Opinion
No. 10-35643.
Argued and Submitted June 6, 2011 Seattle, Washington.
June 17, 2011.
Appeal from the United States District Court for the Eastern District of Washington Rosanna Malouf Peterson, Chief District Judge, Presiding D.C. No. 2:08-cv-00273-RMP.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Larry Newkirk appeals the district court's order excluding his proffered expert testimony and granting summary judgment to defendants ConAgra and Chr. Hansen. We affirm.
Under Daubert v. Merrell Dow Pharmamaceuticals, Inc., 509 U.S. 579, 597 (1993), the district judge has a "gatekeeping role" and must exclude expert scientific testimony that is not sufficiently reliable under Fed.R.Evid. 702. Expert scientific testimony is inadmissible if there is "too great an analytical gap between the data and the opinion offered." Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). We review the district court's decision on the admissibility of an expert's opinion for abuse of discretion. Id. at 142-43.
The district court found that Dr. Egilman's opinion rested on the foundational assumption that the vapors emitted when microwave popcorn is popped are similar to the vapors emitted from large vats of butter-flavored topping slurry at popcorn factories. Studies at popcorn plants did not conclusively show whether workers with no exposure to slurry vapors developed bronchiolitis obliterans. Additionally, one study suggested that chemicals released when microwave popcorn is popped inhibit the absorption of diacetyl, the likely causal agent for bronchiolitis obliterans. Dr. Egilman did not sufficiently justify his foundational assumption or refute the contrary record evidence. Moreover, as the district court observed, there were problems with Dr. Egilman's and William Ewing's estimates of Newkirk's exposure levels. In light of these concerns, we hold that the district court did not abuse its discretion in concluding that the "analytical gap between the existing data and the opinion Dr. Egilman proffers" was too large. See Joiner, 522 U.S. at 146.
Because