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

Filing 1047

ORDER the 723 MOTION by All Plaintiffs to Exclude George Kunkel, P.E. 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

Plaintiffs moved on May 10, 2016 to exclude the
testimony of George Kunkel, whom West Virginia-American Water
Company (“WV American”) has proffered as an expert.

Kunkel’s testimony pertains to the water loss management
practices of WV American, and as such is relevant to questions
regarding WV American’s ability to meet water demand in the days
shortly after the spill.

See Daubert v. Merrell Dow Pharm., Inc.,

509 U.S. 579, 591 (1993) (discussing importance of relevance in

evaluating expert testimony).

When assessing the admissibility of

expert testimony, a “court need not determine that [] proffered
expert testimony is irrefutable or certainly correct. . . .

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.”

United

States v. Moreland, 437 F.3d 424, 431 (4th Cir. 2006) (citations
and quotation marks omitted), overruling on other grounds
recognized by United States v. Diosdado–Star, 630 F.3d 359 (4th
Cir. 2011).

See also Kumho Tire Co. v. Carmichael, 526 U.S. 137,

152 (1999) (“[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.”).

Plaintiffs argue that Kunkel’s testimony should be
excluded because it was “hastily formed” and based on unreliable
evidence.

WV American disputes that Kunkel’s opinions were

hastily formed, and despite plaintiffs’ claim that Kunkel has
admitted to this problem, no such admission appears in the record.
With respect to reliability, cross-examination is the instrument
of choice for calling into question particular pieces of evidence
and weighing all relevant pieces of evidence.

Particular items of

evidence that Kunkel used in reaching his conclusions can be
vetted at trial.

Kunkel’s testimony is cognizant of the
2

ORDER AND NOTICE
Pursuant to L.R. Civ. P. 16.1, it is ORDERED that the
following dates are hereby fixed as the time by or on which
certain events must occur:
possibility of Motions under F.R. Civ. of evidence but is not
error in certain items P. 12(b), together with
01/28/2016
supporting briefs, memoranda, affidavits, or other
distorted by it, and Kunkel addresses thereof. (All evidence in
such matter in support a variety of motions
unsupported by memoranda will be denied without
order to hedge prejudice pursuant any L.R. item. P. 7.1 (a)).
against errors on to one Civ. There are
02/08/2016
Last day for Rule 26(f) meeting.
sufficient indicia of reliability for the court to be satisfied
02/15/2016
Last day to admissible.
that Kunkel’s opinions are file Report of Parties= Planning
Meeting. See L.R. Civ. P. 16.1.
02/22/2016
Scheduling conference ORDERED that plaintiffs’
Consequently, it is hereby at 4:30 p.m. at the Robert C.
Byrd United States Courthouse in Charleston, before
the undersigned, unless canceled. Lead and it
motion to exclude George Kunkel’s expert testimony be, counsel
directed to appear.
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 of record and any unrepresented parties.
Notice to all counsel of record and to any unrepresented
parties.
ENTER: October 13, 2016
DATED: January 5, 2016
John T. Copenhaver, Jr.
United States District Judge

3