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)

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
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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
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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

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