Mareld Company, Inc. v. New England Telephone and Telegraph Company

Filing 90

ORDER denying without prejudice 36 Motion to Exclude; denying without prejudice 61 Motion to Exclude. So Ordered by Judge Paul J. Barbadoro.(vln)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Mareld Company, Inc.
Case No. 16-cv-390-PB
Opinion No. 2018 DNH 240

v.
New England Telephone and Telegraph
Company n/k/a Verizon New England Inc.

ORDER

The remaining cause of action set for trial in this matter
is Mareld’s claim for contribution under Section 147-B:10 of the
New Hampshire Revised Statutes.

Mareld and NET have filed

motions to exclude each other’s expert reports and testimony
pertinent to that claim.
NET seeks to exclude the opening expert report, a portion
of the rebuttal report, and the associated testimony of Mareld’s
expert Manu Sharma on the ground that they are inadmissible
under Federal Rule of Evidence 702 and Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993).

See Doc. No. 36.

Specifically, NET challenges the admissibility of Mr. Sharma’s
opinions that (1) NET used or stored PCB-containing capacitors,
inductors, transformers, and hydraulic fluids at the site; (2)
the pattern of PCB detections is consistent with NET’s
operations as the source of PCBs; and (3) NET bears the
responsibility for any PCB contamination attributable to the

construction of the facility because it provided the building
specifications.

According to NET, the first and second opinions

are the products of unreliable methods and insufficient facts
and data, and the third opinion reflects legal conclusions that
invade the province of the court and do not assist the
factfinder.

Additionally, NET argues that portions of Mr.

Sharma’s rebuttal report improperly introduce new evidence and
arguments.
Mareld, in turn, seeks to exclude all expert reports and
testimony of NET’s expert Dr. James S. Smith as inadmissible
under Daubert and Federal Rules of Evidence 702 and 703.
Doc. No 61.

See

Mareld argues that Dr. Smith lacks the requisite

qualifications to provide admissible opinions on the source of
the PCB contamination.

Further, Mareld moves to exclude Dr.

Smith’s opinions that (1) a sealant applied to the garage floor
was the source of the PCB contamination inside the building; (2)
dust particles from the PCB-laden sealant migrated outdoors to
cause the contamination in the pole yard; and (3) the
contamination did not originate from hydraulic equipment,
capacitors, transformers, or other equipment that NET utilized
or stored at the facility.

Mareld attacks these opinions as

based on unreliable scientific methods and insufficient facts
and data.

2

As Mareld noted in its opposition to NET’s motion, the
First Circuit has held that “[a] trial setting normally will
provide the best operating environment for the triage which
Daubert demands” in light of “the complex factual inquiry”
required.

Cortes-Irizarry v. Corporacion Insular De Seguros,

111 F.3d 184, 188 (1st Cir. 1997).

Because it would be most

efficient to address the present challenges at trial, I deny the
motions without prejudice to the parties renewing their
objections at trial.
SO ORDERED.
/s/ Paul Barbadoro
Paul Barbadoro
United States District Judge
December 4, 2018
cc:

Terri L. Pastori, Esq.
Beth A. Deragon, Esq.
Jeffrey M. Karp, Esq.
Nathaniel R. Koslof, Esq.
Nicholas M. O’Donnell, Esq.
Kyle M. Noonan, Esq.
Mark B. Rosen, Esq.

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