UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-11404

MAXINE BLACK; and,

JAMES BLACK;

Plaintiffs-Appellees,

v.

FOOD LION, INC.;

Defendant-Appellant,

Appeal from the United States District Court for the

Northern District of Texas

March 30, 1999

Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.

EDITH H. JONES, Circuit Judge:

While shopping at a Food Lion grocery store, Maxine Black

slipped and fell on the remains of a mayonnaise spill that had been

previously cleaned by Food Lion personnel. In the ensuing damage

action, removed to federal court, a magistrate judge awarded Black

nearly $300,000

-- principally because she had been diagnosed with

fibromyalgia syndrome, an elusive but debilitating affliction.

Whether Black produced reliable expert evidence that her slip-andf all injury caused fibromyalgia is the fulcrum of Food Lion’s

appeal. We conclude she did not. The Supreme Court’s recent

decision in Kumho Tire Co., Ltd. v. Carmichael , No. 97-1709, 19992

W.L. 152455,

--- U. S. ---, --- S. Ct. --- (March 23, 1999),

reinforces our decision. The case is affirmed in part, reversed in

part, and remanded.

I. BACKGROUND

At a Food Lion Store in Grand Prairie, Texas, a stocker

dropped a jar of mayonnaise on September 9, 1993. The jar broke,

spilling its contents on the floor. The stocker attempted to clean

t he spill with a paper towel. The store manager inspected and

approved the clean-up. Unbeknownst to the manager, a film of

mayonnaise remained on the floor.

While escorting her daughter to the restroom a bit later,

Black slipped on the mayonnaise film and fell to the fl oor. She

immediately complained of lower back and arm pain, a headache, and

dizziness. Black and her husband reported the injury to Food Lion

immediately, and Black sought medical treatment.

Over the next several months, Black was treated and

medicated by Dr. James Pollifrone. Despite extensive testing and

physical t herapy, Dr. Pollifrone was unable to identify any

physical basis for Black’s con tinued complaints of pain. All

objective tests for pain, including an MRI, EMG, a nd diskogram,

produced results within normal limits.

On May 11, 1994, Black was referred to Dr. Mary Reyna for

an evaluation. Dr. Reyna is a physician certified by the American

Board of Physical Medicine and Rehabilitation and by the American3

Board of Pain Medicine; she specializes in treating patients with

persistent pain. Following several weeks of treatment, Dr. Reyna

diagnosed Black with a condition known as fibromyalgia syndrome.

Fibromyalgia is characterized by complaints of generalized pain,

poor sleep, an inability to concentrate, and chronic fatigue. The

condition is most common in women between the ages of 30 and 50 and

is often associated with hormonal problems. Dr. Reyna hypothesized

that the fall at Food Lion caused physical trauma to Black, which

caused “hormonal changes,” which caused Black’s fibromyalgia.

Following removal, the case was tried to a magistrate

judge without a jury. Food Lion maintained that its actions were

not negligent a nd that the evidence was insufficient to support

Black’s claim that the fall caused her fibromyalgia. At the core

of Food Lion’s defense was th e contention that Dr. Reyna’s

testimony could not causally link the fall at Food Lion with

Black’s present medical condition with any degree of medical

certainty. Food Lion also challenged Black’s proof regarding her

lost earnings and medical expenses. The trial court rejected Food

Lion’s arguments, allowed Dr. Reyna to testify over objection, and

awarded judgment to Black.1 See 509 U.S. 579, 113 S. Ct. 2786 (1993).

4 II. ANALYSIS

We review the trial court’s factual findi ngs for clear

error and its conclusions of law de novo

. S ee Seal v. Knorpp

, 957

F.2d 1230, 1234 (5th Cir. 1992). Food Lion contests only

perfunctorily the determination that it was legally responsible for

the damages arising from its neglig ence. We find no error and

affirm on liability. The extent of Black’s damages and their

relation to Food Lion’s negligence are hotly disputed.

Black’s b urden under Texas law was to prove to a

reasonable degree of medical certainty, based on a reasonable

medical probability and scientifically reliable evidence, that her

fall at Food Lion caused the fibromyalgia syndrome. S ee Merrell

Dow Pharms., Inc. v. Havner

, 953 S.W.2d 706, 711-12 (Tex. 1997)

(“possibility, speculation, and surmise” insufficient to support

expert testimony regarding causation). She relied on the proffered

expert testimony of Dr. Reyna to carry this burden. The magistrate

judge admitted Dr. Reyn a’s expert opinion notwithstanding Food

Lion’s challenge under Fed. R. Evid. 702 and Daubert v. Merrell Dow

Pharms., Inc. 1 Without explicitly tying Dr. Reyna’s testimony to

the sta ndards for scientific reliability set out in D aubert

, the

magistrate judge based his decision on several factors:5

[T]he court looks to the trial testimony presented by Dr.

Reyna as well as that of the other medical experts whose

testimony was presented by deposition.

* * * *

Despite the elusiveness which forecloses an absolute

determination of causality, the specialists in the field

recognize an accepted protocol in rendering an opinion in

terms of reasonable medical probability. See Plaintiff’s

Exhibit 20, at page 536; Causality

.

The evidence in this case reflects that Dr. Reyna

followed this protocol in reaching her opinion, by ruling

out other possible causes for Ms. Black’s fibromyalgia.

Specifically, the documentary evidence and the testimony

of Dr. Reyna show that Dr. Reyna fully apprised herself

of Ms. Black’s prior medical history before the accident,

that she determined that no post-accident incident was an

intervenin g cause for the onset of Ms. Black’s

fibromyalgia, and that no other factors

-- based upon her

review of tests performed prior to accepting Ms. Black as

a pat ient, as well as those tests which Dr. Reyna,

herself, directed to be made -- contributed to Ms.

Black’s fibromyalgia.

Following Daubert

, the Supreme Court and this court will

reverse the district court’s admission of expert testimony only for

an abuse of discretion in the trial court’s ultimate determination

of scientific reliability. S ee Moore v. Ashland Chemical

, 151 F.3d

269, 274 (5th Cir. 1998) (en banc). In a just-released opinion,

the Supreme Court expla ined that abuse of discretion review also

governs a trial court’s decision about how to determine scientific

reliability. S ee Kumho Tire

, 1999 W.L. 152455, at *11. K umho Tire

affirmed that Daubert ’s principles concerning the reliabilityassurance function of Rule 702 apply to technical or specialized

expert testimony as well as to scientific expert testimony. S ee6

Kumho Tire

, 1999 W. L. 152455, at *9. While K umho Tire dealt

specifically with engineering testimony, its reasoning fully

supports this court’s en banc conclusion in Moore that Daubert

analysis governs expert medical testimony. S ee Moore

, 151 F.3d at

275 n.6.

Further, Kumho Tire refines in a common-sense way, but

does not undermine, the use of the specific D aubert factors as a

reference point for gauging the reliability of potential expert

testimony. Justice Breyer put it this way:

The petitioners ask more specifically whether a

trial judge determining the “admissibility of an

engineering expert’s testimony” may consider several more

specific factors that Daub ert said might “bear on” a

judge’s gate-keeping determination. These factors

include:

--Whether a “theory or technique . . . can be (and

has been) tested”;

--Whether it “has been subjected to peer review and

publication”;

--Whether, in respect to a particular technique,

there is a high “known or potential rate of error”

and whether there are “standards controlling the

technique’s operation”; and

--Whether the theory or technique enjoys “general

acceptance” within a “relevant scientific

community.”

Emphasizing the word “may” in th e question, we

answer that question yes.

Kumho Tire

, 1999 W.L. 152455, at *9 (citing Daubert , 509 U.S. at

592-94, 113 S. Ct. at 2796-97).

Kumho Tire ’ s emphasis on the word “may” should not be

misun derstood to grant open season on the admission of expert7

testimo n y by permitting courts discretionarily to disavow the

Daubert factors. On the contrary, the Supreme Court simply

recognized the obvious facts that there are many kinds of experts

and expertise, that the Daubert i nquiry is always fact-specific,

and that the Daubert factors may not all apply even to the

admissibi lity of pure scientific testimony. K umho Tire also

stressed that the Daubert factors may be relevant to the

reliability of experience-based testimony. The overarching goal of

Daubert ’s gate-keeping requirement, however,

is to ensure the reliability and relevancy of expert

testimony. It is to make certain that an expert, whether

basing testimony upon professional studies or personal

expe rience, employs in the courtroom the same level of

intellectual rigor that characterizes the practice of an

expert in the relevant field.

Kumho Tire , 1999 W.L. 152455, at *10.

Applying its articulated principles to the question

presented by Kumho Tire

-- whether an engineering expert could

reliably testify on the cause of an automobile tire failure

-- the

Supreme Court upheld a district court decision t o exclude the

evidence. The district court found that the expert’s methodology

satisfied neither the D aubert criteria nor any other factors

operating in fav or of admissibility which could outweigh those

identified in Daubert

. The Supreme Court reiterated that the

expert’s self-proclaimed accuracy is insufficient:

[A]s we pointed out in Joiner

, “nothing in either Daubert

o r the Federal Rules of Evidence requires a distric t8

court to admit opinion evidence that is connected to

existing data only by the ipse dixit of the expert.”

Kumho Tire , 1999 W.L. 152455, at *14 (citing General Elec. Co. v.

Joiner , 522 U.S. 136, 146, 118 S. Ct. 512, 519 (1997)).

Kumho Tire thus does not require district courts to

reinvent the wheel every time expert testimony is offered in court.

Just as the Supreme Court relied on the Daube rt factors in K umho

Tire

, those factors may be used as a starting-point for analysis in

the usual case. S ee

, e.g.

, M o ore

, 151 F.3d at 275 (noting

Daubert ’s “five-factor, non-exclusive, flexible test” for

determini ng the reliability of expert testimony); W atkins v.

Telsmith, Inc.

, 121 F.3d 984, 988-89, 990-91 (5th Cir. 1997) (“Not

every guidepost outlined in Daubert will necessarily apply to

expert testimony

. . . but the district court’s ‘preliminary

assessment of whether the reasoning or methodology underlying the

testimony is scientifically valid

. . .’ is no less important.”

(citing Daubert

, 509 U.S. at 592-93, 113 S. Ct. at 2796)). In the

vast majority of cases, the district court first should decide

whether the factors mentioned in Daubert are appropriate. Once it

considers the Daubert factors, the court then can consider whether

other factors, not mentioned in Daubert , are relevant to the case

at hand.

T he magistrate judge did not have the benefit of Ku mho

Tire

, or of our en banc decision in Moore

, when he admitted Dr.9

Reyna’s testimony. But as we have noted, both those opinions

represent refinements of Daubert rather than modifications of its

essential holding. More to the point, the magistrate judge’s

opinion does not even cite Daubert

, although, giv ing his abovequoted stat ements the benefit of the doubt, the magistrate judge

attempted objectively to justify the admission of Dr. Reyna’s

testimony. Unfortunately, he failed. Dr. Reyna’s testimony does

not bear the necessary indicia of intellectual rigor, whether

measured by Daubert or by the magistrate judge’s reas oning.

Because the magistrate judge misapplied the Daubert tests and

failed to articulate any satisfying alternative standards, we hold

that he abused his discretion in admitting Dr. Reyna’s testimony.

While the medical profession has made significant

advan ces in the diagnosis and treatment of fibromyalgia, experts

have recognized that the evidence that trauma actually causes

fibromyalgia is “insufficient to establish causal relationships.”

Frederick Wolfe, The Fibromyalgia Syndrome: A Consensus Report on

Fibromyalgia and Disability

, 23:3 The Journal of Rheumatology 534,

534 (1996) (“the Vancouver Report ”). The V ancouver Report states,

Overall . . . data from the literature are insufficient

to indicate whether causal relationships exist between

trauma and [fibromyalgia]. The absence of evidence,

however, does not mean that causality doe s not exist,

rather that appropriate studies have not been performed.2 The V ancouver Report chronicles in detail the apparent lack

of scientific studies regarding the specific causes of

fibromyalgia:

Causality

. [Fibromyalgia] in the setting of work

disability or compe nsation has been the subject of a

number of reports. While the association between work

disability or compensation and [fibromyalgia] is well

established, data regarding causality are largely absent.

The clinical dilemma, w hether an injury or workplace

stress caused the patient’s [fibromyalgia], a

retrodictive (or It Did) causal proposition[,] can rarely

be determined to be certainly true or certainly false.

Evidence that trauma can cause [fibromyalgia], a

potential (or It Can) causal proposition, comes from a

few case seri es or case reports and is insufficient to

establish causal relationships. That trauma might cause

[fibromyalgia] sometimes, a predictive (or It Will)

causal proposition, can only be addressed by

epidemiological studies that measure the risk of

potential exposures on the development of [fibromyalgia].

Epidemiologic studies of trauma and [fibromyalgia] needed

to address potential or predictive causality are

currently not available. The [fibromyalgia] causality

issue, as in other putative work and injury related

syn dromes, may be further complicated by the potential

influence of the availability of compensation f or the

syndrome. In settings where compensation is widely

available, illnesses similar to [fibromyalgia] have been

shown to increase in apparent prevalence, as measured by

physician visits, then to fall when compensation

availability declines.

Overall, then, data from the literature are

insufficient to indicate whether causal relationships

exist between trauma and [fibromyalgia]. The absence of

evidence, however, does not mean that causality does not

exist, rather that appropriate studies have not been

performed.

See Vancouver Report , 23:3 The Journal of Rheumatology at 534-35.

The Vancouver Report goes on to recommend several courses of action

for fibromyalgia researchers, including: (1) “Eliminate the terms

‘reactive’ and ‘post-traumatic fibromyalgia’.”; (2) “The

10 Id. at 535. 2 At least one other commentator has alsorelationship between [fibromyalgia] and putative precipitating and

aggravating factors should be studied.”; and, (3) “Studies

investiga ting the pathogenesis of work or injury related

[fibromyalgia] should be undertaken, including those that explore

basic mechanisms.” See id. at 537.

3 Although Black attempted to admit into evidence more recent

studies allegedly dem onstrating a causal link between physical

11 recognized the severe difficulties associated with

identifying the cause of a given patient’s fibromyalgia.

See Geoffrey Littlejohn, Medicolegal Aspects of

Fibrositis Syndrome

, 16 Journal of Rheumatology 169, 171-

72 (Supp. 19 1989) (“[T]here is no scientific evidence to

suggest that the injury itself results in the

pathophysiology of fibrositis syndrome.”). Thus,

“whether an injury . . . caused the patient’s

[fibromyalgia], a retrodictive (or It Did) causal

proposition[,] can rarely be determined to be certainly

true or certainly false.” S ee Vancouver Report

, 23:3 The

Journal of Rheumatology at 534.

Daubert

, as noted above, lists four non-exclusive factors

to consider when assessing the scientific validity or reliability

of an expert’s testimony. S ee 509 U.S. at 593- 95, 113 S. Ct. at

2796-97. Dr. Reyna’s theory -- that the fall caused trauma which

caused hormonal damage leading to fibromyalgia

-- fails these

tests. First, Dr. Reyna’s theory has not, according to the

e vidence at trial, 3 been verified by testing and, thus, has nottrauma and fibromyalgia, the trial cour t excluded the evidence

because the studies had not been properly produced to opposing

counsel during discovery.

12 been peer-reviewed. In fact, Dr. Reyna acknowledged that

fibromyalgia has no known etiology (i.e., medical science does not

know i f the cause of the condition is muscle, nerve, or hormone

damage). S ee also Vancouver Report

, 23:3 The Journal of

Rheumatology at 534 (noting lack of epidem iological studies

regarding trauma and causal link, if any, to fibromyalgia). If

medical science does not know the cause, then Dr. Reyna’s “theory”

of cau sation, to the extent it is a theory, is isolated and

u nsubstantiated. Even Dr. Reyna recognized the limits of her

opinion. When asked whether she had been able to identify the

cause of Black’s fibromyalgia, she stated, “I didn’t find the

cause. I found an event that contributed to the development of the

symptom. I did not find the cause.” On its own terms, Dr. Reyna’s

opinion includes conjecture, not deduction from scientificallyvalidated information.

It also follows from the scientific literature that Dr.

Reyna’s theory has failed to gain accepta nce within the medical

profession. Experts in the field conclude that the ultimate cause

of fibromyalgia cannot be known, and only an educated guess can be

made based on the patient’s history. S ee id. at 536. Mere

conjecture does not satisfy the standard fo r general acceptance,4 We assum e a rguendo that the Vancouver Report contains some

p rotocol, although it does not appear to be specif ically

articulated therein.

13 except to demonstrate general acceptance of a proposition contrary

to Dr. Reyna’s. Finally, Dr. Reyna’s theory of causation, which

has not been verified or generally accepted, also has no known

potential rate of error.

The magistrate judge either substituted his own standards

of reliability for those in Daubert

, or he confused the Daubert

analysis by adopting an excessive level of generality in his

gatekeeping inquiry. Thus, the magistrate judge read the V ancouver

Report to approve “an accepted protocol in rendering an opinion in

terms of reasonable medical probability.” 4 He then found that Dr.

Reyna followed this protocol by (a) taking a medical history from

Black, (b) ruling out prior or subsequent “causes” of fibromyalgia,

(c) performing or reviewing physical tests [which all turned up

negat ive], and (d) deducing that the Food Lion fall was the only

possible remaining cause of fibromyalgia that appeared nine months

later.

This analysis amounts to saying that because Dr. Reyna

thought she had eliminated other possible causes of fibromyalgia,

even though she does no t know the real “cause,” it had to be the

fall at Food Lion. This is not an exercise in scientific logic but

in the fallacy of post-hoc propter-hoc reasoning, which is as5 In Kumho Tire , the Supreme Court points out that

the specific issue before the [district] court was not

the reasonableness in general of a tire expert’s use of

a visual and tactile inspection to determine whether

overdeflection had caused the tire’s tread to separ ate

from its steel-belted carcass. Rather, it was the

reasonableness of using such an approach, along with

Carlson’s particular method of analyzing the data there

obtained, to draw a conclusion regarding the particular

matter to which the ex pert testimony was directly

relevant.

1999 W.L. 152455, at *12 (emphasis added). The Supreme Court then

reviewed the expert’s exact methodology and found it imprecise,

based on a superficial examination of the tire, inconsistent with

the expert’s previous statements, and unsupported by any other tire

experts or outside research. The court reiterated:

14 unacceptable in science as in law. By the same “logic,” Dr. Reyna

could have concluded that if Black had gone on a trip to Disney

World and been jostled in a ride, that event could have contributed

to the onset of fibromyalgia. S ee

, e.g.

, Allen v. Pennsylvania

Eng’g Corp.

, 102 F.3d 194, 195-96 (5th Cir. 1996) (expert evidence

suggesting connection between exposure to ethylene oxide and brain

cancer insufficient under Daubert ).

The court’s task was to determine whether Dr. Reyna’s

methodology tied the fall at Food Lion by some spec ific train of

medical evidence to Black’s d evelopment of fibromyalgia. No one

doubts the utility of medical histories in general or the process

by which doctors rule out some known causes of disease in order to

finalize a diagnosis. But such general rules must, under D aubert

,

Kumho Tire

, and Moore

, be applied fact-specifically in each case. 5the question before the trial court was specific, not

general. The trial court had to decide whether this

particular expert had sufficient specialized knowledge to

assist the jurors in deciding the particula r issues in

this case.

Id.

, 1999 W.L. 152455, at *13 (quotation marks and citation

omitted).

15 The underlying predicates of any cause-and-effect medical testimony

are that medical science understands the physiological process by

which a particular disease or syndrome develops and knows what

factors cause the process to occur. Based on such predicate

knowledge, it may then be possible to fasten legal liability for a

person’s disease or injury.

In this case, neither Dr. Reyna nor medical science knows

the exact process that results in fibromyalgia or the factors that

trigger the process. Absent these critical scientific predicates,

for which there is no proof in the record, no scientifically

reliable conclusion on causation can be drawn. Dr. Reyna’s use of

a general methodology cannot vindicate a conclusion for which there

is no underlying medical support.

The magistrate ju dge should have first applied the

Daubert criteria to this case. Had that been done, the utter lack

of any medical reliability of Dr. Reyna’s opinion would have been

quickly exposed. If the magistrate judge thought he was applying

Daubert

, however, he fatally erred by applying its criteria at a

standard of meaninglessly high generality rather than boring in on16

the precise state of sci entific knowledge in this case.

Alternatively, if the magistrate judge decided to depart from

Daubert , he failed to articulate reasons for adopting the test he

used. In particular, he failed to show why an alternate test was

nec essary to introduce “in the courtroom the same level of

intellectual rigor that characterizes the practice of an expert in

the relevant field.” Kumho Tire , 1999 W.L. 152455, at *10.

As Dr. Reyna’s testimon y was unsupported by a specific

methodology that could be relied upon in this case and contradicted

by the general level of current medical knowledge, the court abused

its discretion by admitting that testimony.

III. CONCLUSION

Wit hout Dr. Reyna’s testimony, Black cannot hold Food

Lion liable for medical expenses, lost wages, or pain and suffering

attributable to her fibromyalgia. Black may only be compensated

for the damages and medical expense incurred for the treatment of

her direct physical injuries caused by her fall at Food Lion. The

case is remanded for recalculation of damages consistent with the

foregoing.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.