Denton v. Foster Farms Delaware, Inc. et al

Filing 90

RULING re 68 MOTION in Limine to Exclude Testimony of Danny Adams and Thomas Wiberg filed by Foster Poultry Farms. Signed by Judge Robert G James on 10/31/13. (crt,DickersonSld, D)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION

MICHAEL DENTON AND PAMELA DENTON

CIVIL ACTION NO. 12-0328

VERSUS

JUDGE ROBERT G. JAMES

FOSTER POULTRY FARMS, INC.

MAG. JUDGE KAREN L. HAYES

RULING
Pending before the Court are a Motion in Limine to Exclude Testimony of Danny Adams
and Thomas Wiberg [Doc. No. 68] filed by Defendant Foster Poultry Farms Delaware, Inc.
(“Foster Farms”). Plaintiffs Michael Denton and Pamela Denton (“Plaintiffs” or “the Dentons”)
filed a memorandum in opposition to Foster Farms’ motion [Doc. No. 79], and Foster Farms
filed a reply memorandum [Doc. No. 81].
For the following reasons, Foster Farms’s Motion in Limine is DENIED.
Foster Farms owns and operates a poultry processing facility in Union Parish. The
facility’s processes of rendering, cooking, and slaughtering produce wastewater. After being
subjected to multiple treatments, wastewater from the facility flows through an outfall which has
been approved by the Louisiana Department of Environmental Quality (“LDEQ”). After passing
through the outfall, the wastewater flows into Honeycutt Creek. Honeycutt Creek flows into
Four Mile Creek downstream of Foster Farms. Four Mile Creek flows southeast from the Foster
Farms facility and passes behind property owned by the Dentons.1

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Eventually, Four Mile Creek flows into Lake D’Arbonne.

The Dentons brought this lawsuit alleging that Foster Farms is liable for negligently
causing harm to their property by releasing contaminated waste water. In addition to their
negligence claim, the Dentons allege that Foster Farms’ actions constitute a nuisance and a
trespass under Louisiana law.
In support of their claims, the Dentons rely on an expert report and supplemental expert
report from Danny Adams (“Adams”), Ecology Program Manager, and Thomas Wiburg
(“Wiburg”), Project Manager, of EnSafe, an environmental consulting company. Foster Farms
moves to exclude the testimony of Adams and Wiberg, arguing that they will improperly testify
as to legal conclusions and that their testimony on environmental impact and damages is derived
from “unsound methodology, ipse dixit reasoning, and disregard [of] the uncontested facts of the
case.” [Doc. No. 68, p. 1]. The Dentons oppose Foster Farms’ motion and provide declarations
from Adams and Wiberg that they applied the methodology for water testing, soil testing, site
remediation, and acceptable standards for emissions used by environmental science practitioners
and based on their experience and observations.
Under Federal Rule of Evidence 702, an expert opinion on scientific, technical, or
specialized knowledge can be admitted only 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. Under Rule 702, a district court has considerable discretion in deciding
whether to admit or exclude expert testimony. See Kumho Tire Co. v. Carmichael, 526 U.S. 137,
152 (1999) (“[W]e conclude that the trial judge must have considerable leeway in deciding in a
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particular case how to go about determining whether particular expert testimony is reliable.”);
Gen. Elec. Co. v. Joiner, 522 U.S. 136, 138-9 (1997) (reviewing district court’s determination
under abuse of discretion standard).
Reliability and relevance, under Rule 702, are the hallmarks of admissible testimony from
an expert witness. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 589 (1993); In re
MBS Mgmt. Servs., Inc., 690 F.3d 352, 357 (5th Cir. 2012) (“[T]he trial judge serves as a
gatekeeper to ensure the reliability and relevance of expert testimony.”). Relevance includes not
only the general requirement contained in Rule 401 that the testimony tend to make the existence
of any fact more probable or less probable, but also the prerequisite that the expert testimony
“assist the trier of fact to understand the evidence or to determine a fact in issue.” FED . R. EVID .
702; Daubert, 509 U.S. at 591 (“Expert testimony which does not relate to any issue in the case
is not relevant and, ergo, non-helpful.”) (quoting 3 J. WEINSTEIN & M. BERGER, WEINSTEIN ’S
EVIDENCE ¶ 702[02], p. 702-18 (1988)). In determining reliability, “the trial court must make a
preliminary assessment of whether the reasoning or methodology underlying the testimony is
scientifically valid and of whether that reasoning or methodology can properly be applied to the
facts in issue.” 509 U.S. at 589. “The district court’s responsibility 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.’” Pipitone v. Biomatrix, Inc., 288 F.3d 239, 247 (5th Cir. 2002) (quoting
Kumho, 526 U.S. at 152)).
“[A]s 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. . . . ” United States v.
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14.38 Acres of Land, 80 F.3d 1074, 1077 (5th Cir. 1996) (internal quotations and citations
omitted). “It is the role of the adversarial system, not the court, to highlight weak evidence[.]”
Primrose Operating Co. v. Nat’l American Ins. Co., 382 F.3d 546, 562 (5th Cir. 2004).
“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 (citation omitted).
Finally, “[t]wo cautions signify: the trial court ought not ‘transform a Daubert hearing
into a trial on the merits,’ and ‘most of the safeguards provided for in Daubert are not as
essential in a case . . . where a district judge sits as the trier of fact in place of a jury.’” In re
Texas Grand Prairie Hotel Realty, L.L.C., 710 F.3d 324, 329 (5th Cir. 2013) (quoting Pipitone,
288 F.3d at 250; Gibbs v. Gibbs, 210 F.3d 491, 500 (5th Cir. 2000)).
In this case, Foster Farms does not contest Adams’ and Wiberg’s qualifications.
However, Foster Farms does challenge their testimony on other grounds. Specifically, Foster
Farms argues that Adams’ and Wiberg’s testimony is not helpful under Rule 702 because they do
not provide the basis for their opinions, they failed to apply the LDEQ’s Risk
Evaluation/Correction Action Program (“RECAP”) standard for evaluating environmental harm,
their damages calculation relies on nothing but ipse dixit to calculate damages, and their opinions
on damages is based on a flawed interpretation of Louisiana law. Foster Farms contends that
Adams’ and Wiberg’s methodology was flawed because they collected a limited number of soil
and water samples from the Dentons’ property and from the “background” property and tested for
constituents of concern, but they failed to apply RECAP or EPA standards. Foster Farms also
takes issue with the reliability of Adams’ and Wiberg’s opinions when they did not interview
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LDEQ employees or the Dentons, did not observe Foster Farms’ wastewater treatment system,
and did not compare exceedances to the discharge monitoring reports Foster Farms provides to
LDEQ monthly. Foster Farms further attacks Adams’ and Wiberg’s testimony because, they
allege, Adams and Wiberg did not use appropriate background samples, did not analyze the
Dentons’ use of the property or the possible effects from other sources of contamination, did not
identify any dead vegetation, and did not perform an ecological risk assessment. Foster Farms
further challenges Adams’ and Wiberg’s testimony because of their recommendation that the
damages be addressed with remediation without explaining whether they considered other
methods of damages calculations. Finally, Foster Farms moves to exclude Adams’ and Wiberg’s
testimony on the legal conclusion that the Dentons’ property was “damaged,” as defined under
Louisiana Civil Code article 667.
In response, the Dentons respond that their experts used methods that were developed by
the EPA and state DEQs and are standard operating procedure in consulting firms, such as
EnSafe. The methodology has been tested by labs and environmental professionals and has a low
error rate, and , further, they use peer review by submitting findings to EnSafe’s other expert.
The Dentons deny the use of ipse dixit reasoning and explained that their experts found no other
flow into Four Mile Creek other than Foster Farms, and the Arcadis Report shows a 50-fold
increase in nitrates immediately downstream from Foster Farms facility. Likewise, their expert
had a basis for his choice of remediation method because of his substantial experience and in
light of the historical and planned uses of property. Although RECAP is a guideline for state
government remediation, Adams applied the standard environmental professionals use to
determine damage and harm, which is also appropriate. In this case, he relied on EPA standards
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in determining whether the constituent levels were elevated to the extent that remediation was
necessary.
Having reviewed the arguments and evidence, the Court finds that the Dentons have
shown Adams’ and Wiberg’s opinions to be sufficiently relevant and reliable for admissibility
under Rule 702. The Court has taken the arguments of Foster Farms under advisement and will
consider them as applicable in ruling on the pending Motion for Summary Judgment and, if
necessary, at trial. However, those arguments are more appropriately considered as an attack on
the weight of the evidence, rather than exclusion of the testimony.
III.

CONCLUSION
For the foregoing reasons, Foster Farms’ Motion in Limine [Doc. No. 68] is DENIED.
MONROE, LOUISIANA, this 31st day of October, 2013.

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