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King v. Cole's Poultry, LLC

United States District Court, N.D. Mississippi, Aberdeen Division

January 17, 2017




         Presently before the Court is defendant Peco Foods, Inc.'s (“Peco”) Motion in Limine to Exclude Expert Opinion Testimony of Dr. Robert Hall [259]. Plaintiffs filed a response in opposition to the motion, to which Peco filed a rebuttal. Upon due consideration of the parties' arguments, in addition to relevant authorities and evidence, the Court is now prepared to rule.

         Standard for Expert Testimony

         This Court has previously recognized its duty “to screen a proffered expert's testimony to determine admissibility.” Childs v. Entergy Miss., Inc., 2009 WL 2508128, *2 (N.D. Miss. Aug. 13, 2009). “Expert testimony is not admissible unless the expert is qualified and the opinion is scientifically valid and methodologically sound.” Miller v. Genie Indus., Inc., 2012 WL 161408, at *4 (N.D. Miss. Jan. 19, 2012) (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-93, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). “When evaluating expert testimony, the overarching concern is whether or not it is relevant and reliable.” Smith v. Goodyear Tire & Rubber Co., 495 F.3d 224, 227 (5th Cir. 2007).

         Regarding relevance, the testimony must “assist the trier of fact to understand the evidence or determine a fact in issue[.]” Childs, 2009 WL 2508128, at *2. Moreover, the relevance requirement is satisfied “where there is a sufficient relationship between the subject of the proffered testimony and the facts of the case, so that the testimony aids the factfinder in resolving a disputed issue.” Id. (additional citations omitted).

         As to reliability, “[a] party seeking to introduce expert testimony must show ‘(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.'” Smith, 495 F.3d at 227 (citing Fed.R.Evid. 702). “Proposed testimony must be supported by appropriate validation-i.e., ‘good grounds, ' based on what is known. In short, the requirement that an expert's testimony pertains to ‘scientific knowledge' establishes a standard of evidentiary reliability.” Reed v. Flores, 2010 WL 5051474, at *2 (N.D. Miss. Dec. 3, 2010) (quoting Daubert, 509 U.S. at 590)).

         Moreover, the Court must “make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Id. (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)) (additional citations omitted). The Court also notes that “[t]he party offering the expert testimony bears the burden of proving that the testimony is admissible.” Miller, 2012 WL 161408, at *4 (citing Smith, 495 F.3d at 227).


         In its motion, Peco asserts that this Court should “exclude all expert opinion testimony offered by Robert D. Hall, Ph.D., J.D. as inadmissible under Fed.R.Evid. 702 and 703 pursuant to Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999).” Peco also alternatively requests that this Court dismiss with prejudice “Plaintiffs' claims that insects (flies) from the Cole and Skeels poultry farms have impaired Plaintiffs' ability to use and enjoy their properties.”

         To support its position, Peco states that the testimonies of many individual plaintiffs as to the large quantity of flies on their properties are inconsistent with Dr. Hall's findings in his site visits. Dr. Hall conducted two site visits to the Cole's and Skeels facilities in both January 2016 and May 2016. During the January 2016 visit, Dr. Hall spent approximately five hours inspecting the Cole's and Skeels facilities, along with some of the plaintiffs' properties and the surrounding areas. In summarizing the results of his inspections, he stated that there were “no fly specimens available for collection at the Skeels/Cole poultry operations when I was there on January 25th. The principle [sic] reason is that this initial site visit was conducted during midwinter when flies are not active.” Dr. Hall further stated that “[m]ost of the so-called nuisance flies don't become active until you get prevailing temperatures that are much over 50 degrees.” Nevertheless, Dr. Hall concluded that “it is my opinion that it is more likely than not that the vast majority of flies experienced by the plaintiffs on their properties and inside their homes traveled there from the Skeels/Cole poultry operations located off of Tumblin Road in Monroe County, Mississippi. Plaintiffs' properties are within the typical flight range of house and blow flies.”

         Dr. Hall returned to visit the site on May 10, 2016. As with his first visit, Dr. Hall did not observe any flies during the inspection but stated that “it remains too early in the season for house fly activity.” From May 6-9, 2016, Dr. Hall also conducted “fly strip analyses, ” which essentially consists of placing sticky tapes at the front and back door of each home. Describing his findings, Dr. Hall stated that “I noted very few house flies and no blow flies on the fly strips examined.” After again failing to observe many flies during this second visit, Dr. Hall stated that “house fly populations do not build to significant levels until summer temperatures prevail. Greenbottle blow flies are likewise most abundant in mid-summer.” Thus, Dr. Hall concluded that he “remain[ed] unable to document house or blow fly issues relevant to the Cole and Skeels poultry operations, because [his] visits have been during the winter or spring seasons when such fly populations are not expected to be significant.”

         Relying on these facts and the individual plaintiffs' testimonies, Peco avers that “[a]ssuming that Plaintiffs have testified truthfully, Dr. Hall's opinion that he did not see any flies in January or May 2016 because flies are not active during those months or in the winter or spring seasons is unreliable and fails to conform with the requirement under Fed.R.Evid. 702 that an expert's opinions be based on sufficient facts or data.” Peco also argues that because Dr. Hall did not determine the normal background level for flies in the area, he should not be permitted to testify that the fly population was elevated due to the conditions at the Cole's and Skeels facilities. Alternatively, Peco argues that if the Court accepts Dr. Hall's testimony, it should dismiss plaintiffs' nuisance claims because the plaintiffs' testimonies are inconsistent with Dr. Hall's findings, specifically stating that “if Dr. Hall is right and Plaintiffs have embellished the truth, the Court should dismiss these claims in their entirety pursuant to its discretionary authority to issue an appropriate sanction for Plaintiffs' discovery abuse that can only be described as perjury.”

         In opposition, plaintiffs assert that Dr. Hall's failure to observe a larger quantity of flies can be attributed to little more than unfortunate scheduling. Moreover, they assert that Dr. Hall's opinion that, more likely than not, the flies on plaintiffs' properties traveled there from the Skeels and Cole's facilities is indeed admissible, as it satisfies the FRE 703 standard. Plaintiffs concede that Dr. Hall did rely in part on representations made to him by individual plaintiffs but also argue that “it is perfectly appropriate for an expert to rely upon such information under [FRE] 703.” Finally, Plaintiffs assert that cross-examination is the proper vehicle for Peco to expose its criticisms of Dr. Hall's findings.

         The Court finds that Peco's motion should be denied. As an initial matter, the Court notes that Dr. Hall is qualified to testify as an expert. “The qualification standard for expert testimony is not stringent, and so long as the expert is minimally qualified, objections to the level of the expert's expertise go to the credibility and weight, not admissibility.” Watkins v. New Palace Casino, LLC, 2014 WL 10100195, at *2 (S.D.Miss. Oct. 31, 2014) (additional citations omitted). Dr. Hall earned a masters of science degree in medical and veterinary entomology, along with a Ph.D. in medical and environmental entomology, from Virginia Tech. He also has extensive professional experience in the field of entomology. The Court sees no ...

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