Barnette et al v. Grizzly Processing, LLC et al
Filing
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MEMORANDUM OPINION & ORDER: dfts' motions in limine 169 and 170 are GRANTED. Signed by Judge Amul R. Thapar on 1/31/2012. (RKT) cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
PIKEVILLE
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Plaintiffs,
Civil No. 10-77-ART
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v.
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MEMORANDUM OPINION
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GRIZZLY PROCESSING, LLC, et al.,
& ORDER
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Defendants.
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*** *** *** ***
SUSAN BARNETTE, et al.,
―I am afraid that I rather give myself away when I explain,‖ said Sherlock Holmes to
his companion. ―Results without causes are much more impressive.‖1 Despite this motto,
whenever Watson invariably pushed him for an explanation, Holmes would confess his
methodology, identifying each premise, assumption, and inference that led to his conclusion.
Similarly, an expert must be able to identify his methodology and its underlying premises
and assumptions. If he fails to do so, he may not testify in court. Here, Jack Sparado‘s
methodology fails to meet the requisite standard.
Thus, the Court must grant Grizzly
Processing and Frasure Creek‘s Daubert motions.
BACKGROUND
The Plaintiffs in this case all live near a coal screening plant in Banner, Kentucky (the
―Banner Plant‖). The Plaintiffs claim that, starting in 2006, coal dust and noise from the
Banner Plant began to interfere with their ability to use and enjoy their residences. R. 17 at
7. So the Plaintiffs sued the two companies that have operated the Banner Plant since the
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Sir Arthur Conan Doyle, The Stockbroker’s Clerk, in The Memoirs of Sherlock Holmes 363 (1893).
problems allegedly began: Grizzly Processing, LLC, which operated the plant from April
2007 to April 2008, and Frasure Creek Mining, LLC, which has operated the plant since
April 2008. Id. After two rounds of summary judgment, R. 153 (order partly granting and
partly denying summary judgment); R. 165 (order partly granting and partly denying the
defendants‘ motion to amend the Court‘s summary judgment order), the Plaintiffs were left
standing with assault and battery claims for nominal damages, trespass claims, and nuisance
claims, accord Bellwether Information Chart, R. 168-1.
This suit was not the first one filed against Grizzly and Frasure Creek by residents
living near the Banner Plant. In 2007, another set of plaintiffs sued both of these defendants
in a companion case in Kentucky state court, Crisp v. Grizzly Processing, LLC & Frasure
Creek Mining, LLC, No. 07-CI-1384 (Floyd Cir. Ct. 2007). Counsel for both the Crisp and
Barnette Plaintiffs retained Jack Spadaro as an expert witness. R. 170-2 at 4 (Dep. at 15–16).
Although Spadaro‘s expert testimony was not needed for the Crisp litigation because the
parties settled, R. 63-6, the Barnette Plaintiffs are headed to trial and intend to offer Spadaro
as an expert.
A longtime resident of the world of coal mining and regulation, Spadaro began his
career in 1966 as a mining engineer at the U.S. Bureau of Mines (the predecessor to the Mine
Safety & Health Administration, or ―MSHA‖) and at a private company in West Virginia.
R. 170-2 at 2 (Dep. at 5–6). After teaching mine design and coal preparation at West
Virginia University as a professor and research engineer, Spadaro worked in mine safety
inspection and regulation for various state governments in Appalachia. R. 170-2 at 2 (Dep.
at 6–7). He continued his governmental work at the federal level and began the first of his
nearly forty testimonies as an expert witness in 1982. R. 170-2 at 2 (Dep. at 7–8). In 1996,
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Spadaro eventually returned to the MSHA as the deputy director of its National Mine Health
& Safety Academy and became its director two years later. R. 170-2 at 2 (Dep. at 8). In this
capacity, he oversaw and ran the ―principal training facility for all federal [MSHA]
inspectors.‖ Crisp Disclosures, R. 146-2 at 6 (Spadaro‘s Resume at 1). Since resigning in
2004, he has served as a ―consultant and expert witness‖ in cases throughout the country.
R. 170-2 at 3 (Dep. at 9).
In this case, Spadaro intends to testify that Grizzly and Frasure Creek were violating
the law ―everyday [sic] that they operated for two years‖ and therefore their fourteen
citations represent an ―underassessment‖ of their actual violations from 2006 to 2008.2
R. 173 at 12. In coming to this conclusion, the ―primary thing‖ that Spadaro reviewed was
the Banner Plant‘s history of citations. R. 164-5 at 15 (Dep. at 25). He also reviewed the
applicable federal and state regulations, the statements of the Kentucky regulator who issued
some of the Banner Plant‘s citations, and the statements of a former Frasure Creek utility
worker, Lloyd Lane, about his observations of the Plant while working there. R. 164-5 at 29
(Dep. at 78). Spadaro made only one visit to the area surrounding the Banner Plant on
October 27, 2009, and never inspected the Plant‘s operations. R. 170-2 at 19 (Dep. at 74–
75). During this surprise visit to the Plant, he observed several violations unrelated to the
Plaintiffs‘ claims, but did not see any dust emanating from the Plant and escaping from its
property—otherwise known as ―fugitive dust.‖ R. 170-2 at 20 (Dep. at 77).
Spadaro‘s proposed opinion prompted Grizzly and Frasure Creek to file motions in
limine to exclude Spadaro as an expert witness. R. 169; R. 170. At the November 2, 2011,
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Although Spadaro initially offered seven distinct expert opinions for this case, the Plaintiffs have voluntarily
withdrawn all but the one at issue herein. R. 173 at 10.
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telephone conference, the parties agreed that a Daubert hearing was unnecessary to resolve
these motions. In light of that agreement plus Spadaro‘s multiple depositions on this subject,
R. 173-1 (Nov. 4, 2009), R. 170-2 (Oct. 6, 2011), and the full panoply of briefing before the
Court, there is more than an ―adequate basis‖ from which to resolve the motions in limine
without a Daubert hearing. Nelson v. Tenn. Gas Pipeline Co., 243 F.3d 244, 249 (6th Cir.
2001) (citing Greenwell v. Boatwright, 184 F.3d 492, 498 (6th Cir. 1999)) (holding that
whether to hold a Daubert hearing is within a district court‘s discretion, at least where the
issue is ―fully briefed‖ and there is an ―adequate basis‖ in the record ―from which to
determine the reliability and validity‖ of the expert testimony). Therefore, these motions are
now ripe for decision.
DISCUSSION
There is no question that Sparado‘s resume sparkles. But a glittery resume and an
impressive career do not necessarily open the door to federal court. Rather, courts must
ensure that an expert‘s opinion is reliable. To do so, courts turn to Federal Rule of Evidence
702. Under Rule 702, a court should only admit relevant expert testimony if ―(1) the
testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied the principles and methods reliably
to the facts of the case.‖ Fed. R. Evid. 702.
Grizzly and Frasure Creek claim, among other things, that Spadaro‘s opinion is
unreliable because his methodology ―falls far short‖ of what is required in the field. R. 179
at 5. In the face of such a challenge, the Court must perform its ―gatekeeping‖ function and
ensure that the expert‘s testimony ―rests on a reliable foundation.‖ Conwood Co. v. U.S.
Tobacco Co., 290 F.3d 768, 792 (6th Cir. 2002) (internal citation and quotation marks
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omitted).
In the case of scientific expert testimony, courts often look to whether the
methodology (1) has been tested and subjected to peer review, (2) has a known error rate,
and (3) is generally accepted. Id. at 792 (citations omitted). And as the parties offering the
expert testimony, the Plaintiffs have the burden of showing, by a preponderance of the
evidence, that Spadaro‘s testimony is admissible. Daubert, 509 U.S. at 592 n.10. They have
fallen short.
1.
Spadaro has not relied on “sufficient facts or data” in forming his opinion.
First, Sparado‘s opinion is not based on ―sufficient facts or data.‖
conclusion of under-assessment is based primarily on Layne‘s testimony.
Sparado‘s
Layne told
Spadaro that there were ―daily problems with dust escaping the coal processing area and
going into the surrounding communities.‖ R. 173-1 at 12 (Dep. at 78). From Layne‘s
observations, Sparado concludes that violations should have been issued ―everyday [sic] that
they operated for two years.‖ Id.
But, how does Spadaro get from Point A to Point B? Did he analyze the Plant‘s
operations like state regulators would so he could opine on whether a violation occurred?
No. The Plaintiffs admit that the data Spadaro has reviewed is not what state and federal
mining regulators typically rely on in determining whether a violation has occurred. R. 173
at 19 (stating that Spadaro‘s approach is ―not necessarily the traditional one that state and
federal regulators use in their jobs‖); see also Kuhmo Tire Co., Ltd. v. Carmichael, 526 U.S.
137, 152 (1999) (holding that, when determining the reliability of an expert, courts should
look to whether the expert employs the same ―rigor‖ as an ―expert in the relevant field‖).
Indeed, Spadaro explains that the process used to determine whether there is a violation
requires a regulator to ―do an investigation‖ and conduct a ―visual inspection‖ of the plant‘s
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―entire operations.‖ R. 169-5 at 47 (Dep. at 91). So did Sparado ever conduct regular visual
inspections of the Plant over those two years to justify his findings? No. Did he perform
even a few inspections of the Plant‘s operations and explain how he extrapolated long-term,
daily violations from those inspections? No. Spadaro has not inspected the Banner Plant‘s
operations at all, let alone during the two years in which he claims that violations occurred
every day. R. 170-2 at 23 (Dep. at 91). Instead, he merely parrots Layne‘s conclusion and
adds the labels ―underassessment‖ and ―violation‖ to it.
Furthermore, Spadaro does not translate any of Layne‘s observations into specific
violations that relate to fugitive dust emissions. Without any explicit chain of reasoning,
Layne‘s sporadic observations are a speculative foundation on which to build a conclusion of
two years‘ worth of daily fugitive dust violations. To be sure, it is true that other witnesses,
such as Michael Varnadore, intend to testify about their observations of fugitive dust from
the Banner Plant. R. 173 at 13–14. But Spadaro never reviewed Varnadore‘s or any other
witnesses‘ testimony—besides that of Lloyd Layne and Steve Hall—in forming his opinion.
See R. 164-5 at 29 (Spadaro Dep. at 78).
Ultimately, the Plaintiffs do not explain why Spadaro‘s dataset, which would not be
enough for a regulator to conclude that there was a violation, is nonetheless sufficient for
testifying in a courtroom. A trial is ―not the place for scientific guesswork, even of the
inspired sort.‖ Tamraz, 620 F.3d at 671 (quoting Rosen v. Ciba-Geigy Corp., 78 F.3d 316,
319 (7th Cir. 1996)). ―‗[N]o matter how good‘ experts‘ ‗credentials‘ may be, they are ‗not
permitted to speculate.‘‖ Id. (quoting Goebel v. Denver & Rio Grande W. R.R. Co., 215 F.3d
1083, 1088 (10th Cir. 2000)).
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2.
Spadaro’s opinion is not based on a reliable methodology.
Second, Spadaro‘s leap from data to theory does not represent a reliable methodology.
The Plaintiffs explain that Spadaro reached his conclusion by applying his ―research of the
evidence and his experience and knowledge of preparation [coal] plant operations.‖ R. 173
at 11. But Spadaro‘s primary source of data for his conclusion—the Banner Plant‘s citation
history—and state regulator Steve Hall‘s testimony about the citations are about violations
for which the Banner Plant was actually cited. And his own visit to the Banner Plant did not
reveal any violations related to the fugitive dust underlying the Plaintiffs‘ claims. R. 170-2
at 21 (Dep. at 83). Spadaro does not explain how he infers two years‘ worth of daily
violations from the fourteen citations the Banner Plant received, most of which were not
related to fugitive dust. See generally Compendium of Citations, R. 169-9.
Nor do Layne‘s specific observations transform Spadaro‘s methodology into anything
more than speculation. The Kentucky Fugitive Emissions Regulation makes it a violation for
a person to ―cause or permit the discharge of visible fugitive dust beyond the lot line of the
property on which the emissions originate.‖ 401 Ky. Admin. Regs. 63:010 § 3(2) (2011).
Layne‘s observations of dust, however, fall into two limited categories: (1) dust he observed
while working within the Plant‘s property and thus not beyond the ―lot line,‖ see, e.g.,
R. 180-5 at 14 (Dep. at 52–53) (describing that the dust was ―so heavy‖ ―on the plant
property‖ that ―you couldn‘t see a truck‖ that was being loaded); R. 180-5 at 14 (Dep. at 54)
(describing the dust as ―so heavy that you . . . would have to stop if you were [working] on a
piece of equipment‖ within the Banner Plant), and (2) settled dust that he observed in the
town of Allen, see, e.g., R. 180-5 at 3–4 (Dep. at 8–12) (describing settled dust on cars,
houses, and other property through the community). None of Layne‘s observations establish
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that dust originated from the Banner Plant and crossed the lot line into the community. And
Spadaro does not explain how he infers that the dust Layne observed within the Banner Plant
actually crossed the lot line or that the settled dust Layne observed in the community
originated from the Banner Plant in violation of the Fugitive Dust Regulation—let alone that
such an occurrence happened every day for two years. Cf. Steve Hall Dep., R. 173-3 at 4–5
(Dep. at 9–10) (testifying that, to violate the Fugitive Dust Regulation, the dust must migrate
from a mining site by ―leav[ing] a croppy white line‖ around the mining site).
It is true, as the Plaintiffs indicate, that an expert is permitted to ―tie observations to
conclusion through the use of . . . generalized truths‖ that he has learned through his
specialized experience.
Kumho Tire, 526 U.S. at 152–53; see also Fed. R. Evid. 702
advisory committee‘s note (2000) (―In certain fields, experience is the predominant, if not
sole, basis for a great deal of reliable expert testimony.‖).
But here, Spadaro neither
identifies what generalized truths serve as his unstated premises nor explains what inferences
he draws from those generalized truths based on the circumstances of this case. In short, he
does not explain why the data he has reviewed leads him to suspect that Grizzly and Frasure
Creek committed other violations related to fugitive dust. Indeed, if an expert like Spadaro
relies ―solely or primarily on experience, then the witness must explain how that experience
leads to the conclusion reached . . . and how that experience is reliably applied to the facts.‖
Thomas v. City of Chattanooga, 398 F.3d 426, 432 (6th Cir. 2005) (quoting Fed. R. Evid.
702 advisory committee‘s note). For example, the Sixth Circuit has held that, even when an
expert identifies the generalizations and inferences on which he bases his opinion, a district
court abuses its discretion by admitting the testimony when those generalizations and
inferences are too speculative and attenuated to support his conclusion. Tamraz, 620 F.3d at
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671 (holding that a doctor‘s conclusion that manganese exposure caused the plaintiff‘s
Parkinson‘s Disease was inadmissible because the doctor‘s differential etiology did not
reliably show how he ruled in or ruled out various causes of the disease). In this case,
Spadaro has not even done that.
Spadaro‘s conclusion might be a ―plausible hypothesis‖ and ―[i]t may even be right.‖
Id. at 670. But its accuracy is irrelevant to its admissibility. Id. (citing Daubert, 509 U.S. at
595) (―The important thing is not that experts reach the right conclusion, but that they reach
it via a sound methodology.‖). Here, the Plaintiffs simply cannot shoulder their burden of
closing the ―analytical gap between the data and the opinion proffered.‖ Gen. Elec. Co. v.
Joiner, 522 U.S. 136, 146 (1997).
Imagine that the Court permitted Spadaro to testify. How are Grizzly and Frasure
Creek supposed to test Spadaro‘s methodology? For example, had he observed the dust in
the plant, performed some sort of scientific test on the dust in the community, and then
explained how they were the same—and thus there was a violation—there would be a way to
test his methodology. Indeed, had he simply explained the steps he took to go from Point A
to Point B, there might be a way to test his methodology. Here, he has done neither. Rather,
Sparado is not using a methodology at all; he is simply saying that if there was dust in the
plant and dust in the community, there must have been a violation every day. This is not a
methodology. It does not explain why the dust could not have come from elsewhere. It does
not explain the magnitude of the violations. Given his lack of methodology, there is no
reasonable way for Grizzly and Frasure Creek to test the strength of Spadaro‘s opinion by
cross-examination. Accord Greenwell, 184 F.3d at 502 (―Judges after Turpin, Daubert,
Kumho Tire, and Smelser may no longer indulge in this assumption that an expert‘s
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conclusions and reasoning can all be corrected by cross-examination as in the past.‖).
Therefore, permitting Spadaro to testify would circumvent ―vigorous cross-examination‖ and
the ―presentation of contrary evidence‖—the availability of which the Daubert Court heavily
relied upon in setting out its more ―flexible‖ test for admitting expert testimony. United
States v. Bonds, 12 F.3d 540, 565 (6th Cir. 1993) (quoting Daubert, 509 U.S. at 594, 596).
3.
Grizzly and Frasure Creek’s Other Arguments
Grizzly and Frasure Creek also argue that Spadaro‘s opinion is irrelevant because it
would not be helpful to the jury, R. 179 at 2, and that he is so biased that ―he is incapable of
forming an objective opinion in a case involving a coal company,‖ R. 169-1 at 1. Because
the Court agrees that Spadaro‘s opinion is based on insufficient data and an unreliable
methodology, the Court does not need to reach these additional arguments.
CONCLUSION
This Court‘s exclusion of Spadaro‘s testimony should not be taken as a criticism of
Mr. Spadaro. His credentials amply show that he is ―intelligent and knowledgeable about the
subject matter—immeasurably more so than [this Court].‖ Tamraz, 620 F.3d at 677. But
this Court must nonetheless determine whether his testimony is ―genuinely scientific, as
distinct from being . . . speculation offered by a genuine scientist.‖ Id. (quoting Rosen, 78
F.3d at 318). In this case, it is the latter.
Accordingly, it is ORDERED that the defendants‘ motions in limine, R. 169 and 170,
are GRANTED.
This the 31st day of January, 2012.
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