Opinion
CASE NO. 8:00CV527 and Consolidated Cases 8:00CV529; 8:00CV530; 8:00CV531; 8:00CV532; 8:00CV533; 8:00CV534; 8:00CV535; 8:00CV536; 8:00CV537; 8:01CV27; 8:01CV28; 8:02CV293.
February 8, 2005
MEMORANDUM AND ORDER
This matter is before the Court in these consolidated cases on the Plaintiffs' Motion in Limine regarding Defendant IBP, Inc.'s Expert Witnesses ( See, e.g., 8:00CV527, Filing No. 279), and IBP's Motion to Strike the Affidavit of John A. Kilpatrick, Ph.D. (See, e.g., 8:00CV527, Filing No. 287). Plaintiffs have filed brief in support of the motion in limine and in opposition to the motion to strike, and evidence ( See, e.g., 8:00CV527, Filing No. 280, 298, and 281). IBP has filed briefs and evidence in opposition to the motion ( See, e.g., 8:00CV527, Filing No. 302) and in support the motion to strike ( See, e.g., 8:00CV527, Filing Nos. 288, 289, 299).
Turning first to IBP's Motion to Strike, the Court concludes that the motion shall be denied. The Kilpatrick Affidavit was properly submitted to the Court in support of the motion in limine, which the parties earlier had agreed should be decided on the written record before the Court. I note that the affidavit will be considered in connection with the motion in limine only, and the Kilpatrick Affidavit and any opinions provided to the Court through the affidavit, will be excluded from the trial. See Fed.R.Evid. 104, 702.
The Court must determine whether IBP's proposed experts possess specialized knowledge that will assist the trier of fact to understand evidence or to determine a fact in issue. (Fed.R. Ev. 702). Under Rule 702, the Court must consider whether (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
In determining the reliability of a scientist's methodology, the Court should consider whether a theory or technique can be and has been tested, whether it has been subject to peer review or publication, whether it has known or potential error rates or standards and controls, and whether it has gained general acceptance in the scientific community. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-94 (1993); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999).
Plaintiffs seek to exclude several IBP expert witnesses. The Court's initial impression is that much of the motion is moot given some of the Court's recently-issued memoranda and orders. For example, Herman Staudenmayer, Ph.D., likely will not be called to testify at trial because, according to IBP, his opinions were offered to provide an evaluation of Dr. Kilburn's methodology, and to demonstrate whether there are differences in neuropsychological function between individuals who were exposed to hydrogen sulfide in Dakota City and individuals who were not exposed. (Filing No. 302, IBP Brief at 1-4.) It appears that IBP's need for Dr. Staudenmayer's testimony no longer exists. The Plaintiffs' decision to withdraw Dr. Kilburn, the Court's approval of that decision, and the Court's summary judgment in favor of IBP dismissing any claims for permanent physical injuries based on the Plaintiffs' lack of expert medical testimony to show causation, appear to moot the motion as to Dr. Staudenmayer.
Similarly, Plaintiffs' challenge to the opinions of Dr. Thomas Allems, as a proposed expert in medical toxicology, also appears moot. Plaintiffs contend that because Dr. Allems has no particular background in the specific toxicology of hydrogen sulfide in community settings, therefore he lacks expertise and his opinions lack the reliability required by Daubert. While Dr. Allems is not board certified in medical toxicology, he is board certified in internal and occupational medicine; he has a Masters Degree in Public Health; and he has previous experience examining persons exposed to hydrogen sulfide. Ex. 1, Allems Dep. at 16-21, 27. Moreover, Dr. Allems conducted medical examinations on fifteen of the Plaintiffs to determine whether there was a toxicological basis for their symptoms. While it appears that Dr. Allems would have been qualified under Daubert to testify that none of fifteen Plaintiffs whom he examined had suffered any permanent physical injury as a result of exposure to hydrogen sulfide, the Court finds that Dr. Allems' opinions are no longer relevant to the case given the Court's dismissal of Plaintiffs' claims for permanent personal injuries based on the Plaintiffs' lack of expert medical testimony on causation. Accordingly, I conclude the motion is moot as to Dr. Allems.
Likewise, John Bertoni, M.D., the Chair of Neurology at Creighton University, was offered by IBP to provide expert testimony on his findings and opinions following his medical examination of several Plaintiffs. He was prepared to testify that the Plaintiffs exhibited no neurological sign or symptom consistent with hydrogen sulfide exposure. Thus, he observed no permanent neurological conditions that could, to a reasonable degree of medical certainty, be attributed to hydrogen sulfide exposure. Like Dr. Staudenmayer and Dr. Allems, the Court finds that the motion is likely moot as to Dr. Bertoni's opinions because Plaintiffs have no remaining claim of permanent physical injuries. To the extent that Dr. Bertoni's testimony may be offered for some other purpose related to his neurological examinations of Plaintiffs, the Court finds that his expert testimony is sufficiently reliable to satisfy Fed.R.Evid. 702 and Daubert. See Kudabeck v. The Kroger Co., 338 F.3d 856, 61 (8th Cir. 2003). To the extent Plaintiffs seek to demonstrate the limitations of Dr. Bertoni's opinions based on his failure to consider or inadequate treatment of the Plaintiffs' exposure to hydrogen sulfide or to other toxicological evidence, these are matters properly left to cross-examination and go to the weight, rather than the admissibility, of the testimony. See United States v. Dico, Inc., 266 F.3d 864, 871 (8th Cir. 2001) (holding that "the sufficiency of the factual basis of . . . [an expert's] theory was open to any challenge [Defendant] . . . desired to mount on cross-examination, but that sufficiency was not a basis for excluding [the expert's] testimony altogether").
Plaintiffs contend that Paul Lees-Haley, Ph.D., who has been offered by IBP as an expert in neuropsychology, did not use a scientific approach in the interpretation and analysis of testing data relative to approximately 14 Plaintiffs whom he examined. Lees-Haley's opinions reflect his interpretation of standard psychological tests, including the Minnesota Multiphasic Personality Inventory-2 (MMPI-2), that he performed on approximately 14 Plaintiffs. Plaintiffs do not challenged Lees-Haley's qualifications or the battery of tests that he administered. Rather, Plaintiffs seek to exclude his testimony on the basis that Lees-Haley did not consider the Plaintiffs' exposure to hydrogen sulfide as a possible explanation for the lower than normal test scores of some of the Plaintiffs. Plaintiffs have offered the Declaration of Lisa Morrow, Ph.D., (Attachment 5, PP 11-19), to demonstrate that Lees-Haley's explanation of the low test scores on cognitive ability are due to various causes, including malingering and low IQ and other "unknown causes," but that Lees-Haley refused to consider exposure to hydrogen sulfide a reason for the lower than normal test scores. Dr. Morrow admits that she has, in her practice, used a battery of tests similar to those used by Dr. Lees Haley. (Morrow Dep. 23-24). Dr. Lees Haley's deposition statements indicate that he believes the levels of hydrogen sulfide to which these Plaintiffs were exposed are not sufficient to impair cognitive ability.
To the extent Dr. Lees-Haleys' testimony is offered in connection with permanent impairments to cognitive ability, his testimony is unnecessary given the Court's dismissal of all Plaintiffs' permanent personal injury claims. To the extent it is offered for some other relevant purpose, such as to address the Plaintiffs' claims of emotion distress, I conclude that Dr. Lees-Haleys' testimony is reliable and will assist the jury in understanding the evidence in this case. Whether the factual basis for Dr. Lees-Haleys' opinions are solid, and whether his failure to consider exposure to hydrogen sulfide as a cause of the Plaintiffs' lower than normal testing scores, is a matter than can be properly addressed on cross-examination. The motion shall be denied as to Dr. Lees-Haley.
Plaintiffs also seek to exclude the opinions of Dean Davenport, a licensed and certified real estate appraiser from Sioux City, Iowa. He was retained by IBP to provide expert opinions relative to the value of the various Plaintiffs' real property. He has more than 20 years of experience in appraisal in the relevant market, South Sioux City and Dakota City. (Davenport Report at 41). He is a member of professional organizations for appraisers. The Plaintiffs ask the Court to exclude his testimony because they contend that he is not qualified to give opinions on environmentally contaminated real estate, and they offer the Affidavit of John Kilpatrick, Ph.D., in support of their position.
The factual basis for Davenport's opinions is laid out in his report, generally from pages 5-28. He states that he completed his appraisals in accordance industry standards. I have considered Dr. Kilpatrick's affidavit, and I observe that there are many unique issues that are considered in the valuation of environmentally contaminated real estate. However, I find Davenport is qualified to testify to the opinions contained in his report, and that those opinions satisfy Daubert's reliability requirements. The sufficiency of Davenport's opinions and the weight to be accorded to them are matters for the jury to determine. I conclude that the motion as to Dean Davenport should be denied.
IBP has offered the testimony of Roy Ball to explain methods used and industry standards applicable to waste water treatment facilities. Ball has been involved with the design and operation of wastewater treatment facilities since 1968. He has knowledge of the industry as it has developed over the last 35 years. IBP intends to offer Ball's testimony to demonstrate that it complied with industry standards in the management of is facility. The factual investigation undertaken by Ball is set out in his report. I conclude that he is qualified as an expert, and that his opinions may assist the trier of fact in this case in understanding the evidence. The Plaintiffs' motion is denied as to Roy Ball.
Finally, Plaintiffs seek to exclude Dr. Shari Libicki. IBP has offered Dr. Libicki's testimony in rebuttal to the Plaintiffs' expert, Dr. Milford. Like the Plaintiff's rebuttal witness, Dr. Warmerdam, Dr. Libicki has noted calculation errors in Dr. Milfords' report, and she reaches different conclusions. She has a Bachelor's Degree of Science and Engineering in Chemical Engineering fro the University of Michigan, and she has a Master's Degree in Chemical Engineering from Stanford. Her report explains her academic work and professional experience in assessing emissions and in transport modeling. Once again, I find that Plaintiffs' trouble with Dr. Libicki's opinions relates to the sufficiency of the factual basis of her opinions, which may be explored on cross-examination, but which is not a basis for excluding her testimony from trial. See Dico, 266 F.3d at 871. I conclude that Dr. Libicki is qualified under Daubert, and her testimony is reliable and may assist the trier of fact. Accordingly, the motion shall be denied as to Dr. Libicki.
For all the reasons provided,
IT IS ORDERED:
1. IBP's Motion to Strike the Affidavit of John A. Kilpatrick, Ph.D. is denied. (8:00CV527, Filing No. 287; 8:00CV529, Filing No. 280; 8:00CV530, Filing No. 281; 8:00CV531, Filing No. 285; 8:00CV532, Filing No. 282; 8:00CV533, Filing No. 289; 8:00CV534, Filing No. 287; 8:00CV535, Filing No. 285; 8:00CV536, Filing No. 280; 8:00CV537, Filing No. 283; 8:01CV27, Filing No. 293; 8:01CV28, Filing No. 272; and 8:02CV293, Filing No. 204).
2. Plaintiffs' Motion in Limine as to IBP, Inc.'s Expert Witnesses is denied. (8:00CV527, Filing No. 279; 8:00CV529, Filing No. 272; 8:00CV530, Filing No. 273; 8:00CV531, Filing No. 276; 8:00CV532, Filing No. 274; 8:00CV533, Filing No. 281; 8:00CV534, Filing No. 279; 8:00CV535, Filing No. 277; 8:00CV536, Filing No. 272; 8:00CV537, Filing No. 275; 8:01CV27, Filing No. 282; 8:01CV28, Filing No. 264; and 8:02CV293, Filing No. 196).