Dempster v. Lamorak Insurance Company, et al

Filing 249

ORDER AND REASONS GRANTING 52 Daubert Motion to Preclude the Testimony of Robert J. Norrell, as set forth in document. The proposed expert testimony of Robert J. Norrell, Ph.D. is excluded. Signed by Chief Judge Nannette Jolivette Brown on 9/11/2020. (jls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

CALLEN DEMPSTER et al.

CIVIL ACTION

VERSUS

NO. 20-95

LAMORAK INSURANCE CO. et al.

SECTION: “G”(1)

ORDER AND REASONS
In this litigation, Plaintiffs Tanna Faye Dempster, Steven Louis Dempster, Janet Dempster
Martinez, Marla Dempster Loupe, Callen Dempster, Jr., Annette Dempster Glad, and Barnett
Dempster’s (collectively, “Plaintiffs”) allege that Decedent Callen L. Dempster (“Decedent”) was
exposed to asbestos and asbestos-containing products that were designed, manufactured, sold,
and/or supplied by a number of Defendant companies while Decedent was employed by
Huntington Ingalls Incorporated (“Avondale”).1 Pending before the Court is Plaintiffs’ “Daubert
Motion to Preclude the Testimony of Robert J. Norrell.”2 Defendants Avondale, Albert L.
Bossier, Jr. (“Bossier”), and Lamorak Insurance Company (“Lamorak”) (collectively, the

1

See Rec. Doc. 1-2; Rec. Doc. 1-8. On August 6, 2020, Tanna Faye Dempster, Steven Louis Dempster,
Janet Dempster Martinez, Marla Dempster Loupe, Callen Louis Dempster, Jr., Annette Ruth Dempster Glad, and
Barnett Lynn Dempster were substituted as plaintiffs for Louise Ella Simon Dempster. Rec. Doc. 239. Plaintiffs
bring claims against Lamorak Insurance Company, Huntington Ingalls Inc., Albert Bossier, Jr., J. Melton Garrett,
Eagle, Inc., Bayer Cropscience, Inc., Foster-Wheeler LLC, General Electric Co., Hopeman Brothers, Inc., McCarty
Corporation, Taylor-Seidenbach, Inc., CBS Corporation, Uniroyal, Inc., International Paper Company, Houston
General Insurance Company, Berkshire Hathaway Specialty Insurance Company, Northwest Insurance Company,
United Stated Fidelity and Guaranty Company, Fist State Insurance Company, The American Insurance Company,
Louisiana Insurance Guaranty Association, and the Traveler’s Indemnity Company. Rec Doc. 1-8 at 2–3.
2

Rec. Doc. 52.

1

“Avondale Interests”) oppose the motion.3 Considering the motion, the memoranda in support
and in opposition, the record, and the applicable law, the Court grants the motion.
I. Background
In this litigation, Plaintiffs allege that Decedent was employed by Avondale from 1962 to
1994.4 During that time, Plaintiffs aver that Decedent was exposed to asbestos and asbestoscontaining products in various locations and work sites, resulting in Decedent breathing in
asbestos fibers and later developing asbestos-related cancer.5 Plaintiffs assert strict liability and
negligence claims against various Defendants.6
Decedent filed a “Petition for Damages” in the Civil District Court for the Parish of
Orleans, State of Louisiana, on March 14, 2018.7 Defendants Huntington Ingalls Incorporated,
Albert Bossier, Jr., J. Melton Garret, and Lamorak Insurance Company (the “Removing Parties”)
removed the case to the United States District Court for the Eastern District of Louisiana for the
first time on June 21, 2018.8 On January 7, 2019, this Court remanded the case to the Civil District
Court for the Parish of Orleans.9
Decedent passed away on November 24, 2018, and a First Supplemental and Amending
Petition for Damages was filed in state court substituting Decedent’s heirs as Plaintiffs on January

3

Rec. Doc. 149.

4

Rec. Doc. 1-2 at 5.

5

Id.

6

Id. at 7–8.

7

Id. at 2–3

8

Case No. 18-6158, Rec. Doc. 1 at 2.

9

Case No. 18-6158, Rec. Doc. 89.

2

17, 2019.10 Trial was scheduled to begin before the state trial court on January 13, 2020.11
However, on January 9, 2020, Avondale removed the case to the United States District Court for
the Eastern District of Louisiana for a second time.12 On January 28, 2020, the Court denied the
motion to remand, finding that this case was properly removed to this Court under the federal
officer removal statute.13
On February 25, 2020, Plaintiffs filed the instant motion.14 On March 17, 2020, the
Avondale Interests filed an opposition to the instant motion.15 On April 6, 2020, Plaintiffs, with
leave of Court, filed a reply brief in further support of the motion.16 On May 5, 2020, the Court
continued the May 18, 2020 trial date due to COVID-19.17
II. Parties’ Arguments
A.

Plaintiffs’ Arguments in Support of the Motion
Plaintiffs move the Court to issue an order excluding the testimony of the Avondale

Interests’ expert, Robert J. Norrell, Ph.D, who has been designated to testify about “public
awareness of the health risks associated with smoking.”18 Plaintiffs note that Dr. Norrell has been
designated to testify “regarding his analysis of newspaper articles, magazine articles,

10

Rec. Doc. 1-8.

11

Rec. Doc. 1-12.

12

Rec. Doc. 1.

13

Rec. Doc. 17.

14

Rec. Doc. 52.

15

Rec. Doc. 149.

16

Rec. Doc. 200.

17

Rec. Doc. 225.

18

Rec. Doc. 52-1 at 1.

3

publications, television programs, movies, and other media coverage of the risks of smoking
disseminated throughout the United States; to laws limiting and to public information available
to plaintiff regarding the health risks associated with smoking.”19
Plaintiffs contend that Dr. Norrell is not qualified to offer opinions regarding the general
public’s awareness of the health hazards of cigarette smoking.20 Plaintiffs note that Dr. Norrell is
a history professor at the University of Tennessee, with no education in the area of addiction to
tobacco.21 Plaintiffs contend that Dr. Norrell’s involvement with the issue of smoking and its
effect on health came about at the request of lawyers for litigation purposes, and he admitted that
he had not done any research on the issue prior to being hired for litigation purposes in 1994.22
Second, Plaintiffs assert that Dr. Norrell’s opinions are not reliable.23 According to
Plaintiffs, Dr. Norrell has never published his opinions in peer review literature, and he has not
set forth any methodology regarding these opinions.24 Plaintiffs contend Dr. Norrell’s only
experience with the issue of smoking and its effect on health is his litigation research and he has
no education, training, and experience in the area of medical health, toxicology, industrial
hygiene, or toxicology.25 Accordingly, Plaintiffs submit that Dr. Norrell’s testimony should be
precluded.26

19

Id.

20

Id. at 2.

21

Id.

22

Id. at 3.

23

Id.

24

Id. at 5.

25

Id. at 6.

26

Id.

4

B.

The Avondale Interests’ Arguments in Opposition to the Motion
The Avondale Interests argue that the motion should be denied because Plaintiffs have not

shown any valid basis to exclude Dr. Norrell.27 The Avondale Interests assert that Dr. Norrell is
qualified to offer testimony as an expert historian, his anticipated opinions on historic public
awareness on the health hazards of smoking are reliable and relevant, and other courts have
accepted his testimony on the same topics.28
The Avondale Interests contend that Decedent’s medical records show that he was a
former smoker.29 Because smoking is a known cause of lung cancer, the Avondale Interests
contend that smoking history is relevant as a possible cause of Decedent’s cancer.30 Additionally,
the Avondale Interests assert that Decedent’s knowledge of health hazards associated with
smoking, including lung cancer, is relevant to the question of his own negligence and assumption
of risk.31
According to the Avondale Interests, Dr. Norrell is a professor in the Department of
History at the University of Tennessee in Knoxville.32 The Avondale Interests contend that Dr.
Norrell has studied historic information and awareness of the risks of smoking for more than 20
years.33 The Avondale Interests assert that sources of such information include print and broadcast
media, educational materials, religious and church publications, public laws, polling data, and

27

Rec. Doc. 149 at 1.

28

Id.

29

Id. at 1–2.

30

Id. at 2.

31

Id.

32

Id.

33

Id. at 6–7.

5

other publicly-available materials.34 Therefore, the Avondale Interests assert that Dr. Norrell is
qualified by his education, training, and experience as historian to provide expert opinions in this
case.35
The Avondale Interests note that Dr. Norrell is not being offered to opine on exposure to
any substance, toxicity of any substance, trends in disease associated with any substance, or the
state of knowledge in the medical community.36 Rather, the Avondale Interests assert that Dr.
Norrell is being offered as an expert in history, specifically on historic information and public
awareness of risks associated with smoking, which they contend is directly relevant in a case
involving the development of lung cancer.37 The Avondale Interests assert that Dr. Norrell’s
ability to identify and synthesize voluminous historical information “is precisely the type of
expertise that courts acknowledge historians possess,” and his analysis requires “specialized
knowledge, and is appropriate for expert testimony.”38
Finally, the Avondale Interests assert that Dr. Norrell’s methodology is reliable as his
opinions are based on the following: (1) case-specific materials such as Decedent’s deposition,
medical references to Decedent’s smoking history, and other depositions taken in this matter; (2)
general reference materials regarding smoking and its associated hazards from Louisiana
newspapers, articles from national magazines, national and local television programs, popular
movies, Louisiana state and local laws related to tobacco and smoking in public, educational

34

Id. at 2.

35

Id. at 7.

36

Id.

37

Id.

38

Id.

6

materials, religious and church publications, and polling data; and (3) decades of experience
studying public awareness of smoking and its associated hazards.39 The Avondale Interests argue
that Dr. Norrell formed his opinions after extensively researching historic information available
to the public, then analyzed the significance of those materials to Louisiana residents like
Decedent.40 According to the Avondale Interests, the method of historical analysis Dr. Norrell
employed is also employed by other historians, has been accepted by courts, and satisfies the
Daubert analysis.41 The Avondale Interests assert that the fact that Dr. Norrell has not published
his research on smoking awareness does not negate the reliability of his methodology or his
opinions.42
C.

Plaintiffs’ Arguments in Further Support of the Motion
In reply, Plaintiffs assert that Dr. Norrell’s testimony is irrelevant.43 Plaintiffs contend that

Dr. Norrell will attempt to testify generally regarding when information about the hazards of
smoking may have been available to the public, but Plaintiffs note that he cannot offer any
testimony regarding when Decedent became aware of the hazards of smoking. 44 Additionally,
Plaintiffs assert that any alleged contributory negligence of Decedent is not relevant to Plaintiff’s
strict liability claims.45
Next, Plaintiffs assert that the Avondale Interests have not shown that Dr. Norrell’s

39

Id. at 8.

40

Id. at 9.

41

Id.

42

Id.

43

Rec. Doc. 200 at 2.

44

Id.

45

Id. at 2–3.

7

testimony is reliable.46 Plaintiffs note that the Avondale Interests did not come forward with any
testimony, affidavit, or declaration setting forth how Dr. Norrell reached his opinions specific to
this case or what methods he used in reaching his opinions.47 For this reason, Plaintiffs contend
this case is distinguishable from the cases the Avondale Interests cite where a historian offered
expert opinion testimony.48 Therefore, Plaintiffs argue that Dr. Norrell’s proposed testimony
should be excluded.49
III. Legal Standard
The district court has considerable discretion to admit or exclude expert testimony under
Federal Rule of Evidence 702.50 Rule 702, which governs the admissibility of expert witness
testimony, provides that an expert witness “qualified . . . by knowledge, skill, experience, training
or education,” may testify when “scientific, technical or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in issue.”51 For the testimony to
be admissible, Rule 702 establishes the following requirements:
(1) the testimony [must be] based on sufficient facts or data,
(2) the testimony [must be] the product of reliable principles and methods, and
(3) the expert [must reliably apply] the principles and methods to the facts of the case.52

46

Id. at 3.

47

Id.

48

Id. at 4–5.

49

Id. at 6.

See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 138–39 (1997); Seatrax, Inc. v. Sonbeck Int’l, Inc., 200 F.3d
358, 371 (5th Cir. 2000).
50

51

Fed. R. Evid. 702; see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

52

Fed. R. Evid. 702.

8

In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court held that Rule 702
requires the district court to act as a “gatekeeper” to ensure that “any and all scientific evidence
admitted is not only relevant, but reliable.”53 The court’s gatekeeping function thus involves a
two-part inquiry into reliability and relevance. First, the court must determine whether the
proffered expert testimony is reliable. The party offering the testimony bears the burden of
establishing its reliability by a preponderance of the evidence.54 The reliability inquiry requires a
court to assess whether the reasoning or methodology underlying the expert’s testimony is valid.55
The aim is to exclude expert testimony based merely on subjective belief or unsupported
speculation.56
In Daubert, the Supreme Court identified a number of factors that are useful in analyzing
reliability of an expert’s testimony: (1) whether the theory has been tested; (2) whether the theory
has been subject to peer review and publication; (3) any evaluation of known rates of error; (4)
whether standards and controls exist and have been maintained with respect to the technique; and
(5) general acceptance within the scientific community.57 In Kumho Tire Co. v. Carmichael, the
Supreme Court emphasized that the test of reliability is “flexible” and that Daubert’s list of
specific factors does not necessarily nor exclusively apply to every expert in every case. 58 The

53

Daubert, 509 U.S. at 597; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999) (clarifying
that the court’s gatekeeping function applies to all forms of expert testimony).
54
See Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998) (citing In re Paoli R.R. Yard PCB
Litig., 35 F.3d 717 (3d Cir. 1994)).
55

See Daubert, 509 U.S. at 592–93.

56

See id. at 590.

57

See id. at 592–94.

58

Kumho Tire, 526 U.S. at 142; see also Seatrax, 200 F.3d at 372 (explaining that reliability is a factspecific inquiry and application of Daubert factors depends on “nature of the issue at hand, the witness's particular
expertise and the subject of the testimony”).

9

overarching goal “is to make certain that an expert, whether basing testimony on 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.”59 The court must also determine
whether the expert’s reasoning or methodology “fits” the facts of the case and whether it will
thereby assist the trier of fact to understand the evidence—in other words, whether it is relevant.60
A court’s role as a gatekeeper does not replace the traditional adversary system,61 and “[a]
review of the caselaw after Daubert shows that the rejection of expert testimony is the exception
rather than the rule.”62 As the Supreme Court noted in Daubert, “[v]igorous 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.”63 “As a general rule,
questions relating to the bases and sources of an expert’s opinion affect the weight to be assigned
that opinion rather than its admissibility.”64
IV. Analysis
In the instant motion, Plaintiffs seek to exclude Dr. Norrell’s proposed testimony for two
reasons: (1) Dr. Norrell is not qualified to testify regarding the general public’s awareness of the
health hazards of cigarette smoking; and (2) Dr. Norrell’s proposed testimony is not based on a
reliable methodology. The Court addresses each argument in turn.

59

Kumho Tire, 526 U.S. at 152.

60

See Daubert, 509 U.S. at 591; Fed. R. Evid. 702.

61

See Daubert, 509 U.S. at 596.

62

Fed. R. Evid. 702 advisory committee’s note, “2000 Amendments.”

63

Daubert, 509 U.S. at 596 (citing Rock v. Arkansas, 483 U.S. 44, 61 (1987)).

64

United States v. 14.38 Acres of Land, 80 F.3d 1074, 1077 (5th Cir.1996) (internal citations and quotation
marks omitted).

10

A.

Qualifications
Plaintiffs contend that Dr. Norrell is not qualified to offer opinions regarding the general

public’s awareness of the health hazards of cigarette smoking.65 Plaintiffs note that Dr. Norrell is
a history professor at the University of Tennessee, with no education in the area of addiction to
tobacco.66 Plaintiffs contend that Dr. Norrell’s involvement with the issue of smoking and its
effect on health came about at the request of lawyers for litigation purposes, and he admitted that
he had not done any research on the issue prior to being hired for litigation in 1994.67 In response,
the Avondale Interests contend that Dr. Norrell has studied historic information and awareness of
the risks of smoking for more than 20 years.68 The Avondale Interests note that Dr. Norrell is not
being offered to opine on exposure to any substance, toxicity of any substance, trends in disease
associated with any substance, or the state of knowledge in the medical community.69 Rather, the
Avondale Interests assert that Dr. Norrell is being offered as an expert in history, specifically on
historic information and public awareness of risks associated with smoking, which they contend
is directly relevant in a case involving development of lung cancer.70
Robert J. Norrell, Ph.D. is a history professor at the University of Tennessee. 71 He
obtained his doctorate from the University of Virginia in 1983.72 He has published numerous

65

Rec. Doc. 52-1 at 2.

66

Id.

67

Id. at 3.

68

Rec. Doc. 149 at 6–7.

69

Id. at 7.

70

Id.

71

Rec. Doc. 149-3 at 1.

72

Id.

11

books on the American South race relations, and the Civil Rights movement.73 He has also
published numerous scholarly articles and presented at numerous conferences and public
lectures.74 Dr. Norrell has experience teaching numerous history classes including: World
History; U.S. Survey, Pre- and Post-1865; Southern History; African-American History; Recent
U.S. History; Comparative Race Relations; and Race and Ethnicity in the U.S.75
The Avondale Interests have designated Dr. Norrell as an “expert witness concerning
public awareness of the health risks associated with smoking.”76 According to the Avondale
Interests, “Dr. Norrell may testify regarding his analysis of newspaper articles, magazine articles,
publications, television programs, movies, and other media coverage of the risks of smoking
disseminated throughout the United States; to laws limiting and prohibiting smoking in Louisiana
and throughout the United States; and to the public information available to plaintiff regarding
the health risks associated with smoking.”77 Although it does not appear that Dr. Norrell has ever
published any work on public awareness of the health risks associated with smoking, the
Avondale Interests have shown that Dr. Norrell is extremely qualified to testify as an expert in
history.
As the Fifth Circuit noted in United States v. Wen Chyu Liu, “an expert witness is not
strictly confined to his area of practice, but may testify concerning related applications; a lack of
specialization does not affect the admissibility of the opinion, but only its weight.”78 In that case,

73

Id. at 1–2.

74

Id. at 2–5.

75

Id. at 6.

76

Rec. Doc. 149-1 at 9.

77

Id.

78

United States v. Wen Chyu Liu, 716 F.3d 159, 168–69 (5th Cir. 2013) (quoting Wheeler v. John Deere

12

the Fifth Circuit held that the district court abused its discretion when it excluded the testimony
of an expert with extensive experience working in chemical plants and 50 years of engineering
experience in a variety of high-level positions, finding that he had worked with polymers that had
“many similarities” and “a lot of commonality” with the manufacturing process at issue in the
case, even though he lacked experience with the specific substance at issue.79
As discussed above, Dr. Norrell has extensive experience as a history professor,
researcher, and published author. Thus, he is qualified to testify as to historic information and the
historical evolution of the public’s awareness of risks associated with smoking. Therefore, the
Court declines to exclude Dr. Norrell’s testimony on the ground that he is not qualified as an
expert.
B.

Reliability
Plaintiffs assert that Dr. Norrell’s opinions are not reliable.80 According to Plaintiffs, Dr.

Norrell has never published his opinions in peer review literature, and he has not set forth any
methodology regarding these opinions.81 In opposition, the Avondale Interests assert that Dr.
Norrell’s methodology is reliable as his opinions are based on the following: (1) case-specific
materials such as Decedent’s deposition, medical references to Decedent’s smoking history, and
other depositions taken in this matter; (2) general reference materials regarding smoking and its
associated hazards from Louisiana newspapers, articles from national magazines, national and
local television programs, popular movies, Louisiana state and local laws related to tobacco and

Co., 935 F.2d 1090, 1100 (10th Cir. 1991)).
79

Id. at 169.

80

Rec. Doc. 149 at 5.

81

Id.

13

smoking in public, educational materials, religious and church publications, and polling data; and
(3) decades of experience studying public awareness of smoking and its associated hazards. 82 In
reply, Plaintiffs assert that the Avondale Interests have not shown that Dr. Norrell’s testimony is
reliable.83 Plaintiffs note that the Avondale Interests did not come forward with any testimony,
affidavit, or declaration setting forth how Dr. Norrell reached his opinions specific to this case or
what methods he used in reaching his opinions.84
This case is in a unique procedural posture. All discovery in this matter occurred while
the case was pending in state court, and expert reports were not disclosed because the state court
judge did not require expert reports.85 Accordingly, there is no expert report in the record for the
Court to examine the methodology employed by Dr. Norrell. Additionally, it does not appear that
Dr. Norrell was deposed by the attorneys in this case. In opposition to the instant motion, the
Avondale Interests do not present an affidavit or declaration setting forth the opinion of Dr.
Norrell or the methodology he employed in reaching an opinion. Instead, the only documents the
Avondale Interests present to the Court to analyze Dr. Norrell’s methodology are: (1) Dr.
Norrell’s curriculum vitae;86 (2) a list of cases where Dr. Norrell has previously testified as an
expert;87 and (3) a 71-page list of sources upon which Dr. Norrell relied.88
As noted above, when expert testimony is challenged under Daubert, the burden of proof

82

Rec. Doc. 149 at 8.

83

Rec. Doc. 200 at 3.

84

Id.

85

Rec. Doc. 40-1 at 2.

86

Rec. Doc. 149-1.

87

Rec. Doc. 149-2.

88

Rec. Doc. 149-4.

14

rests with the party seeking to present the testimony.89 “To meet this burden, a party cannot simply
rely on its expert’s assurances that he has utilized generally accepted [] methodology.”90 Rather,
some objective, independent validation of the expert’s methodology is required.91
Here, the Avondale Interests contend that Dr. Norrell employed appropriate
methodologies that are commonly used by historians. Although it is a general rule that “questions
relating to the bases and sources of an expert’s opinion affect the weight to be assigned that
opinion rather than its admissibility and should be left for the jury’s consideration,”92 the Fifth
Circuit has held that it is insufficient for an expert to base his or her opinion on education and
experience alone.93 The Court recognizes that the test of reliability is “flexible” and that Daubert’s
list of specific factors does not necessarily nor exclusively apply to every expert in every case. 94
In fact, in Kovaly v. Wal-Mart Stores Texas, L.L.C., the Fifth Circuit acknowledged that, in
considering the reliability of some professionals, such as pharmacists, certain Daubert factors
will not readily apply, and courts “must consider other factors when determining admissibility,
such as whether the expert has enough education and relevant experience to reach a reliable
opinion.”95 Even in Kovaly, however, the Fifth Circuit noted that the expert had a “sufficiently

89

Moore, 151 F.3d at 276.

90

Dearman v. Transocean Offshore Deepwater Drilling, Inc., No. 11-750, 2012 WL 441167, at *5 (E.D.
La. Feb. 10, 2012) (Fallon, J.).
91

Moore, 151 F.3d at 276.

92

14.38 Acres of Land, 80 F.3d at 1077.

93

Brown v. Illinois Cent. R. Co., 705 F.3d 531, 536 (5th Cir. 2013).

94
Kumho Tire, 526 U.S. at 142; see also Seatrax, 200 F.3d at 372 (explaining that reliability is a factspecific inquiry and application of Daubert factors depends on “nature of the issue at hand, the witness's particular
expertise and the subject of the testimony”).
95

627 F. App’x 288, 291 (5th Cir. 2015) (citing Pipitone v. Biomatrix, Inc., 288 F.3d 239, 250 (5th Cir.

2002)).

15

reliable basis” to come to his conclusions because he “specifically analyzed how . . . various
regulations overlap and how the history of the regulations led to the codification of particular
exceptions but not others. He explained that his opinion was based not only on the regulations
but also on their history, accepted practice, and pharmacist training.”96
The Avondale Interests present a substantial, 71-page list of sources upon which Dr.
Norrell supposedly relied.97 However, the Avondale Interests have not presented any information
for the Court to assess the methodology employed by Dr. Norrell. The Court cannot assume or
guess what methods Dr. Norrell used in assessing this information. Additionally, the Avondale
Interests have not even presented the Court with evidence setting forth the opinions they expect
Dr. Norrell to provide. Therefore, the Court concludes that the Avondale Interests have not met
their burden of establishing that the opinions of Dr. Norrell are reliable under Federal Rule of
Evidence 702 and the Supreme Court’s holding in Daubert.
Additionally, the proposed testimony of Dr. Norrell is of limited probative value in this
case. Although Decedent’s knowledge of health hazards associated with smoking is relevant to
this case, Dr. Norrell has no personal knowledge regarding whether Decedent was aware of the
health hazards associated with smoking. Instead, Dr. Norrell would only be able to testify
generally to societal perceptions of the health hazards associated with smoking. At trial, the
Avondale Interests will be able to question fact witnesses about Decedent’s knowledge of the
health hazards associated with smoking. Accordingly, the Court finds that the limited probative
value of Dr. Norrell’s proposed testimony is substantially outweighed by a danger of confusing
the issues, misleading the jury, and wasting time pursuant to Federal Rule of Evidence 403.

96

Id.

97

Rec. Doc. 149-4.

16

Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ “Daubert Motion to Preclude the Testimony
of Robert J. Norrell”98 is GRANTED. The proposed expert testimony of Robert J. Norrell, Ph.D.
is excluded.
NEW ORLEANS, LOUISIANA, this 11th day of September, 2020.
_____

_________________________________
NANNETTE JOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT

98

Rec. Doc. 52.

17