Smith et al v. Union Carbide Corporation et al

Filing 126

ORDER & REASONS: denying 63 Motion in Limine to Preclude Defendant's Expert Witness William Dyson. Signed by Judge Carl Barbier on 2/11/15. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

SMITH ET AL.

CIVIL ACTION

VERSUS

NO: 13-6323

UNION CARBIDE
CORPORATION ET AL.

SECTION: “J” (5)

ORDER & REASONS
Before the Court is a Motion in Limine (Rec. Doc. 63)
filed by Plaintiff Miriam P. Smith, Defendant Union Carbide
Corporation (Union Carbide)’s opposition thereto (Rec. Doc.
82),

and

Plaintiff’s

reply.

(Rec.

Doc.

106)

Having

considered the parties' submissions, the record, and the
applicable law, the Court finds, for the reasons expressed
below, that the motion should be DENIED.
FACTS AND PROCEDURAL BACKGROUND
This
husband,

matter

arises
Hansen

Walter

from

the

Smith,

death

Jr.,

of

as

Plaintiff's

a

result

of

mesothelioma.1 Defendants Union Carbide, Ethyl Corporation,
and

Dow

Chemical

Company

are

property

owners

on

whose

premises Mr. Smith worked as a pipe insulator. As a union
member, Mr. Smith worked at many different premises for
brief periods of time. Relevant here, Mr. Smith worked at
Union
1

Carbide’s

facility

for

a

one

to

two

week

period

For a detailed presentation of the facts and procedural history in this
case, see the Court's orders dated December 3, 2013, (Rec. Doc. 24) and
October 1, 2014. (Rec. Doc. 109)

sometime between 1965 and 1970. To prevail against Union
Carbide, Plaintiff must prove that Mr. Smith’s exposure to
asbestos while working at Union Carbide’s premises was a
substantial

factor

Defendant

Union

Hygienist

in

William

causing

Carbide

his

injury.

retained

Dyson,

Consequently,

Certified

Ph.D.,

to

Industrial

conduct

a

dose

reconstruction assessment of Mr. Smith’s lifetime asbestos
exposure.

Dr.

Dyson

would

testify

to

“his

professional

opinion as to the estimated level of asbestos exposure Mr.
Smith allegedly sustained as a result of his time working
at the Union Carbide Taft facility.” (Rec. Doc. 82, p. 2)
Plaintiff
Preclude

filed

Defendant’s

the

instant

Expert

Motion

Witness

in

William

Limine
Dyson

to

(Rec.

Doc. 63) on August 25, 2014. Plaintiff seeks to have the
Court

preclude

William

Dyson

from

testifying

or,

alternatively, to preclude him from testifying as to any
specific asbestos exposure level with regard to Mr. Smith.
Id. at 19. Defendant Union Carbide opposed the motion on
September 16, 2014. (Rec. Doc. 82) Plaintiff replied on
September 30, 2014. (Rec. Doc. 106)
LEGAL STANDARD
Federal Rule of Evidence 702 provides that a witness
who

is

qualified

as

an

expert

may

testify

if:

(1)

the

expert's “specialized knowledge will help the trier of fact

2

to

understand

the

evidence

or

to

determine

a

fact

in

issue”; (2) the expert's testimony “is based on sufficient
facts or data”; (3) the expert's testimony “is the product
of reliable principles and methods”; and (4) the principles
and

methods

employed

by

the

expert

have

been

reliably

applied to the facts of the case. FED. R. EVID. 702. The
United

States

Merrell

Dow

Supreme

Court's

Pharmaceuticals,

decision

Inc.,

509

in

U.S.

Daubert
579

v.

(1993),

provides the analytical framework for determining whether
expert

testimony

is

admissible

under

Rule

702.

Both

scientific and nonscientific expert testimony are subject
to the Daubert framework, which requires trial courts to
make

a

preliminary

assessment

of

“whether

the

expert

testimony is both reliable and relevant.” Burleson v. Tex.
Dep't of Criminal Justice, 393 F.3d 577, 584 (5th Cir.
2004); see also Kumho Tire Co., Ltd. v. Carmichael, 526
U.S. 137, 147 (1999). When expert testimony is challenged
under Daubert, the party offering the expert's testimony
bears the burden of proving its reliability and relevance
by a preponderance of the evidence. Moore v. Ashland Chem.
Co., Inc., 151 F.3d 269, 276 (5th Cir. 1998).
The reliability of expert testimony “is determined by
assessing whether the reasoning or methodology underlying
the

testimony

is

scientifically

3

valid.”

Knight

v.

Kirby

Inland Marine Inc., 482 F.3d 347, 352 (5th Cir. 2007). A
number

of

nonexclusive

factors

may

be

relevant

to

the

reliability analysis, including: (1) whether the technique
at issue has been tested, (2) whether the technique has
been

subjected

to

peer

review

and

publication,

(3)

the

potential error rate, (4) the existence and maintenance of
standards controlling the technique's operation, and (5)
whether the technique is generally accepted in the relevant
scientific

community.

Burleson,

393

F.3d

at

584.

The

reliability inquiry must remain flexible, however, as “not
every Daubert factor will be applicable in every situation;
and a court has discretion to consider other factors it
deems relevant.” Guy v. Crown Equip. Corp., 394 F.3d 320,
325 (5th Cir. 2004); see also Runnels v. Tex. Children's
Hosp. Select Plan, 167 F. App'x. 377, 381 (5th Cir. 2006)
(“A trial judge has considerable leeway in determining how
to test an expert's reliability.”) (internal citations and
quotations omitted).
With

respect

to

the

relevancy

prong,

the

proposed

expert testimony must be relevant “not simply in the way
all testimony must be relevant [pursuant to Rule 402], but
also in the sense that the expert's proposed opinion would
assist the trier of fact to understand or determine a fact
in issue.” Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581,

4

584 (5th Cir. 2003). Ultimately, the Court should not allow
its

“gatekeeper”

role

to

supersede

the

traditional

adversary system, or the jury's place within that system.
Scordill v. Louisville Ladder Group, L.L.C., No. 02–2565,
2003 WL 22427981, at *3 (E.D. La. Oct. 24, 2003). As the
court

in

Daubert

noted,

“vigorous

cross-examination,

presentation of contrary evidence, and careful instruction
on the burden of proof are the traditional and appropriate
means of attacking shaky but admissible evidence.” Daubert,
509 U.S. at 596. As a general rule, questions relating to
the basis and sources of an expert's opinion rather than
its

admissibility

should

be

left

for

the

jury's

consideration. United States v. 14.38 Acres of Land, More
or Less Situated in Leflore Cnty., Miss., 80 F.3d 1074,
1077 (5th Cir. 1996) (citing Viterbo v. Dow Chem. Co., 826
F.2d 420, 422 (5th Cir. 1987)).
PARTIES’ ARGUMENTS AND DISCUSSION
Plaintiff

seeks

to

exclude

Dr.

Dyson’s

expert

testimony on the grounds that it does not meet the criteria
for

expert

Evidence

testimony
702

and

as

set

703;

forth
Daubert

in

Federal
v.

Rules

Merrell

of
Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993); and State v.
Foret, 628 So. 2d 1116 (La. 1993). Plaintiff begins by
suggesting that Dr. Dyson is a hired gun who makes his

5

living by serving as an expert witness for defendants in
asbestos litigation. (Rec. Doc. 63-1, pp. 2-7) Plaintiff
then describes how little information Dr. Dyson required to
reach his opinion that Mr. Smith’s work at Union Carbide
contributed
developing

only

a

de

minimis

mesothelioma.

Id.

increase
at

in

7-10.

his

Next,

risk

of

Plaintiff

argues that Dr. Dyson’s testimony fails to satisfy any of
the

four

criteria

Plaintiffs

set

emphasize

forth

that

in

Dr.

Daubert.
Dyson’s

Id.

at

methods

10-16.

are

not

science and constitute “guesses” or “ESP.” (Rec. Docs. 631, 106) Finally, Plaintiff reviews opinions of courts that
have

excluded

dose

reconstruction

testimony

such

as

Dr.

Dr.

Dyson’s

Dyson’s. (Rec. Doc. 63-1, pp. 16-19)
Union
testimony
should

Carbide
is

both

counter

argues

relevant

and

be

admitted.

(Rec.

deposition

testimony

regarding

that

reliable

Doc.

82)
Mr.

Dr.

and,

therefore,

Dyson

Smith’s

reviewed

exposure

at

Union Carbide’s facility and conducted site visits at a
number of the facilities where Mr. Smith worked, including
the

Union

applied

Carbide

dose

facility.

reconstruction

Id.

at

6.

methodology

Dr.
to

Dyson
reach

then
the

conclusion that the one to two weeks Mr. Smith worked at
Union

Carbide’s

facility

“presented

only

a

de

minimis

contribution to the risk of developing mesothelioma.” Id.

6

at 7. This dose reconstruction assessment methodology has
been featured in peer-reviewed articles and is accepted and
employed by federal agencies. Id. at 8-19. Union Carbide
generally

argues

employing

dose

that

it

should

reconstruction

not

be

assessments

precluded
merely

from

because

the underlying data was not taken from the actual sites of
the alleged exposure; if such data were available, Union
Carbide would employ it. Id. at 20-25. Plaintiff should not
be permitted to use her own lack of evidence as a weapon to
prevent

Union

Carbide

from

presenting

evidence

of

Mr.

Smith’s lifetime exposure to asbestos. Id.
Plaintiff generally challenges the reliability of Dr.
Dyson’s

testimony.

opposition,

the

After
Court

reviewing

Union

nevertheless

Carbide’s

believes

dose

reconstruction assessment methodologies to be sufficiently
established and accepted to withstand the Daubert analysis.
The Court understands Plaintiff’s concerns regarding the
use of the methodology here to reconstruct a particular
person’s dose rather than to examine a population’s dose
response
Plaintiff
thorough

more

generally.

adequately
cross

may

However,

the

address

such

examination.

Because

Court

finds

concerns

the

Court

that

through
further

concludes that Dr. Dyson’s testimony is relevant, the Court
will not preclude Dr. Dyson from testifying.

7

Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion in Limine
(Rec. Doc. 63) is DENIED.
New

Orleans,

Louisiana

this

11th

day

of

February,

2015.

CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

8