McGowan et al v. Murphy-Brown, LLC

Filing 174

ORDER allowing in part and denying in part 82 Motion in Limine to Exclude or Limit Expert Testimony of James Merchant, M.D., Dr. P.H. Signed by Senior US District Judge W. Earl Britt on 5/18/2018. (Stouch, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:14-CV-182-BR
WOODELL MCGOWAN, et al.,

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Plaintiffs,
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v.
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MURPHY-BROWN, LLC d/b/a
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SMITHFIELD HOG PRODUCTION
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DIVISION,
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Defendant.
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____________________________________)

ORDER

This matter is before the court on defendant’s motion to exclude or limit the expert
testimony of James Merchant, M.D., Dr.P.H. pursuant to Federal Rules of Evidence 403 and 702,
Federal Rule of Civil Procedure 37, and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579
(1993). (DE # 82.) Plaintiffs have filed a response in opposition to the motion. (DE # 111.)
On summary judgment briefing, the court denied defendant’s motion in limine to exclude
Dr. Merchant’s testimony in its entirety. In re NC Swine Farm Nuisance Litig., No. 5:15-CV00013-BR, 2017 WL 5178038, at *15 (E.D.N.C. Nov. 8, 2017). Subsequently, and during the
trial in a related case, the court allowed in part and denied in part defendant’s motion to exclude
Dr. Merchant’s testimony. In relevant part, the court stated:
The court is aware of its gatekeeping function under Rule 702 and Daubert in
regards to expert testimony, as the Fourth Circuit Court of Appeals has
summarized.
[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 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).
Defendant seeks to exclude the expert testimony of Dr. Merchant, who has
an extensive background in public health and epidemiology, on 13 topics. The
motion essentially amounts to a request to exclude his testimony in its entirety.
As the court has previously ruled, it declines to bar him from testifying, [see In re
NC Swine Farm Nuisance Litig., No. 5:15-CV-00013-BR, 2017 WL 5178038, at
*15 (E.D.N.C. Nov. 8, 2017)], and accordingly will deny defendant’s motion in
this regard. The court will, however, allow defendant’s motion to the extent
necessary to limit Dr. Merchant’s testimony in certain aspects. The court
concludes that the following topics are not within Dr. Merchant’s expertise:
complaint-driven systems (topic 8); corporate responsibility (topic 12); and
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warnings (topic 13). The court further concludes that Dr. Merchant’s testimony
about the following topics would not be helpful to the jury: occupational
exposures (topic 9); and defendant’s knowledge of community health effects
studies (topic 11), except that Dr. Merchant may testify as to the state of
knowledge regarding community health effects as shown by pertinent scientific
studies and literature.
McKiver v. Murphy-Brown LLC, No 7:14-CV-180-BR, 2018 WL 1662103, at *1-2 (E.D.N.C.
Apr. 5, 2018).
Here, defendant raises virtually identical arguments about Dr. Merchant’s proposed
testimony as it did in McKiver. For the reasons stated in that case, defendant’s motion to
exclude or limit the expert testimony of Dr. Merchant is ALLOWED IN PART and DENIED IN
PART.
This 18 May 2018.

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

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