United States District Court, D. Colorado
GREGORY BELL, JOSE ACEVEDO, and DENISE DURBIN, individually and as parent and next friend of K.D. and B.D., for themselves and on behalf of all others similarly situated, Plaintiffs,
THE 3M COMPANY f/k/a Minnesota Mining and Manufacturing Co., and TYCO FIRE PRODUCTS, L.P., successor-in-the interest to The Ansul Company, Defendants.
ORDER ON DAUBERT MOTIONS
BROOKE JACKSON UNITED STATES DISTRICT JUDGE.
noted in a separate order concerning medical monitoring
issues also issued today, plaintiffs allege that the
defendant companies manufactured Aqueous Film Forming Foam
(AFFF) for use at Peterson Air Force Base as a firefighting
suppressant, and that this AFFF has contaminated the
groundwater in their communities. In their Second Amended
Complaint plaintiffs claim to have sustained damage to their
property values, and that they either already have developed,
or might in the future develop, diseases caused by exposure
to the contaminants. Their claims sound in (1) negligence;
(2) medical monitoring; (3) products liability for failure to
warn; (4) products liability for defective design; and (5)
civil conspiracy. Id. at 43-57. Plaintiffs seek
remedies on both a class-wide and an individual basis
including declaratory relief, damages, attorney's fees,
costs, and the implementation of a medical monitoring
Court has scheduled a hearing on class action certification
on November 30, 2018. Defendant 3M has filed four motions
challenging the relevance or reliability of five plaintiff
experts in advance of that hearing. The other defendants have
filed seven additional motions joining in the 3M motions.
Rule 702 of the Federal Rules of Evidence, a qualified expert
may provide opinion testimony if the evidence is both
relevant and reliable. Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993).
Expert opinions are relevant if they would
“help the trier of fact to understand the evidence or
to determine a fact in issue.” Rule 702(a); see
Daubert, 509 U.S. at 591. They are
reliable if the expert is qualified by
knowledge, education or experience, and his or her opinions
are “scientifically valid” and based on
“reasoning or methodology [that] properly can be
applied to the facts in issue.” Daubert, 509
U.S. at 593. Reliability generally focuses on the
methodology, not the ultimate conclusions of the expert.
Ho v. Michelin North America, Inc., 520 Fed.Appx.
658, 663 (10th Cir. 2013). Factors useful in this analysis
include, but are not limited to, the following:
(1) whether the opinion at issue is susceptible to testing
and has been subject and has been subjected to such testing;
(2) whether the opinion has been subjected to peer review;
(3) whether there is a known or potential rate of error
associated with the methodology used and whether there are
standards controlling the technique's operation; and (4)
whether the theory has been accepted in the scientific
Dodge v. Cotter Corp., 328 F.3d 1212, 1222 (10th
Cir. 2003) (citing Daubert, 509 U.S. at 593- 94).
proponent of expert testimony has the burden to show that the
testimony is admissible. U.S. v. Nacchio, 555 F.3d
1234, 1241 (10th Cir. 2009). The trial court plays a
“gatekeeping” role that involves an assessment of
the “reasoning and methodology underlying the
expert's opinion” and a determination of
“whether it is scientifically valid and applicable to a
particular set of facts.” Goebel v. Denver and Rio
Grande Western R.R. Co., 215 F.3d 1083, 1087 (10th Cir.
2000). However, the trial court has discretion as to how to
perform this gatekeeping function. Id. It is not a
role that emphasizes exclusion of expert testimony. See
Cook v. Rockwell Intern. Corp., 580 F.Supp.2d 1071, 1082
(D. Colo. 2006).
I note that I am addressing these motions preliminary to a
class certification hearing, not a trial. Accordingly, the
Court's rulings today should be viewed as “without
prejudice” and are provided to assist the parties in
preparation for the class certification hearing.
King's two reports consist primarily of (1) references to
various articles and (2) conclusory opinions apparently
derived from the literature. The opinions are to the effect
that certain diseases have been “associated” with
exposure to PFCs. I do not necessarily question Dr.
King's credentials or his ability to shed light on the
subject. However, I do not find that these reports would be
helpful in determining a fact in issue. Accordingly, the
motion to exclude the opinions as expressed in the two
reports is granted.