No. 14-20603 In the UNITED STATES COURT OF …hankinsonlaw.com/wp-content/uploads/2015/07/2015-02-05-Whirlpool...No. 14-20603 _____ In the . UNITED STATES COURT OF APPEALS . for the

No. 14-20603 ______________________________

In the

UNITED STATES COURT OF APPEALS for the Fifth Circuit

______________________________

Devereaux Macy; Joel Santos,

Plaintiffs-Appellants, v.

Whirlpool Corporation, doing business as Kitchenaid, Defendant-Appellee.

______________________________

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

Honorable Lynn Hughes, United States District Judge ______________________________

APPELLEE’S BRIEF

______________________________ Michael D. Hostetter [email protected] Nall & Miller LLP 235 Peachtree Street, NE, Suite 1500 Atlanta, Georgia 30303-1418 Telephone: 404-522-2204 Facsimile: 404-522-2208

Deborah G. Hankinson [email protected] Brett Kutnick [email protected] Stephanie Dooley Nelson [email protected] Hankinson LLP 750 N. St. Paul St., Suite 1800 Dallas, Texas 75201 Telephone: 214-754-9190 Facsimile: 214-754-9140 Attorneys for Defendant-Appellee

Case: 14-20603 Document: 00512928192 Page: 1 Date Filed: 02/05/2015

mailto:[email protected]




i

CERTIFICATE OF INTERESTED PERSONS

1. No. 14-20603; Devereaux Macy; Joel Santos v. Whirlpool Corporation, doing business as Kitchenaid

2. The undersigned counsel of record certifies that the following listed persons and entities as described in the fourth sentence of 5TH CIR. R. 28.2.1 have an interest in the outcome of this case. These representations are made in order that the judges of this Court may evaluate possible disqualification or recusal.

Plaintiffs-Appellants Devereaux Macy Joel Santos, Jr. Counsel for Plaintiffs-Appellants Joseph Walker Thomas Mosele Franklin Mosele & Walker PC 4200 Westheimer Road Houston, Texas 77027 Bob F. Wright Thomas R. Edwards Domengeaux, Wright, Roy & Edwards 556 Jefferson Street, Fifth Floor Lafayette, Louisiana 70501 Scott McLemore McLemore, Rendell, Ardoin & Story 800 Sawyer Street Houston, Texas 77007 Carla M. Perron House & Perron Bank of America Center 700 Louisiana Street, Suite 3950 Houston, Texas 77002


ii

Defendant-Appellee* Whirlpool Corporation Pursuant to FED. R. APP. P. 26.1, Whirlpool states that it has no parent corporation, nor is there any publicly held corporation that owns 10% or more of its stock. Counsel for Appellee Deborah G. Hankinson Brett Kutnick Stephanie Dooley Nelson Hankinson LLP 750 N. St. Paul Street, Suite 1800 Dallas, Texas 75201

Michael Hostetter Nall & Miller, LLP 223 Peachtree Street Suite 1500 North Tower Atlanta, Georgia 30303 Barham Lewis Ogletree, Eakins, Nash, Smoak & Stewart 500 Dallas Street, Suite 3000 Houston, Texas 77002 /s/ Deborah G. Hankinson Attorney for Defendant-Appellee

* In the district court, Plaintiffs originally named Scott H. Byrd, Kimberly Byrd,

and Sears Roebuck & Co. as additional defendants in this lawsuit. (ROA.23) These defendants were later dismissed before judgment (ROA.43, 46, 67), and they are not parties to this appeal.


iii

STATEMENT REGARDING ORAL ARGUMENT

The Brief for Appellants raises no novel or significant issues of law. Indeed,

Plaintiffs-Appellants Devereaux Macy and Joel Santos, Jr. present issues that turn

on well-settled principles governing summary judgments and a district court’s

discretion to exclude expert testimony. Thus, oral argument is not necessary to

assist the Court in resolving this appeal. Nonetheless, if the Court grants Plaintiffs’

request for oral argument, Defendant-Appellee Whirlpool Corporation also

requests the opportunity to present oral argument.


iv

TABLE OF CONTENTS Certificate of Interested Persons ................................................................................. i

Statement Regarding Oral Argument ...................................................................... iii

Table of Authorities .................................................................................................. vi

Jurisdictional Statement ............................................................................................. 1

Statement of Issues Presented .................................................................................... 1

Statement of the Case ................................................................................................. 3

Summary of the Argument ....................................................................................... 14

Argument.................................................................................................................. 16

I. The District Court Correctly Exercised Its Discretion in Excluding David Penney as an Expert. ........................................................................... 16

A. Standards governing the admissibility of expert testimony. ............... 17

B. Penney’s causation opinions are incompetent. .................................... 18

1. There is no reliable foundation underlying Penney’s novel theory that low-level CO exposure is capable of causing serious injuries. ............................................................ 20

2. Penney’s opinion that carbon monoxide exposure from the range caused Plaintiffs’ alleged injuries is also unreliable. .................................................................................. 25

a. Penney failed to rule out other possible causes of Plaintiffs’ alleged symptoms. ......................................... 25

b. Other problems with Penney’s report render it unreliable. ....................................................................... 30

3. Penney is unqualified to render medical opinions. ................... 32

II. The District Court Correctly Exercised Its Discretion in Excluding Paul Carper as an Expert. .............................................................................. 35


v

A. Carper is not qualified to opine on the design of gas ranges or the ANSI Z21.1 test. ............................................................................ 35

B. Carper’s opinions are unreliable. ......................................................... 38

III. The District Court Correctly Granted Summary Judgment Against All of Plaintiffs’ Claims. ...................................................................................... 41

A. Whirlpool was entitled to summary judgment on Plaintiffs’ design defect claim. ............................................................................. 42

1. Plaintiffs adduced no evidence that the range was defectively designed and rendered unreasonably dangerous. ................................................................................. 42

2. Plaintiff adduced no evidence that a safer alternative design exists. ............................................................................. 44

3. Plaintiffs adduced no evidence that the range was a producing cause of their alleged injuries. ................................. 47

B. The district court correctly granted summary judgment on Plaintiffs’ marketing defect claim. ...................................................... 50

1. Whirlpool owed no duty to warn of the purported dangers of low-level carbon monoxide emissions from the range. ........ 51

2. The dangers of carbon monoxide are common knowledge. ................................................................................ 56

3. In any event, Whirlpool did warn of carbon monoxide exposure. ................................................................................... 57

C. The Court should affirm summary judgment on Plaintiffs’ other claims because Plaintiffs abandoned them. ......................................... 58

IV. The Court Need Not Reach Plaintiffs’ Request for Reassignment upon Remand. ......................................................................................................... 59

Conclusion ............................................................................................................... 60

Certificate of Service ............................................................................................... 61

Certificate of Compliance with Rule 32(a) .............................................................. 62


vi

TABLE OF AUTHORITIES

Cases Acord v. Gen. Motors Corp.,

669 S.W.2d 111 (Tex. 1984) .........................................................................46

Allen v. Pa. Eng’g Corp., 102 F.3d 194 (5th Cir. 1996) .........................................................................23

Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420 (Tex. 1997) .................................................................. 41, 42

Aryain v. Wal-Mart Stores Tex., L.P., 534 F.3d 473 (5th Cir. 2008) .........................................................................41

Beans v. Entex, Inc., 744 S.W.2d 323 (Tex. App.—Houston [1st Dist.] 1988, writ denied) .........57

Berry v. Armstrong Rubber Co., 989 F.2d 822 (5th Cir. 1993) .........................................................................20

Black v. Food Lion, Inc., 171 F.3d 308 (5th Cir. 1999) .........................................................................25

Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743 (Tex. 1980) .........................................................................46

Bristol-Myers Co. v. Gonzalez, 561 S.W.2d 801 (Tex. 1978) .........................................................................51

Brown v. Illinois Cent. R.R. Co.., 705 F.3d 531 (5th Cir. 2013) .........................................................................41

Cano v. Everest Minerals Corp., 362 F. Supp. 2d 814, 857 (W.D. Tex. 2005) .......................................... 24, 26

Casey v. Toyota Motor Eng’g & Mfg. N. Am., Inc., 770 F.3d 322 (5th Cir. 2014) ...................................................... 42, 45, 46, 47

Caterpillar, Inc. v. Shears, 911 S.W.2d 379 (Tex. 1995) .................................................................. 50, 56


vii

Celotex Corp. v. Catrett, 477 U.S. 317 (1986).......................................................................................41

Coastal Tankships, U.S.A. v. Anderson, 87 S.W.3d 591 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) ............25

Copley v. Smith & Nephew, Inc., No. CIV.A.H-97-2910, 2000 WL 223404 (S.D. Tex. Feb. 2, 2000) ................................................................................27

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).......................................................................... 18, 32, 38

DeGrate v. Executive Imprints, Inc., 261 S.W.3d 402 (Tex. App.—Tyler 2008, no pet.) .......................................43

E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995) .................................................................. 29, 49

Easter v. Aventis Pasteur, Inc., 358 F. Supp. 2d 574 (E.D. Tex. 2005) ..........................................................27

Ford v. Carnival Corp., No. 08-23451-CIV, 2010 WL 9116184 (S.D. Fla. Mar. 4, 2010) .................34

Ford Motor Co. v. Ledesma, 242 S.W.3d 32 (Tex. 2007) ...........................................................................48

Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713 (Tex. 1998) .................................................................. 36, 38

Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997)................................................................................ 22, 41

Gen. Motors Corp. v. Saenz, 873 S.W.2d 353 (Tex. 1993) .................................................................. 51, 53

Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129 (5th Cir. 1985) .......................................................................51

Hanus v. Tex. Utils. Co., 71 S.W.3d 874 (Tex. App.—Fort Worth 2002, no pet.) ...............................52


viii

Heck v. City of Lake Havasu, No. CV-0401810-PCT, 2006 WL 2460917 (D. Ariz. Aug. 24, 2006) ......................................................................... 29, 30

Hutchinson v. Proxmire, 443 U.S. 111 (1979)................................................................................ 49, 50

In re DaimlerChrysler Corp., 294 F.3d 697 (5th Cir. 2002) .........................................................................59

In re John H. McBryde, 117 F.3d 208 (5th Cir. 1997) .........................................................................59

Johnson v. Arkema, Inc., 685 F.3d 452 (5th Cir. 2012) ................................................................. passim

Johnson v. Sawyer, 120 F.3d 1307 (5th Cir. 1997) .......................................................................59

Joseph E. Seagram & Sons, Inc. v. McGuire, 814 S.W.2d 385 (Tex. 1991) .................................................................. 51, 56

Knight v. Kirby Inland Marine Inc., 482 F.3d 347 (5th Cir. 2007) .................................................................. 17, 48

Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).......................................................................................18

Liteky v. U.S., 510 U.S. 540 (1994).......................................................................................59

Marathon Corp. v. Pitzner, 106 S.W.3d 724 (Tex. 2003) .........................................................................49

Mascarenas v. Miles, Inc., 986 F. Supp. 582 (W.D. Mo. 1997) ...............................................................34

Mateer v. U.S. Aluminum, No. 88-2147, 1989 WL 60442 (E.D. Pa. June 6, 1989) ................................34

McClain v. Metabolife Int’l, Inc., 401 F.3d 1233 (11th Cir. 2005) .....................................................................32


ix

Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997) ............................................................ 19, 27, 48

Michaels v. Avitech, Inc., 202 F.3d 746 (5th Cir. 2000) .........................................................................49

Moore v. Ashland Chem., Inc., 151 F.3d 269 (5th Cir. 1998) (en banc) ............................................ 18, 31, 32

Nissan Motor Co. v. Armstrong, 145 S.W.3d 131 (Tex. 2004) .................................................................. 42, 43

Pick v. Am. Med. Sys., 958 F. Supp. 1151 (E.D. La. 1997)................................................................27

Plourde v. Gladstone, 190 F. Supp. 2d 708 (D. Vt. 2002), aff’d, 69 Fed. App’x 485 (2d Cir. 2003) ........................................................34

Rangel v. Lapin, 177 S.W.3d 17 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) ............45

Robertson v. Norton Co., 148 F.3d 905 (8th Cir. 1998) .........................................................................19

Roche v. Lincoln Props. Co., 175 Fed. App’x 597 (4th Cir. 2006) ..............................................................27

Runnels v. Tahsin Indus. Corp., USA, No. 3:11-CV-106-CWR-LRA, 2013 WL 6834632 (S.D. Miss. Dec. 23, 2013) ............................................................................19

Sauder Custom Fabrication, Inc. v. Boyd, 967 S.W.2d 349 (Tex. 1998) .........................................................................56

Seatrax, Inc. v. Sonbeck Int’l, Inc., 200 F.3d 358 (5th Cir. 2000) .........................................................................31

Sittig v. Louisville Ladder Group, LLC, 136 F. Supp. 2d 610 (W.D. La. 2001) ...........................................................36

Sullivan v. Rowan Cos., 952 F.2d 141 (5th Cir. 1992) .........................................................................33


x

Thompson v. Zurich Am. Ins. Co., 664 F.3d 62 (5th Cir. 2011) ...........................................................................58

U.S. v. Whitfield, 590 F.3d 325 (5th Cir. 2009) .........................................................................19

USX Corp. v. Salinas, 818 S.W.2d 473 (Tex. App.—San Antonio 1991, writ denied) ....... 51, 52, 53

Valdez v. U.S., 56 F.3d 1177 (9th Cir. 1995) .................................................................. 57, 58

Viterbo v. Dow Chem. Co., 826 F.2d 420 (5th Cir. 1987) ............................................................ 19, 39, 49

Weakley v. Fischbach & Moore, Inc., 515 F.2d 1260 (5th Cir. 1975) .......................................................................46

Wells v. SmithKline Beecham Corp., 601 F.3d 375 (5th Cir. 2010) .................................................................. 41, 48

Wells v. SmithKline Beecham Corp., No. A-06-CA-126-LY, 2009 WL 564303 (W.D. Tex. Feb. 18, 2009), aff’d, 601 F.3d 375 ..................................... 27, 31

Wilson v. Woods, 163 F.3d 935 (5th Cir. 1999) .........................................................................32

Wintz v. Northrop Corp., 110 F.3d 508 (7th Cir. 1997) .........................................................................34

Wooley v. Smith & Nephew Richards, Inc., 67 F. Supp. 2d 703 (S.D. Tex. 1999) .............................................................27

Statutes and Rules 28 U.S.C. § 1331 ........................................................................................................ 1

28 U.S.C. § 1332 ........................................................................................................ 1

28 U.S.C. § 1337 ........................................................................................................ 1

28 U.S.C. § 1441(b) ................................................................................................... 1


xi

FED. R. APP. P. 28(a)(8)(A) ............................................................................... 57, 58

FED. R. EVID. 702 .................................................................................. 17, 18, 32, 36

TEX. CIV. PRAC. & REM. CODE § 82.005 ........................................................... 42, 45

Other Authorities FED. JUDICIAL CTR., REFERENCE MANUAL ON SCIENTIFIC EVIDENCE

(2d ed. 2000) ..................................................................................................26

RESTATEMENT (SECOND) OF TORTS § 402A (1965) .......................................... 41, 50


xii

ABBREVIATIONS

“Macy” refers to Devereaux Macy.

“Santos” refers to Joel Santos, Jr.

“Plaintiffs” refers collectively to Devereaux Macy and Joel Santos, Jr.

“Whirlpool” refers to Whirlpool Corporation, doing business as Kitchenaid.

“Sears” refers to Sears, Roebuck & Co. d/b/a Sears Outlet Store #4057.


1

JURISDICTIONAL STATEMENT

Whirlpool is satisfied with Plaintiffs’ Jurisdictional Statement regarding this

Court’s jurisdiction. Contrary to Plaintiffs’ assertion, however, the district court

did not have jurisdiction under 28 U.S.C. §§ 1331 and 1337. Rather, the district

court had jurisdiction because the case was properly removed pursuant to

28 U.S.C. § 1441(b) based on diversity of citizenship under 28 U.S.C. § 1332.

This was an action between citizens of different states, and the amount in

controversy exceeds $75,000. (ROA.16)

STATEMENT OF ISSUES PRESENTED

Devereaux Macy and Joel Santos, Jr. filed this products liability suit against

Whirlpool, alleging that they suffered carbon monoxide poisoning from a gas

range in their home. The district court excluded the testimony of Plaintiffs’ two

liability experts, granted summary judgment to Whirlpool, and rendered judgment

that Plaintiffs take nothing. Plaintiffs’ appeal presents the following issues:

1. Did the district court correctly exercise its discretion in excluding the

expert testimony of David Penney when:

a. Penney’s novel theory that low-level carbon monoxide exposure is capable of causing serious injuries has no reliable foundation;

b. Penney’s opinion that carbon monoxide from Whirlpool’s gas range caused Plaintiffs’ alleged injuries is unreliable because, among other reasons, Penney failed to rule out other possible causes of Plaintiffs’ alleged symptoms; and


2

c. Penney, a toxicologist, is not qualified to render medical

opinions?

2. Did the district court correctly exercise its discretion in excluding the

expert testimony of Paul Carper when:

a. Carper is not qualified to opine on the design of gas ranges or whether the range complied with the only nationally accepted standard for testing carbon monoxide production from a range; and

b. Plaintiffs did not establish the reliability of Carper’s opinions regarding (i) the range’s alleged non-compliance with industry standards and (ii) the existence of a safer alternative design?

3. Should the summary judgment against Plaintiffs’ claims be affirmed

when:

a. the absence of admissible expert testimony is alone fatal to Plaintiffs’ claims;

b. Plaintiffs failed to adduce competent summary judgment evidence to support their design defect claim, including evidence that (i) Whirlpool’s range was defectively designed so as to render it unreasonably dangerous, (ii) a safer alternative design existed, and (iii) the alleged defect was a producing cause of Plaintiffs’ purported injuries;

c. Plaintiffs’ marketing defect claim fails as a matter of law

because (i) Whirlpool owed no duty to warn of the purported dangers of low-level carbon monoxide emissions from the range, (ii) the dangers of carbon monoxide are common knowledge, and (iii) Whirlpool did warn of carbon monoxide exposure; and

d. Plaintiffs have not challenged the summary judgment against their other claims on appeal?


3

STATEMENT OF THE CASE

Plaintiffs’ Statement of the Case is incomplete, misleading, and largely

devoid of citations to the record. The following accurately reflects the facts of this

case as shown in the record.

Background. Whirlpool manufactures home appliances, including gas

ranges. Whirlpool created a program known as Product Hazard Management

(PHM) to identify, evaluate, and address any potential consumer product safety

issues, assess any risks, and determine if a warning is required. (ROA.2597-2599)

Whirlpool uses the process both proactively during the development of new

designs and reactively after manufacturing a product. (ROA.2598) One of the

objectives of the PHM process is to provide consumers with hazard

communications for potentially life-threatening or grievous injuries that are

foreseeable, without overwhelming them with excessive warnings and thereby

reducing the impact of serious hazard communications. (ROA.2599)

In 1996, Whirlpool utilized the PHM process to evaluate the need to include

a hazard communication about carbon monoxide (“CO”) in its product literature

for gas ranges. (ROA.2599) Whirlpool determined that the risks associated with

low levels of CO did not necessitate any specific warning about CO. (ROA.2599-

2600) Nonetheless, the owner’s manual for the range at issue in this lawsuit

provides “Important Safety Instructions” notifying consumers that “[t]his appliance


4

can cause low-level exposure to . . . carbon monoxide” and other harmful

substances. (ROA.4134)

Since instituting the PHM process, Whirlpool has not become aware of any

evidence that a foreseeable risk exists to warn about CO at the low levels produced

from a properly manufactured gas range. (ROA.2601) Whirlpool’s conclusion

that no warnings were necessary is consistent with the fact that no federal, state, or

local regulatory body requires gas ranges to include a warning about CO.

(ROA.2600)

The Byrds purchase and use the range for eight years without incident. In

August 2000, Scott and Kimberly Byrd purchased a KitchenAid gas convection

range at a Sears outlet store. (ROA.2412) Whirlpool manufactured the range

(model KGRT607HB54) in May 2000. (ROA.2576) The Byrds used the range

continuously and without incident for the next eight years. (ROA.2413-2414,

2423)

Mrs. Byrd was a stay-at-home mother for her two young children and

regularly used the range (with her children present) between 2-10 hours per day.

(ROA.2424-2426, 2429) The Byrds had a portable, plug-in CO detector in their

home throughout the time they lived there. (ROA.2418-2419, 2427) For a period

of time, the detector was installed next to the range. (ROA.2427-2428, 2430-2431)

The detector never sounded an alarm or indicated the presence of hazardous CO


5

levels in the air. (ROA.2419, 2427) No one in the Byrd family ever experienced

any health problems linked to CO exposure. (ROA.2416-2418, 2425-2427)1

Plaintiffs claim low-level carbon monoxide exposure after using the range

for three months. In April 2008, Devereaux Macy purchased the home from the

Byrds and moved in with her then-boyfriend, Joel Santos, Jr. (ROA.2463-2464)

Macy’s use of the range is unclear. Initially, she reported to a neuropsychologist in

2008 that she used the range about “2-4 hours per day.” (ROA.2470) Two years

later, she testified that she used the range four to five hours each day. (ROA.2467)

And she later told her retained expert, David Penney, that she used the range 6.5

hours per day. (ROA.3229)

Three months after moving into the house, Macy called her gas company,

CenterPoint, to check the CO level in her home on the basis of her “woman’s

intuition.” (ROA.2469) In July 2008, CenterPoint technician Robert Holmes

entered Macy’s home with his CO meter running. (ROA.2486) The meter

indicated that the CO level in the air “wasn’t that high,” and CenterPoint trains its

technicians that CO levels below 35 parts per million (ppm) in the air are

“acceptable.” (ROA.2486, 2491)

1 Small children are particularly susceptible to CO poisoning. (ROA.2437-2438)


6

After preheating the oven, Holmes stuck his gas detector probe into the oven

cavity and obtained a reading of “100 percent,” which he interpreted to mean a CO

level of at least 2,000 ppm. (ROA.2487-2489, 2493) As a result, Holmes issued a

CenterPoint “red-tag,” which is completed any time a technician tests an appliance

that he cannot adjust to operate properly. (ROA.2493, 2498)

The evidence, however, is uncontroverted that Holmes did not properly test

the CO level in the oven or use his test equipment correctly. (ROA.2592; see

ROA.2582) Specifically, Holmes should not have opened the oven door to gather

his test sample because doing so could have affected the flame characteristic and

instrument readings. (ROA.2592) Holmes’s improper testing procedure and use

of his instruments caused him to misinterpret the oven test results. (ROA.2592)

Macy visits several doctors in Houston to try to validate her alleged carbon

monoxide poisoning. Armed with the flawed test results, Macy visited several

doctors in the Houston area in an effort to substantiate her belief that she suffered

permanent damage from CO poisoning. (See ROA.2630-2633) The day after the

CenterPoint test, Macy visited the Conroe Regional Medical Center emergency

room. (ROA.2630) Tests from that visit, however, showed her

carboxyhemoglobin level (which measures CO in the blood) was normal.

(ROA.2470, 2630)


7

In August 2008, Macy saw Dr. Brent Allmon, complaining that she had been

“exposed to a large amount of carbon monoxide.” (ROA.2630) Dr. Allmon did

not think Macy’s symptoms resulted from CO poisoning, and he noted that Macy

“strongly disagreed” with his opinion. (ROA.2630) Nonetheless, Dr. Allmon

referred Macy to a neurologist, Dr. Kevin Gaffney. (ROA.2630)

Dr. Gaffney referred Macy for blood work, an MRI of her brain, and

neuropsychological testing. (ROA.2470)2 Macy’s MRI was “unremarkable”

(ROA.2470), and her blood gas levels were normal (ROA.2630). The

neuropsychological testing (conducted in October 2008) showed her performance

was commensurate with her educational and vocational history. (ROA.2475)

Ultimately, the neuropsychologist concluded that Macy’s self-reported symptoms

were “consistent with Major Depressive Disorder.” (ROA.2474-2476)3

Having found no support for her claimed CO poisoning in Houston, Macy

enlisted the services of two physicians located about 5-6 hours away in Louisiana

2 When Macy arrived for neuropsychological testing, she presented the

neuropsychologist with an article on CO poisoning. (ROA.2470)

3 Before using the range, Macy had a longstanding history of depression, prior suicide attempts, anxiety, and substance abuse. (ROA.2471, 2636) Nonetheless, around the same time of this testing, Macy threatened to sue a doctor she had seen in May 2008 because the doctor’s medical report chronicled Macy’s extensive past history of mental illness, including a “major emotional breakdown.” (ROA.2478-2480)


8

because she supposedly “couldn’t find any doctor [in Houston] that knew anything

about carbon monoxide.” (ROA.2466)4

Plaintiffs file suit. In December 2009, Plaintiffs filed suit against

Whirlpool, Sears, and Scott and Kimberly Byrd in state court, asserting claims

against Whirlpool for strict liability (design defect, manufacturing defect, and

marketing defect), breach of the implied warranty of merchantability, and

negligence. (ROA.23-34) After Plaintiffs non-suited their claims against the only

non-diverse defendants, the Byrds (ROA.43), Whirlpool removed the case to

federal court (ROA.15). Shortly thereafter, Plaintiffs dismissed Sears. (ROA.67)

Tests of the ambient air show the range is safe. After Plaintiffs filed suit,

the range was subjected to several tests. (See ROA.2569-2570, 2577-2583) One

set of tests measured the CO levels in the ambient air in Plaintiffs’ home -- i.e., the

amount of CO in the air a person would breathe. (ROA.2577-2583) Although

there are no established standards governing acceptable levels of CO in residential

homes, several standards exist for safe CO levels in the workplace. For example:

4 Plaintiffs now emphasize the testimony of an ophthalmologist, Dr. Marlene

Morales, that Plaintiffs exhibited “mild temporal pallor,” which “can be a complication from CO poisoning.” (Br. at 11-13) But Plaintiffs ignore her testimony that the possible causes of mild temporal pallor are “vast.” (ROA.4463) In any event, Dr. Morales ultimately ruled out optic neuropathy in Santos. (ROA.4476) And she was unable to diagnose Macy with optic neuropathy within a reasonable degree of medical probability. (ROA.4560-4561)


9

• The Occupational Safety and Health Administration’s (OSHA’s) standard for indoor CO levels in the workplace is 50 ppm, eight hours per day, five days per week, 50 weeks per year. (ROA.2447-2448, 2582, 2610-2611)

• The National Institute of Occupational Safety and Health (NIOSH) has a standard for indoor CO levels in the workplace of up to 35 ppm, eight hours per day, five days per week, 50 weeks per year. (ROA.2444-2446, 2582, 2611)

• The American Conference of Governmental and Industrial Hygienists (ACGIH), an organization whose mission is to advance occupational and environmental health and safety, set a standard for indoor CO levels in the workplace of up to 25 ppm, eight hours per day, five days per week, 50 weeks per year. (ROA.2449-2450, 2582, 2611)

Here, the CO levels in the ambient air in Plaintiffs’ home, measured during several

tests, did not exceed any of these standards. (ROA.2582, 2611)

For example, in February 2011, the ambient CO levels in Plaintiffs’ living

room were between 1-4 ppm after the oven had been running for 90 minutes.

(ROA.2569, 2578) The next year, Plaintiffs hired Erthwrks, a company that

provides environmental testing services, to test the range. (ROA.2578) As part of

that test, the oven was operated continuously for six hours. (ROA.2578) Once

again, ambient CO levels measured in Plaintiffs’ kitchen and living room while the

oven was operating did not exceed 5 ppm. (ROA.2578)

In August 2012, Plaintiffs conducted further tests over a two-day period

during which Plaintiffs cooked sixteen pounds of meat each day in an effort to

replicate their supposed “real world” use of the oven. (ROA.2456, 2579, 3128)


10

To measure the ambient air quality in the home, Plaintiffs used two different sets

of CO detectors -- a QTrak sensor and a Rae sensor. (ROA.2510-2511, 2579)

Whirlpool’s engineer used another set of CO detection sensors. (ROA.2511, 2579)

All three sets of sensors were placed in the same locations throughout the house.

(ROA.2579)

On the first day of testing, the air conditioning was on and set at 75°.

(ROA.2580) Test results showed the CO levels never exceeded 7 ppm from any

sensor at any location in the home. (ROA.2509, 2580) On the second day of

testing, Plaintiffs decided to turn off their air conditioner while the oven operated

for six hours in the sweltering summer heat. (ROA.2503, 2580) Two of the three

sets of CO detection sensors -- Plaintiffs’ QTrak sensor and Whirlpool’s sensor --

produced consistent readings showing that the CO level rose to a high of 18 ppm at

the very end of the test. (ROA.2511-2512, 2580)5 On both testing days, a plug-in

CO detector also was installed in Plaintiffs’ kitchen approximately 8-10 feet from

the range. (ROA.2513) The CO detector never signaled an alarm during the

testing. (ROA.2513)

5 At the end of the six-hour test, Plaintiffs’ other sensor (the Rae sensor) showed

results that were more than twice the results from the other two sensors at the same location and were a clear anomaly. (ROA.2511-2512) But even that anomalous reading did not exceed any recognized standard for acceptable levels of CO exposure over a continuous eight-hour period. (ROA.2593; see ROA.2611)


11

In sum, none of the ambient CO measurements obtained from Plaintiffs’

home exceeded the standards prescribed by OSHA, NIOSH, and ACGIH or

presented a recognized harm to humans. (ROA.2583, 2610-2611)

The range passes the ANSI Z21.1 tests. In addition to testing the ambient

air quality, the parties also tested the quality and efficiency of the oven’s

gas-burning capability -- i.e., combustion. (ROA.2569-2570) The range

consistently passed the ANSI Z21.1 test (ROA.2569-2570) -- the only nationally

accepted standard for testing and regulating CO production from gas ranges

(ROA.2585-2586).

The ANSI Z21.1 test measures combustion by using a mathematical formula

to calculate a CO “air-free” (COAF) value to evaluate how efficiently an oven

burns gas while the oven burner is on. (ROA.2451, 2504-2505) CO is a byproduct

of incomplete combustion. (ROA.2673) Thus, there is no significance to COAF

values when an oven burner is off. (ROA.2453, 2504-2506, 2577) Importantly,

once an oven reaches the desired temperature, combustion occurs for only 30

seconds every five minutes (or approximately six minutes every hour) because the

normal operation of an oven is to continuously cycle on and off to maintain the

approximate temperature setting. (ROA.2505, 2577)

The ANSI Z21.1 test protocol requires that the oven be started from a cold

start and run for five minutes at 500°, at which time a COAF value is calculated


12

from the gasses in the oven vent. (ROA.2508, 2576-2578) If the COAF value at

five minutes is less than 800 ppm, the oven passes the ANSI Z21.1 test.

(ROA.2576-2577, 2593)

Here, Plaintiffs’ range was tested using the ANSI Z21.1 protocol four times

-- three times by Whirlpool’s engineer and once by Plaintiffs’ retained engineer,

Paul Carper. (ROA.2569-2570) Each time, the COAF value at five minutes was

well below 800 ppm. (ROA.2569-2570) Specifically, during testing on February

22, 2011, August 4, 2012, and August 5, 2012, Whirlpool’s engineer measured the

COAF values at five minutes at 151 ppm, 456 ppm, and 457 ppm, respectively.

(ROA.2569-2570) Carper also tested the range in the presence of Whirlpool’s

engineer in April 2012. (ROA.2570) After five minutes of operation, the COAF

value was less than 400 ppm. (ROA.2570) As Carper was forced to concede, the

COAF value at five minutes met the ANSI Z21.1 standard. (ROA.2514)

In short, the range operated properly. It met the ANSI criteria and only

produced low levels of CO in the ambient air insufficient to produce symptoms of

CO exposure, to activate a CO alarm, or to cause injury. (ROA.2583, 2594, 2611)

In an effort to show otherwise in the district court, Plaintiffs relied on testing

data from Erthwrks. (See, e.g., ROA.3249, 3402) But Erthwrks began its testing

by setting the range at 250° (rather than 500° as specified in the ANSI Z21.1

protocol), then adjusted the temperature to 350° and then to 500°. (ROA.4014-


13

4023; see ROA.2508, 2578) This procedure did not comply with the ANSI Z21.1

protocol, which requires that the COAF measurement be taken after five minutes

of operation from a cold start. (ROA.2570, 2576-2577)

Further, Plaintiffs rely on an improper interpretation of the Erthwrks data.

Plaintiffs’ purported experts (Carper and Penney) acknowledge that the ANSI

Z21.1 test is designed to measure the quality of combustion. (ROA.2505-2506,

2452) The Erthwrks data, however, calculated COAF values every second -- not

just when the burner was on. (ROA.2453, 2515, 2593) Thus, the Erthwrks data

included a large number of COAF values that “make [no] sense” because the

burner was off during 90% of the time. (ROA.2453, 2515, 2593; see ROA.2577)

It also included negative COAF values, even though it is not possible to produce

negative levels of CO. (ROA.2593) Nevertheless, Plaintiffs’ experts relied on that

data to calculate an irrelevant average COAF value they claim exceeds the ANSI

Z21.1 standard of 800 ppm. (ROA.2453-2455, 3130)

The district court grants summary judgment. Whirlpool moved to exclude

the opinions of Penney and Carper (ROA.2130, 2260), and also moved for

summary judgment on numerous grounds (ROA.2358). Following extensive

briefing, the district court excluded Penney and Carper (ROA.4643), granted

Whirlpool’s motion for summary judgment (ROA.4644), and rendered judgment

that Plaintiffs take nothing (ROA.4650). Plaintiffs appealed. (ROA.4725)


14

SUMMARY OF THE ARGUMENT

Plaintiffs sued Whirlpool for products liability, complaining they suffered

CO poisoning from an allegedly defective gas range. But other than the

incompetent ipse dixit of their purported experts, Plaintiffs cannot show the range

is defective or that low-level CO emissions from the range caused their purported

injuries. The district court did not abuse its discretion in excluding the unqualified

and unreliable expert opinions of David Penney and Paul Carper. Nor did it err in

granting Whirlpool’s motion for summary judgment.

Exclusion of experts. The district court properly exercised its discretion in

striking Penney and Carper. Although Plaintiffs had the burden to demonstrate the

reliability of the opinions and qualifications of their experts, Plaintiffs failed to do

so.

Penney, a toxicologist, is Plaintiffs’ purported expert on causation. But his

novel opinion that low-level CO exposure is harmful to humans is not generally

accepted in the scientific community, has not been subjected to peer review, and is

wholly unreliable. Likewise, his opinions that Plaintiffs suffer from CO poisoning

and that CO from Plaintiffs’ range caused their particular injuries are also

unreliable. Penney failed to consider alternative causes for Plaintiffs’ self-reported

symptoms, and his conclusory report is riddled with speculation. Indeed, as a

non-physician, Penney is not even qualified to diagnose Plaintiffs -- let alone rule


15

out other possible causes for Plaintiffs’ alleged symptoms. Given these

deficiencies, the district court did not abuse its discretion in excluding Penney.

Plaintiffs similarly failed to show that Carper, Plaintiffs’ purported design

expert, was qualified or that his opinions were reliable. Although Carper is a

mechanical engineer, he was demonstrably unfamiliar with the design of gas

ranges and the relevant industry standards that govern them -- the precise issues

about which Plaintiffs retained him to testify. Moreover, Carper failed to show

that Plaintiffs’ range was unsafe, that the purported “defect” in the range has any

connection to dangerous CO production, and how a so-called “safer alternative

design” would have eliminated or substantially reduced the risk of harm to

Plaintiffs. These vast analytical gaps rendered Carper’s methodology unreliable.

And once again, Plaintiffs have not met their burden to show that the district court

abused its discretion in excluding Carper.

Summary judgment. Given the exclusion of Plaintiffs’ liability experts,

summary judgment on all of their claims was proper. In any event, the summary

judgment record is devoid of any genuine issues of material fact supporting

Plaintiffs’ design and marketing defect claims, including evidence (1) that the

range was defective and unreasonably dangerous, (2) that a safer alternative design

exists, (3) of causation, or (4) that Whirlpool had a duty to warn of low-level CO

emissions. Although Plaintiffs make conclusory assertions throughout their brief,


16

they fail to support them with citations to the record -- much less with competent

evidence. Plaintiffs thus have not demonstrated any valid basis for overturning the

summary judgment on these two claims. Moreover, Plaintiffs have abandoned

their other claims for manufacturing defect, negligence, breach of the implied

warranty of merchantability, and punitive damages in this Court by failing to brief

them.

Accordingly, the Court should affirm the take-nothing summary judgment in

Whirlpool’s favor.

ARGUMENT

I. The District Court Correctly Exercised Its Discretion in Excluding David Penney as an Expert.

In the court below, Plaintiffs relied on Penney’s purported expert testimony

to show causation. (See ROA.3223-3271) Penney is a toxicologist. (ROA.2171)

Nonetheless, he ventured far afield of his alleged expertise by offering a myriad of

opinions ranging from the design of kitchen appliances to the adequacy of safety

instructions to Whirlpool’s purported knowledge and alleged “callous disregard for

human health and life.” (ROA.3223-3271)

Whirlpool moved to exclude Penney because all of his opinions are

unreliable and he is not qualified to diagnose Plaintiffs’ medical condition or rule

out other potential causes of their alleged symptoms. (ROA.2130-2155) In

response, Plaintiffs merely attached unsworn and unauthenticated copies of


17

Penney’s curriculum vitae and a so-called expert report titled “The Carbon

Monoxide Poisoning of Deveraux R. Macy and Joel Santos.” (ROA.3179-3271)

These are not evidence. And for this reason alone, the trial court correctly

exercised its discretion in excluding Penney.6

Moreover, even if this Court were to review the attachments to Plaintiffs’

opposition, those attachments do nothing to satisfy the requirements for the

admissibility of expert testimony under FED. R. EVID. 702 and Daubert. The

district court did not abuse its discretion in so concluding.

A. Standards governing the admissibility of expert testimony.

The exclusion of expert testimony is reviewed for an abuse of discretion.

Johnson v. Arkema, Inc., 685 F.3d 452, 458 (5th Cir. 2012). Under Daubert and

FED. R. EVID. 702, a district court has “broad discretion to determine whether a

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

opinion.” Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 354 (5th Cir. 2007).

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.” Id. at 351.

The proponent of expert testimony -- here, Plaintiffs -- bears the burden in

the district court of establishing the reliability and relevancy of the expert’s

6 Plaintiffs obtained leave of court to file Penney’s verified report in opposition to

Whirlpool’s motion for summary judgment. (ROA.4324-4326, 4544) They did not, however, do so in connection with Whirlpool’s Daubert challenge to Penney.


18

testimony, as well as the qualifications of the expert. Kumho Tire Co. v.

Carmichael, 526 U.S. 137, 147 (1999); Daubert v. Merrell Dow Pharms., Inc., 509

U.S. 579, 590-91(1993); see FED. R. EVID. 702. This requires the district court to

make “a preliminary assessment of whether the reasoning or methodology

underlying the testimony is . . . valid” and “whether that reasoning or methodology

properly can be applied to the facts in issue.” Daubert, 509 U.S. at 592-93.

The reliability prong mandates that the expert’s opinion “be grounded in the

methods and procedures of science” and “be more than unsupported speculation or

subjective belief.” Arkema, 685 F.3d at 459. Any step that renders the analysis

unreliable “renders the expert’s testimony inadmissible,” regardless of “whether

the step completely changes a reliable methodology or merely misapplies that

methodology.” Moore v. Ashland Chem., Inc., 151 F.3d 269, 278 n.10 (5th Cir.

1998) (en banc). The expert must furnish “some objective, independent validation

of [his] methodology.” Id. at 276. An expert’s “assurances that he has utilized

generally accepted [methods] is insufficient.” Id.

Based on these well-settled principles, the district court did not abuse its

discretion in excluding the testimony of Penney or Carper.

B. Penney’s causation opinions are incompetent.

Although Penney offered multiple opinions in the court below (ROA.3266-

3269), Plaintiffs challenge only the exclusion of Penney’s opinions on causation in


19

this Court. (See Br. at 18-25) Because Plaintiffs have not challenged or briefed

the exclusion of Penney’s other opinions, the Court should summarily affirm the

district court’s exclusion of those opinions. See U.S. v. Whitfield, 590 F.3d 325,

362 (5th Cir. 2009) (where appellant’s brief provides no specific argument as to

why district court erred in excluding expert’s testimony, appellants waived this

issue on appeal).7

Penney’s causation opinions were also properly excluded. To raise a fact

issue that low-level CO from the range was the producing cause of Plaintiffs’

alleged injuries, Plaintiffs had the burden to show, at a minimum, that (1) low-level

CO exposure is harmful to humans, and (2) Plaintiffs suffered from CO poisoning,

and CO emissions from the range caused their purported injuries. See Arkema, 685

F.3d at 468; Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 714-15 (Tex.

1997). As further discussed below, Penney’s opinions on both of these issues are

wholly unreliable and supported solely by his own ipse dixit. See Viterbo v. Dow

Chem. Co., 826 F.2d 420, 422-24 (5th Cir. 1987) (district court properly excluded

7 For example, Penney opined that Whirlpool failed to provide adequate instructions and warnings. (ROA.3268-3269) Penney, however, is unqualified to render any such opinions because (1) he has no educational background or expertise in human factors (ROA.2171, 2175), and (2) he has never been involved with drafting warnings and admitted that proposing warnings is “not [his] business” (ROA.2173-2174). See Robertson v. Norton Co., 148 F.3d 905, 907 (8th Cir. 1998) (trial court abused its discretion in allowing purported expert to opine regarding warnings when he was not qualified in that field); Runnels v. Tahsin Indus. Corp., USA, No. 3:11-CV-106-CWR-LRA, 2013 WL 6834632, at *6 (S.D. Miss. Dec. 23, 2013) (excluding testimony on warnings because expert had no human factors experience).


20

plaintiff’s causation expert when the foundation underlying the expert’s opinions

was unreliable). Moreover, as a toxicologist, Penney is not qualified to diagnose

Plaintiffs’ medical conditions or rule out other potential causes of their alleged

symptoms. Plaintiffs failed to show that the district court abused its discretion in

excluding Penney.

1. There is no reliable foundation underlying Penney’s novel theory that low-level CO exposure is capable of causing serious injuries.

To begin with, Plaintiffs did not satisfy their threshold evidentiary burden of

demonstrating the reliability of Penney’s opinion that low-level CO exposure is

even capable of causing the injuries about which Plaintiffs complain. This Court

has long recognized that if the foundational data underlying opinion testimony is

unreliable, an expert will not be permitted to base an opinion on that data because

any opinion drawn from that data is likewise unreliable. See Berry v. Armstrong

Rubber Co., 989 F.2d 822, 824 (5th Cir. 1993).

As previously discussed, OSHA, NIOSH, and ACGIH have each established

standards for safe indoor CO levels in the workplace ranging from 25-50 ppm,

eight hours per day, five days per week, 50 weeks per year. (ROA.2446-2450,

2582, 2610-2611) Penney utterly disregards these nationally recognized CO

standards. Instead, based on his premise that the indoor CO standard should be 9


21

ppm over eight hours,8 Penney opines that low levels of CO are hazardous.

(ROA.3259)

Penney’s standard, however, is supported solely by an article that Penney

himself co-authored for a book published by the European field office of the World

Health Organization (“WHO”). (ROA.3259) Although Penney suggested that

WHO “announced” and “adopted” his recommendation by publishing his article

(ROA.2178-2180, 3259), the record shows otherwise. Indeed, WHO’s publication

expressly disclaims any notion that WHO adopted Penney’s CO air-quality

recommendation:

[T]he published material is being distributed without warranty of any kind, either express or implied . . . . The views expressed by authors, editors, or expert groups do not necessarily represent the decisions or the stated policy of the World Health Organization.

(ROA.3441)

Likewise, no federal or state government agency has adopted Penney’s

proposed standard. (ROA.2181-82) In fact, although Penney is a member of UL

Committee 2034, which establishes the standards governing residential CO

detectors, Penney has never tried to get the current UL standard for CO alarms

lowered to comport with his proposed standard. (ROA.2172, 2176-2177, 2187)

Nor has he made any effort to get the ANSI Z21.1 standard changed or to get the

8 Penney’s standard is equivalent to 6.5 ppm over 24 hours. (ROA.3259)


22

Consumer Product Safety Commission to adopt his proposed standard.

(ROA.2140)

In short, Penney’s proposed standard has not been adopted by WHO or any

regulatory or governmental agency; it has not been generally accepted; and it has

not been subjected to peer review. These facts compellingly support the district

court’s exclusion of Penney’s testimony. See Gen. Elec. Co. v. Joiner, 522 U.S.

136, 146 (1997) (“[N]othing in either Daubert or the Federal Rules of Evidence

requires a district court to admit opinion evidence that is connected to existing data

only by the ipse dixit of the expert.”); Arkema, 685 F.3d at 467 (district court did

not abuse its discretion in excluding expert when expert’s theory had not been

generally accepted by the scientific community or subjected to peer review).

In arguing otherwise, Plaintiffs try to create the illusion that Penney’s novel

theory is mainstream. For example, Plaintiffs criticize the district court for

supposedly “ignoring EPA standards.” (Br. at 20) Plaintiffs, however, did not

even rely on any EPA standards in their response to Whirlpool’s motion to exclude

Penney. (See ROA.3153-3177)

Although Penney’s report makes two passing references to EPA standards

for outdoor air quality, Penney never explained why outdoor air quality standards

are relevant to this case involving indoor air quality. (ROA.3259, 3262) Nor did


23

he provide any scientific data or literature discussing how or why the EPA’s

outdoor air quality guideline was established. (ROA.3259, 3262)

Under analogous circumstances, this Court has held that a district court did

not abuse its discretion in excluding an expert when the expert failed to provide

any scientific data or literature to explain how a regulatory agency adopted its

chemical exposure guidelines on which the expert had relied. Arkema, 685 F.3d at

464. In any event, this Court has recognized that agencies like the EPA suggest

“prophylactic rules governing human exposure” in order to “reduce public

exposure to harmful substances” and that their “threshold of proof is reasonably

lower than that appropriate in tort.” Id. (emphasis in original) (quoting Allen v.

Pa. Eng’g Corp., 102 F.3d 194, 198 (5th Cir. 1996)).

Similarly unavailing is Plaintiffs’ reliance on “three recent studies” that

supposedly “support injury at low doses of CO.” (Br. at 20) Penney did not even

attach those studies to his report. (See ROA.3153-3155, 3223-3281) Nor did he

make any attempt to establish that those studies followed the scientific method.

Instead, Penney merely provided a cursory (and confusing) summary of those

studies without any explanation as to how Plaintiffs are similarly situated to the

participants in any such studies. (See ROA.3263-64) In the absence of any such

showing, these studies do nothing to establish the reliability of Penney’s opinions

or to demonstrate that the district court abused its discretion in excluding Penney.


24

See Cano v. Everest Minerals Corp., 362 F. Supp. 2d 814, 857 (W.D. Tex. 2005)

(expert’s conclusion was unreliable when he failed to “justify extrapolating from

that study to each of the particular Plaintiffs”).

For similar reasons, Plaintiffs cannot rely on “materials given to

[Whirlpool’s] technicians” (i.e., the service manual) to buttress Penney’s novel

theory that “low doses of CO are injurious.” (Br. at 20, 23-24) Once again,

Plaintiffs did not rely on these materials in their opposition to Whirlpool’s motion

to exclude Penney. (See ROA.3153-3177) In any event, the service manual

simply reminds technicians that people “are in danger of CO poisoning when they

are exposed for extended periods of time, or if it is at high enough concentrations.”

(ROA.417) It does not provide any scientific basis for Penney’s contention that

low-level CO exposure above 9 ppm is injurious. See Arkema, 685 F.3d at 462-63

(district court did not abuse its discretion in disregarding a material safety data

sheet underlying the expert’s opinion and excluding expert when expert had not

provided “any science behind the MSDS”).

Thus, in the end, Penney’s opinion regarding the dangers of low-level CO is

based on nothing more than Penney’s own writings that Plaintiffs quote at length in

their brief. (Br. at 20, citing ROA.4597) And contrary to Plaintiffs’ suggestion, it

was not Whirlpool’s burden to show that Penney’s conclusions “are disputed in the

scientific community.” (Br. at 20) Rather, it was Plaintiffs’ burden to show that


25

Penney’s opinions were reliable and supported by more than his mere ipse dixit.

Plaintiffs failed to satisfy that burden. And for this reason alone, the district court

did not abuse its discretion in excluding Penney’s opinions.

2. Penney’s opinion that carbon monoxide exposure from the range caused Plaintiffs’ alleged injuries is also unreliable.

Because Plaintiffs failed to adduce competent expert testimony that

low-level CO exposure above 9 ppm is harmful to humans generally, the district

court did not need to assess the reliability of Penney’s opinion that low-level CO

emissions from the range were the cause-in-fact of Plaintiffs’ alleged injuries. See

Arkema, 685 F.3d at 469; Coastal Tankships, U.S.A. v. Anderson, 87 S.W.3d 591,

603 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). Nevertheless, that

opinion is also unreliable and was properly excluded.

a. Penney failed to rule out other possible causes of Plaintiffs’ alleged symptoms.

The overarching goal of the district court’s gatekeeping function is to ensure

that an expert employs in the courtroom the same level of intellectual rigor that

characterizes the practice of an expert in the relevant field. See Black v. Food

Lion, Inc., 171 F.3d 308, 311 (5th Cir. 1999). Penney failed to employ that rigor

here.

As a threshold matter, Penney failed to rule out alternative causes of

Plaintiffs’ alleged symptoms. His failure to do so is particularly significant in this


26

case because Penney acknowledges that Plaintiffs’ problems are “not exclusively a

symptom of carbon monoxide poisoning” (ROA.2193-2194) and “many cases of

carbon monoxide toxicity are misdiagnosed because the symptoms mimic other

health problems” (ROA.4597). Nonetheless, Penney presented no objective (or

reliable) evidence that Plaintiffs actually suffered from CO poisoning as opposed

to some other problem. Nor did Penney undertake the rigorous analysis required to

rule out other possible causes of Plaintiffs’ alleged symptoms -- the majority of

which were self-reported and unverifiable.

The scientific method requires an expert to rule out alternative explanations

for a medical condition. In addressing the role of an expert toxicologist, the

federal Reference Manual on Scientific Evidence observes:

[A]cute and chronic diseases . . . can be caused by either a single toxic agent or a combination of agents or conditions. In taking a careful medical history, the expert examines the possibility of competing causes, or confounding factors, for any disease, which leads to a differential diagnosis.

FED. JUDICIAL CTR., REFERENCE MANUAL ON SCIENTIFIC EVIDENCE 428-29 (2d ed.

2000). A reliable differential diagnosis generally is conducted by “determining the

possible causes for the patient’s symptoms and then eliminating each of these

potential causes until reaching one that cannot be ruled out or determining which

of those that cannot be excluded is the most likely.” Arkema, 685 F.3d at 468; see

also Cano, 362 F. Supp. 2d at 840 (a differential diagnosis is “a near universal


27

technique” that requires “a physician’s consideration of alternative diagnoses that

may explain a patient’s condition”).

Numerous courts in this circuit have excluded experts who failed to properly

perform a differential diagnosis and thereby eliminate other possible causes of a

plaintiff’s symptoms. See, e.g., Easter v. Aventis Pasteur, Inc., 358 F. Supp. 2d

574, 576-79 (E.D. Tex. 2005); Copley v. Smith & Nephew, Inc., No. CIV.A.H-97-

2910, 2000 WL 223404, at *4 (S.D. Tex. Feb. 2, 2000); Wooley v. Smith &

Nephew Richards, Inc., 67 F. Supp. 2d 703, 709 (S.D. Tex. 1999); Pick v. Am.

Med. Sys., 958 F. Supp. 1151, 1168-69 (E.D. La. 1997); accord Roche v. Lincoln

Props. Co., 175 Fed. App’x 597, 602-03 (4th Cir. 2006). Penney, however,

refused to conduct a differential diagnosis because he erroneously believes it is an

“inappropriate standard” for determining causation. (ROA.2190-2191)

Plaintiffs cannot salvage Penney’s causation opinion or show that his

opinion is reliable by emphasizing his supposed use of the Bradford Hill

methodology. (Br. at 21, 39-41) Like a differential diagnosis, the Bradford Hill

methodology also requires an expert to consider and eliminate alternative causes

for a plaintiff’s symptoms. See Wells v. SmithKline Beecham Corp., No.

A-06-CA-126-LY, 2009 WL 564303, at *6 (W.D. Tex. Feb. 18, 2009) (under

Bradford Hill, a plaintiff must “offer evidence excluding other possible causes of

his condition”), aff’d, 601 F.3d 375 (5th Cir. 2010); Havner, 953 S.W.2d at 719


28

(Bradford Hill factors include “consideration of alternative explanations”). Indeed,

both Plaintiffs and Penney acknowledge that other factors or conditions must be

“reasonably eliminated” to “logically assign cause” under Bradford Hill. (Br. at

41; ROA.3261)

Notwithstanding this requirement, Plaintiffs adduced no evidence that

Penney considered and eliminated alternative explanations for Plaintiffs’

self-reported symptoms (e.g., fatigue, headaches, joint pain, memory problems,

insomnia, and weight gain) that can be caused by numerous medical conditions or

be the product of malingering. For example, Macy has a history of mental illness,

depression, anxiety, and multiple suicide attempts. (ROA.2471, 2636) And a 2008

neuropsychological evaluation revealed that her “self-reported symptoms” were

“consistent with” and could be attributed to “Major Depressive Disorder.”

(ROA.2475-2476)

Penney, however, glibly dismissed this diagnosis without any analysis or

reasoning whatsoever because Macy’s symptoms are supposedly also “consistent

with CO poisoning.” (Br. at 39; ROA.3243) But this simply proves Whirlpool’s

point: Penney’s ultimate conclusion that CO poisoning from the range caused

Plaintiffs’ health problems is based solely on his ipse dixit and subjective belief. It

is not the product of any reliable methodology. And even indulging the fiction that


29

Plaintiffs sustained CO poisoning, Penney did nothing to evaluate or rule out other

potential sources of any such alleged poisoning. (See ROA.3223-3271)9

Under analogous circumstances, the Texas Supreme Court concluded that an

expert’s causation opinion was “not based upon a reliable foundation,” and

therefore properly excluded, when the expert “conducted no testing to exclude

other possible causes of the [plaintiff’s] damage.” E.I. du Pont de Nemours & Co.

v. Robinson, 923 S.W.2d 549, 558-59 (Tex. 1995). In Robinson, the court

observed that “[a]n expert who is trying to find a cause of something should

carefully consider alternative causes.” Id. at 559. Like Penney, the expert in that

case admitted that many of the symptoms could be caused by something other than

the allegedly defective product at issue. Id. Because the expert failed to “rule out

other causes of the damage,” the court held that “his opinion [was] little more than

speculation.” Id. The same is also true here.

Notably, this case is not the first time Penney has been excluded for failing

to rule out alternative causes. For example, in Heck v. City of Lake Havasu, No.

CV-0401810-PCT, 2006 WL 2460917 (D. Ariz. Aug. 24, 2006), the district court

excluded Penney’s opinion that CO emitted from motorboats caused a boater’s

9 Nonetheless, Plaintiffs now argue that a jury can simply “infer[]” that work done

to “tighten” their house can explain away the fact that the Byrds did not experience any health problems linked to CO. (Br. at 50-51) This is utter speculation and unsupported by any expert testimony. Indeed, Penney testified that he “wouldn’t make a blanket statement like that.” (ROA.3717)


30

drowning death. Id. at *10. As the court observed, an “expert must provide

reasons for rejecting alternative hypotheses using scientific methods and

procedures and the elimination of those hypotheses must be founded on more than

subjective belief or unsupported speculation.” Id. at *10. Because Penney gave

“no scientific explanation for ruling out the possibility” that the boater dove into

the water and hit his head at the bottom, or merely slipped and fell hitting his head

on the way to the water, the court concluded that Penney’s causation opinion was

unreliable. Id. at *9-11.

Penney’s opinion here is even more deficient than in Heck. The district

court did not abuse its discretion in excluding Penney.

b. Other problems with Penney’s report render it unreliable.

Apart from the reasons discussed above, Penney’s causation opinion is

riddled with other deficiencies that render it unreliable and further support the

district court’s discretion to exclude Penney.

For example, Penney merely identified the Bradford Hill factors and

conclusorily stated that he “appl[ied] appropriate causation analysis methodology.”

(ROA.3260-3262) Penney’s report, however, is devoid of any analysis discussing

how he applied any of the Bradford Hill factors and what specific evidence he

considered in connection with each factor. (See ROA.3260-3270) An expert’s

mere “assurance[] that he has utilized generally accepted scientific methodology is


31

insufficient.” Moore, 151 F.3d at 276. Because Penney did not employ in the

courtroom the same type of intellectual rigor that characterizes the practice of an

expert in the relevant field, the district court did not abuse its discretion in

excluding his testimony for this reason as well. Seatrax, Inc. v. Sonbeck Int’l, Inc.,

200 F.3d 358, 372 (5th Cir. 2000).

Moreover, Penney cited various studies (none of which are in the record) to

opine that low-level CO exposure can be harmful. (ROA.3263-3265) But those

studies do nothing to support Penney’s conclusion that CO from the range caused

Plaintiffs’ alleged injuries. To properly make this causal link, “a plaintiff must

demonstrate that he is similarly situated to the participants in the relevant studies,

meaning he was exposed to the same substance and dosage levels, that exposure

occurred before the onset of the conditions, and that the timing of the condition

was similar to that of the study’s participants.” Wells, 2009 WL 564303, at *6.

And here, Penney made no effort to show Plaintiffs were similarly situated to the

participants in the cited studies or his WHO article. (See ROA.3223-3271) For

this reason as well, Penney’s causation opinion is unreliable, and the district court

correctly exercised its discretion in excluding it.

Finally, and equally meritless is Penney’s overreliance on a supposed

temporal connection between Plaintiffs moving into the home and the onset of

their alleged self-reported symptoms. (ROA.3267; see Br. at 41) As this Court has


32

recognized, a temporal proximity between alleged exposure and injury should be

“view[ed] with skepticism.” Moore, 151 F.3d at 278. Indeed, other circuit courts

have concluded that a temporal relationship between an event and the onset of

symptoms “does not establish a causal relationship.” McClain v. Metabolife Int’l,

Inc., 401 F.3d 1233, 1243 (11th Cir. 2005) (emphasis in original).10

For any or all of these reasons, Plaintiffs failed to satisfy their burden in the

district court to demonstrate the reliability of Penney’s opinion that CO exposure

from the range caused their alleged symptoms. Accordingly, the district court did

not abuse its discretion in excluding Penney.

3. Penney is unqualified to render medical opinions.

Under Daubert and Rule 702, experts must possess sufficient knowledge,

skill, experience, training, or education to assist the jurors in deciding an issue.

Daubert, 509 U.S. at 588; FED. R. EVID. 702. If an expert is not qualified to testify

in a particular field or on a given subject, the court should refuse to allow the

witness to testify. Wilson v. Woods, 163 F.3d 935, 937-38 (5th Cir. 1999).

“Whether a witness is qualified to testify as an expert is left to the sound discretion

of the trial judge, who is in the best position to determine both the claimed

10 Penney also extensively relied on the Erthwrks ANSI data to render his

opinions. (ROA.2453-2455, 3225, 3249) But as discussed on pages 12-13, that data is flawed and invalid. Penney’s opinions are unreliable for this additional reason.


33

expertise of the witness and the helpfulness of his testimony.” Sullivan v. Rowan

Cos., 952 F.2d 141, 144 (5th Cir. 1992).

Here, the district court correctly exercised its discretion in excluding Penney

because he is not qualified to diagnose Plaintiffs or rule out other causes of their

alleged symptoms. Notably, although Plaintiffs outline their medical history, they

do not identify a single licensed physician who has diagnosed them with CO

poisoning. (Br. at 9-13)11

Penney is a toxicologist; not a physician. (ROA.2171, 4357) Nonetheless,

he purports to diagnose Plaintiffs. (ROA.3266-3268) For example, Penney opines

that:

• “the CO poisoning of [Plaintiffs] . . . caused progressive and cumulative health injury to their bodies”;

• “based on the medical records reviewed to date, [Plaintiffs] incurred persistent health damage from the CO poisoning”; and

• Plaintiffs’ “abrupt change[s] in health . . . [are] due to the effects of the CO poisoning [they] incurred, and not to any pre-existing health, situational, or other cause or problem.”

(ROA.3266-67)

Penney rendered these opinions without the necessary education,

background, and experience needed to rule out alternative causes of Plaintiffs’

11 At best, Plaintiffs merely point to medical records indicating that Plaintiffs’

symptoms were “consistent” with, or could be a complication of, CO poisoning. (Br. at 10-13)


https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1992025431&pubNum=0000350&originatingDoc=I54a1a9e52c6f11e490d4edf60ce7d742&refType=RP&fi=co_pp_sp_350_144&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)#co_pp_sp_350_144

https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1992025431&pubNum=0000350&originatingDoc=I54a1a9e52c6f11e490d4edf60ce7d742&refType=RP&fi=co_pp_sp_350_144&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)#co_pp_sp_350_144

34

reported symptoms. The absence of any such qualifications is particularly

important here because, as Penney acknowledges, symptoms of CO exposure

mimic symptoms of other health problems (ROA.4597) and Plaintiffs’ problems

are “not exclusively a symptom of carbon monoxide poisoning” (ROA.2193-

2194).

In similar circumstances, numerous courts have held that a toxicologist is

not qualified to provide a medical diagnosis or evaluate possible alternative causes

of a medical condition. See, e.g., Wintz v. Northrop Corp., 110 F.3d 508, 513-14

(7th Cir. 1997) (toxicologist was not qualified to testify whether a woman’s

exposure to bromide cause her child’s birth defect); Plourde v. Gladstone, 190 F.

Supp. 2d 708, 719-20 (D. Vt. 2002) (toxicologist was not qualified to provide a

medical diagnosis or evaluate the medical judgment and opinions of doctors), aff’d,

69 Fed. App’x 485 (2d Cir. 2003); Mascarenas v. Miles, Inc., 986 F. Supp. 582,

590 (W.D. Mo. 1997) (non-physician expert “cannot evaluate or express opinions

on actual possible alternate causes” of plaintiff’s illness).12

12 See also Ford v. Carnival Corp., No. 08-23451-CIV, 2010 WL 9116184, at *2

(S.D. Fla. Mar. 4, 2010) (toxicologist was not qualified to diagnose plaintiff’s injuries); Mateer v. U.S. Aluminum, No. 88-2147, 1989 WL 60442, at *7 n.7 (E.D. Pa. June 6, 1989) (although biochemist could testify to “the effects of exposure to toxic substances, when such testimony is augmented by testimony from a qualified physician,” he was not qualified to “render medical diagnoses”).


35

Because Plaintiffs did not meet their burden to show Penney was qualified to

interpret Plaintiffs’ medical records, rule out alternative medical causes, and render

an opinion concerning Plaintiffs’ alleged medical conditions, the district court did

not abuse its discretion in excluding Penney for this reason as well.

II. The District Court Correctly Exercised Its Discretion in Excluding Paul Carper as an Expert.

Although the exclusion of Penney’s testimony is alone dispositive of

Plaintiffs’ appeal, the district court also properly excluded the testimony of Paul

Carper. (ROA.4643) Carper opined that the design of the Whirlpool range was

defective because it supposedly did not comply with ANSI. (ROA.4003) Because

Plaintiffs did not meet their burden to show that (1) Carper is qualified and (2) his

opinions are reliable, the Court also should affirm the district court’s discretion to

exclude Carper.13

A. Carper is not qualified to opine on the design of gas ranges or the ANSI Z21.1 test.

Plaintiffs specifically retained Carper to opine on whether the range was

defectively designed because it failed to comply with the relevant ANSI standards

in the industry. (ROA.2320) Thus, to be qualified to testify in this case, Plaintiffs

had to show Carper possesses the requisite background, training, and experience to

13 As with Penney, Plaintiffs merely attached unsworn copies of Carper’s curriculum vitae and expert report to their opposition to Whirlpool’s Daubert motion, as well as a few innocuous (and immaterial) pages from Carper’s deposition about other cases in which he has been retained as an expert. (See ROA.2995-3152)


36

competently testify about the design of the range, industry standards governing CO

emissions from ranges, and whether the range complied with the ANSI standard.

See FED. R. EVID. 702. Plaintiffs failed to make this showing.

Carper’s primary background is in gas and propane fire investigations.

(ROA.2317-2319) This case, however, is about alleged CO exposure from a gas

range -- not whether a range started a fire. Plaintiffs cannot cure this fatal

deficiency in Carper’s qualifications by touting Carper’s “general engineering

experience.” (Br. at 31-32); see Gammill v. Jack Williams Chevrolet, Inc., 972

S.W.2d 713, 719 (Tex. 1998) (“[N]ot every mechanical engineer is qualified to

testify as an expert in every products liability case.”); Sittig v. Louisville Ladder

Group, LLC, 136 F. Supp. 2d 610, 617 (W.D. La. 2001) (expert was not qualified

to opine about safety of a ladder when he was unfamiliar with ANSI test

standards).

If anything, the record shows that Carper’s background, training, and

experience are insufficient in this case. For example:

• Carper has no experience in the design or manufacturing of gas ranges. (ROA.2352-2356)

• Before this lawsuit, Carper had no previous experience with testing gas ranges to determine if they comply with industry standards. (ROA.2317)

• Carper has not taught any classes relating to CO emissions from gas appliances. (ROA.2318)


37

• And he has never served on any technical committees or advisory boards that promulgate standards for CO emissions or advised gas companies about setting standards for CO emissions. (ROA.2319-2320)

Moreover, although the foundation of Carper’s “expert” testimony is that the

range supposedly did not meet the ANSI Z21.1 standard -- the only nationally

accepted standard for testing and regulating CO production from gas ranges

(ROA.2313-2314, 2451) -- Carper also lacks any experience with that standard.

(ROA.2321) In fact, before Plaintiffs retained him, Carper had never tested a gas

range to see if it complied with the ANSI Z21.1 standard. (ROA.2321) Nor has he

ever served on or provided technical assistance to any ANSI committees.

(ROA.2319-2320)

Further, although Carper believes the protocol for the ANSI Z21.1 test lacks

clarity (ROA.2328), he never spoke to any ANSI committee members about how

the test should be performed or to confirm whether his interpretation of the

protocol was accurate (ROA.2327-2328); he did not review any literature to

“clarify” the standard (ROA.2328); and he did not even understand the

significance of critical components of the ANSI Z21.1 protocol (ROA.2330).

In short, Carper was demonstrably unfamiliar with the design of gas ranges,

the ANSI Z21.1 test protocol, and how to interpret Z21.1 test results. An engineer

does not qualify as an expert to opine on these issues merely by reading the test

protocol and then engaging in on-the-job training by attempting to conduct the test


38

and interpret its results. The district court acted well within its discretion in

excluding Carper. See Gammill, 972 S.W.2d at 719 (affirming exclusion of

mechanical engineer because he was not qualified in the relevant field).

B. Carper’s opinions are unreliable.

The district court also correctly exercised its discretion in excluding

Carper’s opinions -- namely, that (1) the range did not comply with the ANSI

Z21.1 test and (2) a safer alternative design exists -- because Plaintiffs did not

establish the reliability of those opinions.

Compliance with ANSI Z.21.1 test. As discussed above, Carper was not

familiar with the ANSI Z21.1 protocol. Thus, it is no surprise that the test results

underlying his opinion are unreliable. See Daubert, 509 U.S. 594 (in assessing the

reliability of an expert’s opinions, courts may consider “the existence and

maintenance of standards controlling” the methodology employed by the expert).

Here, there are standards controlling the ANSI Z21.1 test. Specifically, the

ANSI Z21.1 test protocol requires the oven be started from a cold start and run for

five minutes at 500°, at which time a COAF value is calculated from the gasses in

the oven vent. (ROA.2508, 2569, 2576-2578) If the COAF value is less than 800

ppm, the oven passes the ANSI Z21.1 test. (ROA.2569, 2576-2577) The protocol

says nothing about adjusting the temperature during the test. (ROA.2330)


39

Although Carper opines that the range did not comply with the ANSI Z21.1

standard (ROA.3130), Plaintiffs admit that Carper did not comply with the ANSI

Z21.1 protocol (Br. at 30-31).14 Instead, Carper merely conducted his own “field

test” (Br. at 30) in which he erroneously took multiple COAF measurements after

the five-minute mark -- a procedure that did not comply with the ANSI Z21.1

protocol. (ROA.2324, 4248)

Plaintiffs cannot defend Carper’s testing by arguing that Whirlpool

previously conducted field testing on ranges in California without “stop[ping] at

the five minute mark.” (Br. at 31) There is no evidence that Whirlpool was trying

to adhere to the ANSI Z21.1 protocol during those field tests. In any event, the

issue here is the reliability of Carper’s methodology -- not field tests Whirlpool

conducted for reasons wholly unrelated to this lawsuit. Carper’s admitted failure

to comply with the ANSI Z21.1 protocol rendered his opinion that the range did

not comply with that standard unreliable. See Viterbo, 826 F.2d at 424 (affirming

14 In the court below, Plaintiffs tried to distance Carper from the flawed Erthwrks

testing. (ROA.3009-3010) But Carper relies exclusively on that Erthwrks data in reaching his conclusion that the range exceeded the ANSI Z21.1 standard of 800 ppm. (ROA.3130) Like Carper’s “field test,” the Erthwrks testing also failed to comply with the ANSI Z21.1 protocol. In particular, Erthwrks (1) initially set the oven to 250°, then adjusted the temperature to 350° and then to 500°, and (2) measured the COAF value every second of the test (instead of just at five minutes), and thus erroneously included measurements when the oven burner was off and no combustion was occurring. (ROA.2504-2506, 2515, 2570, 2577-2578, 4014-4023) Moreover, the Erthwrks data included negative COAF values, even though it is not possible to produce negative levels of CO. (ROA.2593)


40

exclusion of expert testimony when the testimony was not premised on a reliable

foundation). And tellingly, Carper does not even acknowledge -- let alone attempt

to explain away -- the three ANSI tests performed by Whirlpool showing COAF

levels under 500 ppm, as well as his own test showing a COAF value of less than

400 ppm at the specified five-minute mark. (See ROA.2301-2302, 2514,

3118-3131)

Safer alternative design. Carper’s opinion that a safer alternative design

exists is both unreliable and irrelevant. Carper opines that the range’s hot surface

igniter causes distortion of the bake flame shield and that a “spark type igniter,”

coupled with a “stiffened bake flame shield” would be an “[e]conomically safer

alternative[].” (ROA.3130) But glaringly absent from Carper’s report is any

analysis showing that the igniter and “distorted” flame shield in Plaintiffs’ range

cause increased CO production. (See ROA.3118-3131; see also ROA.2579)

Indeed, Carper does not even conclude that the supposedly “distorted” flame

shield caused increased CO production. (ROA.3130) And although Plaintiffs

blithely assert that the flame shield “controls” and “created the excessive CO

production,” Plaintiffs notably fail to provide any citation to the record to support

their assertion. (Br. at 29-30) Because “there is simply too great an analytical gap

between the data and [any] opinion” linking distorted flame shields to increased

CO production, the district court did not abuse its discretion in excluding Carper’s


41

testimony. Joiner, 522 U.S. at 146; Wells v. SmithKline Beecham Corp., 601 F.3d

375, 380 (5th Cir. 2010).

III. The District Court Correctly Granted Summary Judgment Against All of Plaintiffs’ Claims.

This Court reviews a summary judgment de novo, applying the same

standard as the district court. Arkema, 685 F.3d at 469. Summary judgment is

proper if there is no genuine issue as to any material fact and the moving party is

entitled to judgment as a matter of law. Brown v. Illinois Cent. R.R. Co.., 705 F.3d

531, 537 (5th Cir. 2013). When, as here, a party “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,” summary judgment is

appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In reviewing a

summary judgment, this Court is “not limited to the district court’s reasons for its

grant of summary judgment” and may affirm “on any ground raised below and

supported by the record.” Aryain v. Wal-Mart Stores Tex., L.P., 534 F.3d 473, 478

(5th Cir. 2008).

Under Texas law (which governs this diversity case), a manufacturer of a

defective product that is “unreasonably dangerous” is subject to liability for

physical harm caused to the user. See Am. Tobacco Co. v. Grinnell, 951 S.W.2d

420, 426 (Tex. 1997); RESTATEMENT (SECOND) OF TORTS § 402A (1965). A


42

product may be unreasonably dangerous because of a defect in design,

manufacturing, or marketing. Am. Tobacco Co., 951 S.W.2d at 426.

Here, Plaintiffs alleged that the range was defective under all three theories.

(ROA.26-27) But they failed to adduce any competent summary judgment

evidence sufficient to raise a fact issue on their design defect and marketing defect

claims. And they have abandoned their manufacturing defect claim (and other

causes of action) in this Court by failing to brief them.

A. Whirlpool was entitled to summary judgment on Plaintiffs’ design defect claim.

To establish a design defect, a plaintiff must show (1) the product was

defectively designed so as to render it unreasonably dangerous; (2) a safer

alternative design existed; and (3) the defect was a producing cause of the injury

for which the plaintiff seeks recovery. Casey v. Toyota Motor Eng’g & Mfg. N.

Am., Inc., 770 F.3d 322, 330 (5th Cir. 2014); see TEX. CIV. PRAC. & REM. CODE

§ 82.005(a). Plaintiffs failed to present competent summary judgment evidence on

each of these essential elements.

1. Plaintiffs adduced no evidence that the range was defectively designed and rendered unreasonably dangerous.

As an initial matter, Plaintiffs failed to raise a fact issue that the range was

defectively designed so as to render it unreasonably dangerous. Texas law

generally requires expert testimony to establish a design defect. See Nissan Motor


43

Co. v. Armstrong, 145 S.W.3d 131, 137 (Tex. 2004). As discussed above in

Part II, however, the district court correctly exercised its discretion in excluding

Carper, Plaintiffs’ so-called “expert” on design defects. For this reason alone, the

district court properly granted summary judgment.

Moreover, even if the Court were to consider Carper’s report, his opinions

do not raise a material fact issue on the existence of a defect. Carper’s report

merely focuses on an alleged defect in the design of an igniter and a “distorted”

flame shield to opine that the flame shield does not comply with another ANSI

standard (section 1.2.6), which governs “distortion” in appliance parts.

(ROA.4003; see Br. at 28) But that standard has nothing to do with CO production

in appliances. And Carper provides no analysis linking the supposedly distorted

flame shield to the dangerous condition alleged here -- i.e., excessive CO

emissions. (See ROA.3991-4004)15 Nor does he render any such conclusion in his

report. (ROA.4003) Absent any such analysis, the alleged defect (i.e., violation of

15 In lieu of analysis, Carper merely observes that, during his “field test” of Macy’s

range with a new flame shield, two of the three COAF measurements were below 800 ppm and the new flame shield supposedly became distorted at some unspecified time during the test. (ROA.3999) These observations prove nothing, and they do not create a fact issue that a distorted flame shield causes increased CO production. See DeGrate v. Executive Imprints, Inc., 261 S.W.3d 402, 411 (Tex. App.—Tyler 2008, no pet.) (“Conclusory statements by an expert are not competent evidence and are insufficient to support or defeat summary judgment.”). Likewise, Carper’s “data point” showing a momentary COAF level above 800 ppm also proves nothing because it was not taken at the five-minute mark as ANSI requires, and instead coincided with the oven burner cycling on after 20 minutes. (See ROA.3599, 4001)


44

an ANSI standard pertaining to distorted parts) is legally and factually irrelevant to

this case.

Finally, and if anything, the evidence conclusively establishes there was no

defect in the range that rendered it unreasonably dangerous. Every time the range

was properly tested under the ANSI Z21.1 protocol (the only nationally accepted

standard for measuring CO production from gas ranges), the COAF level was

below 800 ppm, and thus complied with the ANSI standard. (ROA.2569-2570,

2583, 2585-2586) Likewise, multiple tests of the CO levels in the ambient air in

Plaintiffs’ home reveal that those levels never exceeded the standards advanced by

OSHA, NIOSH, or ACGIH over eight hours. (ROA.2577-2581, 2611)16

Because Plaintiffs failed to raise a fact issue on the existence of a product

defect, summary judgment on their design defect claim should be affirmed.

2. Plaintiff adduced no evidence that a safer alternative design exists.

Plaintiffs also failed to raise a fact issue that a safer alternative design exists.

A “safer alternative design” is a product (other than the product at issue) that in

reasonable probability (1) would have prevented or significantly reduced the risk

16 During the August 5, 2012 testing with no air conditioning, Plaintiffs obtained an anomalous reading (44 ppm) from one of the three ambient air sensors that was more than twice the level of other two sensors. (ROA.2511-2512, 2593) But even then, the CO level in the ambient air was only 44 ppm at “the last point in time” at the end of the test when the oven had been operating for 6 hours. (ROA.2512) Thus, there is no evidence that that anomalous reading exceeded any recognized standard for acceptable levels of CO exposure over a continuous eight-hour period. (ROA.2593; see ROA.2611)


45

of injury, without substantially impairing the product’s utility, and (2) was

economically and technologically feasible when the product left the control of the

manufacturer. Casey, 770 F.3d at 331; TEX. CIV. PRAC. & REM. CODE ANN.

§ 82.005(b)(1)-(2)). In the absence of evidence of a safer alternative design, a

product is not unreasonably dangerous as a matter of law. Casey, 770 F.3d at 330.

Here, expert testimony was required to establish a safer alternative design

due to the highly technical nature of the issue. See Rangel v. Lapin, 177 S.W.3d

17, 23 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). Plaintiffs attempted to

satisfy this burden through Carper. (ROA.3395-3397) But again, the district court

correctly excluded Carper’s opinions. (See Part II) For this reason alone,

Plaintiffs’ design defect claim cannot survive. See Rangel, 177 S.W.3d at 23.

Moreover, Plaintiffs are wrong when they argue that they raised a fact issue

on this element and that Carper did not need to test his proposed alternative design

because it already exists in another Whirlpool range. (Br. at 26-27, 37-38)

First, Plaintiffs argue that a safer alternative design existed because another

model Whirlpool range employed a spark ignition system and reinforced flame

shields, which were available and utilized “before” Plaintiffs’ range was

manufactured. (Br. at 26-27, 37-38) But, at best, the evidence merely shows that

Whirlpool may have begun using a spark ignition system in January 2000.

(ROA.3152) Critically, Plaintiffs cite no evidence that reinforced flame shields


46

were used, available, or technologically feasible at the time Plaintiffs’ range was

manufactured in May 2000. (See Br. at 26-27, 37-38) The absence of any such

evidence is alone fatal to Plaintiffs’ design defect claim, because whether “a

product was defectively designed must be judged against the technological context

existing at the time of its manufacture.” Boatland of Houston, Inc. v. Bailey, 609

S.W.2d 743, 746 (Tex. 1980).

Second, Carper’s own report demonstrates that, when the COAF was

measured at five minutes (as the ANSI Z21.1 protocol requires), Plaintiffs’ range

was under 800 ppm, and thus satisfied the ANSI Z21.1 standard. (ROA.2514,

2570, 4000) Even assuming that other model ranges passed the ANSI test with

lower COAF measurements (and Plaintiffs presented no summary judgment

evidence that they did or that they even tested them under ANSI), the law does not

require a manufacturer to design the safest possible product. See Weakley v.

Fischbach & Moore, Inc., 515 F.2d 1260, 1267 (5th Cir. 1975) (“The defendant is

not obliged to design the safest possible product, or one as safe as others make or a

safer product than the one he has designed, so long as the design he has adopted is

reasonably safe.”); Acord v. Gen. Motors Corp., 669 S.W.2d 111, 114 (Tex. 1984).

Third and finally, Plaintiffs also had to demonstrate that the “safer

alternative design” would have “prevented or significantly reduced the risk of

[their] injury.” Casey, 770 F.3d at 331. Carper, however, did not analyze or


47

attempt to show that his alleged “safer alternative design” (the Whirlpool Model

465) would have prevented or reduced Plaintiffs’ alleged risk of injury. Indeed,

there is no summary judgment evidence that Carper tested (1) the COAF level of

the Model 465, or (2) the CO level in the ambient air while operating that model.

Without any such test results, there is no evidence that the Model 465 would have

“prevented or significantly reduced the risk of injury” -- much less that it would

have complied with the 9 ppm standard that Penney advocates.

Plaintiffs cannot avoid this fatal omission from Carper’s report by stating

that “Whirlpool has not contended that its own Model 465 is unsafe.” (Br. 30)

That is not the standard of proof required. Nor is it Whirlpool’s burden. Instead, it

is Plaintiffs’ burden to show that the Model 465 would have “prevented or

significantly reduced” their purported injuries. See Casey, 770 F.3d at 330.

Because they failed to do so, the district court properly granted summary judgment

for this reason as well.

3. Plaintiffs adduced no evidence that the range was a producing cause of their alleged injuries.

The Court also should affirm the district court’s summary judgment because

the record is devoid of any competent evidence that the range was a producing

cause of Plaintiffs’ alleged injuries. Under Texas law, producing cause consists of

two elements: (1) the cause must be a substantial factor in bringing about the

alleged injury; and (2) it must be a but-for cause -- i.e., one without which the


48

event would not have occurred. Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 46

(Tex. 2007). To raise a fact issue on causation, Plaintiffs were required, at a

minimum, to adduce competent evidence that (1) low-level CO exposure is capable

of causing injuries in humans, and (2) some alleged defect in the range produced

CO emissions that actually caused Plaintiffs’ purported injuries. See Arkema, 685

F.3d at 468; Knight, 482 F.3d at 355; Havner, 953 S.W.2d at 714.

Plaintiffs do not dispute that expert testimony on causation is required in

cases like this where the scientific basis underpinning the claim -- here, the

purported danger of low-level CO exposure -- is beyond the common knowledge

of the jury. See Ledesma, 242 S.W.3d at 42 (“expert testimony is generally

encouraged if not required to establish a products liability claim”). Although

Plaintiffs relied solely on Penney to establish causation (see ROA.3397-3400), the

district court did not abuse its discretion in excluding Penney. (See Part I) Thus,

summary judgment was proper on all of Plaintiffs’ claims. See Wells, 601 F.3d at

377 (“[B]ecause the experts’ opinions [regarding causation] are not scientifically

reliable, the testimony is inadmissible—leaving the liability cupboard bare.”).

Nonetheless, Plaintiffs now argue that they raised a fact issue on causation

through circumstantial evidence. (Br. at 38-42) Specifically, Plaintiffs try to

create an inference that their symptoms must have been caused by CO from the

range because (1) Penney and Plaintiffs’ doctors supposedly agree that Plaintiffs’


49

alleged symptoms are “consistent with CO poisoning/exposure,” and (2) two

people living in the same house allegedly developed the same symptoms. (Br. at

39, 41) But none of this so-called “evidence” raises a fact issue on causation.

Under Texas law, causation cannot be supported by mere conjecture, guess,

or speculation. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003).

That is all Plaintiffs offer in this case. Indeed, neither Penney nor Plaintiffs made

any effort to rule out other possible causes of Plaintiffs’ alleged symptoms. (See

ROA.3356-3430, 3720-3792) For this reason alone, Plaintiffs’ causation theory is

pure speculation and amounts to no evidence. See Robinson, 923 S.W.2d at 559

(expert’s “failure to rule out other causes of the damage” in a products-liability

case “renders his [causation] opinion little more than speculation”); see also

Michaels v. Avitech, Inc., 202 F.3d 746, 754 (5th Cir. 2000) (“[b]ecause the

plaintiff’s expert made no attempt to rule out the numerous other sources of

contamination of the alleged debris, the evidence was not ‘significantly probative’”

on the issue of negligence); Viterbo, 826 F.2d at 423 (expert’s failure to consider

other possible causes of plaintiff’s symptoms rendered his testimony unreliable).

Finally, Plaintiffs attempt to confuse the issue when they argue that, under

Hutchinson v. Proxmire, 443 U.S. 111 (1979), questions involving their state of

mind should not have been resolved on summary judgment. (Br. at 42)

Hutchinson is a defamation case. Because “proof of ‘actual malice’ calls a


50

defendant’s state of mind into question,” the Supreme Court merely recognized

that it “does not readily lend itself to summary disposition.” Hutchinson, 443 U.S.

at 120 n.9. In stark contrast to Hutchinson, Plaintiffs’ strict liability claims here do

not involve their state of mind. Hutchison is thus inapposite.

For these reasons, the district court correctly granted summary judgment on

Plaintiffs’ design defect claim.

B. The district court correctly granted summary judgment on Plaintiffs’ marketing defect claim.

The district court also properly granted summary judgment on Plaintiffs’

marketing defect claim that Whirlpool failed to provide an adequate CO warning

for using the range. Because “most products have some risk associated with their

use,” the law of products liability “does not guarantee that a product will be risk

free.” Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 381 (Tex. 1995). Rather,

liability is imposed only for products sold “in a defective condition unreasonably

dangerous to the user or consumer.” Id. (emphasis added) (quoting RESTATEMENT

(SECOND) OF TORTS § 402A(1)) (1965)).

Although a product may be unreasonably dangerous because of a defect in

marketing -- e.g., failing to warn of a danger when a warning is required -- liability

only attaches if the lack of an adequate warning “renders an otherwise adequate

product unreasonably dangerous.” Id. at 382. Here, there is nothing unreasonably


51

dangerous about the range’s emissions of low CO levels. Accordingly, Plaintiffs’

marketing defect claim fails as a matter of law.

1. Whirlpool owed no duty to warn of the purported dangers of low-level carbon monoxide emissions from the range.

In a marketing defect case, a plaintiff must first show that a warning should

have been provided. USX Corp. v. Salinas, 818 S.W.2d 473, 483 (Tex. App.—San

Antonio 1991, writ denied). The existence of a duty to warn is a question of law.

Gen. Motors Corp. v. Saenz, 873 S.W.2d 353, 356 (Tex. 1993).

Generally, a manufacturer has a duty to warn only if it “knows or should

know of potential harm to a user because of the nature of its products.”

Bristol-Myers Co. v. Gonzalez, 561 S.W.2d 801, 804 (Tex. 1978). There is no duty

to warn when the risk associated with the product is within the “ordinary

knowledge common to the community.” Joseph E. Seagram & Sons, Inc. v.

McGuire, 814 S.W.2d 385, 388 (Tex. 1991). Nor is there a duty to warn of

dangers that were unforeseeable at the time the product was marketed. Gideon v.

Johns-Manville Sales Corp., 761 F.2d 1129, 1145 (5th Cir. 1985); USX Corp., 818

S.W.2d at 483. The determination of whether a duty to warn exists is made as of

the time the product leaves the manufacturer. Saenz, 873 S.W.2d at 356.

The duty to warn is often established by expert testimony regarding “the

nature of the product and the foreseeability of the danger.” USX Corp., 818

S.W.2d at 484. A plaintiff may demonstrate knowledge or foreseeability of danger


52

with evidence of (1) similar accidents or other complaints, (2) post-accident

warning letters, (3) recall letters, (4) governmental standards, and (5) information

about risks available to the defendant. Id. Whether a danger is “readily apparent is

usually an objective question for the court to determine.” Hanus v. Tex. Utils. Co.,

71 S.W.3d 874, 880 (Tex. App.—Fort Worth 2002, no pet.).

In manufacturing its ranges, Whirlpool engineers undertook a

comprehensive product hazard management process to identify and evaluate

potential consumer product safety issues, both during the development of new

products and after manufacturing a product. (ROA.2597-2599) Specifically,

Whirlpool conducted a CO risk assessment, which included (1) lab testing,

(2) evaluating returned products, service records, and field reports (and the absence

of injury claims from CO), and (3) reviewing available literature, governmental

regulations, and industry standards on CO exposure. (ROA.2599-2601, 2605-

2606) Based on that assessment, Whirlpool ultimately (and correctly) determined

that “no risk” existed and that no corrective action, warning, or hazard

communication was therefore required.17 (ROA.2563-2566, 2599-2601, 2605-

2608) In short, the evidence conclusively establishes that Whirlpool did not know

(and should not have known) of any foreseeable CO danger to consumers from

17 If Whirlpool knew about a foreseeable danger from CO emissions, it would have

corrected the problem by recalling the ranges or changing the design -- not by a warning. (ROA.2564, 2606)


53

using a gas range at the time Whirlpool manufactured the range in 2000. (See, e.g.,

ROA.2597-2601)

In the district court, Plaintiffs largely relied on Penney’s incompetent

opinion that low-level CO exposure is supposedly “hazardous” to argue that a

warning was necessary. (See ROA.3387-3388) But Penney’s testimony was

properly excluded. (See Part I) The absence of admissible expert testimony

regarding “the foreseeability of the danger” from low-level CO is fatal to

Plaintiffs’ marketing defect claim. See USX Corp., 818 S.W.2d at 484.18

None of the other evidence on which Plaintiffs rely compels a different

result. In arguing otherwise, Plaintiffs try to create the illusion that a warning was

necessary because the range allegedly “present[ed] a hazard” and Whirlpool

supposedly knew “the ranges could emit dangerous levels of CO.” (Br. at 43-44)

But the purported “evidence” Plaintiffs cite does not support their assertions or

raise a genuine issue of material fact sufficient to defeat summary judgment.

Allegedly high failure rate. For example, Plaintiffs misleadingly insinuate

that in February 1997 -- three years before Whirlpool manufactured Plaintiffs’

18 In any event, Penney’s opinions do nothing to show that Whirlpool knew or should

have known of alleged dangers associated with low-level CO exposure at the time it manufactured the range, and thus owed a duty to warn. See Saenz, 873 S.W.2d at 356 (the determination of whether a duty to warn exists is made as of the time the product leaves the manufacturer). Indeed, Penney announced his proposed standard for indoor CO exposure in 2010. (See ROA.3439-3501, 3756) Plaintiffs’ range, however, was manufactured ten years earlier in 2000. (ROA.2576)


54

range -- Whirlpool sold defective ranges with a high “failure rate” for combustion

testing. (Br. at 43-44, citing ROA.3928-3930) But Plaintiffs presented no proof

that defective ranges left the plant. In fact, the uncontroverted evidence shows that

the testing was done while the ranges were on the assembly line, that “there was

some kind of rework process being done” to correct any problems, and that

Whirlpool did not “ship[] failed product.” (ROA.2549-2550, 3929)

High CO reading. Plaintiffs next imply that Whirlpool knew the range

model at issue could emit dangerous levels of CO because Whirlpool engineer

James Chisholm admitted to seeing a CO reading “as high as 3500 ppm.” (Br. at

44, citing ROA.4043) Chisholm, however, merely responded to a generic question

regarding the “maximum carbon monoxide reading” he has ever recorded from any

gas range in his 20 years of experience. (ROA.4043) This testimony had nothing

to do with an alleged defect in Plaintiffs’ range or Whirlpool’s duty to warn.

Hazard Identification. Plaintiffs also cite a 1996 document for a different

range model showing a so-called “Hazard Identification” that a customer may be

exposed to CO higher than 800 ppm. (Br. at 44, citing ROA.1211) But Plaintiffs

conveniently ignore that (1) Whirlpool undertook this process to identify potential

hazards in order to “reduce the chance of an omission,” and (2) after performing a

risk assessment, Whirlpool concluded that the risk and likelihood of injury from

CO was “[i]mpossible/[i]mprobable” or “[r]emote.” (ROA.1210-1215)


55

Warning from other range model. Plaintiffs also rely on a warning

Whirlpool previously provided for a separate range model (i.e., the Roper Range).

(Br. at 44-45, citing ROA.4046) A warning on a different product, however, does

not establish that Whirlpool owed a duty to warn Plaintiffs about some supposed

danger associated with their range. Moreover, the Roper Range guide only warned

about the danger of CO from “a yellow flame” (which is a sign of incomplete

combustion). (ROA.4052; see ROA.4049) In contrast, Plaintiffs here argue that

Whirlpool should have warned about the supposed dangers of low-level CO

emissions. (See ROA.3387-3388)

Statements in service manual. Plaintiffs miss the point when they focus on

statements about the general dangers of CO in a Whirlpool service manual. (See

Br. at 48-49) The point of that manual was to educate service technicians about

CO, including exposure standards recommended by various entities. (ROA.415-

440) Far from establishing that Whirlpool knew that low-level CO is harmful, the

manual informs technicians that a range operating under the ANSI standard of 800

ppm is “safe” and not malfunctioning. (ROA.440)

Other lawsuit or complaints. Finally, the mere fact that (1) another

consumer (Richard Williamson) filed a lawsuit against Whirlpool after Whirlpool

manufactured Plaintiffs’ range and (2) Whirlpool received two complaints of

alleged CO poisoning from the model range at issue (including the Williamson


56

lawsuit noted above) proves nothing. (See Br. at 50; ROA.2815) It does not show

that Whirlpool knew or should have known that there was a defect with its

ranges -- let alone that it should warn all consumers that they expose themselves to

serious injuries from low-level CO simply by using a range to cook.19

Because Whirlpool owed no duty to warn, the Court should affirm the

summary judgment on Plaintiffs’ marketing defect claim.

2. The dangers of carbon monoxide are common knowledge.

Under Texas law, a product supplier has no duty to warn when the risks

associated with a product are matters “within the ordinary knowledge common to

the community.” McGuire, 814 S.W.2d at 388. Whether a danger is common

knowledge or obvious is determined according to an objective standard and from

the perspective of an ordinary user of the product. Sauder Custom Fabrication,

Inc. v. Boyd, 967 S.W.2d 349, 350-51 (Tex. 1998). This issue is normally

determined as a matter of law. Caterpillar, Inc., 911 S.W.2d at 383; McGuire, 814

S.W.2d at 388.

In this case, an ordinary consumer is aware that gas ranges emit some CO

and that CO can be dangerous. Indeed, the prior owners of the range (the Byrds)

19 Plaintiffs’ reliance on the existence of 47 alleged claims against Whirlpool over a

three-year period is also misplaced. (See Br. at 45) With the exception of the two claims discussed above, the other 45 claims were for other model ranges. (ROA.2818, 2825) And Plaintiffs adduced no evidence that any of the alleged claims were substantiated. Rather, most of the claims were never pursued; other claims were denied; and other claims were settled for nuisance value. (ROA.2818-2821, 2825-2832)


57

kept a CO detector plugged in next to the range. (ROA.2418-2419, 2427-2428)

Moreover, Texas courts have recognized that the dangers of CO from home

appliances are “open and obvious.” See, e.g., Beans v. Entex, Inc., 744 S.W.2d

323, 325 (Tex. App.—Houston [1st Dist.] 1988, writ denied) (“Asphyxiation, due

to carbon monoxide inhalation from unvented gas heating, is of such common

propensity as to be an open and obvious danger.”).

For this reason as well, the district court correctly granted summary

judgment on Plaintiffs’ marketing defect claim.20

3. In any event, Whirlpool did warn of carbon monoxide exposure.

Although Whirlpool owed no duty to warn of the dangers of CO, the

Whirlpool owner’s manual for the range nevertheless notified consumers that

“[t]his appliance can cause low-level exposure to . . . carbon monoxide” and other

harmful substances. (ROA.4134) This notice, which was contained in a portion of

the manual regarding “Range Safety,” is alone sufficient to defeat Plaintiffs’

marketing defect claim. And any further CO warning is unnecessary and would

simply diffuse more important warnings. (ROA.2599); see Valdez v. U.S., 56 F.3d

20 With the exception of their conclusory (and unsupported) assertion that they

supposedly presented unspecified evidence that “the average consumer does not know that all gas ranges emit CO” (Br. at 43), Plaintiffs do not even address this ground for summary judgment in their brief. See FED. R. APP. P. 28(a)(8)(A).


58

1177, 1180 (9th Cir. 1995) (“too many warning brochures and pamphlets would

inevitably reduce the impact of the individual warnings on the public”).

Accordingly, the Court should affirm the summary judgment on Plaintiffs’

marketing defect claim.

C. The Court should affirm summary judgment on Plaintiffs’ other claims because Plaintiffs abandoned them.

In addition to the products liability claims discussed above, Plaintiffs

asserted claims for (1) manufacturing defect, (2) breach of the implied warranty of

merchantability, (3) negligence, and (4) punitive damages. (ROA.23-33, 448)

Whirlpool moved for summary judgment on all of these claims and demonstrated

why it was entitled to judgment as a matter of law. (ROA.2358-2403) In

response, Plaintiffs made no effort in the district court to defend their claims for

breach of the implied warranty of merchantability or negligence. (See ROA.3356-

3435)

More importantly, Plaintiffs do not challenge the summary judgment on

their claims for breach of the implied warranty of merchantability, negligence,

manufacturing defect, or punitive damages in this Court. (See Br. at 1-61) As a

result, Plaintiffs have abandoned those claims, and summary judgment should be

affirmed on this basis alone. See Thompson v. Zurich Am. Ins. Co., 664 F.3d 62,

64 (5th Cir. 2011) (party who fails to brief an issue is considered to have

abandoned the claim); see also FED. R. APP. P. 28(a)(8)(A).


59

IV. The Court Need Not Reach Plaintiffs’ Request for Reassignment upon Remand.

Because there are no valid grounds for reversing the take-nothing judgment

in Whirlpool’s favor, the Court need not reach Plaintiffs’ request to reassign this

case upon remand. In any event, reassignment is unwarranted.

As this Court has recognized, the “‘power to reassign pending cases is an

extraordinary one’” that is “‘rarely invoked.’” Johnson v. Sawyer, 120 F.3d 1307,

1333 (5th Cir. 1997) (quoting In re John H. McBryde, 117 F.3d 208, 228-29 (5th

Cir. 1997)). There is nothing extraordinary about the rulings or action of the court

below to warrant reassignment here.

Simply stated, Plaintiffs have not established that (1) the original judge

would have substantial difficulty in putting out of his mind any previously

expressed views that may be determined to be erroneous, (2) reassignment is

advisable to preserve the appearance of justice, and (3) reassignment would not

entail waste and duplication out of proportion to any gain in preserving the

appearance of fairness. See In re DaimlerChrysler Corp., 294 F.3d 697, 700-01

(5th Cir. 2002). Nor have Plaintiffs identified sufficient facts that might

reasonably cause an objective observer to question the judge’s impartiality. Id. at

701; see Liteky v. U.S., 510 U.S. 540, 555 (1994) (“judicial rulings alone almost

never constitute a valid basis” for finding bias or partiality).


60

CONCLUSION

For the reasons stated above, Whirlpool respectfully prays that the Court

affirm the district court’s judgment that Plaintiffs take nothing and grant Whirlpool

such other and further relief to which it is entitled.

Respectfully submitted, /s/ Deborah G. Hankinson

Michael D. Hostetter [email protected] Nall & Miller LLP 235 Peachtree Street, NE, Suite 1500 Atlanta, Georgia 30303-1418 Telephone: 404-522-2204 Facsimile: 404-522-2208

Deborah G. Hankinson [email protected] Brett Kutnick [email protected] Stephanie Dooley Nelson [email protected] Hankinson LLP 750 N. St. Paul St., Suite 1800 Dallas, Texas 75201 Telephone: 214-754-9190 Facsimile: 214-754-9140 Attorneys for Defendant-Appellee






61

CERTIFICATE OF SERVICE

The undersigned certifies that on February 5, 2015, the foregoing Appellee’s Brief was electronically filed with the Clerk of Court for the United States Court of Appeals for the Fifth Circuit by using the appellate CM/ECF system. Counsel for Appellants listed below are registered CM/ECF users and will be served electronically by the appellate CM/ECF system:

Joseph Walker Franklin Mosele & Walker PC 4200 Westheimer Road Houston, Texas 77027 Bob F. Wright Domengeaux, Wright, Roy & Edwards 556 Jefferson Street, Fifth Floor Lafayette, Louisiana 70501

/s/ Stephanie Dooley Nelson Stephanie Dooley Nelson


62

CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

Certificate of Compliance with Type-Volume Limitation, Typeface Requirements, and Type Style Requirements

1. This brief complies with the type-volume limitation of FED. R. APP. P.

32(a)(7)(B) because:

this brief contains 13,970 words, excluding the parts of the brief exempted by FED. R. APP. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of FED. R. APP. P.

32(a)(5) and the type style requirements of FED R. APP. P. 32(a)(6) because:

this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in 14 pt. Times New Roman (and 13 pt. for footnotes).

/s/ Brett Kutnick Brett Kutnick Attorney for Defendant-Appellee Dated: February 5, 2015


Documents

No. 14-20603 In the UNITED STATES COURT OF …hankinsonlaw.com/wp-content/uploads/2015/07/2015-02-05-Whirlpool...No. 14-20603 _____ In the . UNITED STATES COURT OF APPEALS . for the