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Modern Holdings, LLC v. Corning, Inc.

United States District Court, E.D. Kentucky, Central Division, Lexington

January 25, 2018

MODERN HOLDINGS, LLC, et al., Plaintiff,


          Gregory F. Van Tatenhove, United States District Judge.

         This matter is before the Court on the Defendants' Motion to Exclude the Testimony of Albert Westerman, Ph.D., an expert in toxicology. [R. 267.] The Defendants claim that Dr. Westerman's opinion does not meet the admissibility standards of Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). For the following reasons, Defendants' Motion is DENIED.


         The Plaintiffs in this case are comprised of one company and a class of individuals who all own property and/or reside near a glass manufacturing facility in Danville, Kentucky. The Defendants include Corning, Inc., which owned and operated the glass manufacturing facility from 1952 to 1983, and Philips North America, which owned and operated the site between 1983 and 2013. [See R. 211 at 2.] Plaintiffs claim they have suffered various health problems and damage to their properties due to the release or dispersion of hazardous materials from the glass manufacturing facility. Accordingly, Plaintiffs bring numerous tort claims against the Defendants including nuisance, trespass, and negligence. [See R. 211 at 63-78.]

         The lengthy procedural history of this action, which was originally filed in November, 2013, is discussed in detail in previously issued Court orders. [See, e.g., R. 160 at 1-2.] For purposes of this opinion, the Court focuses on the pending Motion for Class Certification [R. 251] and the Defendants' Motion to Exclude the Opinion of Albert Westerman [R. 267]. The Plaintiffs filed a motion to certify a class of individuals who either resided or owned property within the “Affected Area” at any time between 1952 and November 27, 2013. [R. 251 at 1.] In this Motion, Plaintiffs attached the reports and rebuttals of Albert Westerman, Ph.D., a toxicologist. [R. 253-17; R. 253-18; R. 253-19; R. 253-20.] Dr. Westerman concluded, “The levels of lead, arsenic, and [trichloroethylene] found throughout the Affected Area represent a hazard to the health of the individuals living within the Affected Area and impact the use of the properties in the Affected Area.” [R. 251-1 at 20.]

         The United States Environmental Protection Agency has established “screening levels” for the amount of certain hazardous substances in soil, air, and water. [R. 267-1 at 3.] Kentucky has adopted these levels as the standard for mandatory remediation pursuant to statute. Ky. Rev. Stat. § 224.1-530. Dr. Westerman believes that this statutory level is much higher than the level of concentration that would cause adverse health effects or interfere with a person's use of their land. [R. 267-2.] Based on his research, he believes the concentrations of lead, arsenic, and trichloroethylene (TCE) in the Affected Area are higher than concentrations that would naturally occur in that area. Id. at 14-16; 24-28. Additionally, even though the levels are less than the screening levels established by the EPA, Dr. Westerman opines that the increased levels have caused adverse health effects for people in the area. [R. 251-1 at 21.] Corning and Philips challenge the admissibility of his opinion under Federal Rule of Evidence 702.



         The admissibility of expert testimony is governed by Federal Rule of Evidence 702, which states:

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.

Fed. R. Evid. 702. From Rule 702 comes a three-part test for admitting expert testimony. In re Scrap Metal Antitrust Litig., 527 F.3d 517, 528-29 (6th Cir. 2008). First, is the witness qualified? Next, is the testimony relevant, more precisely, will it assist a trier of fact to understand the evidence or determine a fact in issue? Finally, the testimony of the expert must be scientifically reliable.

         The seminal case applying this test is Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). In that decision, the Supreme Court explained that a district court's gatekeeping responsibility is implicit in Rule 702, “ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand.” Daubert, 509 U.S. at 597. Further, the Supreme Court listed several specific factors to help determine the reliability of expert testimony based on scientific knowledge. See Id. at 590, n. 8. These factors include whether a theory or technique can be or has been tested; whether the theory has been subjected to peer review and publication; whether there is a high known or potential error rate; whether there are certain operation standards that should have been or were followed; and whether the theory or technique is generally accepted within the scientific community. Id. at 592-94. Later, in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the Supreme Court determined that the gatekeeping obligation and subsequent factors established in Daubert apply with equal force to non-scientific experts. However, those factors are not definitive and district courts “must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.” Kumho, 526 U.S. at 152.

         As for the second prong of the test, district courts “must ensure that the proposed expert testimony is relevant to the task at hand and will serve to aid the trier of fact.” United States v. Smithers, 212 F.3d 306, 313 (6th Cir. 2000). The Supreme Court in Daubert referred to this prong as the “fit” requirement. See id.; Daubert, 509 U.S. at 591-93. Because “scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes, ” courts must consider whether a particular expert's testimony will truly assist the trier of fact to understand the evidence in the case at hand. Daubert, 509 U.S. at 591.

         Finally, the Court must determine whether this testimony is reliable. To be reliable, “a judge must ascertain whether it is ‘ground[ed] in the methods and procedures of science.'” Federal Judicial Center, Reference Manual on Scientific Evidence 13 (3d ed. 2011) (quoting Daubert, 509 U.S. at 590). In Daubert, the Supreme Court outlined several factors this Court should consider to make that determination, including if the theory or technique has been or can be tested, whether such theory or technique has undergone peer review and publication, what the known or potential rate of error is for the theory or technique, and whether the theory or technique ...

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