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Bryant v. 3M Co.

United States District Court, S.D. Mississippi, Eastern Division

February 27, 2015

ERNEST BRYANT, PLAINTIFF
v.
3M COMPANY, et al., DEFENDANTS

Page 627

[Copyrighted Material Omitted]

Page 628

For Ernest Bryant Plaintiff: John T. Givens LEAD ATTORNEY, PORTER & MALOUF, PA Jackson, MS; Robert Allen Smith, Jr., THE SMITH LAW FIRM, PLLC, Ridgeland, MS.

For 3M Company, Defendant: J. William Manuel, LEAD ATTORNEY, Margaret Oertling Cupples, Simon T. Bailey, BRADLEY ARANT BOULT CUMMINGS, LLP - Jackson, Jackson, MS.

Page 629

Memorandum Opinion and Order

Keith Starrett, UNITED STATES DISTRICT JUDGE.

For the reasons stated below, the Court grants Defendant's Motion to Exclude [208] the testimony of Darell Bevis.

I. Background

This is a product liability/silicosis case. Plaintiff worked around sandblasting for approximately one year in the late seventies. During that year, he spent approximately forty percent of his working time sandblasting or tending the sandblasting pot, while the rest was spent painting and cleaning. While Plaintiff was sandblasting or tending the pot, he wore a disposable, single-use respirator designed and manufactured by Defendant: the 3M 8710.

Plaintiff contends that he has pneumoconiosis caused in part by inhalation of silica because Defendant's respirator was defective. He asserted claims under the Mississippi Product Liability Act (" MPLA" ) for design, manufacturing, and warning defects. Defendant filed several motions [208, 210, 212, 226] to exclude the testimony of Plaintiff's proposed experts -- Darell Bevis, Dr. Vernon Rose, and Dr. Steven Haber. The Court now considers Defendant's Motion to Exclude [208] the testimony of Darell Bevis.

II. Discussion

According to his report [208-4], Bevis believes that the 3M 8710 is defective in three general ways. First, he claims that the 3M 8710 does not properly seal to the face because a " malleable aluminum strip across the nose area . . . relaxes and reshapes itself very quickly," and the respirator's " valveless design . . . promotes considerable condensed moisture collection on the paper which increases the pressure drop or breathing resistance causing the loss of rigidity and . . . seal leakage." Second, Bevis stated that the " paper/fabric media" of the 8710 is " the lowest efficiency acceptable" under the pertinent regulations. Finally, Bevis maintains that the 8710's design makes it impossible to conduct a proper fit test or seal check. In light of these alleged defects, Bevis concluded that " the subject respirators did not provide sufficient protection to prevent inhalation exposure of Mr. Bryant to very substantial amounts of respirable silica."

Federal Rule of Evidence 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence ...

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