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Yarbrough v. Hunt Southern Group, LLC

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

September 12, 2019

MICHAEL YARBROUGH, JR.; et al. PLAINTIFFS
v.
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

          LOUIS GUIROLA, JR. UNITED STATES DISTRICT JUDGE.

         BEFORE THE COURT are the [216] Motion to Strike and Exclude the Supplemental Designation and Report of Dr. Paul Goldstein as Untimely and [218] 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.

         I. BACKGROUND

         The 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.[1] 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.

         Plaintiffs' 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).

         In 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.

         Defendants' 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.

         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.

         II. DISCUSSION

         a. Motion to Strike and Exclude as Untimely

         Under 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)).

         Despite 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' [216] Motion to Strike and Exclude the Supplemental Designation and Report of Dr. Paul Goldstein as Untimely will therefore be denied.

         b. Motion to Exclude as Unreliable

         “Under 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).

         “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.'” 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).

         Dr. 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).

         Dr. 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 ...


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