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Click here for the full text of this decision FACTS:Raymond Burleson, a Texas prison inmate, worked from May 1995 to May 1997 as a welder at the Boyd Unit’s stainless steel plant in Teague. Burleson was performed tungsten inert gas welding activities using 2 percent thoriated tungsten steel welding electrodes. Though Burleson was never shown the package that the electrodes came in, he later learned that they were radioactive and that exposure to them could cause cancer. The electrodes include thorium dioxide, which the U.S. Department of Health and Human Services has determined is a carcinogen. Burleson, who had smoked for 45 years and had a two-pack-a-day habit, was diagnosed with throat and lung cancer in May 1997. Four other inmates who worked with Burleson were also diagnosed around this time, but only Burleson had the smoking habit, as well as a family history of cancer. Burleson filed a pro se civil rights suit against the Texas Department of Criminal Justice. He claimed the TDCJ, by exposing him to carcinogenic materials, violated his Eighth Amendment rights to be free of cruel and unusual punishment, because the conditions of his confinement posed an unreasonable risk of damage to his health. He claimed the individuals connected with his incarceration and work supervision were deliberately indifferent to his health. To support the causation aspect of his claim, Burleson presented expert witness testimony of Dr. Arch Carson, a toxicologist and expert in occupational medicine. Carson opined that Burleson’s exposure to the electrodes were more responsible for his cancer than his smoking habit. Carson relied on what he called “radiation hot spot” theory, or “microscopic flux” theory, which involves the effect exposure to radioactive materials can have on a single cell, rather than looking at the total dose of radiation in the body. Carson referred to several studies linking thorium dioxide to cancer and the development of cancerous tumors. Initially, half of Burleson’s claims were dismissed, and summary judgment was entered for the defendants in the other half. This court reversed and remanded on the ground that the summary judgment evidence before the district court at the time created a genuine issue of material fact as to whether the levels of the carcinogens Burleson was exposed to were sufficient to pose and unreasonable risk of serious damage to his future health. On remand, the remaining defendants who included the welding plant manager at the time of Burleson’s employment, as well as two of Burleson’s supervisors moved to exclude Carson’s expert testimony. Their reasons were that it was not based upon any scientific or epidemiological studies showing any statistically significant link between exposure to thoriated tungsten electrodes and lung and throat cancer, and that the “radiation hot spot” theory was not grounded in established science. The defendants also claimed Carson’s testimony was not relevant because his opinion was not based on any reliable data about the extent, if any, of Burleson’s exposure to radiation from the electrodes. Without conducting a Daubert hearing, the magistrate judge sustained the defendants’ objections. Without Carson’s testimony, the district court found that Burleson could not establish that his throat and lung cancer were caused by exposure to the electrodes he used during welding. The magistrate judge thus granted the defendants’ summary judgment motions. HOLDING:Affirmed. The court reviews the exclusion of Carson’s testimony under Daubert. Burleson contends that Carson’s affidavit presented sufficient evidence that thorium dioxide causes cancer because of the profusion of published epidemiological studies stating that patients who received Thorotrast, which also contained thorium dioxide, developed multiple types of cancers. On the other hand, the defendants contend that the “hotspot” theory is unreliable because it is not grounded in established science and has not been subjected to peer review or scientific study. The magistrate judge found the testimony unreliable in part because it did not provide a reasonable potential rate of error factor. The court finds that Carson offers no studies demonstrating a statistically significant link between thorium dioxide exposure in dust or fumes and Burleson’s type of lung or throat cancer. Although Carson presupposes that the thorium dioxide particles in the welding dust were inhaled by Burleson, lodged in his airways and caused a cancer risk, he could not cite any studies to confirm that this type of infection is possible. The court also points out that Carson admits that the radiation dose a patient receives is critical to an evaluation of causation, yet he did not determine the dose Burleson actually received. Without reference to Burleson’s exposure level or to epidemiological studies linking thorium dioxide to Burleson’s type of cancer, the court rules that the magistrate judge did not commit reversible error in finding Carson’s testimony unreliable. Also, since Carson cannot show that the welding electrodes are more or less probable to be the cause of Burleson’s cancers, the testimony is irrelevant under Federal Rule of Evidence 701. Thus, it was not an abuse of discretion for the magistrate judge to exclude Carson’s testimony for this reason, either. The court then reviews the magistrate judge’s denial of Burleson’s objections to three defense exhibits. The court finds two of the exhibits were relevant to how much radiation Burleson was exposed to and the likely cause of his cancers, so they were properly considered by the district court. So, too, was the exhibit that suggested based on the amount of time elapsed between Burleson’s exposure to thorium dioxide and his development of cancer that Burleson’s smoking habit was the more likely cause of his cancer. Next, the court reviews the grant of summary judgment to the defendants. “Without proof of causation, Burleson could not demonstrate that exposure to thoriated tungsten electrodes posed a substantial risk of harm. Because there was no evidence that exposure to thoriated tungsten posed a substantial risk of harm, the magistrate judge found that Burleson failed to show that he was incarcerated under conditions which pose an unreasonable risk of damage to his health. The magistrate judge further held that the defendants could not have been aware of facts from which an inference of harm could be drawn because, based on the lack of causation evidence, these facts apparently do not exist. Therefore, the court held there was no deliberate indifference. . . . Without proof of causation, Burleson cannot meet his constitutional burden.” OPINION:Stewart, J.; DeMoss, Stewart and Clement, JJ.

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