Herbst v. Bush Boake Allen Inc et al

Filing 209

OPINION AND ORDER Regarding Defendant Givaudan's Motions to Exclude Experts and for Summary Judgment on All Claims: denying 142 Motion to Exclude General Causation Testimony; denying 146 Motion to Exclude the Testimony and Opinions of Charles Pue, M.D.; denying 149 Motion to Exclude Warnings Testimony and Opinions; and denying 150 Motion for Summary Judgment as to All Claims. See Order text for details. Signed by Judge Mark W Bennett on 12/3/2018. (mmc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
MARLIN HERBST,
No. C 17-4008-MWB
Plaintiff,
vs.
GIVAUDAN FLAVORS
CORPORATION and EMORAL, INC.,
f/k/a Polarome International, Inc.,
Defendants.

OPINION AND ORDER
REGARDING DEFENDANT
GIVAUDAN’S MOTIONS TO
EXCLUDE EXPERTS AND FOR
SUMMARY JUDGMENT ON ALL
CLAIMS

___________________________
TABLE OF CONTENTS
I. 

INTRODUCTION........................................................................... 1 

II. 

LEGAL ANALYSIS ........................................................................ 3 
A. 
The Challenges To Experts ....................................................... 3 
1. 
Standards for admissibility of expert opinions ........................ 3 
2. 
Application of the standards ............................................. 6 
B. 
Summary Judgment ................................................................ 8 
1. 
Applicable standards ....................................................... 8 
2. 
Application of the standards ........................................... 10 

III. 

CONCLUSION ............................................................................ 11 

I.

INTRODUCTION

In this case, plaintiff Marlin Herbst alleges that he suffers from bronchiolitis
obliterans (aka “popcorn lung”) and/or other lung or respiratory diseases or impairments

from working with butter flavorings containing diacetyl at the American Popcorn
Company (APC) plant in Sioux City, Iowa, between 1991 and August 1993. On January
27, 2017, Herbst brought products liability claims under strict liability and negligence
and a claim of breach of implied warranties against various “manufacturing defendants,”
which are companies that allegedly designed, manufactured, distributed, and/or sold
diacetyl-containing butter flavorings to APC, and against various “diacetyl defendants,”
which are companies that allegedly designed, manufactured, marketed, distributed,
and/or sold diacetyl that was used by APC. The remaining “manufacturing defendant”
is Givaudan Flavors Corporation, and the remaining “diacetyl defendant” is Emoral, Inc.
This case is now before me on four motions by Givaudan: (1) its September 4,
2018, First Daubert Motion To Exclude General Causation Testimony By Plaintiff’s
Expert, relating to Dr. Robert Harrison; (2) its September 4, 2018, Second Daubert
Motion To Exclude The Testimony And Opinions Of Charles Pue, M.D. (Plaintiff’s
Proffered Expert On Plaintiff’s Alleged Exposures To Diacetyl And Specific Causation);
(3) its September 4, 2018, Third Daubert Motion To Exclude Warnings Testimony And
Opinions By Plaintiff’s Expert, again relating to Dr. Robert Harrison; and (4) its
September 4, 2018, Motion For Summary Judgment As To All Claims. After various
extensions, resistances and replies have now been filed, and the motions are ripe for
consideration.
Givaudan requests oral arguments on each of its motions, but I conclude that the
parties’ written arguments and supporting materials are sufficient for me to resolve the
pending motions.1 Therefore, all four motions are deemed fully submitted without oral
arguments.
1

Indeed, the briefs and supporting materials for these motions can only be
described as voluminous. As one of the parties observed, more is not necessarily better,
although I believe that observation applies to both parties.
2

II.
A.

LEGAL ANALYSIS
The Challenges To Experts

Givaudan relies on my anticipated exclusion of the experts’ challenged opinions
among its grounds for summary judgment. Consequently, I will begin my consideration
of the pending motions with Givaudan’s challenges to experts.
1.

Standards for admissibility of expert opinions

As the Supreme Court has explained, Rule 702 of the Federal Rules of Evidence
governs the admission of expert testimony and requires the district court to serve as a
gatekeeper to “ensure that any and all scientific testimony or evidence admitted is not
only relevant, but reliable.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589
(1993).2 The Eighth Circuit Court of Appeals has stated that the standard for what expert
testimony is relevant and helpful under Rule 702 is “low,” that is, that the expert’s
evidence should be admitted if it has any tendency to make a fact of consequence more
2

More specifically, Rule 702 of the Federal Rules of Evidence provides as

follows:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if:
(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles
and methods; and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
FED. R. EVID. 702 (emphasis added).
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or less probable. United States v. Holmes, 751 F.3d 846, 851 (8th Cir. 2014) (citing
FED. R. EVID. 401). In short, to satisfy the relevance requirement of Rule 702 and
Daubert, “‘the proponent must show that the expert’s reasoning or methodology was
applied properly to the facts at issue.’” Smith v. Bubak, 643 F.3d 1137, 1138 (8th Cir.
2011) (quoting Barrett v. Rhodia, Inc., 606 F.3d 975, 980 (8th Cir. 2010)). For example,
expert testimony is relevant where such testimony is required to establish an element of
a claim. See, e.g., Barrett, 606 F.3d at 981 (concluding that a plaintiff in a toxic tort
strict liability case is required to establish causation through expert testimony).
I recognize that, under Daubert, I have a duty to perform a “gatekeeper” function,
under Rule 702 of the Federal Rules of Evidence, so that only expert testimony that is
relevant and reliable is admitted. 509 U.S. at 589. More specifically,
The objective of the Daubert inquiry “is to make certain that
an expert, whether basing testimony upon professional studies
or personal experience, employs in the courtroom the same
level of intellectual rigor that characterizes the practice of an
expert in the relevant field.” Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143
L.Ed.2d 238 (1999). [T]his is a flexible, case-specific
inquiry. “The trial court ha[s] to decide whether this
particular expert had sufficient specialized knowledge to assist
the jurors in deciding the particular issues in the case.” Id. at
156, 119 S.Ct. 1167 (quotation omitted); see Fed. R. Evid.
702 and Advisory Committee Notes.
American Auto. Ins. Co. v. Omega Flex, Inc., 783 F.3d 720, 722-23 (8th Cir. 2015). I
also recognize that this “gatekeeper” function under Daubert requires me to “make a
‘preliminary assessment of whether the reasoning or methodology underlying the
testimony is scientifically valid and of whether that reasoning or methodology properly
can be applied to the facts in issue.’” Kudabeck v. Kroger Co., 338 F.3d 856, 860 (8th
Cir. 2003) (quoting Daubert, 509 U.S. at 592-93).
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I must also take into account Rule 704 of the Federal Rules of Evidence,
concerning the scope of expert opinions. As the Eighth Circuit Court of Appeals has
explained,
Rule 704(a) provides that expert evidence is not inadmissible
because it embraces an ultimate issue to be decided by the
jury. If the subject matter is within the jury’s knowledge or
experience, however, the expert testimony remains subject to
exclusion “because the testimony does not then meet the
helpfulness criterion of Rule 702.” [United States v.] Arenal,
768 F.2d [263,] 269 [(8th Cir. 1985)]. Opinions that “merely
tell the jury what result to reach” are not admissible.
Fed.R.Evid. 704 advisory committee’s note.
Lee v. Andersen, 616 F.3d 803, 808–09 (8th Cir. 2010); accord United States v.
Coutentos, 651 F.3d 809, 821 (8th Cir. 2011) (“‘Where the subject matter is within the
knowledge or experience of lay people, expert testimony is superfluous.’” (quoting Ellis
v. Miller Oil Purchasing Co., 738 F.2d 269, 270 (8th Cir. 1984) (per curiam))); United
States v. Whitted, 11 F.3d 782, 785 (8th Cir. 1993) (noting that, although Rule 704(a)
allows expert testimony that “embraces an ultimate issue to be decided by the trier of
fact,” it does not allow “[o]pinions that are ‘phrased in terms of inadequately explored
legal criteria’ or that ‘merely tell the jury what result to reach’” (quoting FED. R. EVID.
704, Advisory Committee Note)). Thus, to the extent that an expert lays a proper
foundation by demonstrating an adequate basis for an opinion, even an opinion about an
ultimate issue, then such an opinion may be admissible at trial. On the other hand,
“‘nothing 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

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expert.’” American Auto. Ins. Co., 783 F.3d at 725 (quoting General Elec. Co. v. Joiner,
522 U.S. 136, 146 (1997)).3
Finally, the Eighth Circuit Court of Appeals has also observed that expert
evidence, even if relevant, is subject to exclusion if its potential for prejudice substantially
outweighs its probative value. Holmes, 751 F.3d at 851; see also FED. R. EVID. 403
(relevant evidence may be excluded if its probative value is substantially outweighed by
its potential for prejudice); Coutentos, 651 F.3d at 821 (considering whether the district
court had properly excluded expert evidence under Rule 403, after affirming exclusion
of the expert’s evidence as irrelevant under Rule 702).
2.

Application of the standards

Contrary to Givaudan’s contentions, the challenged experts’ opinions are not so
poorly supported as to amount to nothing more than ipse dixit. See American Auto. Ins.
Co., 783 F.3d at 725. Rather, after reviewing Herbst’s extensive responses to the
motions to exclude the testimony of these experts, my “preliminary assessment” is that
these experts are qualified to state their proffered opinions, the reasoning and
methodology underlying the challenged opinions are scientifically valid, and the experts’
reasoning and methodology can be applied to the facts in issue. See Daubert, 509 U.S.
at 592-93 (first step in the court’s “gatekeeper” function under Rule 702); Kudabeck, 338
F.3d at 860 (explaining that the “gatekeeper function” involves this “preliminary
assessment”). The challenged opinions meet the “low” standard for admissibility under

3

For the sake of comparison, I note that a lay witness may not opine on an ultimate
factual issue, see FED. R. EVID. 704(a); Peters v. Woodbury Cty., Iowa, 979 F. Supp.
2d 909, 922-23 (N.D. Iowa 2013), aff'd sub nom. Peters v. Risdal, 786 F.3d 1095 (8th
Cir. 2015), but a lay witness is not entirely precluded from offering opinions, if those
opinions are “rationally based on the witness’s perception,” “helpful to clearly
understanding the witness’s testimony,” and “not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.” FED. R. EVID. 701.
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Rule 702 in that they make facts of consequence more or less probable. Holmes, 751
F.3d at 851.
I am also convinced that the testimony of these experts is relevant and will aid the
trier of fact. Daubert, 509 U.S. at 592 (second step in the analysis); Kudabeck, 338 F.3d
at 860 (same).

For example, while Givaudan contends that neither Dr. Harrison’s

“general causation” opinions nor Dr. Pue’s “specific causation” opinions should be
admissible, because neither expert can identify the dosages at which diacetyl may be
harmful or the dosages to which Herbst was ever exposed, the Eighth Circuit Court of
Appeals has recognized that a plaintiff “d[oes] not need to produce a mathematically
precise table equating levels of exposure with levels of harm in order to show that [he]
was exposed to a toxic level of [a chemical], but only evidence from which a reasonable
person could conclude that [his] exposure probably caused [his] injuries.” Bonner v. ISP
Techs., Inc., 259 F.3d 924, 928 (8th Cir. 2001) (internal quotation marks and citations
omitted). Although there may be some “gaps” between the data identified and these
experts’ causation opinions, I cannot say that there is “‘simply too great an analytical
gap’ . . . to support admissibility.” See Bland v. Verizon Wireless, (VAW) L.L.C., 538
F.3d 893, 897 (8th Cir. 2008) (quoting General Elec. Co. v. Joiner, 522 U.S. 136, 146
(1997)).
Givaudan argues that Dr. Harrison’s “warnings” opinions are inadmissible, to the
extent that he opines about what Givaudan’s predecessor company “should have known,”
because what a company “should have known” does not require expert explanation, see
Lee, 616 F.3d at 808–09, but I disagree. Under Iowa law, a manufacturer of a product,
such as Givaudan (or its predecessor, Tastemaker), is held to have the knowledge of
experts concerning the hazards of their products.

See Beerman v. Manville Corp.

Asbestos Disease Compensation Fund, 496 N.W.2d 247, 251-252 (Iowa 1993). Thus,
Dr. Harrison may properly opine on what an expert would infer about hazards of a
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product and the need for warnings from information shown to be available to the
manufacturer, which is beyond the ken of most jurors.
Indeed, this is yet another case in which excluding these experts’ challenged
opinions would “invade the province of the jury, whose job it is to decide issues of
credibility and to determine the weight that should be accorded evidence,” United States
v. Vesey, 338 F.3d 913, 916-17 (8th Cir. 2003), and one in which “[v]igorous crossexamination, presentation of contrary evidence, and careful instruction on the burden of
proof” are not only “traditional,” but “appropriate” means of attacking what Givaudan
contends are deficiencies in these experts’ evidence. Daubert, 509 U.S. at 596; Vesey,
338 F.3d at 917. Givaudan’s challenges indicate the bases for attempting to impeach the
experts, but not for excluding their opinions entirely. Ultimately, whether specific expert
opinions are admissible will depend upon the form, manner, and—most importantly—the
context in which those opinions are offered at trial rather than on the parties’
characterizations of those opinions pretrial.
Givaudan’s three Daubert motions challenging expert opinions are denied.
B.

Summary Judgment

Givaudan also seeks summary judgment on all of Herbst’s claims. Herbst denies
that summary judgment is appropriate on any of his claims.
1.

Applicable standards

Summary judgment is only appropriate when “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with affidavits, if any, show that there
is no genuine issue of material fact and that the moving party is entitled to a judgment as
a matter of law.” FED. R. CIV. P. 56(c) (emphasis added); see Woods v. DaimlerChrysler
Corp., 409 F.3d 984, 990 (8th Cir. 2005) (“Summary judgment is appropriate if viewing
the record in the light most favorable to the nonmoving party, there are no genuine issues
8

of material fact and the moving party is entitled to judgment as a matter of law.”); see
generally Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, “[t]he movant
‘bears the initial responsibility of informing the district court of the basis for its motion,’
and must identify ‘those portions of [the record] . . . which it believes demonstrate the
absence of a genuine issue of material fact.’” Torgerson v. City of Rochester, 643 F.3d
1031, 1042 (8th Cir. 2011) (en banc) (quoting Celotex, 477 U.S. at 323). In response,
“[t]he nonmovant ‘must do more than simply show that there is some metaphysical doubt
as to the material facts,’ and must come forward with ‘specific facts showing that there
is a genuine issue for trial.’” Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586–87 (1986)).
When the parties have met their burdens, the district judge’s task is as follows:
“On a motion for summary judgment, ‘facts must be viewed
in the light most favorable to the nonmoving party only if
there is a genuine dispute as to those facts.’” Ricci v.
DeStefano, ––– U.S. ––––, 129 S. Ct. 2658, 2677, 174 L.
Ed. 2d 490 (2009) quoting Scott v. Harris, 550 U.S. 372,
380, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007) (internal
quotations omitted). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences
from the facts are jury functions, not those of a judge.”
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
150, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000), quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.
Ct. 2505, 91 L. Ed. 2d 202 (1986). . . . . “‘Where the record
taken as a whole could not lead a rational trier of fact to find
for the nonmoving party, there is no genuine issue for trial.’”
Ricci, 129 S. Ct. at 2677, quoting Matsushita, 475 U.S. at
587, 106 S. Ct. 1348.
Torgerson, 643 F.3d at 1042-43.

Summary judgment is particularly appropriate,

however, when only questions of law are involved, rather than factual issues that may or
9

may not be subject to genuine dispute. See, e.g., Cremona v. R.S. Bacon Veneer Co.,
433 F.3d 617, 620 (8th Cir. 2006).
2.

Application of the standards

I find that Herbst has satisfied his burden in resisting summary judgment by
pointing to evidence generating genuine issues of material fact on his claims.

See

Torgerson, 643 F.3d at 1042. This is so, for example, because my denial of Givaudan’s
challenges to expert opinions means that Herbst is not lacking necessary expert opinions
to support some of his claims. Also, while Iowa does not recognize a strict liability claim
for a design defect, see, e.g., Scott v. Dutton-Lainson Co., 774 N.W.2d 501, 504 (Iowa
2009), it most certainly recognizes design defect claims without designating them either
“strict liability” or “negligence,” Wright v. Brooke Group Ltd., 652 N.W.2d 159, 169
(Iowa 2002), and Herbst has pointed to evidence to raise a jury question on such a claim.
Looking at the evidence in the record, rather than Givaudan’s characterizations of that
evidence, a rational juror could conclude that Givaudan or its predecessor knew or should
have known while Herbst was still working at American Popcorn that a warning was
required for diacetyl, but Givaudan failed to provide such a warning. See Olson v.
Prosoco, Inc., 522 N.W.2d 284, 289–290 (Iowa 1994). The same examination of the
evidence shows that Herbst has generated genuine issues of material fact on his other
claims and his prayer for punitive damages, as well.
These conclusions are offered with the caveat that I likely would not find for
Herbst, if I were the trier of fact, and I would not do so for many of the reasons that
Givaudan has asserted. Nevertheless, it is black letter law that, at summary judgment,
“a court ‘should not weigh the evidence, make credibility determinations, or attempt to
determine the truth of the matter.’” Leonetti’s Frozen Foods, Inc. v. Rew Mktg., Inc.,
887 F.3d 438, 442 (8th Cir. 2018) (quoting Quick v. Donaldson Co., 90 F.3d 1372,
1376–77 (8th Cir. 1996), in turn citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
10

249 (1986)). Rather, I must determine whether there are genuine issues of material fact
for trial. Id. There are many such genuine issues of material fact on the record presented,
here, making summary judgment inappropriate.
Givaudan’s Motion For Summary Judgment On All Claims is denied.
III.

CONCLUSION

Upon the foregoing,
1.

Givaudan’s September 4, 2018, First Daubert Motion To Exclude General

Causation Testimony By Plaintiff’s Expert (docket no. 142), relating to Dr. Robert
Harrison, is denied;
2.

Givaudan’s September 4, 2018, Second Daubert Motion To Exclude The

Testimony And Opinions Of Charles Pue, M.D. (Plaintiff’s Proffered Expert On
Plaintiff’s Alleged Exposures To Diacetyl And Specific Causation) (docket no. 146) is
denied;
3.

Givaudan’s September 4, 2018, Third Daubert Motion To Exclude

Warnings Testimony And Opinions By Plaintiff’s Expert (docket no. 149), again relating
to Dr. Robert Harrison, is denied; and
4.

Givaudan’s September 4, 2018, Motion For Summary Judgment As To All

Claims (docket no. 150) is denied.
IT IS SO ORDERED.
DATED this 3rd day of December, 2018.

______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA

11