17-3274 (L) Rizzo v. Applied Materials, Inc.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 27th day of November, two thousand eighteen.

PRESENT: PETER W. HALL, GERARD E. LYNCH, Circuit Judges, PAUL G. GARDEPHE, * District Judge. _____________________________________

Timothy J. Rizzo, Plaintiff-Appellant, v. 17-3274 (L) 18-1490 (Con) Applied Materials, Inc., GlobalFoundries, U.S., Inc.

Defendants-Appellees,

GlobalFoundries, Inc., AM Technical Solutions, Inc.,

Defendants. _____________________________________

FOR PLAINTIFF-APPELLANT: TIMOTHY J. RIZZO, pro se, Johnstown, NY.

* Judge Paul G. Gardephe, of the United States District Court for the Southern District of New York, sitting by designation. FOR DEFENDANTS-APPELLEES: Berj Parseghian, Lewis Brisbois Bisgaard & Smith, LLP, New York, NY (for Applied Materials, Inc.)

AMANDA K. RICE, Sharyl A. Reisman, Eric P. Stephens, Jones Day, New York, NY, Traci L. Lovitt, Jones Day, Boston, MA (for GlobalFoundries, U.S., Inc.).

Appeal from a judgment of the United States District Court for the Northern District of

New York (D’Agostino, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Appellant Timothy Rizzo, pro se, brought a diversity toxic tort action against

GlobalFoundries, U.S., Inc. and Applied Materials, Inc., alleging that he developed granulomatosis

with polyangiitis (“GPA”), a severe autoimmune disease, after being exposed to several toxic

substances as a result of defendants’ negligence. The district court divided discovery into phases,

with the first phase addressing general causation, that is, whether any of the substances to which

Rizzo was allegedly exposed can cause GPA. The district court excluded the opinions of Rizzo’s

two experts as unreliable and granted summary judgment to defendants because Rizzo had

submitted no other evidence raising a genuine issue of material fact about general causation, which

he had to prove to prevail on his claims. In addition to his appellate arguments challenging the

district court’s summary judgment order, Rizzo moves to set a standard hourly rate for future

expert depositions in the case. We assume the parties’ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

2 We review de novo a grant of summary judgment, with the view that summary judgment

is appropriate only “if the movant shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” Sousa v. Marquez,

(2d Cir. 2012) (internal quotation marks omitted). We review the exclusion of an expert’s

testimony under a “highly deferential” abuse of discretion standard and will sustain the exclusion

“unless manifestly erroneous.” Restivo v. Hessemann,

(2d Cir. 2017) (internal

quotation marks omitted). We review the denial of leave to amend, denial of a motion to amend

the judgment, and discovery rulings for abuse of discretion. McCarthy v. Dun & Bradstreet Corp.,

(2d Cir. 2007) (leave to amend); Munafo v. Metro. Transp. Auth.,

,

105 (2d Cir. 2004) (alter judgment); Wills v. Amerada Hess Corp.,

(2d Cir. 2004)

(discovery rulings).

Under Federal Rule of Evidence 702, district courts must screen scientific evidence to

“ensure that . . . [it] is not only relevant, but reliable.” Daubert v. Merrell Dow Pharm., Inc.,

(1993). Under Daubert, factors relevant to determining reliability include the

theory’s testability, the extent to which is has been subjected to peer review and publication, the

extent to which a technique is subject to standards controlling the technique’s operation, the known

or potential rate of error, and the degree of acceptance within the relevant scientific community.

Restivo,

-76. “If [an expert’s] opinion is based on data, a methodology, or studies

that are simply inadequate to support the conclusions reached, Daubert and Rule 702 mandate the

exclusion of that unreliable opinion testimony.” In re Pfizer Inc. Sec. Litig.,

(2d

Cir. 2016) (internal quotation marks omitted).

Upon review of the whole record, we conclude that the district court properly considered

the factors in Daubert v. Merrell Dow Pharm., Inc.,

(1993); excluded the testimony of Rizzo’s experts; granted summary judgment to defendants; denied leave to amend; and denied

Rizzo’s objection to the magistrate judge’s fee order. We affirm for substantially the reasons given

by the district court in its thorough and well-reasoned September 11, 2017 decision.

We have considered all of Rizzo’s arguments on appeal and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court and DENY as moot the motion to set

a standard hourly rate for future expert depositions.

FOR THE COURT: Catherine O=Hagan Wolfe, Clerk of Court