Bell v. Foster Wheeler Energy Corporation, et al
ORDER AND REASONS granting 351 MOTION for Leave to File Reply; granting in part, denying in part 207 MOTION to Exclude Gasket and Packing Studies Conducted by or Relied Upon by Dr. James Millette and Any Exposure Testimony Based Thereon. Signed by Judge Lance M Africk on 10/11/2016.(blg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WILLIAM C. BELL ET AL.
FOSTER WHEELER ENERGY
CORP. ET AL.
ORDER AND REASONS
Before the Court is a motion 1 in limine filed by the pump and valve defendants
(“defendants”) to exclude certain studies and videos produced by Dr. James Millette,
as well as a motion2 to file a reply in support of their motion. For the following
reasons, the motion to file a reply is granted, and the motion in limine is granted in
part and denied in part.
STANDARD OF LAW
Rule 702 of the Federal Rules of Evidence governs the admissibility of expert
witness testimony. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 588
(1993); United States v. Hitt, 473 F.3d 146, 148 (5th Cir. 2006). Rule 702 provides:
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
(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
(b) the testimony is based on sufficient facts or data;
See R. Doc. No. 207.
See R. Doc. No. 351.
(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.
“To qualify as an expert, ‘the witness must have such knowledge or experience in [his]
field or calling as to make it appear that his opinion or inference will probably aid the
trier in his search for truth.’” United States v. Hicks, 389 F.3d 514, 524 (5th Cir. 2004)
(quoting United States v. Bourgeois, 950 F.2d 980, 987 (5th Cir. 1992)). Additionally,
Rule 702 states that an expert may be qualified based on “knowledge, skill,
experience, training, or education.” Hicks, 389 F.3d at 524; see also Kumho Tire Co.,
Ltd. v. Carmichael, 526 U.S. 137, 147 (1999) (discussing witnesses whose expertise is
based purely on experience). “A district court should refuse to allow an expert witness
to testify if it finds that the witness is not qualified to testify in a particular field or
on a given subject.” Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009) (quoting Wilson
v. Woods, 163 F.3d 935, 937 (5th Cir. 1999)). However, “Rule 702 does not mandate
that an expert be highly qualified in order to testify about a given issue. Differences
in expertise bear chiefly on the weight to be assigned to the testimony by the trier of
fact, not its admissibility.” Id.; see Daubert, 509 U.S. at 596.
The U.S. Supreme Court’s decision in Daubert “provides the analytical
framework for determining whether expert testimony is admissible under Rule 702.”
Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243 (5th Cir. 2002). Both scientific and
nonscientific expert testimony is subject to the Daubert framework, which requires
trial courts to make a preliminary assessment to “determine 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 Kumho Tire, 526 U.S. at 147.
A number of nonexclusive factors may be relevant to the reliability inquiry,
including: (1) whether the technique 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 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.’”). “Both the determination of
reliability itself and the factors taken into account are left to the discretion of the
district court consistent with its gatekeeping function under [Rule] 702.” Munoz v.
Orr, 200 F.3d 291, 301 (5th Cir. 2000).
With respect to determining the relevancy of an expert’s testimony pursuant
to Rule 702 and Daubert, the proposed 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, 584 (5th Cir. 2003).
“There is no more certain test for determining when experts may be used than the
common sense inquiry whether the untrained layman would be qualified to determine
intelligently and to the best degree the particular issue without enlightenment from
those having a specialized understanding of the subject involved in the dispute.”
Vogler v. Blackmore, 352 F.3d 150, 156 n.5 (5th Cir. 2003) (quoting Fed. R. Evid. 702
advisory committee’s note).
Defendants challenge two aspects of Dr. Millette’s proposed testimony. 3 First,
defendants argue that some—but not all—of the academic studies that Dr. Millette
relies on are not reliable and do not fit the facts of the case, and thus he should be
precluded from discussing them at trial. Second, defendants argue that Dr. Millette
should not be able to display any videos he created that rely on the “Tyndall Lighting”
Reliability and Fit of Studies
Both the reliability and the fit prongs of the Daubert examination require that
an expert’s analysis be reasonably connected to the facts of a case. See, e.g., Moore v.
Int’l Paint, L.L.C., 547 F. App’x 513, 515 (5th Cir. 2013) (reliability); In re Paoli R.R.
Yard PCB Litig., 34 F.3d 717, 742-43 (3d Cir. 1994) (fit). 4 Defendants argue that any
Defendants’ motion additionally asserts that Dr. Millette’s testimony should be
excluded because “Dr. Millette contends that each exposure to asbestos regardless of
fiber type . . . increases the risk [of] developing mesothelioma.” R. Doc. No. 207-1, at
8. However, Dr. Millette does not claim to offer that opinion. See R. Doc. No. 343-9,
at 32:11-13 (“I’m not going to have any opinions about risk or various asbestos types
and what their hazards might be.”). Accordingly, the Court does not address the
4 The fit prong of the Daubert analysis requires that there be “a valid scientific
connection to the pertinent inquiry as a precondition to admissibility.” In re Paoli,
testimony by Dr. Millette as to activities that Mr. Bell admittedly did not perform on
a ship is unreliable and does not “fit” the case. The Court is unconvinced, on these
facts, that any testimony by Dr. Millette as to not-exactly-on-point studies would
The requirement that expert testimony be reliable and fit the facts of the case
does not require that expert testimony be relevant to every single issue in the case.
Even assuming arguendo that defendants are right and that some of the studies are
irrelevant to Mr. Bell’s specific exposures, that evidence nonetheless remains of value
to the jury when evaluating the probative value of the general studies of the
prevalence of mesothelioma in Navy machinists. The same is true of defendants’
argument that reference to some of the studies should be precluded because those
studies did not take place in environments that were substantially similar to Mr.
Bell’s working quarters. Just as it is acceptable to introduce evidence examining
whether a chemical causes cancers in animals when examining whether that
chemical causes cancer in humans because the animal studies would be “of some
use . . . in eliminating those chemicals not likely to cause disease in humans,” In re
Paoli, 35 F.3d at 781, the Court believes that the studies conducted in more confined
working environments will nonetheless be of “some use” to the jury in setting the
upper-bounds of Mr. Bell’s possible exposure to asbestos from any one particular
34 F.3d at 743. Satisfaction of the fit prong ensures that the testimony of the expert
will assist the trier of fact.
In addition, defendants’ own arguments demonstrate why there is little need
to protect the jury from these studies: after all, if “common sense tells us that scraping
a gasket with a hand scraper . . . is an entirely different activity than scraping gaskets
with power scrapers,” 5 then there is little-to-no risk that such testimony will confuse
the jury. Further, defendants can use cross examination to highlight that Mr. Bell
did not perform all of the activities examined in some of the studies cited by Dr.
Accordingly, the Court denies the majority of defendants’ Daubert
challenge to Dr. Millette’s proposed testimony.
Notwithstanding the Court’s approval of most of Dr. Millette’s proposed
testimony, the Court does have one remaining concern. Though the Court believes
that Dr. Millette can testify as to laboratory studies that were not substantially
similar to Mr. Bell’s working environments, the Court will require that (1) those
studies be put in the proper context, and (2) the plaintiffs will not be able to use Dr.
Millette’s testimony as a subterfuge to speculate as to Mr. Bell’s working conditions.
It is neither reliable nor permissible for Dr. Millette to testify—as he suggests in his
expert report—that the studies conducted in wholly disparate working environments
R. Doc. No. 351-2, at 4.
The Court also rejects defendants’ argument that the studies are unduly prejudicial
because they note which specific brand of valve that they are testing. R. Doc. 207-1,
at 2. That information is undeniably relevant, and it strains credulity to suggest that
providing it to the jury is somehow unjust or unfair. Indeed, given defendants’ other
objections that some of Dr. Millette’s studies are insufficiently related to Mr. Bell’s
specific exposures to defendants’ products, defendants’ claim of unfair prejudice when
those studies specifically address defendants’ products appears to be little more than
a creative attempt to use the Federal Rules of Evidence to play “heads I win, tails you
represents the likely exposure Mr. Bell had from performing a particular activity on
a ship. See, e.g., Quirin v. Lorillard Tobacco Co., No. 13-2633, 2014 WL 904072, at
*4 (N.D. Ill. 2014) (“Based on these estimates, Dr. Millette will testify as to what type
of exposure Mr. Quirin could have had under different assumed conditions. As long
as these opinions are grounded in Dr. Millette’s own studies and relevant research he
has reviewed, and as long as Dr. Millette does not speculate about facts with which he
is unfamiliar, such as the frequency and duration of exposure Mr. Quirin actually
experienced, the testimony is admissible.” (emphasis added)). Accordingly, the Court
will grant the defendants’ motion insofar as Dr. Millette cannot testify that a
particular study represents Mr. Bell’s likely exposure to asbestos until—at the very
least—making a threshold showing in a Daubert hearing that that study took place
under conditions substantially similar to Mr. Bell’s working conditions.
II. Tyndall Lighting Videos
Defendants also challenge plaintiffs’ use as demonstrative exhibits7 certain
videos produced by Dr. Millette using “Tyndall Lighting.” Defendants’ challenge is
premature. How exactly plaintiffs propose to use the videos and the representations
that plaintiffs will make in conjunction with the videos affects the legal analysis that
this Court is supposed to apply. Therefore, the Court will deny defendants’ challenge
for now, but defendants remain free to timely challenge the admissibility of the videos
under the Federal Rules of Evidence in pre-trial briefing.
See R. Doc. No. 343, at 11.
IT IS ORDERED that defendants’ motion in limine is GRANTED IN PART
and DENIED IN PART.
IT IS FURTHER ORDERED that defendants’ motion to file a reply is
New Orleans, Louisiana, October 11, 2016.
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE
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