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Cooper v. Meritor, Inc.

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

February 11, 2019




         Before the Court in these consolidated cases is the “Motion of Defendants Meritor Inc., The Boeing Company, and Rockwell Automation, Inc. to Exclude the Opinions and Testimony of Michael Nicar.” Doc. #548.

         I Background

         These consolidated cases involve claims for property damage arising from decades of operation of a manufacturing facility (“Facility”) in Grenada, Mississippi, by Meritor, Inc., the Boeing Company, Rockwell Automation, Inc., and Textron, Inc. The plaintiffs, all property owners or former property owners of land in Grenada's Eastern Heights subdivision (“Subdivision”), assert that the defendants negligently operated the Facility and that the negligence resulted in the contamination of Eastern Heights. The plaintiffs' amended complaint, which asserts claims for fraud, civil conspiracy, negligence, nuisance, and infliction of emotional distress, seeks recovery for numerous damages, including, of relevance here, “[e]motional distress secondary to Defendants' breach of duties resulting from Plaintiffs' fear of illness from exposure to contaminants released by Defendants, worry regarding Plaintiffs' property damage, resulting from Plaintiffs' distress related to impairment of their property values, and resulting from the stress of inconvenience and upheaval necessary for relocation.” Doc. #43 at ¶ 77.

         During discovery, the plaintiffs disclosed the expert report of Michael (Rusty) Nicar which “discusses and summarizes the adverse health effects that living in the vicinity of the Eastern Heights neighborhood presents to its residents, due to chemical exposure.” Doc. #584-1 at 2. The report includes the conclusion:

The Eastern Heights neighborhood has been contaminated with multiple organic chemicals and heavy metals, which are toxic to human health. Several chemicals that have been released into the vicinity of the industrial facility cause cancer. The chemical contamination was the result of years of industrial activity at the former Rockwell International/Randall Textron Plant facility in Grenada. Years of operation, waste disposal, and environmental emissions have left the residents in Eastern Heights exposed to hazardous chemicals in their air, soil, and water. Living indoors cannot protect the residents, rather, living indoors increases their exposure. The chemicals found by analysis can get into the body through air, soil and water. The residents have no way to escape or avoid these dangerous chemicals, except by moving away from this residential area. With respect to cancer, no amount or level can be considered safe (as per WHO).
Some people that have been living in Eastern Heights could already have cancer and not be aware, from exposure to these chemicals. Some could have an illness or injury that will be with them for their life, and not yet be aware. These people will require medical monitoring for life, so that early diagnosis can help save their life and improve their quality of life. The specific exposure, that is, what chemicals are present, is not yet fully known. Further, it could change over time. Since many chemicals are present and subject to structure change, new chemicals will be forming in the soil. Hopefully, these new chemicals will be degradation products and harmless. However, some could be toxic and carcinogenic.

Id. at 7.

         On May 8, 2018, Meritor, Boeing, and Rockwell (“Meritor Defendants”) filed a motion to exclude the opinions offered by Nicar. Doc. #548. Textron joined the motion one day later. Doc. #582. The plaintiffs responded in opposition to the motion on May 18, 2018. Doc. #613. The Meritor Defendants replied on May 24, 2018. Doc. #688.

         II Standard Governing Admissibility of Expert Opinions

         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 or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

         A “district court has wide latitude when navigating the expert-qualification process.” Williams v. Manitowoc Cranes, L.L.C., 896 F.3d 607, 625 (5th Cir. 2018). “As long as there are sufficient indicia that an individual will provide a reliable opinion on a subject, a district court may qualify that individual as an expert.” Id. (quotation marks omitted).

         Under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), a district court has a “special obligation … to ensure that any and all scientific testimony is not only relevant, but reliable.” Bear Ranch, L.L.C. v. Heartbrand Beef, Inc., 885 F.3d 794, 802 (5th Cir. 2018) (internal alterations and quotation marks omitted). “To establish reliability under Daubert, an expert bears the burden of furnishing some objective, independent validation of his methodology.” Brown v. Ill. Cent. R.R. Co., 705 F.3d 531, 536 (5th Cir. 2013) (internal alterations and quotation marks omitted).

         When evaluating reliability, Daubert dictates that trial courts should consider: (1) “the extent to which a given technique can be tested;” (2) “whether the technique is subject to peer review and publication; (3) “any known potential rate of error, the existence and maintenance of standards governing operation of the technique; and (4) “whether the method has been generally accepted in the relevant scientific community.” Hathaway v. Bazany, 507 F.3d 312, 318 (5th Cir. 2007). The Daubert factors “are not mandatory or exclusive.” Id. Rather, the district court should consider whether the enumerated factors “are ...

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