McKiver et al v. Murphy-Brown, LLC

Filing 229

ORDER granting in part and denying in part #98 Motion in Limine. Signed by Senior Judge W. Earl Britt on 4/17/2018. (Herrmann, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:14-CV-180-BR
JOYCE MCKIVER, et al.,

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Plaintiffs,
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v.
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MURPHY-BROWN LLC,
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Defendant.
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____________________________________)

ORDER

This matter is before the court on plaintiffs’ motion to exclude or limit the expert
testimony of Jennifer L. Clancy, Ph.D. (DE # 98.) Defendant has filed a response in opposition
to the motion. (DE # 122.)
Initially, the court considers whether Dr. Clancy is a proper rebuttal expert and, if so,
whether her supplemental report is truly supplemental. Dr. Clancy is a microbiologist who
defendant retained “to provide [an] expert opinion on environmental sampling and analysis,”
(DE # 122-2, at 3), and designated as an expert to rebut plaintiffs’ case-in-chief expert, Shane
Rogers, Ph.D. Plaintiffs argue that, in reality, Dr. Clancy is a case-in-chief expert, and,
therefore, defendant failed to timely disclose her as such. Plaintiffs’ argument rests on their
contention that Dr. Clancy’s principal report addresses an expected and anticipated portion of
plaintiffs’ case-in-chief, namely Dr. Rogers’ pollution sampling and testing.
Rebuttal reports are “intended solely to contradict or rebut evidence on the same
subject matter identified by another party . . .” Fed. R. Civ. P. 26(a)(2)(D)(ii).
“Rebuttal evidence is defined as evidence given to explain, repel, counteract, or
disprove facts given in evidence by the opposing party.” United States v. Stitt, 250
F.3d 878, 897 (4th Cir. 2001). “A party may not offer testimony under the guise
of ‘rebuttal’ only to provide additional support for his case in chief.” Wise v. C. R.
Bard, Inc., No. 2:12-CV-01378, 2015 WL 461484, at *2 (S.D.W. Va. Feb. 3,
2015). Thus, “[r]ebuttal experts cannot put forth their own theories; they must

restrict their testimony to attacking the theories offered by the adversary's
experts.” Boles v. United States, No. 1:13-CV-489, 2015 WL 1508857, at *2
(M.D.N.C. Apr. 1, 2015). . . .
[R]ebuttal reports “may cite new evidence and data so long as the new evidence
and data is offered to directly contradict or rebut the opposing party's expert.”
Withrow v. Spears, 967 F. Supp. 2d 982, 1002 (D. Del. 2013) (quoting Glass
Dimensions, Inc. ex rel. Glass Dimensions, Inc. Profit Sharing Plan & Trust v.
State St. Bank & Trust Co., 290 F.R.D. 11, 16 (D. Mass. 2013)). “Expert reports
that simply address the same general subject matter as a previously-submitted
report, but do not directly contradict or rebut the actual contents of that prior
report, do not qualify as proper rebuttal or reply reports.” Boles, 2015 WL
1508857, at *2 (quoting Withrow, 967 F. Supp. 2d at 1002); E. Bridge Lofts Prop.
Owners Ass'n, Inc. v. Crum & Forster Specialty Ins. Co., No. 2:14-CV-2567RMG, 2015 WL 12831677, at *1 (D.S.C. July 9, 2015).
WPS Inc. v. Am. Honda Motor Co. Inc., No. 3:16-CV-2525-CMC, 2017 WL 4216159, at *2
(D.S.C. Sept. 22, 2017) (most alterations added). “In addition, persuasive authority counsels
that, if the purpose of expert testimony is to contradict an expected and anticipated portion of the
other party’s case-in-chief, then the witness is not a rebuttal witness or anything analogous to
one.” Boles, 2015 WL 1508857, at *2 (internal quotation marks, citation, and alteration
omitted).
As for Dr. Clancy’s opinions regarding Dr. Rogers’ methods of field sampling and data
collection, the court agrees with defendant that those opinions are properly characterized as
rebuttal opinions. In her initial report, Dr. Clancy directly addresses the methods Dr. Rogers
used. While she may have observed Dr. Rogers and his team sampling during site visits, she
could not fully form her opinions in this regard until Dr. Rogers produced his report and the data
underlying it.
As for Dr. Clancy’s opinion that “Dr. Rogers has erroneously concluded that MurphyBrown farms are the source of significant odors and harmful pollutants impacting the lives of the
plaintiffs,” (DE # 122-2, at 28), it is beyond the bounds of permissible rebuttal testimony. Such

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evidence directly supports defendant’s case-in-chief theory that the Kinlaw farm is not the source
of the odors and pollutants about which plaintiffs complain and is thus within the province of a
case-in-chief expert. Cf. Scott v. Clarke, No. 3:12-CV-00036, 2014 WL 5386882, at *3-4 (W.D.
Va. Oct. 22, 2014) (where the plaintiffs alleged the defendants were deliberately indifferent to
constitutionally deficient medical care at a correctional center and the defendants offered medical
expert testimony to support their position that the medical care provided was constitutionally
adequate, holding such testimony “would be admissible only as evidence constituting a
fundamental part of the [defendants’] case-in-chief; not as ‘rebuttal’ to the opinions offered by
the Plaintiffs’ expert.”). Because defendant did not designate Dr. Clancy as a case-in-chief
expert, the court will exclude at trial any of her opinions supporting defendant’s case-in-chief.
Turning to whether Dr. Clancy properly supplemented her initial report,
[u]nder Rule 26(e), litigants have a duty to supplement or correct discovery
responses that are incomplete or incorrect in some material respect, and with
respect to expert reports, a party's duty to supplement extends both to information
included in the report and to information provided during the expert's deposition.
Fed. R. Civ. P. 26(e).
Rule 26(e) envisions supplementation when a party's discovery
disclosures happen to be defective in some way so that the
disclosure is incorrect or incomplete and, therefore, misleading. It
does not cover failures or omission because the expert did an
inadequate or incomplete preparation. To construe
supplementation to apply whenever a party wants to bolster or
submit additional expert opinions would reek [sic] havoc in docket
control and amount to unlimited expert opinion preparation.
Palmetto Pharm. LLC v. AstraZeneca Pharm. LP, No. 2:11-CV-00807-SB-JDA,
2012 WL 4369259, at *2 (D.S.C. July 18, 2012) (citing Akeva LLC v. Mizuno
Corp., 212 F.R.D. 306, 310 (M.D.N.C. 2002)). “Accordingly, Rule 26(e) permits
supplemental reports only for the narrow purpose of correcting inaccuracies or
adding information that was not available at the time of the initial report.” Id.
WPS, 2017 WL 4216159, at *2.

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At the time of Dr. Clancy’s initial report, Dr. Rogers had not been deposed. Dr. Clancy
acknowledges her supplemental report is not based on any new facts. (DE # 99-6, at 26.)
Instead, it is based on Dr. Rogers’ opinions and statements in his deposition testimony. (Id.)
According to Dr. Clancy, because “Dr. Rogers provided additional or different opinions than
what were included in his expert report, or expounded, explained, or provided greater detail to
opinions that were included in his report,” she supplemented her report to address these items.
(DE # 122-7, at 3.) Because information from Dr. Rogers’ deposition was not available to Dr.
Clancy at the time of her initial report, the court concludes that her supplemental report was
proper under Rule 26(e) and should not be stricken.
Plaintiffs also seek to exclude or limit Dr. Clancy’s testimony pursuant to Federal
Rules of Evidence 104(a) and 702 and in accordance with Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579 (1993). Under Rule 104(a), “[t]he court must decide any
preliminary question about whether a witness is qualified . . . or evidence is admissible.”
Further, the court operates as a gatekeeper under Rule 702 and Daubert in regards to
expert testimony.
[A] district court's gatekeeping responsibility [is] to “ensur[e] that an expert's
testimony both rests on a reliable foundation and is relevant to the task at hand.”
Relevant evidence, of course, is evidence that helps “the trier of fact to
understand the evidence or to determine a fact in issue.” To be relevant under
Daubert, the proposed expert testimony must have “a valid scientific connection
to the pertinent inquiry as a precondition to admissibility.”
With respect to reliability, the district court must ensure that the proffered
expert opinion is “based on scientific, technical, or other specialized knowledge
and not on belief or speculation, and inferences must be derived using scientific or
other valid methods.” Daubert offered a number of guideposts to help a district
court determine if expert testimony is sufficiently reliable to be admissible. First,
“a key question to be answered in determining whether a theory or technique is
scientific knowledge that will assist the trier of fact will be whether it can be (and
has been) tested.” A second question to be considered by a district court is
“whether the theory or technique has been subjected to peer review and
publication.” Publication regarding the theory bears upon peer review; “[t]he fact
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of publication (or lack thereof) in a peer reviewed journal will be a relevant,
though not dispositive, consideration in assessing the scientific validity of a
particular technique or methodology on which an opinion is premised.” Third, “in
the case of a particular scientific technique, the court ordinarily should consider
the known or potential rate of error.” Fourth, despite the displacement of Frye,
“‘general acceptance’” is nonetheless relevant to the reliability inquiry.
“Widespread acceptance can be an important factor in ruling particular evidence
admissible, and a known technique which has been able to attract only minimal
support with the community may properly be viewed with skepticism.” Daubert's
list of relevant considerations is not exhaustive; indeed, the Court has cautioned
that this “list of specific factors neither necessarily nor exclusively applies to all
experts or in every case,” and that a trial court has “broad latitude” to determine
whether these factors are “reasonable measures of reliability in a particular case.”
Nease v. Ford Motor Co., 848 F.3d 219, 229 (4th Cir.), cert. denied, 137 S. Ct. 2250, 198 L. Ed.
2d 680 (2017) (citations omitted) (most alterations in original).
Plaintiffs claim that Dr. Clancy should be precluded from providing any opinions
regarding Pig2Bac as an indicator of pig fecal DNA and Dr. Rogers’ sampling analysis and
methodology. The court concludes that Dr. Clancy is qualified to testify about Pig2Bac and that
the other issues plaintiffs raise go primarily to the weight of her testimony rather than its
admissibility. However, the court will limit her opinions to those that are rebuttal, as discussed
above.
For the foregoing reasons, plaintiffs’ motion to exclude or limit the expert testimony of
Dr. Clancy is ALLOWED IN PART and DENIED IN PART.
This 17 April 2018.

__________________________________
W. Earl Britt
Senior U.S. District Judge

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