United States District Court, S.D. Mississippi, Southern Division
MICHAEL YARBROUGH, JR.; et al. PLAINTIFFS
HUNT SOUTHERN GROUP, LLC formerly known as Forest City Southern Group, LLC; et al. DEFENDANTS
MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS'
MOTION TO STRIKE SUPPLEMENTAL DESIGNATION AND REPORT OF DR.
PAUL GOLDSTEIN AS UNTIMELY, AND GRANTING IN PART AND DENYING
IN PART DEFENDANTS' MOTION TO EXCLUDE OPINIONS AND
TESTIMONY OF DR. PAUL GOLDSTEIN
GUIROLA, JR. UNITED STATES DISTRICT JUDGE.
THE COURT are the  Motion to Strike and Exclude the
Supplemental Designation and Report of Dr. Paul Goldstein as
Untimely and  Motion to Exclude Opinions and Testimony
of Dr. Paul Goldstein filed by Defendants Hunt Southern
Group, LLC, Hunt MH Property Management, LLC, and Forest City
Residential Management, LLC. Defendants argue that Dr. Paul
Goldstein's supplemental expert reports should be
excluded as untimely and that Dr. Paul Goldstein's
opinions on causation should be excluded as unreliable under
Federal Rule of Evidence 702. Both Motions are fully briefed.
Having considered the submissions of the parties, the record,
and relevant law, the Court finds that the Motion to Strike
should be denied and the Motion to Exclude should be granted
in part and denied in part. The Motion to Exclude will be
granted to the extent that Dr. Goldstein's opinion
concerning specific causation will be excluded as unreliable.
It will otherwise be denied.
plaintiffs in this case - Michael Yarbrough, Jr., Ann
Yarbrough, Alizelyia Yarbrough, Michael Yarbrough, III, and
James Yarbrough - allege that they were exposed to mold while
living in on-base housing at Keesler Air Force Base in
Biloxi, Mississippi. This is one of fourteen pending similar
cases filed by military families at Keesler. The defendants
are alleged to have owned or managed the subject on-base
housing since its construction was completed in 2011.
Plaintiffs commenced a lease of their residence on October 1,
2011. (See Military Lease Agreement 1, ECF No.
196-1.) Plaintiffs assert they repeatedly requested that
Defendants address maintenance concerns involving mold and
water damage in their residence. Plaintiffs allege that
Defendants' actions and inactions caused Plaintiffs to be
exposed to elevated levels of toxic mold and, as a result,
they were forced to leave their home and suffered and
continue to suffer physical and emotional injuries, medical
expenses, and property damage.
personal injury claims are claims for toxic tort. Shed v.
Johnny Coleman Builders, Inc., 761 Fed.Appx. 404, 406
(5th Cir. 2019). “To establish causation in toxic tort
cases, general causation first must be shown, then specific
causation. General causation means that a substance is
capable of causing a particular injury; specific causation
looks to whether the substance caused the specific
plaintiff's injury.” Id. (citing
Knight v. Kirby Inland Marine Inc., 482 F.3d 347,
351 (5th Cir. 2007)); see also Curtis v. M&S
Petroleum, Inc., 174 F.3d 661, 670 (5th Cir. 1999).
support of their claims, Plaintiffs offer the expert
testimony of Dr. Paul Goldstein, Ph.D., a professor of
genetics and toxicology in the Department of Biological
Sciences at the University of Texas, El Paso. Dr. Goldstein
opines that the Yarbroughs have experienced symptoms - chest
pain, sinusitis, congestion, respiratory problems, rhinitis,
fatigue, headache, rash, allergic reaction, dermatitis,
nausea, vomiting, and cough - consistent with exposure to
toxins released by Aspergillus and Penicillium mold spores
found in their residence. (See Goldstein Report 3-5,
ECF No. 216-1.) He also opines that Plaintiffs' exposure
to these toxins more likely than not caused their symptoms.
(Id. at 5.) His first opinion goes to general
causation; the second goes to specific causation.
Motion to Strike the Supplemental Designation and Report of
Dr. Paul Goldstein as Untimely maintains that Dr.
Goldstein's March 6, 2019 [216-4] Supplemental
Designation and March 21, 2019 [216-5] Supplemental Report -
which were produced after his deposition - should be excluded
as untimely because they would severely prejudice Defendants.
Motion to Exclude Opinions and Testimony of Dr. Paul
Goldstein contends that Dr. Goldstein's opinions on
general causation and specific causation should be excluded
under Federal Rule of Evidence 702 and Daubert v. Merrell
Dow Pharms., Inc., 509 U.S. 579, 592-93 (1993), because
they are unreliable.
Motion to Strike and Exclude as Untimely
Federal Rule of Civil Procedure 37(c)(1), “[i]f a party
fails to provide information or identify a witness as
required by Rule 26(a) or (e), the party is not allowed to
use that information . . . at a trial, unless the failure was
substantially justified or is harmless.” Whether the
non-compliance was substantially justified or harmless turns
on the following four-factor test: “(1) the importance
of the excluded testimony, (2) the explanation of the party
for its failure to comply with the court's order, (3) the
potential prejudice that would arise from allowing the
testimony, and (4) the availability of a continuance to cure
such prejudice.” E.E.O.C. v. Gen. Dynamics
Corp., 999 F.2d 113, 115 (5th Cir. 1993) (citation
omitted). “The admission or exclusion of expert
testimony is a matter left to the discretion of the trial
court . . . .” Eiland v. Westinghouse Elec.
Corp., 58 F.3d 176, 180 (5th Cir. 1995). However, the
Fifth Circuit has “emphasized that continuance, not
exclusion, is the preferred means of dealing with a
party's attempt to designate a witness out of order or
offer new evidence.” Gen. Dynamics Corp., 999
F.2d at 116 (citing Bradley v. United States, 866
F.2d 120, 127 n.11 (5th Cir. 1989)).
the fact that Plaintiffs offer no compelling explanation for
the untimeliness of these supplemental reports, the Court
finds that the importance of the testimony and the lack of
prejudice to Defendants weighs in favor of admitting these
supplemental designations. Dr. Goldstein's opinion is the
only expert evidence on causation for Plaintiffs' toxic
tort claims. As will be explained infra, expert
evidence is necessary to establish causation for such a
claim. Defendants also suffer no prejudice because Dr.
Goldstein offers no new conclusions in his supplemental
designations and - as will also be explained infra -
Dr. Goldstein's opinion on specific causation must be
excluded as unreliable. Defendants'  Motion to
Strike and Exclude the Supplemental Designation and Report of
Dr. Paul Goldstein as Untimely will therefore be denied.
Motion to Exclude as Unreliable
Daubert, Rule 702 charges trial courts to act as
‘gate-keepers'. . . .” Pipitone v.
Biomatrix, Inc., 288 F.3d 239, 243-44 (5th Cir. 2002)
(citing Daubert v. Merrell Dow Pharms., Inc., 509
U.S. 579, 592-93 (1993)). “District courts are to make
a ‘preliminary assessment of whether the reasoning or
methodology underlying the testimony is scientifically valid
and of whether that reasoning or methodology properly can be
applied to the facts in issue.'” Carlson v.
Bioremedi Therapeutic Sys., Inc., 822 F.3d 194, 199 (5th
Cir. 2016) (quoting Pipitone, 288 F.3d at 243-44).
“In short, expert testimony is admissible only if it is
both relevant and reliable.” Pipitone, 288
F.3d at 244 (citing Daubert, 509 U.S. at 589). The
party seeking to have the district court admit expert
testimony bears the burden of proof. Moore v. Ashland
Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998) (en banc).
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.'”
Carlson, 822 F.3d at 199 (quoting Smith v.
Goodyear Tire & Rubber Co., 495 F.3d 224, 227 (5th
Cir. 2007)). “Ultimately, the trial court must also
find an adequate fit between the data and the opinion
proffered.” Brown v. Ill. Cent. R. Co., 705
F.3d 531, 535 (5th Cir. 2013) (quotation omitted).
“[N]othing in either Daubert or the Federal
Rules of Evidence requires a district court to admit opinion
evidence that is connected to existing data only by the
ipse dixit of the expert. A court may conclude that
there is simply too great an analytical gap between the data
and the opinion proffered.” Gen. Elec. Co. v.
Joiner, 522 U.S. 136, 146 (1997).
Goldstein's opinion is primarily contained within his
original report (See Goldstein Report, ECF No.
216-1.) His first supplemental report mostly lists additional
supporting literature absent from his original report.
(See Goldstein 1st Supp. Report; ECF No. 216-4.) His
second supplemental report responds to the criticism of his
original report by Defendants' expert, Dr. Allison Stock,
Pd.D. (See Goldstein 2d Supp. Report, ECF No.
216-5). It does not contain new conclusions, but it includes
survey forms completed by Plaintiffs in which they
self-report lifestyle habits and exposure to environmental
irritants (presumably for the purpose of demonstrating the
absence of other possible causes of their health symptoms).
Goldstein states that he applied the Bradford Hill Criteria
of Causation to determine “that the residents in the
Yarbrough household were exposed to, and suffered from,
toxins released by the presence of Aspergillus and
Penicillium in their home.” (Goldstein Report
5, ECF No. 216-1.)
Sir Bradford Hill was a world-renowned epidemiologist who
articulated a nine-factor set of guidelines in his seminal
methodological article on causality inferences. Milward
v. Acuity Specialty Products Group, Inc., 639 F.3d 11,
17 (1st Cir. 2011) (citing Arthur Bradford Hill, The
Environment and Disease: Association or Causation?, 58
Proc. Royal Soc'y Med. 295 (1965)). The Bradford Hill
criteria are nine factors “widely used in the
scientific community to assess general causation.”
In re Stand 'N Seal Products Liab. Litig., 623
F.Supp.2d 1355, 1372 (N.D.Ga. 2009) (citing Gannon v.
United States, 292 Fed.Appx. 170, 173 (3d Cir. 2008)).
Sir Bradford Hill's article explains that “one
should not conclude that an observed association between a
disease and a feature of the environment (e.g., a chemical)
is causal without first considering a variety of
‘viewpoints' on the issue.” Milward,
639 F.3d at 17.
Jones v. Novartis Pharm. Corp., 235 F.Supp.3d 1244,
1267 (N.D. Ala. 2017), aff'd,720 Fed.Appx. 1006
(11th Cir. 2018). The nine ...