Bell v. The 3M Co.

          ORDER ON DAUBERT MOTIONS

          R. BROOKE JACKSON UNITED STATES DISTRICT JUDGE.

         BACKGROUND

         As 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 protocol.

         The 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

         Under 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 community.

Dodge v. Cotter Corp., 328 F.3d 1212, 1222 (10th Cir. 2003) (citing Daubert, 509 U.S. at 593- 94).

         The 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).

         FINDINGS AND CONCLUSIONS

         Initially, 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.

         I. STEPHEN KING.

         Dr. 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.

         II. ...