United States District Court, N.D. Mississippi, Greenville Division
BRENDA J. COOPER, et al. PLAINTIFFS
MERITOR, INC., et al. DEFENDANTS
M. BROWN UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
Standard Governing Admissibility of Expert
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
(d) the expert has reliably applied the principles and
methods to the facts of the case.
“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).
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).
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