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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-30911

LARRY SEAMAN

Plaintiff-Appellant

v.

SEACOR MARINE L.L.C.

Defendant-Appellee

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:07-CV-3354

Before WIENER, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Larry Seaman sued his former employer DefendantAppellee Seacor Marine, L.L.C., alleging that its negligence caused Seaman’s

bladder cancer. The district court excluded the testimony of Seaman’s only

causation expert and granted summary judgment in favor of Seacor. Holding

that the district court acted within its discretion in excluding the expert

testimony and that Seacor is entitled to summary judgment, we affirm.

United States Court of Appeals

Fifth Circuit

F I L E D

April 30, 2009

Charles R. Fulbruge III

Clerk
No. 08-30911

2

I. FACTS AND PROCEEDINGS

From 1982 until March 2003, Seaman worked as a captain aboard several

of Seacor’s vessels. In 2003, Seaman, complaining of hematuria — blood in his

urine — went to a doctor. The doctor told Seaman to see a urologist if his urine

did not clear. Then, in August 2005, Seaman went to an infectious disease

specialist because of continued hematuria. Seaman told the specialist he had

been experiencing hematuria and urethral discharge for seven to ten years. The

specialist recommended that Seaman see a urologist. When Seaman did so in

2006, the urologist diagnosed Seaman with bladder cancer. Seaman had

surgery, and the cancer is currently in remission.

In June 2007, Seaman filed the instant suit in district court alleging that

while aboard Seacor’s vessels he “inhaled and was otherwise exposed to a host

of hazardous and toxic chemicals including drilling mud, caustic soda, barium

sulfate, Barite, ammonia, muriatic acid, and others.” Seaman pursues his claim

under the Jones Act and general maritime law and alleges that he developed

bladder cancer as a result of the chemical exposures. Seaman specifically

contends that Seacor’s negligence caused his injuries. He also alleges that

Seacor had a duty to detect his bladder cancer and failed to do so.

Seacor simultaneously filed motions (1) to exclude the testimony of Dr.

Perri Prellop, Seaman’s sole causation expert and (2) for summary judgment.

The district court, holding that Dr. Prellop’s opinion was neither factually

supported nor scientifically reliable, excluded her testimony. The court then

granted summary judgment in Seacor’s favor. Seaman filed a motion to alter or

amend the district court’s judgment, which the court denied.

Seaman timely filed a notice of appeal.
No. 08-30911

Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 351 (5th Cir. 2007); see Daubert v.

1

Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).

Knight, 482 F.3d at 351 (internal quotation marks omitted). 2

Id.

3

Curtis v. M&S Petrol., Inc., 174 F.3d 661, 668 (5th Cir. 1999). 4

Allen v. Pa. Eng’g Corp., 102 F.3d 194, 199 (5th Cir. 1996). 5

Id. (demanding not just knowledge but scientific knowledge); Atkins v. Ferro Corp.,

6

534 F. Supp. 2d 662, 666 (M.D. La. 2008) (concluding that there was no genuine issue of

material fact for trial because “plaintiffs [had] not produced any expert testimony or report to

establish that[] plaintiffs: (1) were actually exposed to a harmful level of the chemical, or (2)

were physically injured by the [chemical] allegedly released from the plant” (emphasis added)),

aff’d No. 08-30295, 2009 WL 605743, at *1 (5th Cir. Mar. 10, 2009) (per curiam) (unpublished)

3

II. STANDARDS OF REVIEW

“We review the district court’s determination of admissibility of expert

evidence under Daubert for abuse of discretion.” “A trial court abuses its 1

discretion when its ruling is based on an erroneous view of the law or a clearly

erroneous assessment of the evidence.” If the trial court abused its discretion, 2

the harmless error doctrine applies, and we reverse the ruling only if it affected

the substantial rights of the complaining party.

3

Once we make the necessary evidentiary determinations, “[t]hen, with the

record defined, we must review de novo the order granting judgment as a matter

of law.”4

III. ANALYSIS

A. Exclusion of Dr. Prellop’s Testimony

1. Applicable Law

“Scientific knowledge of the harmful level of exposure to a chemical, plus

knowledge that the plaintiff was exposed to such quantities, are minimal facts

necessary to sustain the plaintiffs’ burden in a toxic tort case.” A plaintiff in 5

such a case cannot expect lay fact-finders to understand medical causation;

expert testimony is thus required to establish causation. 

6
No. 08-30911

(“Because plaintiffs presented no expert testimony in support of causation, there is no error

in the summary judgment . . . .” (citing Allen, 102 F.3d at 199)); see Templet v. HydroChem

Inc., 367 F.3d 473, 484 n.15 (5th Cir. 2004) (Dennis, J., dissenting) (emphasizing the need for

expert testimony to prove a complex toxic tort case); Wills v. Amerada Hess Corp., 379 F.3d

32, 50 (2d Cir. 2004) (“Absent admissible expert testimony on the issue of causation, [a

plaintiff is] unable to sustain her burden to prove causation.”).

Knight, 482 F.3d at 351 (emphases added). 7

Id.

8

United States v. Fullwood, 342 F.3d 409, 412 (5th Cir. 2003) (citing FED. R. EVID.

9

104(a), cmt.); Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998) (en banc).

4

Courts use “a two-step process in examining the admissibility of causation

evidence in toxic tort cases. First, the district court must determine whether

there is general causation. Second, if it concludes that there is admissible

general-causation evidence, the district court must determine whether there is

admissible specific-causation evidence.” “General causation is whether a 7

substance is capable of causing a particular injury or condition in the general

population, while specific causation is whether a substance caused a particular

individual’s injury.”8

Attempting to establish these requisite facts, Seaman proffered the report

and deposition testimony of Dr. Perri Prellop, his only medical-causation expert.

As the proponent of Dr. Prellop’s testimony, Seaman had the burden of

establishing by a preponderance of the evidence that the proffered testimony was

admissible. A district court assesses expert testimony under Federal Rule of 9

Evidence 702:

If scientific, technical, or other specialized knowledge will assist the

trier of fact to understand the evidence or to determine a fact in

issue, a witness qualified as an expert by knowledge, skill,

experience, training, or education, may testify thereto in the form

of an opinion or otherwise, if (1) the testimony is based upon

sufficient facts or data, (2) the testimony is the product of reliable
No. 08-30911

FED. R. EVID. 702. 10

Advisory Committee Notes to FED. R. EVID. 702 (2000 Amendments) (citing Daubert,

11

509 U.S. 579 (1993)).

Allen v. Pa. Eng’g Corp., 102 F.3d 194, 196 (5th Cir. 1996) (quotation omitted). 12

Knight, 482 F.3d at 354 (emphasis added) 13

Id. at 352 (quoting Daubert, 509 U.S. at 589, 592–93) (internal citations omitted). 14

Id. at 355 (internal quotation marks omitted). 15

5

principles and methods, and (3) the witness has applied the

principles and methods reliably to the facts of the case.10

Rule 702 was most recently amended in 2000 in response to the Supreme Court’s

decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., which “charged trial

judges with the responsibility of acting as gatekeepers to exclude unreliable

expert testimony.” Pursuant to Daubert, a trial court ensures that testimony 11

is “supported by appropriate validation — i.e., ‘good grounds,’ based on what is

known.” And, “a district court has broad discretion to determine whether a 12

body of evidence relied upon by an expert is sufficient to support that expert’s

opinion.”13

In carrying out its gate-keeping function, the trial court “ensures that the

proffered evidence is both ‘reliable’ and ‘relevant.’ Reliability is determined by

assessing ‘whether the reasoning or methodology underlying the testimony is

scientifically valid.’ Relevance depends upon ‘whether [that] reasoning or

methodology properly can be applied to the facts in issue.’”14

“[T]he expert’s testimony must be reliable at each and every step or else

it is inadmissible. The reliability analysis applies to all aspects of an expert’s

testimony: the methodology, the facts underlying the expert’s opinion, the link

between the facts and the conclusion, et alia.” “Where an expert’s opinion is 15
No. 08-30911

Paz v. Brush Engineered Materials, Inc., 555 F.3d 383, 388 (5th Cir. 2009); see Knight,

16

482 F.3d at 355 (stating that if the data relied on by a party’s expert “fail[s] to provide a

‘relevant’ link with the facts at issue, his expert opinion was not based on ‘good grounds’”).

Knight, 482 F.3d at 354 (internal quotation marks omitted). 17

Id. at 351 (citing Daubert, 509 U.S. at 593); see id. at 355 (“District courts must 18

carefully analyze the studies on which experts rely for their opinions before admitting their

testimony.”).

Although Seacor challenged Dr. Prellop’s qualifications to render an opinion on 19

causation, the district court instead excluded the evidence under the Daubert standard. The

district court also noted, however, that “[i]t is clear from Dr. Prellop’s deposition that she has

no specific expertise in the causes or diagnosis of bladder cancer.” Seaman v. Seacor Marine

LLC, 564 F. Supp. 2d 598, 601 n.2 (E.D. La. 2008). 

6

based on insufficient information, the analysis is unreliable.” Still, there is no 16

bright-line standard and when an expert “otherwise reliably utilizes scientific

methods to reach a conclusion, lack of textual support may go to the weight, not

the admissibility of the expert’s testimony.” The Supreme Court has offered a 17

non-exhaustive list of Daubert factors that trial courts should consider: “[1]

whether the theory or technique the expert employs is generally accepted; [2]

whether the theory has been subjected to peer review and publication; [3]

whether the theory can and has been tested; [4] whether the known or potential

rate of error is acceptable; and [5] whether there are standards controlling the

technique’s operation.”18

2. District Court Acted Within Its Discretion

Dr. Prellop, a radiation oncologist who completed her residency in

radiation oncology in 2006, has never before provided expert testimony. She

does not have a particular expertise in bladder cancer and its causes, and, in her

career, has only treated three patients diagnosed with bladder cancer. She is 19

also the sister-in-law of Seaman’s trial counsel (who continues to represent

Seaman in the instant appeal). Dr. Prellop submitted a two-page report that

concluded: 
No. 08-30911

 According to Dr. Prellop, Ferox contains the aromatic hydrocarbons benzene, xylene,

20

and ethylbenzene.

Seaman, 564 F. Supp. 2d at 604.

21

7

Mr. Seaman’s history of occupational exposure to diesel exhaust and

chemicals including aromatic hydrocarbons[, particularly a chemical

called Ferox,] put him at increased risk for bladder cancer. Of

course, we could never be certain that these occupational exposures

were the definite cause of Mr. Seaman’s bladder cancer but I have

no information suggesting that Mr. Seaman’s cancer was caused by

other external agents.

Dr. Prellop based her opinion on (1) her “understand[ing] that Mr. Seaman’s

occupational history includes regular exposure to diesel exhaust and exposure

to Ferox at least once a week, twenty-six weeks per year, over more than a

decade” and (2) her determination that Mr. Seaman has no risk factor for

bladder cancer, e.g., smoking, family history, or age, other than his male gender.

To arrive at her conclusion, Dr. Prellop reviewed Seaman’s deposition and

medical records, the material safety data sheet (“MSDS”) for Ferox, and two 20

scholarly articles about the risk factors for bladder cancer. She never saw or

spoke with Seaman, whose complaint and deposition testimony mentioned

nothing about either Ferox or diesel exhaust. Dr. Prellop based her

“understanding” of Seaman’s regular exposure to Ferox and diesel exhaust on

nothing more than the suggestion to her by Seaman’s counsel that another

Seacor employee said that Seaman had been exposed to the substances. 

The district court determined that Dr. Prellop’s assumption of regular

exposure without any “facts upon which Dr. Prellop could have possibly

surmised exposure levels, rendered her causation opinion mere guesswork.”21

The court also noted that Dr. Prellop never discussed, in either her report or her

deposition testimony, the studies on which her two cited journal articles were
No. 08-30911

Id.

22

Id.

23

See Allen v. Pa. Eng’g Corp., 102 F.3d 194, 197 (5th Cir. 1996) (noting that causation

24

evidence of cancer generally — rather than the specific cancer from which the plaintiff suffers

— is insufficient).

See id. at 199 (making clear that such a showing is required). 25

See id. at 195. 26

Sandra M. Olfert et al., Updated Review, 99 S. MED. J. 1256 (2006). 27

Xifeng Wu et al., Projecting Probabilities, 25 J. CLINICAL ONCOLOGY 4974 (2007). 28

8

based. In excluding Dr. Prellop’s testimony, the district court concluded that 22

her “opinion is neither factually supported nor scientifically reliable.” We agree 23

and hold that the district court acted well within its discretion in excluding Dr.

Prellop’s testimony. Here is why.

First, Dr. Prellop does not establish general causation. Her Ferox-related

testimony relies on no scholarly studies and merely recites her opinion that

Ferox contains aromatic hydrocarbons, which are known carcinogens. Yet, Dr.

Prellop makes no connection between Ferox and bladder cancer specifically.

24

And, she provides no clue regarding what would be a harmful level of Ferox

exposure. Without some showing of a “statistically significant” link between 25

Ferox and bladder cancer, Dr. Prellop’s testimony does not establish general

causation for Ferox. 

26

As for her opinion that diesel exhaust causes bladder cancer, Dr. Prellop

cites two articles as support: An Updated Review of the Literature: Risk Factors

for Bladder Cancer with Focus on Occupational Exposures (“Updated Review”),27

and Projecting Individualized Probabilities of Developing Bladder Cancer in

White Individuals (“Projecting Probabilities”). Updated Review is an overview 28

of bladder-cancer literature which notes that one analysis found that “[w]orkers

with high exposure to diesel exhaust” (the term “high exposure” is left
No. 08-30911

Updated Review at 1261. 

29

See id. at 1261–62. 30

Projecting Probabilities at 4979. The Projecting Probabilities model, however, still 31

requires “validation . . . in an external population [as] an essential next step towards practical

use in the clinical setting.” Id.

Allen v. Pa. Eng’g Corp., 102 F.3d 194, 199 (5th Cir. 1996); see also id. (citing Wright 32

v. Willamette Indus., Inc., 91 F.3d 1105, 1107–08 (8th Cir. 1996) (rejecting an expert’s

testimony that “was not based on any knowledge about what amounts of [a chemical] involve

an appreciable risk of harm to human beings who breathe them”)). But see Knight v. Kirby

Inland Marine Inc., 482 F.3d 347, 354 (5th Cir. 2007) (noting that not every expert must back

his opinion with published studies that unequivocally support that opinion).

9

undefined) have an increased risk of bladder cancer. The article cautions that 29

research of occupational bladder cancer is complicated because smoking is the

main risk for bladder cancer and it is difficult to separate bladder cancer caused

by smoking from that caused by occupational exposures. Updated Review 30

mentions nothing about the level of exposure that over time might increase one’s

risk of bladder cancer. 

The authors of Projecting Probabilities created a model that was

“consistent with diesel exhaust exposure . . . having a strong etiologic role in

[bladder cancer], with numerous studies showing an excess incidence of [bladder

cancer] in truck drivers and those exposed to diesel exhausts.” Like Updated

31

Review, Projecting Possibilities is silent on the level of exposure to diesel exhaust

that would be significant. These articles thus do not assist Dr. Prellop in

meeting Seaman’s “minimal” burden of establishing by “[s]cientific knowledge

. . . the harmful level of exposure to a chemical.” Without any facts that would 32

establish the allegedly harmful level of exposure (or even some link to bladder

cancer), as with her Ferox opinion, Dr. Prellop’s opinion regarding diesel exhaust

does not establish general causation.

Neither does Dr. Prellop establish specific causation. Seaman makes the

contention — with which we disagree — that our opinion in Bocanegra v. Vicmar
No. 08-30911

320 F.3d 581 (5th Cir. 2003). 33

Id. at 586. The plaintiff used a separate accident-reconstruction expert to connect impaired 34

driving ability to an increased likelihood of a crash. Id.

Id. at 588–90. 35

Id. at 587–89.

36

Id. at 589–90 n.5. 37

Id.

38

10

Services, Inc. mandates that any shortcomings in Dr. Prellop’s opinion go to its 33

weight, not its admissibility. In that vehicle-collision case, the plaintiff used a

toxicology expert to testify about the effects of marijuana on a motorist’s

perception, reaction time, and overall driving ability. Stressing that “[t]he real 34

world . . . does not operate like a controlled study,” we held that the expert’s

testimony was admissible despite unknown variables related to the potency and

quantity of the marijuana ingested by the defendant. In Bocanegra, the reason 35

that these unknown variables went to the weight and not to the admissibility of

the expert’s testimony is because the record also contained sufficient exposure

information: It was undisputed both that (1) being high on marijuana impairs

perception, viz., it generally has that effect, and (2) the defendant driver had

been high within the relevant twelve-hour window, viz., the specific effect. We 36

cautioned that we were “not concluding that a trial court may never exclude

testimony in a . . . case based on the fact that unknown variables render the

testimony unhelpful to the jury.” Instead, we “simply [held] that in th[at] case, 37

the variables d[id] not undermine the expert’s testimony to the point that it

[was] of no assistance to the jury.”38
No. 08-30911

 Our holding in Curtis v. M&S Petroleum, Inc., 174 F.3d 661 (5th Cir. 1999) is 39

consistent with that of Bocanegra. In Curtis, although the precise level of chemical exposure

was unknown, there was “sufficient information of the level” of exposure, e.g., (1) abnormally

high, albeit imprecise, readings on an exposure measuring device, (2) work practices conducive

to high exposure, and (3) inadequate factory design. Curtis, 174 F.3d at 671–72. Determining

that the expert’s exposure testimony was supported by more than a mere “paucity of facts,”

we held that it was admissible. Id. at 672 (citing Moore v. Ashland Chem., Inc., 151 F.3d 269,

279 n.10 (5th Cir. 1998) (en banc) (questioning as suspect causation testimony based on a

“paucity of facts”)). 

See Allen v. Pa. Eng’g Corp., 102 F.3d 194, 198–99 (5th Cir. 1996) (discussing the

40

shortcoming of an expert opinion under Federal Rule of Evidence 703, which requires that if

an expert relies on inadmissible facts, they be of a type “reasonably relied on by other experts

in the field” (citing FED. R. EVID. 703)).

The reduced burden of establishing proximate cause in Jones Act cases, see, e.g.,

41

Landry v. Two R. Drilling Co., 511 F.2d 138, 142 (5th Cir. 1975) (describing the burden as

“featherweight”), is irrelevant to our holding. The standards of reliability and credibility to

determine the admissibility of expert testimony under Daubert and Rule 702 apply regardless

whether a seaman’s burden on proximate causation is reduced. See Wills v. Amerada Hess

11

Unlike in Bocanegra, the unknown variables of the instant case do 39

render Dr. Prellop’s testimony unhelpful. Dr. Prellop’s opinion is based on

nothing other than counsel for Seaman informing her that Seaman was exposed

to Ferox and diesel exhaust “at least once a week, twenty-six weeks per year,

over more than a decade.” Even if reliance on counsel’s suggestion were

permitted, Dr. Prellop still had no information about the amount of exposure to

which Seaman was subjected “at least once a week,” viz., duration,

concentration, and other circumstances of the exposure. She provided nothing

that would offer the fact-finder a clue as to Seaman’s exposure to the allegedly

dangerous chemicals. 

In short, Dr. Prellop’s “background information concerning [Seaman’s]

exposure . . . is so sadly lacking as to be mere guesswork. The expert[] did not

rely on data concerning [Seaman’s] exposure that suffices to sustain [her]

opinions” under Daubert or Rule 702. Dr. Prellop’s testimony does not come

40

close to establishing either general or specific causation. The district court did

not abuse its discretion in excluding her testimony.41
No. 08-30911

Corp., 379 F.3d 32, 47 (2d Cir. 2004) (stating this rule and emphasizing that the Federal Rules

of Evidence and the applicable standard of causation are “distinct issues and do not affect one

another”) (quotation omitted); see also Knight v. Kirby Inland Marine Inc., 482 F.3d 347 (5th

Cir. 2007) (applying Daubert to an expert’s causation testimony in a Jones Act case).

Gray Law LLP v. Transcont. Ins. Co., 560 F.3d 361, 365 (5th Cir. 2009) (quotingFED.

42

R. CIV. P. 56(c)).

Id.

43

Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 478 (5th Cir. 2008). 44

12

B. Summary Judgment

1. Applicable Law

Having defined the record, we next determine whether summary judgment

was proper. “Summary judgment is appropriate only ‘if the pleadings, the

discovery and disclosure materials on file, and any affidavits show that there is

no genuine issue as to any material fact and that the movant is entitled to

judgment as a matter of law.’” In making our determination, we view the 42

evidence in the light most favorable to the non-moving party, here, Seaman.43

“[W]e are not limited to the district court’s reasons for its grant of summary

judgment. We may affirm the district court’s summary judgment on any ground

raised below and supported by the record.”44

2. Seacor is Entitled to Summary Judgment

Deprived of Dr. Prellop’s testimony, Seaman nevertheless urges that

summary judgment was improper for two principal reasons: (1) Other sources

provide sufficient causation evidence, and (2) the district court erred by granting

summary judgment sua sponte on Seacor’s purported duty to detect Seaman’s

cancer irrespective of causation by chemicals aboard Seacor’s vessels. In

rejecting these arguments we hold that Seaman failed to establish a genuine

issue of material fact that would justify denial of summary judgment.
No. 08-30911

See, e.g., Allen, 102 F.3d at 199; Atkins v. Ferro Corp., 534 F. Supp. 2d 662, 666 (M.D.

45

La. 2008), aff’d No. 08-30295, 2009 WL 605743 (5th Cir. Mar. 10, 2009) (per curiam)

(unpublished).

We re-emphasize that Dr. Prellop relied on only the suggestion of Seaman’s counsel. 46

The co-workers executed their declarations after the dates of Dr. Prellop’s report and

deposition, so she could not have relied on them.

13

i. Lack of Expert Causation Evidence

Seaman first contends that the deposition testimony of Seacor’s own

expert, Dr. Richard Airhart, establishes both general and specific causation.

Our review of Dr. Airhart’s deposition makes clear that his testimony does no

such thing and instead fully supports his expert report, which emphasized that

he was “unable to find any direct carcinogen for Mr. Seaman’s disease based on

the evidence of his records.” The report focused on Seaman’s childhood secondhand exposure to cigarette smoke as a more significant risk factor than any

demonstrated occupational risk. Dr. Airhart’s deposition testimony contains the

following representative statements: (1) diesel exhaust has potential

carcinogens in it but that “[w]hen you look at how much of a potential it is,

especially for bladder cancer, it’s not proven”; (2) “I think [second-hand smoke]

caused his cancer . . . . That’s a little stronger than more probable [than not]. . . .

I feel very strongly that this is the most likely cause of [Seaman’s cancer]”; and

(3) if Seaman worked around carcinogens, information about parts per million,

length of exposure, and type of ventilation would all be relevant. In summary,

the testimony and report of Seacor’s expert, Dr. Airhart, does not support

Seaman’s position at all. Dr. Airhart’s deposition does not reveal the requisite

causal link between Seaman’s cancer and either Ferox or diesel exhaust. And,

without admissible expert evidence in this toxic-tort case, Seaman cannot prove

causation.45

In an effort to establish his exposure to Ferox and diesel exhaust, Seaman

points to the declarations of three of Seaman’s co-workers. Each co-worker 46
No. 08-30911

In the absence of complementary expert evidence, we are skeptical that the

47

declarations of lay co-workers might be of any assistance to Seaman’s case. See Wills v.

Amerada Hess Corp., 379 F.3d 32, 49–50 (2d Cir. 2004) (“Absent some technical or professional

expertise in detecting and quantifying toxic emissions, [the seaman’s] testimony was

insufficient to establish dosage amount.”).

See Lozano v. Ocwen Fed. Bank, FSB, 489 F.3d 636, 641 (5th Cir. 2007) (stating that

48

generally a district court may not grant summary judgment sua sponte unless it gives the

parties ten days notice).

14

submitted a similar declaration that said: (1) Seacor’s vessel was supplied with

Ferox; (2) Seaman applied Ferox “regularly,” “usually two or three times every

week” using a brush or a pneumatic spray gun; (3) the crew never wore safety

gear; (3) half of the time that the crew applied Ferox, it did so in enclosed spaces;

(4) Seaman inhaled diesel exhaust fumes every day that he served aboard the

vessel; (5) the smell of diesel exhaust was noticeable at all times; and (6) Seacor’s

vessel routinely carried benzene and other chemicals. Without expert testimony

to place these declarations in context, they do not demonstrate that Seaman was

exposed to whatever may be the allegedly harmful level of Ferox or diesel

exhaust.47

Seaman lacks competent summary judgment evidence that would create

a genuine fact issue regarding the causation of his cancer.

ii. Seaman’s Duty-to-Detect Claim

The district court dismissed all of Seaman’s claims based on his failure to

offer evidence that exposure to chemicals while aboard Seacor’s vessels caused

his cancer. Seaman asserts, however, that Seacor never sought summary

judgment on his independent cause of action related to Seacor’s alleged duty to

discover Seaman’s symptoms irrespective of whether Ferox or diesel exhaust

caused his cancer. According to Seaman, the district court erred in granting

summary judgment sua sponte on this issue. We hold that to the extent that 48
No. 08-30911

Seaman’s complaint offers almost no indication of this claim and merely alleges that 49

Seacor failed to provide a safe place to work and to “investigate, remedy, and/or warn Mr.

Seaman of all hazards.”

See O’Hara v. Gen. Motors Corp., 508 F.3d 753, 763–64 (5th Cir. 2007) (recognizing 50

a harmless error exception to the ten-day notice rule when the non-movant had an adequate

opportunity to brief the issue and to present its evidence, i.e., notice would have served no

valid purpose); Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 28

F.3d 1388, 1399 (5th Cir. 1994) (“Because the homeowners have not identified a material fact

issue regarding their [claim], it would be a useless procedure to reverse the [d]istrict [c]ourt

because it did not allow ten days to elapse before entering summary judgment.” (internal

quotation marks omitted)).

See Ober v. Penrod Drilling Co., 726 F.2d 1035, 1037 (5th Cir. 1984) (per curiam) 51

(discussing this general duty).

Vessels that carry benzene of greater than 0.5% by volume as bulk cargo must provide 52

medical monitoring to those employees expected to be exposed to a specific quantity of benzene

in a given year. See 46 C.F.R. § 197.560(b)–(c) (detailing medical-examination requirements);

see also id. § 197.501 (outlining to which vessels the requirement applies); § 197.505 (defining

levels of benzene exposure). It is unclear whether Seaman would have been entitled to

medical monitoring. Seaman submitted the report of John Edgar, who described relevant

safety guidelines and regulations but who also conceded that he had no data on Seaman’s

actual exposure.

15

an independent claim existed, the district court did not reversibly err in 49

rejecting that claim.

Seaman’s memorandum in opposition to Seacor’s motion for summary

judgment described his theory related to Seacor’s alleged duties to detect his

cancer and to provide him medical monitoring. By raising these issues in his

opposition brief, Seaman, who makes no representation that he was deprived of

an opportunity to present additional evidence, placed them at issue for summary

judgment.50

According to Seaman, Seacor’s duty to detect his bladder cancer fell under

Seacor’s fundamental Jones Act duty to provide a “reasonably safe place to

work.” Even assuming arguendo that Seacor had a duty to provide medical 51

monitoring to Seaman, he has offered no summary judgment evidence that 52

would establish that Seacor’s alleged breach of that duty caused his cancer, i.e.,
No. 08-30911

Davis v. Odeco, Inc., 18 F.3d 1237, 1242–43 (5th Cir. 1994) (requiring evidence of

53

medical causation in a Jones Act case where the plaintiff alleged, inter alia, failure to

medically monitor).

Seaman also urges that the district court erred in denying his motion to alter or 54

amend the judgment. Determining that that contention is meritless, we affirm the district

court’s denial of Seaman’s motion.

16

that Seacor’s non-detection “played any part — however small — in the

development of his” cancer. No one disputes that early diagnosis of bladder 53

cancer is important. And, Seaman contends that Seacor was at fault for his not

receiving treatment for bladder cancer until 2006. Seaman disregards the fact,

however, that he did see a doctor for hematuria in 2003 and that the doctor

recommended seeing a urologist if Seaman’s urine did not clear. Yet, it was not

until 2006 that Seaman saw a urologist. Seaman offers no evidence that routine

medical monitoring would have altered his prognosis any more than did seeing

his doctor in 2003, particularly given that Seaman had been experiencing

symptoms for seven to ten years before his 2005 visit to the infectious disease

specialist. As Seaman has not established a genuine issue of material fact in

support of this cause of action, Seacor is entitled to summary judgment on all of

Seaman’s claims.54

IV. CONCLUSION

We affirm the district court’s Daubert-based exclusion of Dr. Prellop’s

expert testimony as unreliable. We also affirm the court’s grant of summary

judgment in favor of Seacor because Seaman failed to demonstrate the presence

of a disputed issue of material fact.

AFFIRMED.