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

Filing 1046

ORDER the 750 MOTION by American Water Works Company, Inc., American Water Works Service Company, Inc., West Virginia-American Water Company to Exclude Expert Testimony of Kate Novick, PE is denied. Signed by Judge John T. Copenhaver, Jr. on 10/13/2016. (cc: attys; any unrepresented party) (skh)

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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 Defendants West Virginia-American Water Company (“WV American”), American Water Works Service Company, Inc., and nowdismissed American Water Works Company, Inc., moved on May 10, 2016, to exclude two aspects of the testimony of Kate Novick, whom plaintiffs have proffered as an expert. Defendants argue that Novick’s testimony should be excluded with respect to the American Water Works Association emergency preparedness standard known as “G440” because it is a guideline rather than a mandated industry standard. They also argue that Novick’s testimony regarding WV American’s 2003 responses to the vulnerability assessment required under the Bioterrorism Act of 2002 should be excluded. Relevance and reliability are the touchstones of the Rule 702 expert opinion analysis. Pharm., Inc., 509 U.S. 579 (1993). See Daubert v. Merrell Dow Both the emergency preparedness standards and the vulnerability assessment are relevant to plaintiffs’ allegations of negligence on the part of defendants; the disagreement revolves around reliability. “[T]he trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.” U.S. 137, 152 (1999). Kumho Tire Co. v. Carmichael, 526 With respect to the G440 guidelines, Novick’s testimony is based on her water industry experience with numerous companies. Furthermore, the fact that a guideline is not mandated by rule or statute does not bear on its status as a standard of care; indeed, by definition, none of the common law standards of care are so mandated. Industry standards can and do arise from common, voluntary practice, and Novick’s testimony opines on the relevant standards based on her experience with practitioners. Cross-examination affords defendants a sufficient opportunity to challenge Novick’s support and rationale for her 2 opinion. See United States v. Moreland, 437 F.3d 424, 431 (4th Cir. 2006) (“As with all other admissible evidence, expert testimony is subject to testing by [v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.”), overruling on other grounds recognized by United States v. Diosdado–Star, 630 F.3d 359 (4th Cir. 2011). Novick’s testimony with respect to the water industry’s emergency preparedness standard of care is therefore admissible. Defendants challenge Novick’s testimony regarding WV American’s 2003 vulnerability assessment because, they claim, Novick’s opinion is speculation about WV American’s state of mind when completing the assessment. Of course, speculation about a party’s intent does not lie within the compass of admissible expert testimony. See, e.g., In re Rezulin Prod. Liab. Litig., 309 F. Supp. 2d 531, 547 (S.D.N.Y. 2004) (“Inferences about the intent or motive of parties or others lie outside the bounds of expert testimony.”). Yet, defendants’ argument conflates meaning with intention: Novick does interpret the meaning of the written vulnerability assessment where it could be ambiguous, but she does not offer opinions about the subjective intentions of WV American. Insofar as Novick at any point does opine on the subjective intent of those involved in the vulnerability assessment, her opinion of course must be excluded. Defendants, however, have not provided 3 certain events must occur: 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 evidence that Novick has pursuant testimony about subjective prejudice offered to L.R. Civ. P. 7.1 (a)). 02/08/2016 Last day for Rule regarding the intentions, and Novick’s opinion 26(f) meeting. assessment cannot 02/15/2016 Last day to file Report of Parties= Planning be excluded on that basis. Meeting. See L.R. Civ. P. 16.1. 02/22/2016 Scheduling conference at 4:30 p.m. at the Robert C. Consequently, it States Courthouse in Charleston, before Byrd United is hereby ORDERED that defendants’ the undersigned, unless canceled. Lead counsel motion to exclude aspects of Kate Novick’s expert testimony be, directed to appear. and it hereby is, denied. 02/29/2016 Entry of scheduling order. 03/08/2016 Last day to serve F.R. Civ. P 26(a)(1) disclosures. The Clerk is directed to transmit copies of this order The Clerk is requested to transmit this Order and to all counsel counsel of and any and to any unrepresented Notice to all of record record unrepresented parties. parties. DATED: January 5, 2016 ENTER: October 13, 2016 John T. Copenhaver, Jr. United States District Judge 4

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