s ex p e r t toxicologist, and Dr. Charles Grodzin, Johnson’s expert pulmonologist, under Federal R u le of Evidence 702 and the Supreme Court’s decision in Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579 (1993). Arkema also filed a motion for summary judgment, contending that Johnson was unable to present scientifically r e l i ab le evidence establishing that exposure to the chemicals in Certincoat can cause restrictive l u n g disease and pulmonary fibrosis. On December 16, 2010, the magistrate judge iss u ed a report and recommendation to the district court regarding Arkema’s Daubert motions. The magistrate judge recommended: (1) excluding Dr. Schlesinger’s opinion, which only a ddressed causation, as unreliable and irrelevant; and (2) limiting Dr. Grodzin’s opinion so that he could only opine on the nature and extent—but not the cause—of Johnson’s illness. The district court adopted the report and recommendation and subsequently granted summary judgment in favor of Arkema. The district court reasoned that summary judgment was appropriate because—given the exclusion of Dr. Schlesinger’s opinion and the limitation of Dr. Grodzin’s o p i n i o n

—Johnson “ha[d] no evidence that any lung injury he suffered [w a s ] a result of his exposure to MBTC and/or HCl.” In so doing, the district court rejected Johnson’s claim th at the similar symptoms experienced by his co-workers provided sufficient summary judgment evidence of causation: The only thing pres e n t ed with the summary judgment material which was not presented to Magistrate Judge Manske is Plaintiff’s evidence that other Owens employees suffered lung injuries similar t o h is. However, an inspection of this evidence fails to re v e a l a single employee who has suffere d a p e rmanent, or chronic, lung

4 Case: 11-50193 Document: 00511893048 Page: 4 Date Filed: 06/20/2012No. 11-50193

injury after expos ur e to Ark e m a’ s chemicals. While other employees may have been exposed to the same chemicals, they suff e r e d only transitory symptoms which quickly resolved. This appeal followed. III. The firs t issues we consider concern the district court’s evidentiary rulings under Rule 702 and Daubert , which we review for abuse of discretion. Curtis v. M&S Petroleum, Inc. 174 F.3d 661, 668 (5th Cir. 1999). “A trial court abuses its discretion when its ruling is based on an erroneous view of the law or a clearly

erroneous assessment of the evidence.” Bocanegra v. Vicmar Servs., Inc. , 320 F.3d 581, 584 (5th Cir. 2003). In conducting our review, “[w]e are mindful that under Daubert and Fe d

. R

. Evid. 702, a district court has broad discretion to determine wheth e r a body of evidence relied upon by an expert is sufficient to support that expert’s o p i n i o n . ” Knight v. Kirby Inland Marine Inc. , 482 F.3d 347, 354 (5th Cir. 2007); see also Rider v. Sandoz Pharm. Corp. , 295 F.3d 1194, 1197 (11th Cir. 2002) (“[J]udges have considerable leeway in both how to test the

r e li ab ility of evidence and determining whether such evidence is reli ab l e . ” (citin g Kumho Tire Co., Ltd. v. Carmichael , 526 U.S. 137, 151–53 (1999))). T h e admissibility of expert testimony is governed by Federal Rule o f Evidence 702, which provides: A witness who is qualified as an expe r t b y 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

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(d) the expert has reliably applied the principles and methods to the facts of the case. Fed. R. Evid. 702. In Daubert , the Supreme Court “explained that Rul e 7 0 2 a ssigns to the district judge a gatekeeping role t o ensure that scientific testimony is both reliable and relevant.” Curtis , 174 F.3d at 668 (citing Daubert , 509 U.S. at 597). The reliability prong mandates that expert opinion “be grounded in the methods

a nd procedures of science and

. . . be more than unsupported speculat i o n o r subjective belief.” Id. (citing Daubert , 5 0 9 U

. S. at 590); see also Moore v. Ashland Chem., Inc. , 151 F.3d 269, 276 (5th C i r . 1 9 9 8) (en banc) (“[T]he party seeking to have the district court admit expert testimony must demonstrate that the expert’s findings and conclusions are based on the scientific method, and, therefore, are reliable.”). The relevance prong requires the proponent to d e m o nstrate that the expert’s “reasoning or methodology can be properly ap p li e d to the facts in issue.” Curtis , 174 F.3d at 668 (c i t i n g Daubert , 509 U.S. at 592–93). Furthermore, courts consider the following no n - e xclusive list of factors when conducting the reliability inquiry: (1) whether the theory or technique has been tested; (2) whether the t h eory or technique has been subjected to peer revi e w a n d publication; (3) t h e k n o wn or potential rate of error of the method used and the existence and maintenance of standards controlling the technique’s operation; and (4) whether the theory or method has been generally accepted by the scientific community. Id. at 668–69 (citing Daubert , 509 U.S. at 5 9 3

– 9 4)

. “ The proponent need not prove to the judge that the expert’s testimony is correct, but she must prove by

a preponderance of the evidence that the testimony is reliable.” Moore , 151 F.3d at 276; see also Wells v. Smithkline Beecham Corp. , 601 F.3d 375, 378 (5th Cir. 2010) (“Although there are ‘no certainties in sci e n ce,’ the expert must present

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conclusions ‘ground[ed] in the methods and procedures of science.’” (alteration in original) (quoting Daubert , 509 U.S. at 590)). A. Johnson contends that the district court abused its discretion in excluding Dr. Schlesinger’s expert opinion that MBTC and HCl can cause restrictive lung 4 disease and pulmonary fibrosis. The district court excluded Dr. Schlesinger’s 5 testimony aft er determining that: (1) Dr. Schlesinger could not cite to one epidemiological or controlled s tu dy o f humans indicating that exposure to MBTC

o r HCl could cause restrictive lung disease and pulmonary fibro s i s ; ( 2) Dr. Schlesinger relied, in part, on two animal studies that were h i gh l y distinguishable from and not correlated to Johnson’s two instances of MBTC and HCl exposure; and (3) the s c ientific literature is devoid of any data or peerreviewed articles indicating that exposure to MBTC or HCl will result in chronic lung d i s e a s e , and such a proposition is not generally accepted in the scientific community. Johnson argues that the district court erred in so ruling because: (1) MBTC and H C l a r e p a rt of a toxicological class of chemicals labeled as irrit a n t s that are known to potentially cause pulmonary fibrosis; (2 ) D r . S chl e s in ge r b ased his opinion on reliable scientific data concerning MBTC and HCl exposure—including animal studies, material safety data sheets, and guidelines from regulatory and advisory bodies—that support his c o n c l usions; and (3) Dr. Schlesi n ger’s opinion is buttressed by the temporal connection between Johnson’s exposure and illness. As set forth below, becaus e w e are unable to conclude that the district c o u r t abused its broad discretion in

Altho ugh Cert inco at als o cont ains tin oxide , Dr

. Schl es inger did not off er the opi nion 4 thatt in oxidec an c aus e r es tri ctive l ung d ise aseandp ulm onar y f ibro sis

. Dr

. Schl es inger has an exten sive back ground in the fie ld of inhalat ion toxic ology and 5 is cur rent ly a pr ofe ss or in the De par tm ent of Biology and He alth Sci ence s at Pace Univer sit y. In pur sui ng its Da uber t mo tio n, Ark em a did not dis put e Dr

. Schl es inger’ s qualif icat ions as a toxic ologis t. 7 Case: 11-50193 Document: 00511893048 Page: 7 Date Filed: 06/20/2012No. 11-50193

performing its gatekeeping function under Daubert , we affirm the exclusion of Dr. Schlesinger’s expert opinions. 1. Johnson first claims th a t t he district court erred in discounting Dr. Schlesinger’s “class of chemicals” theory. Johnson asserts that Dr. Schlesinger’s opinion is reliable because “MBTC and HCl are part of a group of chemicals labeled by toxicologists as ‘strong irritants.’” According to Johnson, this classification is significant because “[a]ll ‘strong i r r i t ants’ have the same physi o l o gical effect when they contact biological tissue—production of inflammation.” Moreover, numerous peer-reviewed studies of exposure to other chemicals labeled as irritants—includ i n g chlorine, ammonia, and nitric acid vapor—have reported lung scarring following acute exposure to those respective irritants. Thus, although Dr. Schlesinger only relied on one MBTC and one HCl study in forming his opinions, Johnson contends that Dr. Schlesinger’s

conc l u sions are reinforced by the more prevalent studies involving other irritants. Our review of Supreme Court and this circuit’s case law confirms that, in forming a reliable opinion regarding the effects of expos u r e t o a particular chemical, an expert may extrapolate data from studies of similar chemicals. See G e n . E lec. Co. v. Joiner , 522 U.S. 136, 146 (1997) (“Trained experts commonly extrapolate from existing data.”); Moore , 1 5 1 F

. 3 d at 278–79. However, “[t]o support a conclusion based on such reasoning, the extrapolation or leap from one chemical to another must be reasonable and sci e n tifically valid.” Moore , 151 F.3d at 279. Thus, courts are free to reject a theory based on extrapolation when “there is simply too great an analytical gap between the data and the opinion proffered.” Joiner , 522 U.S. at 146. We applied the f

o r e g o i n g principles in our decision in Wells , 601 F.3d at 3 8 0

. I n t h a t c ase, three experts relied on a study of a class of drugs known as
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“dopamine agonists” in support of their conclusion that a specific drug within the

cl a s s , R e quip , c o ul d h ave p ot e nti ally caused the appellant’s compulsive gamblin g problem. Id. We held that the district court did not ab u s e its discretion in

6 excluding the experts, in part, because they failed to bridge the an a l ytical gap between the generalized nature of the class-wide dopamine agonist study and the specific characteristics of Requip, “a drug that functions differently than other dopamine agonists.” Id. ; cf. Knight , 482 F.3d at 350, 352–53 (exclusion of expert who relied on studies of organic solvents was not an abuse of discretion, in part, because of the expert’s failure to address how exposure to benzene, the specific organic solvent at issue, could be correlated to those studies i nv o lving exposure to other organic solvents in addition to benzene). We also view the Tenth Circuit’s Rider decision as particularly instructive in this case. 295 F.3d at 1200–02. In Rider , the experts relied on evidence that drugs in a class known as “ e r g o t alkaloids” caused vasoconstriction to support the proposit i on that a specific drug within the class, bromocriptine, did so as well. Id. at 1200–01. The Rider court first reiterated that, in Joiner , the Supreme Court: established the important test of analytical “fit” between the methodology used and the concl u s i o n s drawn.

. . . The [C]ourt reasoned that j ust because a methodology is acceptable for some purposes, it may not be acceptable for others, and a court may not a d m i t e vidence when there is “simply too great an analytical ga p between the data and the opinion proffered.” Id. at 1197 (quoting Joiner , 522 U.S. at 146). The court then affirmed the exclusion of the experts because ergot alkaloids have div e rse chemical compositions and the experts failed to demonstrate that bromocriptine “should have the same effects as other drugs in that class.” Id. at 1201–02.

A dop ami ne agonis t is a dr ug “th at st im ulate s the dop ami ne rec ept ors in the brain to 6 allevia te sym pt om s of Park ins on’s [ Di se ase ]. ” Id. at377

. 9 Case: 11-50193 Document: 00511893048 Page: 9 Date Filed: 06/20/2012No. 11-50193

In this case, we conclude that the district court did not abuse its discretion i n e x cluding Dr. Schlesinger’s “class of chemicals” theory. Dr. Schlesinge r opined that MBTC and HCl can cause pulmonary fibrosis because they are part of a class of chemicals labeled as irritants:

It is generally accepted in the field of toxicology that both HCl and MBTC belong to a class of chemicals known as irritants. Toxicologically, all irritants have the same effect when they contact biological tissue, namely production of inflamation.

. . . It is an accepted fact that acute inhalation of irritants can result in chronic diseases, including restrictive lung disease and pulmonary fibrosis.

. . . While all irritants produce inflammation, as described above, respirato r

y i rr itants are different in their specific chemical structure

. These dif

f e r e nc e s r e l at e to toxic potency (the exposure concentration needed to produce damage) and solubility (which affects the area of the lung an inhaled irritant would be expected to reach). Exhibit A #6. However, while chemicals within a class may d i f f e r in toxic potency and solubility, the mechanism of tox i c i ty is the same, as described above. Therefore, if exposure to an irritant is of sufficient concentration to cause inflammation , there are no other differences among irritants in the same class in terms of capability to cause a particular lung injury. (Emphasis added). Dr. Schlesinger did not go further, h o w e ver, and explain h o w , b a s e d on any of the specific properties and toxicities of similar irritant s when compared with those of MBTC and HCl, Johnson’s exposure to MBTC and HCl was at a sufficient concentration level to cause restrictive lung disease and pulmonary fibrosis. See Moore , 151 F.3d at 278–79 (“Dr. Jenkins made no 7 attempt to explain his conclusion by asserting that the Toluene solution [to

In s tead , Dr

. Schl es inger’ s opi nion that the conc entr atio n levels of MBTC an d H C l 7
we re suf fic ient to caus e lung dam age wa s bas ed on othe r sc ient ifi c evide nce dee me d unrel iable by t he dis tri ct cour t, d isc uss ed inf raatIII.2–3.

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which plaintiff was exposed] had properties si m il ar to ano th er ch e m ic al e xp o s ur e to which [reactive airway dysfunction syndrom e , or (RADS)] had been scientifically linked.”); see also Mitchell v. Gencorp. Inc., 165 F.3d 778, 782 (10th Cir. 1999) (although the “record contain[ed] s o m e t estimony about the

s i milarities between benzene and [d]efendant’s products,” there was no “additional testimony explaining exactly what these similarities [were] and how the similarities cause[d] the human body to respond to [d]efendant’s chemicals i n a m anner similar to benzene”). Put differently, save for highlighting t h e i r shared classifications as irritants, Dr. Schlesinger di d not att e mpt to explain any direct correlation or “fit” between the chemicals in Certincoat and the known scientific data concerning exposure to, for example, chlorine, ammonia, or nitric acid vapor. Accordingly, given the diverse chemical structures and toxicities of irritants, which Dr. Schlesinger acknowledged, we hold that the district court 8 did not abuse its discretion in concluding that Dr. Schlesinger’s “class of chemicals” theory presented “too great an analytical gap between the data and the opinion proffered.” Joiner , 522 U.S. at 146. 9 2. Johnson next asserts that reliable and relevant scientific data concerning
exposure to HCl supports Dr. Schlesinger’s conclusion that HCl causes scarring to lung tissu e . J o h nson first points to the material safety data sheet (MSDS) issued by Airgas, Inc., a company wholly unrelated to Arkema, which warns that

On e of the art icle s Dr

. Schl es inger sub mi tte d wi th his rep ort als o im pli cit ly add res se d 8 the diver se char act eris tic s of irr itant s, pr ovidi ng that “[t] he healt h eff ect s of an acut e expo sur e to an irr itant gas or vapor are depen dent on the phys ioch em ical pr ope rti es of that pa rtic ula r gas or va

por , as we ll as sp ecif

ic hos t fac tor s. ” ( Emp has is add ed)

. This ou tco mem ay havebe en dif fer ent had Dr

. Schl es inger pr es ente d othe r reli able 9
sc ient ifi c evide nce to sup por t his caus atio n opi nion. For ins tanc e, if Dr

. Schl es inger had othe r reli able evide nce dem ons tra ting that the conc entr a t i on levels of MBTC and HCl we re suf fic ient ly high to im pair res pir ator y func tion , then the analyti cal leap fou nd in his “cl ass of chem ical s” theo ry coul d pot enti ally have been red uced to a me re st ep, rend erin g Dr

. Schl es inger’ s opi nion reli able. 11 Case: 11-50193 Document: 00511893048 Page: 11 Date Filed: 06/20/2012No. 11-50193

H C l c an be “severely corrosive to the respiratory system.” The district court found the warning irrelevant and unreliable because: (1) “the Airgas MSDS does not state that exposure to HCl can cause s e v e r e r e strictive lung disease and pulmonary fibrosis”; and (2) “most importantly,” Johnson d i d not provide “any science behind the MSDS,” such as “the duration or concentration of exposure needed to produce the noted effects” or the scientific literature “relied upon by Airgas for the statements contained in the MSDS.” W e c o n c lude that the district court did not abuse its discretion in disregarding the Airgas MSDS. Dr. Schlesinger failed to come f orth with any scientific data to support the MSDS’s warning. He also acknowledged that there is scant scientific evidence of a “cause-and-effect relationship between hydrochloric acid and restrictive lung disease.” Under such circumstances, the Airgas MSDS, standing alone, need not have been accorded any weight. Se e Moore , 151 F.3d at 278 (stating that the district court did not abuse its discretion in finding a MSDS unreliable in part becau s e t he expert “did not know what tests Dow [Corning] had conducted in generating the MSDS”). Johnson next cites a 1993 study of HCl’s effect on nine baboons who were exposed “for fifteen minutes to three concentrations (500 ppm, 5,000 ppm, and 10,000 ppm) of HCl for a one year period.” The study found that one of the nine 1 0 baboons developed fibrosis after being exposed to a 10,000 ppm concentration of HCl. It ultima t ely concluded that HCl inhalation did not result in “the development of impaired respiratory/pulmonary function, except at the highest concentration.” Although Johnson was only e xposed to a ten to fifty ppm concentrat i o n o f H Cl, Johnson claims that the baboon study is reliable and relevant because: (1) Johnson was exposed to HCl for a much longer time period than the baboon who d e v e l o p e d fibrosis; (2) baboons are considered to be an

Theac ronym“ pp m” s tand s for“ par ts p er mi llion .” 1 0
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animal species that is a surrogate of man; and (3) the study shows that HCl is capable of causing fibrosis. We have previously recognized the “‘very limited usefulnes s of animal studies when confronted with questions of toxicity.’” Allen v. Pa. Eng ’ g Corp. , 102 F

. 3 d 194, 197 (5th Cir. 1996) (quoting Brock v. Merrell Dow Pharm. , 874 F.2d 307, 313 (5th Cir. 1989)). Accordingly, “studies of the effects of chemicals

on animals must be carefully qualified in order to have explanatory potential for human beings.” Id. Here, the district court found the baboon study unreliable 1 1 and irrelevant because Dr. Schlesinger did not even attempt to show that there

was a “correlation between the duration and length of the baboon exposure and Mr. Johnson’s exposure.” Likewise, Dr. Schlesinger admitted that the respiratory tracts of humans a r e “pretty unique,” further diminishing the significance of the baboon study. Finally, Johnson’s reliance upo n t h e b aboon study was weakened by the fact that there are no other studies of baboons or other animals that corroborate the baboon study’s conclusions. See id. In light of Allen’s “careful qualification” requirement, we conclude that the district court did not abuse its discretion in rejecting the baboon study. See also Joiner , 522 U.S. at 144–45 (finding that the court did not abuse its discretion in rejecting the experts’ reliance on animal stu d i e s

—w h ich involved the injection of “massive doses” of certain chemicals into infant mice—beca u s e t h e “studies were so dissimilar to the facts presented in th[e] litigation”); cf. Gulf S. Insulation v. U.S. Consumer Prod. Safety Comm’n , 701 F.2d 1137, 1146 (5th Cir. 1983) (finding a rat study inconclusive because of the small nu mber of rats tested, the high

In Al le n , we conc lude d that a st udy’s find ing that ethyle ne oxide (Et O) caus ed canc er 1 1 in rat s pr ovide d “at bes t sp ecul ative sup por t” for the conc lus ion that EtO coul d caus e canc er in hum ans beca use a dif fer ent st udy of mi ce pr oduc ed no suc h res ults

. Id. In expla ining our conc lus ion, we ado pt ed the fol low ing logic of the app elle e’s expe rt: “Thus , the lack of cap acit y for the F

- 3 4 4 r a t to pr edi ct how even the mo use mo del res pond s nece ss aril y unde rcu ts conf ide nce that the rat wi ll pr edi ct acc urat ely how othe r sp ecie s i n c ludi ng hum ans wi ll
res pond[to EtO exp os ure] .” Id. 13 Case: 11-50193 Document: 00511893048 Page: 13 Date Filed: 06/20/2012No. 11-50193

dosages given to the rats, and difficulty in extrapolating those results to humans). Finally, John s o n c o n tends that he was exposed to amounts of HCl that

were bet w e e n two and ten times the permissible exposure levels set by the Occupational Safety and Health A d ministration (OSHA) and the National Institute for Occupational Safety and Health (NIOSH). Johnson also references the Acute Exposure Guideline Levels set b y t h e National Research Council (NRC), which provide that Johnson could have been exposed to a “disabling” and possibly “lethal” dose of HCl. In Allen , we addressed the significance of guidelines promulgated by regulatory and advisory bodies: Regulatory and advisory bodies such as IARC, OSHA a n d E PA utilize a “weight of the evidence” method to assess the carcinogenicity of various substances in human beings and suggest or make prophylactic rule s g overning human exposure. This methodology r e s u lts from the preventive perspective that the agencies adopt in ord er to reduce public exposure to harmful substances. The agencies’ threshold of proof i s re asonably lower than that appropriate in tort law , which “traditionally make[s] more particularized i n quiries into cause and effect” and requires a plaintiff to prove “that it is more likely than not tha t another individual has caused him or her harm.” Allen , 102 F.3d at 198 (emphasis added) (qu o ting Wright v. Willamette Industries, Inc. , 91 F.3d 1105, 1107 (8th Cir.19 96)). Thus, Allen demonstrates t h a t c h e m i cal guidelines are not necessarily reliable in all toxic tort cases. It may be appropriate first to consult the underlying basis for their proscriptions before an expert’s reliance on them can pass Daubert muster. As with the Airgas MSDS, however, Johnson once again does not provide
any scientific data or lite r ature to explain how or why the various exposure limits and guidelines were established for HCl. Similarly, Johnson does not argue that the guidelines and exposure limits exist to p r o t e c t people from

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developing severe restrictive lung d i s e ase and pulmonary fibrosis. Thus, we conclude that the OSHA, NIOSH, and NRC guidelines a n d exposure limits, standing alone, are insufficient to demonstrate abuse o f d iscretion on the part of the district court. See also id. at 195–96 (“[U]nder the circumstances of this
case, the fact that EtO has been classifie d a s a carcinogen by agencies

r e s ponsible for public health regulations is not probative of the question whethe r Allen’s brain cancer was caused by EtO exposure.”). In sum, the Airgas MSDS, baboon study , a n d OSHA, NIOSH, and NRC guidelines do not sufficiently support Johnson’s theory that HC l is known to

cause scarring to lung tissue. The district court did not abuse its discretion in 1 2 dismissing this data as irrelevant and unreliable under Daubert

. 3. Johnson also argues that reliable and relevant scientific data concerning
exposure t o M B TC supports Dr. Schlesinger’s conclusion that MBTC causes scarring to lung tissue. Johnson first references Arkema’s MSDS, which explain s th at M B T C “ CAU S E S R E S P I RAT O RY TRA C T I RRI TATION” and that: Inhalation and skin contact are expected to b e t he primary routes of occupational exposure to this material. Based on single exposure animal tests, it is c o n s i d e red to be slightly toxic if swallowed and corrosive to eyes and skin. I f s w a l lowed, this material may cause severe internal injury, cha r a cterized by pain in the mouth, throat and stomach, vomiting and breathing difficulties.

Johns on als o note s that Ark em a’s ow n expe rt ack now led ged that HCl , if inhale d, may 1 2
caus e “ acut e l ung in

jury o r chr onicpers ist ent pulm onar y f unct ion abnor mal itie s, ” inclu ding “up per airw ay ede ma and burns , hypoxia , st rid or, pneu mo niti s and tra cheo bron chit is. ” This adm iss ion doe s not indi cat e, how ever, t he dur atio n or conc entr atio n o f HClexp os ure thatis nece ss ary to caus e suc h ailm ents

. Furt herm ore , the expe rt’ s adm iss ion doe s not dem ons tra te thatHCl can caus e sever e res tri ctive l ung d ise aseor pulm onar y fibro sis . Finally, ass umi ng it exis ts , Johns on doe s not pr ovide any of the unde rlying dat a Ark em a’s expe rt may have reli ed on in for mi ng an opi nion regar ding the pot enti al danger s ass ocia ted wi th HCl expo sur e. The dis tri c t c o u rt act ed wi thin its dis cre tio n in dis count ing this adm iss ion as it rela tes to Dr

. Schl es inger’ s opi nions

. 15 Case: 11-50193 Document: 00511893048 Page: 15 Date Filed: 06/20/2012No. 11-50193

Johnson relies on our decision in Curtis , 174 F.3d at 669, for the proposition that Arkema’s MSDS constitutes scientifically reliable evidence supporting Dr. Schlesinger’s causation opinion. 1 3 Johnson’s reliance on Curtis is unavailing. In Curtis , we mere l y found that a MSDS was reliable because it was consistent with a w e a lth of other reliable information (including a detailed Supreme Court discussion) regarding the potential hazards associated with benzene exposure. Id. at 669–70. There 1 4 is, however, nothing i n Cu r tis indicating that material safety data sheets

c o n s t i t u t e per se reliable support for an expert’s opinion. To the contrary, in exercising its discretion as a ga t e k e e p e r, a court may refrain from treating a MSDS as reliable until it is presented with scientific evidence justif yi n g the relevant statements found within t he MSDS. See Moore , 151 F.3d at 278 (district court did not abuse its discretion in finding a MSDS unreliable in part because the expert “did not know what tests Dow had conducted in generating the MSDS”). Moreover, the distri c t c o urt did not abuse its discretion in rejecting the only evidence u n derlying Arkema’s MSDS, namely, one unpublished study performed by Arkema in 1988 concerning MBTC’s effect on rats. The study was designed to assess the toxic e f f e c ts of MBTC when administered by inhalation to rats for six hours per day, five days per week, for four weeks at target concentrations of one, ten, and thirty milligrams per cubic meter. The study did not make any conclusions regarding restrictive lung disease and pulmo n a ry

Johns on als o off

er s a tem por al pr oxim ity argum ent, st ating that Johns on’s init ial 1 3 sym pt om s aft er his expo sur e to Cert inco at we re in acc ord wi th the wa rnings in Ark e m a’s MS DS

. This t em por al pr oxim ity iss ue is add res se d in III.4, inf ra . We als o note that the MS DS did not play an im por tant role in Curtis as the def enda nt 1 4 “d [id] not se riou sly chall enge” the expe rt’ s conc lus ion that “exp os ure to b e nzene at levels of 200- 300 pp m wo uld caus e the injurie s suf fer ed by Plaint iffs. ” Id. at 670. Inst ead , the pr im ary dis put e wa s over a mat ter wh olly unrel ated to the MS DS : wh ethe r the expe rt had sho wn that the plai ntif

fs w ereac tuall y exp os ed to 200- 300 pp m levels of be nzene. Id. at670–72. 16 Case: 11-50193 Document: 00511893048 Page: 16 Date Filed: 06/20/2012No. 11-50193

fibrosis, and instead only found that exposure to MBTC had a discernable effect

on the lung tissue of rats. The district court determined that the rat study was 1 5 irrelevant and unreliable because Dr. Sch l e s i n g e r admitted that “there is no correlation between the durations of exposure” experienced by the rats, on the

one hand, and Johnson, on the other. Based on Allen’s requirement that animal studies be “carefully qualified in order to have explanatory potential for human beings,” we conclude that the district court did not abu s e i t s discretion in discounting this rat study. Allen , 102 F.3d at 197. It follows that the district 1 6 court did not abuse its dis c r e tion in discounting Arkema’s MSDS because its warnings were founded on the rat study. Johnson also raises the fact that he was exposed to a concentration level of MBTC that was between 100 and 500 times OSHA’s permissible MBTC
exposure limit of .1 milligrams per cubic meter. T h e d i s t ri ct court was

u n p e rsuaded by the sheer magnitude of, according to OSHA’s exposure li m i t , Johnson’s over-exposure to MBTC. It f o u n d the maximum exposure limit misleading because OSHA set the .1 milligram per cubic meter threshold for all

S pec ifi call y, the st udy conc lude d that : 1 5
Gr os sly, the incid ence of lung dis colo rat ion wa s incr eas ed in expo se d mal es and fem ales

. Mic ro s c o p ical ly, amo rp hous mat eria l, (p erha ps the tes t mat eria l or mo nobut yltin dihyd roxy chlo rid e, the hydro lysi s pr oduc t of mo nobut yltin tri chlo rid e) and alveol ar ede ma we re evide nt in the lungs of expo se d mal es and fem ales

. Ot her lung changes wh ich occ urr ed wi th i n c r e a se d incid ence and se verit y in the expo se d group s inclu ded per ibro nchia l lymp hoid cell acc umu lati on and per ivasc ular lymp h o i d cell infi ltr ate, extr avasa ted ert hr o cyte s (m ales only) , and acc umu lati on of alveol ar mac rop hanges

. Do se rela ted res pons es we re sho wn only by elveol ar ede ma in both s e xes and by alveol ar ert hroc ytes inm ales on ly.
Johns on wa s expo se d to betw een ten and fif ty mi lligra ms per cubic me ter of MBTC. 1 6 Johns on wa s, ther efo re, expo se d to amo unts of MBTC that we re sim ilar in conc entr atio n but not dur atio n to the amo unts of MBTC involved in the rat st udy. Never thel es s, Dr

. Schl es inger coul d not ade quate ly expla in, as requ ired by Al le n , wh y MBTC’s eff ect on the rats pr ovide s a reli able sc ient ifi c bas is fort he conc lus ion thatM BTC ca n c aus e r es tri ctive l ung d ise aseand pulm onar y f

ibro sis inhum an b eings

. 17 Case: 11-50193 Document: 00511893048 Page: 17 Date Filed: 06/20/2012No. 11-50193

organotins, not just MBTC. Critically, Dr. Schlesinger conceded tha t t his threshold for organotin exposure was “clear[ly]” not set based on data relating specifically to MBTC. Instead, ac c o r din g to D r . S chl esinger, the OSHA threshold would be “based on whichever [organotin] they had the most data on in terms of inhalation.” Dr. Schlesinger also conceded that some organotin compounds are

more toxic than others. Given Dr. Schlesinger’s concessions, we conclude that the district court did n o t ab u s e its discretion in refusing to treat the OSHA
exposure limit as reliable scientific evidence. See Alle n , 102 F.3d at 198 (regulatory “agencies’ threshold of p r oof is reasonably lower than that appropriate in tort law”). Accordingly, we hold that Ar k e m a’s MSDS, the rat study, and OSHA’s guidelines do not sufficiently support Johnson’s theory that MBTC is known to

cause scarring to lung tissue. The district court did not abuse his discretion in dismissing this data as irrelevant and unreliable under Daubert

. 4. Finally, Johnson conte n d s that the strong temporal connection between Johns o n’s exposure to Certincoat and subsequent lung injury supports Dr. Schlesinger’s causation co n c l usion. Johnson states that he “has never smoked and, prior to Jul y 2 0 0 7 , h a d never suffered a lung injury, never been diagnosed with asthma, never been exposed to a dangerou s l e v e l of any other toxic chemical, and had no history of lung disease o r breathing difficulties.” Moreover, “Johnson had worked in the same plant for over nine years without incident prior to the installation of Arkema’s new chemical hoods in June 2007.” In Curtis , we expl a i n e d that “temporal connection standing alone is entitled to little weight in determining causat i o n . ” Curtis , 174 F.3d at 670. “However, a temporal connection is entitled to greater weight when there is an established scientific connection between ex p o s ure and illness or other circumstantial evidence supporting the causal link.” Id.

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Our foregoing discussion indicates that there is neither an established scienti f i c connection between exposure to Certincoat and subsequent lung disease nor sufficient circumstantial evidence to indicate a causal link between the same. Therefore, under Curtis , the district court acted well within its discretion in according little weight to the temporal connection theory alleged by Johnson. 5. In conclusion, we hold that the district court did not abuse its discretion in excluding Dr. Schlesinge r ’ s expert opinion under Daubert

. Dr. Schlesinger could not cite to one epidemi o l o gi cal or controlled study of humans indicating that exposure to MBTC o r HCl could cause restrictive lung disease and pulmonary fibrosis. See Allen , 102 F.3d at 197 (“Undoubtedly, the most useful and c o n c l u s ive type of evidence in a case such as this is epidemiological studies.”). Also, Dr. Schlesinger neither extrapolated from existing dat a concerning chemicals similar to those in Certincoat nor correlated e x i s ting animal studies to Johnson’s two exposure episodes. Instead, he relied on blanket statements from presumably credible s o u r c es—such as material safety data sheets and advisory guidelines—but failed to present the scie n t i f i c evidence
upon which those statements were founded. Cf. Joiner , 5 2 2 U

. S

. at 146 (“[N]othing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to exis ting data only by the ipse dixit of the expert.”). Finally, Dr. Schlesinger did not offer evidence that his theory has been generally accepted by the scienti f i c c o m munity. The district court’s exclusion of Dr. Schlesinger’s expert opinion is affirmed. B. Johnson next contests the district court’s limitation of Dr. Grodzin’s opinion, which prevented Dr. Grodzin from expressing hi s c o nclu s io n th at M BTC

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and HCl caused Johnson’s lun g disease. In reaching his causation conclusion,

1 7 1 8 Dr. Grodzin’s research and analysis essentially mirrored Dr. Schlesinger’s save for one key distinction: Dr. Grodzin perf o rmed a “differential diagnosis” of Johnso n. Accordingly, we need only consider whether, given the existence of Dr. Grodzin’s differential diagnosis, the district court’s e xclu s io n o f D r. Grodzin’s opinion constitutes the abuse of discretion. 1 9 As the Fourth Circuit has observed: A reliable differential diagnosis typically, though not invariably, is p e rformed after “physical examinations, the taking of medic a l histories, and the review o f clinic al t e s t s , including laboratory tests,” and generally is accomplished by determ i ning the possible causes for the patient’s s y m p t oms and then eliminating each of these potential causes until reaching on e t h a t cannot be ruled out or determining which of those that ca n n o t be excluded is the most likely. Westberry v. Gislaved Gummi AB , 178 F.3d 257, 262 (4th Cir. 1999) (quoting Kannankeril v. Terminix Int’l, Inc. , 128 F.3d 8 0 2 , 8 0 7 (3d Cir. 1997)). Many

Lik e Dr

. Schl es inger, Dr

. Gr odzi n’s opi nion did not add res s wh ethe r tin oxide caus ed 1 7 Johns on’s lu ng d ise ase .

Dr

. Gr odzi n cur rent ly se rves as the Me dic al Di rec tor for the De nton Me dic al Services 1 8 Pulm onar y Rehabilit atio n Ce nter

. Ar ke ma doe s not chall enge Dr

. Gr odzi n’s c red enti als

. We als o note that Johns on so ught to a d m i t D r . Gr odzi n as an expe rt so that Dr

. Gr odzi n coul d off er his me dic al diagno sis th a t J o h n s o n suf fer s fr om “int ers tit ial lung dis eas e res ulti ng in a se vere res tri ctive cond itio n, and pulm onar y fib ros is. ” The dis tri ct cour t r u l ed that this por tio n of Dr

. Gr odzi n’s opi nion sat isf ied Da uber t’s requ irem ents and wa s, ther efo re, adm iss ible. J o h n s o n ’s app eal only rela tes to the dis tri ct cour t’s exclus ion of Dr

. Gr odzi n’s op inion regar ding the caus e o f Johns on’s lu ng d ise ase . Att he Da uber t hear ing, Johns on info rm ed themagis tra te judge thatD r. G rod zin’s 1 9 opi nion wa s der ivative of Dr

. S c h l e s i n g e r’s opi nion wi th the excep tio n of Dr

. Gr odzi n’s dif fer enti al d i a g n o s i s analys is. Acco rd ingly, we need not res tat e our conc lus ions in III.A., sup ra , here

. Dr

. Gr odzi n als o cons ide red sc ient ifi c evide nce indi cat i n g t h a t a pr es cri pt ion dr ug call ed Bleom ycin can caus e pulm onar y fib r o s i s and argued that this evide nce sup por ted a sim il a r f

i n d i ng wi th regar d to MBTC and HCl

. This theo ry fai ls for the reas ons st ated in III.A.1. , sup ra . 20 Case: 11-50193 Document: 00511893048 Page: 20 Date Filed: 06/20/2012No. 11-50193

c o u r t s h ave found that a properly performed differential diagnosis can yield a reliable expert opinion. See id . at 262–63. However, the results of a differential diagnosis are far from reliable per se . In Moore , f

o r e xample, after conducting a differential diagnosis, the expert diagnosed the plaintiff with RADS. Moore , 151 F.3d at 273; See also id. at 288–90 (Dennis, J., dissent i ng) (noting that the expert had conducted a differential diagnosis of the p l aintiff). The expert also concluded that the plaintiff’s RADS was caused by certain chemicals to which the p l a i ntiff was exposed based on his analysis of MSDS warnings, his examination and testing of th e p l aintiff, and the close temporal proximity between the plaintiff’s exposure and subsequent injury. Id. Despite the expert’s differential diagnosis, we held that the district judge did no t ab u s e its discretion in excluding the expert’s causati o n testimony because he failed to present reliable scientific support showing that the chemicals at issue could actually cause RADS. Id. at 278–79. Furthermore, M

o o re i llustrates that an expert may not rely on a differential diagnosis to circumvent the requirement of general causation. See id. at 278 (“Dr. Jenkins offered no scientific support for his general theory that
exposure to Toluene solution at any level would cause RADS.”); see also Curtis , 174 F.3d at 669–70; Goebel v. Denver & Rio Grande W. R.R. Co. , 346 F.3d 987, 999 (10th Cir. 2003) (A district court “can admit a differential diagnosis that it concludes is reliable if general causation has been established”). As we explained in Knight : General causa t ion is whether a substance is capable of causing a particular injury or condition in the general p o pulation, while specific causation is whether a substance caused a particul a r individual’s injury. Evidence concerning specific causation in toxic tort cases is admissible only as a fo l l o w - up to admissible general-causation evidence. Thus, there is a t w o - s t e p process in examining the admissibility o f c au s ation evidence in toxic tort cases. First, the district court must determine whe t her there is general

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causation. Second, if it concludes that there is admissible general-causation evidence, the district court m u s t determine whether there is admissible specific-causation evidence. Knight , 482 F.3d at 351 (internal quotation marks and citations omitted). Thus, before courts can admit an expert’s differential diagnosis, which, by its nature, only addresses the issue of specific causation, the expert must first demonstrate that the chemical at issue is actually capable of harming individuals in the general population, thereby satisfying the general causation standard. See id. Here, like in Moore , Dr. Grodzin’s differential d i a gnosis is based on the presumption that MBTC and HCl are actually capable of caus in g r e s trictive lung disease and pulmonary fibrosis in the general population. Dr. Grodzin has not presented any r e li ab l e o r re l ev ant s cientific evidence to bolster this presumption. I nstead, Dr. Grodzin essentially relied on the same scientific evidence and reached the same conclusions as Dr. Schlesi n g e r . A s we have explained, the district court did not abuse its discretion in excluding Dr. Schlesinger’s opinion, t h u s negating Dr. Schlesinger’s ability to satisfy the general causation requirement. Consequently, the fact that Dr. Grodzin conducted a differential diagnosis does not save his opinion from the same fate as Dr. Schle s i n g e r ’ s opinion. Cf. Curtis , 174 F.3d at 670 (“[S]cientific knowledge of the harmful level of exposure to a chemical , plus knowledge that the plaintiff was exposed to such quanti t i e s , a r e minimal facts necessary to sustain the plaintiffs’ burden in a toxic tort case.” (emphasis added) (quoting Allen , 102 F.3d at 199)). The district court did not ab u s e i ts discretion in excluding Dr. Grodzin’s causation opinion because, irrespective of the differential diagnosis, Dr. Grodzin is unable to satisfy the general causation requirement. IV. After excluding the causation opinions of Dr. Schlesinger and Dr. Grodzin, the district court granted Arkema’s motion for summary judgment because

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Johnson could not “prove the causation necessary to support a cl ai m u n d er Texas law.” Johnson alleges that the district court erred in granting Arkema’s motion for summary judgment because: (1) there is a strong temporal connection supporting causation; (2) the symptoms experienced by other Owens Illinois’

e m p l oyees provide additional circumstantial evidence of causation; and (3) Arkema’s expert pulmonologist conceded t hat tin oxide is known to cause scarring of the lung tissues. 2 0 T his court reviews a summary judgment de novo , applying t h e s a m e standard as the district court. Trinity Universal Ins. Co. v. Emp’rs. Mut. Cas. Co. , 592 F.3d 687, 690 (5th Cir. 2010). “Summary judgment should be affirmed if, viewing the evidence in the l i ght most favorable to the non-moving party, there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Access Mediquip L.L.C. v. UnitedHealthcare Ins. Co. , 662 F.3d 376, 378 (5t h C i r . 2011) (citations and internal quotation marks omitted). Summary judgment m u s t b e entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). A. Johnson first argues that the strong temporal c o n n e c tion between his
exposure to Certincoat and the onset of his symptoms offsets the need to present expert testimony to establish causation. Johnson relies on the Supreme Court

In one se nten ce and wi thou t ref ere nce to any autho rit y, Johns on als o argues that 2 0
sum mar y jud gmen t wa s inap pr opr iatebe caus e “ [s ]ix tre ating phys icia ns in Wacow oulds ee Johns on for his lung injury; all six phys icia ns fou nd that Johns on suf fer s fr om a lung cond itio n caus ed by an acut e expo sur e to chem ical vapor s fr om Ark em a’s hood .” Ass umi ng this argum ent is not wa ived, Johns on’s caus atio n theo ry is nevert heles s pr eclu ded by the genera l
caus atio n requ irem ent. See Knight , 482 F.3d at 351 (The genera l caus atio n st andar d conc erns “w heth er a sub st ance is c a p ab l e of caus ing a par tic ular injury or cond itio n in the genera l pop ulati on”)

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o f Texas’s decision in Morgan v. Compugraphic Corporation , which held t h a t “[g]enerally, lay testimony establishin g a s e q uence of events which provides a strong, logically tr a ceable connection between the event and the condition is sufficient proof of causation.” 675 S.W.2d 729, 733 (Tex. 1984). Johnson argues that such a sequence exists in this case because “Johnson (1) had never smoked

or had any history of asthma or lung disease prior to exposure, (2) worked within 2–3 feet of Arkema’s machine that was leaking chemical fumes, (3) was exposed to chemical fumes at a level far above the OSHA limit, (4) could see, smell and feel the chemical burning his throat and lungs, (5) suffered classic symptoms of
exposure to the chemical, (6) w a s administered oxygen and transported to the emergency room after 2– 3 ho ur s o f constant exposure, and (7) despite continuous medical treatment to reduce lung inflammation, suffered permanent scarring to his lung tissue.” In its 2007 deci s i o n in Guevara v. Ferrer , the Texas Supreme Court summarized the meaning of Morgan

. 247 S.W.3d 662 (Tex. 2007). The court 2 1 first explained that “[t]he general rule has l o n g b een that expert testimony is

Wehavep revio usl y s umm arize d the Mo rgan dec isi on as fol low s: 2 1

In Mo rgan , the plai ntif f suf fer ed fr om fr equent sk in ras hes and pr oblem s wi th her diges tive and nervou s sys t e m s , w h i c h she allege d we re caus ed by her expo sur e to chem ical fu m e s f r o m a leak ing type se tti ng mac hine at her wo rk plac e. Thep laint iff t es tif iedt hat (1) shehadal wa ys been in goodhe alth pr ior to the ins tall atio n of the type se tti ng mac hine near her des k, (2) she wo rk ed wi th her fac e tw o inches from a types ett ing mac hine thatw as leak ing chem ical fum es , (3) so on ther eaf ter she expe rien ced pr oblem s wi t h b r eath ing and sw ellin g, and (4) aft er fou r or five days of cons tant e x p o sur e, she ex per ienc ed wa tery eyes , blurr ed visi on, head ache s, and sw olle n brea thing pas sage s. The Texas Sup rem e Court held t h a t t his evide nce es tabl ish ed “a
se quenc e of events fr om wh ich the tri er of fac t may pr ope rly infe r, wi thou t the aid of expe rt me dic al tes tim ony, that the rele ase of chem ical fum es fr om the type se tti ng m achin e c aus ed [t he plai ntif f] t o s uff er injury. ”

Ha mbu rger v. State Farm Mut. Auto. Ins. Co. , 361 F.3d 875, 884–85 (5t h Cir. 2004) (c itat ions

om itt ed)

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necessary to establish causation a s t o medical conditions outside the common knowledge and experience of jurors.” Id. at 665. The court reiterated, however, that “non-expert evidence alone is sufficient to support a finding of causation in limited circumstances where both the occurrence and conditions complained of

are such that the general experience and comm o n s ense of laypersons are sufficient to evaluate the conditions and whether they were probably caused by the occurr e nce.” Id. at 668–69. Such is generally the case when the lay testimony “establish[es] a sequence of events which provides a strong, logically traceable connection between the event and the condition.” Id. at 666 (quoting Morgan , 675 S.W.2d at 733). In the underlying dispute in Guevara , the plaintiff had presented evidence at trial of: (1) the decedent’s condition before an automobile accident; (2) the accident itself; and (3) the decedent’s post-accident condition, inclu di ng his

numerous medical treatments. Id. at 667. The court found that such evidence 2 2 could establish that the accident caused “basic physical conditions which (1) are within the common knowledge and experien c e o f laypersons, (2) did not exist before the accident, (3) appeared after and close in time to the a c c ident, and (4) are within the common knowledge and experience of laypersons, caused by automobile accidents.” Id. The court neverth e l e s s r eve r s e d b e c ause the evidence

The dec ede nt’ s tre atm ent and me dic al expe nse s inclu ded : 2 2

amo ng othe r expe nse s, the cos t of (1) at leas t tw o abdo mi nal sur gerie s; (2) thr ee se par ate conf

inem ents in healt h car e fac ilit ies , one of wh ich wa s for over thr ee mo nths ; (3) a great variet y and quant ity of variou s phar mac euti cal sup pli es , me dic ines , and dr ugs; (4) num ero us varied labor ator y pr oce dur es ; (5) exten sive tre atm ents for res pir ator y fai lure and the rap y; (6) physic al ther apy of various ki nds ; (7) tre atm ents for ki dney fai lure ; and (8) a great ass ort me nt and quant ity of “ce ntr al sup ply” andm isc ellane ous m edi cal char ges. Id. at669

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was legally insufficient to support a finding that the automobile accident caused all of the medical expenses awarded by the jury: Non-expert evidence of circumstances surrounding the accident and Arturo’s complaints is suffici e n t t o allow a layperson of common knowledge and experience to determine that Arturo’s immediate post-accident condition which resulted in his being transported to an emergency room and examined in the emergency room were causally related to the accident

. Thus, the evid e n c e i s legally sufficient to support a finding that some of his medical expenses were causally related to the accident. On the other h a n d , the evidence is not legally sufficient to prove what the conditions were that generated all the medical expenses or t h a t the accident caused all of the conditions and the expenses for their treatment. Id. at 669–70 (emphasis added). It remanded the case to the court of appeals for determination of appropriate remittiturs or, if necessary, a new trial. Id. at 670. H e r e , J ohn s o n’ s alleged chronic injuries, the seve r e r e s trictive lu n g di s e a s e and pulmona r y f

ib r osis, did not develop shortly after the Certincoat exposure incidents but instead manifested in the years following t h e incidents. In light of Guevara , we conclude that this significant gap in time renders the fact-finder

u n able to evaluate the cause of Johnson’s chronic lung disease based solely o n its common sense and general experience. We, therefore, agree with the district court’s conclusion that Johnson needs the assistance of experts to prove that his Certincoat exposure caused his chronic injuries. On the other hand, Johnson’s acute injuries—which immediately followed his exposure to Certincoat and precipitated an emergency room visit and at least two other doctors’ office visits during the summer o f 2 0 0 7

— are within those limited circumstances where expert opinion is unnecessary. See id. at 669–70;

see also Ballard v. Bunge N. Am Inc. , 338 F. App’x 447, 448 (5th C i r . 2009) (Owen, J., concurring) (jo i ned by Haynes, J.) (unpublished). Accordingly, the district court erred in granting summary judgment to Arkema regarding

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Johnson’s alleged acute injuries. We therefore reverse and remand, in part, for further proceedings concerning Johnson’s alleged acute injuries. B. Johnson next argues that “the lower court erred in failing to address the fact that a number of other Ow e n s Illinois employees suffered similar respiratory distress and lung injury as Johnson following similar acute exposures to Ar k e ma’s chemicals while working within a few feet of Arkema’s hoods.” Relying on Curtis , 174 F.3d at 669, Johnson argues that the symptoms of his co-workers provide other circumstantial evidence to corr o b o r a te his temporal proximity theory. Johnson’s reliance on our Curtis decision is misplaced. With regard to the reliability of an expert’s causation opinion under Daubert , the Curtis court found that “a temporal connectio n i s entitled to greater weight when there is an established s c i e n t ific connection between exposure and illness or other circumstantial evidence s u p p o r t i n g t h e ca us a l l ink .” Id. at 670 (emphasis added). However, the issue here does not require analysis of our Daubert jurisprudence; rather, the question is whether, under Texas law, J o h n s o n can satisfy the element of causation without the assistance of an expert. Johnson has not cited

a n y T e x a s case law indicating that evidence of similar injuries to others dispenses with the need for expert testimony in this toxic tort case. Accordingly, Johnson’s reliance on his co-worker’s alleged injuries does not support reversal of the district court’s summary judgment. C. Finally, Johnson posits that summary judgment was in a ppropriate because Arkema’s expert pulmonologist, Dr. Aris, t e s t i f ied that tin oxide can “cause lung injury and fibrosis.” According to Johnson, Dr. Aris also referenced two human case studies indicating that “tin oxide is capable of and does cause the type of lung injury suffered by Johnson.” Johnson further notes that other

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human and animal studies of ti n o x i de show that it is capable of causing interstitial lung disease. Even assuming that this evidence suffices to demonstrate that tin oxide is capable of causing restrictive lung disease, thus satisfying general causation, the evidence falls short of satisfying the requirement of specific causatio n . A s discussed in I I I.B., supra , specific causation concerns whether “a substance caused a particular individual’s injury.” Knight , 482 F.3d at 351. Johnson does not offer any evidence that the actual amounts of tin oxid e t o which he was exposed were of a sufficient concentration level to cause his restric tive lung disease and pulmonary fibrosis. See also Curtis , 174 F.3d at 670 (“[S]cientific knowledge of the harmful level o f e x p o s ure to a chemical, plus knowledge that the plaintiff was exposed to such quantit i e s , a r e minimal facts necessary to sustain the plaintiff

s ’ b urden in a toxic tort case.” (emphasis added) (quoting Allen , 102 F.3d at 199)). Thus, summary judgment was a ppropriate on this issue. V. For the foregoing reasons, we AFFIRM the district court’s judgment in all respects except as to Johnson’s claims regarding his acute injuries, on which we REVERSE and REMAND for further proceedings.

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REAVLEY, Circuit Judge, concurring: I agree that the summary judgment should be reversed, but I disagree with the ruling to deny the trier of fact the testimony of these highly qualified expert witnesses. There are fact issues, primarily the extent of exposure of the plaintiff to the chemical vapors and the diagnosis of his ailment. There may be a disagreement between the experts about what, if anything, it would take for inhalation of these vapors to damage the lungs to the extent of progressive disease. If that bears on the decision of the diagnosis and is in question, the trier of fact needs the assistance of these experts. It is simply incredible to me to decide that Dr. Schlesinger is an unreliable source for any scientific question in this case. And the same is true of the other expert witnesses appearing in this record. But certainly Dr. Schlesinger is an eminent authority on respiratory toxicology and the study of the adverse effects of exposure to inhaled chemicals. Relying on the diagnosis made by Dr. Grodzin that the patient suffers from restrictive lung disease, Dr. Schlesinger explains the path of physiological response of the lungs inhaling these damaging vapors. And no one will deny that MBTC and hydrochloric acid, if inhaled to some extent, will damage the lungs. The majority in this opinion accept that testimony for “acute injuries,” but decide not to allow proof of any relation to progressive disease. The district court excluded the testimony of Dr. Schlesinger because he could not cite fully tested and peer reviewed studies proving that hydrochloric acid can cause restrictive lung disease. That significant damage may be done is merely factual information. The possible extent of damage from breathing these chemicals may be at issue and will require the testimony of fully qualified and experienced experts, of which Dr. Schlesinger is surely one. There are no studies to meet the requirement of the district court, and that is not surprising. How would that study be designed and conducted, by

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obtaining a large population of people to breathe this chemical vapor or that vapor in this volume or that volume, then to have their lung function tested and maybe biopsied? Where would so many persons be found to be subjected to this? Studies that the district court required may prove helpful in determining the reliability of a particular scientific “theory or technique,” Daubert v. Merrell Dow Pharmaceuticals, Inc. , 113 S. Ct. 2786 (1993), but that is no checklist and reliability may depend on “the nature of the issue, the expert’s particular expertise, and the subject of his testimony.” Kumho Tire Company v. Carmichael , 119 S. Ct. 1167, 1175 (19 99). The trial court erred in excluding testimony that is possibly relevant and clearly reliable.

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