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)

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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 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

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