United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove, United States District Judge.
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
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.]
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.]
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.
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.
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.
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.
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 ...