Good et al v. American Water Works Company, Inc. et al

Filing 1045

ORDER the 746 MOTION by Eastman Chemical Company to Exclude the Expert Testimony of Jack Spadaro and the 770 MOTION by Eastman Chemical Company to Exclude the Opinions and Testimony of Robert M. Sussman are granted; the 721 MOTION by Eastman Ch emical Company to Exclude Plaintiffs' Expert Scott Simonton, Ph.D., the 749 MOTION by All Plaintiffs to Exclude the Opinions and Testimony of Defendants' Expert Dennis J. Paustenbach and the 758 MOTION by Eastman Chemical Company to Exclude the Opinions and Testimony of Stephen King, Ph.D., M.P.H. are granted in part and denied in part to the extent described herein. Signed by Judge John T. Copenhaver, Jr. on 10/13/2016. (cc: attys; any unrepresented party) (skh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
CRYSTAL GOOD, individually and as
parent and next friend of minor children
M.T.S., N.T.K. and A.M.S. and
MELISSA JOHNSON, individually and as parent of her unborn
child, MARY LACY and JOAN GREEN and JAMILA AISHA OLIVER,
WENDY RENEE RUIZ and KIMBERLY OGIER and ROY J. McNEAL and
GEORGIA HAMRA and MADDIE FIELDS and BRENDA BAISDEN, d/b/a FRIENDLY
FACES DAYCARE, and ALADDIN RESTAURANT, INC., and
R. G. GUNNOE FARMS LLC, and DUNBAR PLAZA, INC.,
d/b/a DUNBAR PLAZA HOTEL, on behalf of themselves
and all others similarly situated,
Plaintiffs,
v.

Civil Action No.: 2:14-01374

AMERICAN WATER WORKS COMPANY, INC., and
AMERICAN WATER WORKS SERVICE COMPANY, INC.,
and EASTMAN CHEMICAL COMPANY, and
WEST VIRGINIA-AMERICAN WATER COMPANY,
d/b/a WEST VIRGINIA AMERICAN WATER, and
GARY SOUTHERN and DENNIS P. FARRELL,
Defendants.
ORDER
Pending are the following motions:
1.

Motion by Eastman Chemical Company to Exclude
Plaintiffs' Expert Scott Simonton, Ph.D, filed on May 10,
2016 (ECF No. 721);

2.

Motion by Eastman Chemical Company to Exclude the Expert
Testimony of Jack Spadaro, filed on May 10, 2016 (ECF No.
746);

3.

Motion by All Plaintiffs to Exclude the Opinions and
Testimony of Defendants' Expert Dennis J. Paustenbach, filed
on May 10, 2016 (ECF No. 749);

4.

Motion by Eastman Chemical Company to Exclude the
Opinions and Testimony of Stephen King, Ph.D., M.P.H., filed
on May 11, 2016 (ECF No. 758); and

5.

Motion by Eastman Chemical Company to Exclude the
Opinions and Testimony of Robert M. Sussman, filed on May 11,
2016 (ECF No. 770).
Each of the experts referenced in the above-named

motions has offered testimony and expert opinions relating to
defendant Eastman Chemical Company’s compliance with the Toxic
Substances Control Act (“TSCA”), 15 U.S.C. §§ 2601-2695d.

By

order entered October 12, 2016, the court ruled that plaintiffs
lack standing to bring their claims based on the alleged
violations of TSCA.
The opinions of Sussman and Spadaro relate only to
compliance with TSCA and will not be relevant to the upcoming
trial on class-wide liability issues or helpful to the jury.
Fed. R. Evid. 402, 702.

The court will grant the motions to

exclude these two experts in their entirety.

2

See

The expert opinions of Dr. Simonton assert that
Eastman’s Pre-Manufacturing Notice of Crude MCHM was insufficient
under the standards of the TSCA, and that Eastman failed to
identify hazards of Crude MCHM in its Material Safety Data Sheet
(“MSDS”) as required by Occupational Safety and Health
Administration (“OSHA”) requirements.

To the extent they address

failure to adhere to TSCA requirements, Dr. Simonton’s opinions
lack relevance and will be excluded.

Dr. Simonton’s opinions

regarding the MSDS, however, are sufficiently reliable and
relevant as to be admissible.

Though Eastman argues that Dr.

Simonton’s opinion is irrelevant because Freedom Tank 396
contained Shurflot 444, rather than Crude MCHM, Eastman fails to
establish that the chemical properties of Shurflot 444 were so
different from Crude MCHM as to render Dr. Simonton’s opinions
irrelevant.
As to experts Paustenbach and Dr. King, the court will
exclude their testimony as it relates to Eastman’s compliance with
TSCA because such compliance is not relevant to plaintiffs’
remaining claims.

However, to the extent their expert opinions on

the toxicological studies of Crude MCHM are relevant to the issue
of Eastman’s negligence and the standard of reasonable care
applicable to the sale of Crude MCHM, that testimony will not be
excluded.

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01/28/2016

Motions under F.R. Civ. P. 12(b), together with
supporting briefs, memoranda, affidavits, or other
such matter in support thereof. (All motions
unsupported by memoranda will be denied without
prejudice pursuant to L.R. Civ. P. 7.1 (a)).
Accordingly, it is ORDERED that the motions to exclude
02/08/2016
Last day for Rule 26(f) meeting.
the expert opinions and testimony of Jack Spadaro and Robert M.
02/15/2016
Last day to file Report of Parties= Planning
Meeting. See L.R. Civ. P. It is
Sussman be, and they hereby are, granted. 16.1. further ordered
02/22/2016
Scheduling conference at 4:30 p.m. at the Robert C.
that the motions to exclude the expert opinions and testimony of
Byrd United States Courthouse in Charleston, before
the undersigned, unless canceled. be, counsel
Dr. Simonton, Dennis J. Paustenbach, and Dr. King Lead and they
directed to appear.
hereby are, granted in part and denied in part to the extent
02/29/2016
Entry of scheduling order.
described herein.
03/08/2016
Last day to serve F.R. Civ. P 26(a)(1) disclosures.
The Clerk is requested to transmit this Order and
The clerk is directed to transmit copies of this order
Notice to all counsel of record and to any unrepresented
to all counsel of record and any unrepresented parties.
parties.
ENTER: October 13, 2016
DATED: January 5, 2016
John T. Copenhaver, Jr.
United States District Judge

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