Thibodeaux v. Wellmate, No. 2:2012cv01375 - Document 172 (E.D. La. 2016)
Court Description: ORDER AND REASONS granting in part and denying in part 94 Motion to Strike Plaintiff's Experts, Cynthia Smith and Bryan Durig and denying 125 Motion in Limine. Signed by Judge Susie Morgan on 5/24/2016. (bwn)
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Thibodeaux v. Wellmate Doc. 172 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A J OEL C. TH IBOD EAU X, Plain tiff CIVIL ACTION VERSU S N O. 12 -13 75 W ELLMATE, ET AL. D e fe n d an ts SECTION : “E” ( 5) ORD ER AN D REAS ON S Before the Court is Defendant’s m otion in lim ine to strike the expert testim ony of Cynthia Sm ith. 1 BACKGROU N D Plaintiff J oel C. Thibodeaux (“Thibodeaux”) brings claim s against Defendant Pentair Water Treatm ent OH Com pany (“Pentair”) under the Louisiana Products Liability Act (“LPLA”). 2 Thibodeaux was injured after the bladder in a water pressure tank, m anufactured by Pentair, ruptured on a platform operated by Chevron USA In c., Thibodeaux’s em ployer and the plaintiff-in-intervention. 3 Thibodeaux alleges, am ong other theories, that the tank “contained a m anufacturing or design defect,” “is unreasonably dangerous in construction or com position,” “is unreasonably dangerous in design,” and “is unreasonably dangerous because an adequate warning about the product has not been provided.”4 On February 5, 20 16, Pentair filed a m otion in lim ine to strike the proposed expert testim ony of Cynthia Sm ith. 5 Pentair also sought to strike the proposed testim ony of 1 R. Doc. 94. LA. R EV. STAT. §§ 9:280 0 .51– .60 . 3 R. Doc. 93-20 at 5; R. Doc. 10 1 at 10 ; R. Doc. 10 2-1 at 8 . 4 R. Doc. 77 at 2. 5 R. Doc. 94. 2 1 Dockets.Justia.com Bryan Durig, 6 but counsel for Thibodeaux subsequently informed the Court that Thibodeaux has withdrawn Durig as an expert witness and that Durig will not be called to testify at trial. 7 Therefore, the Court D EN IES AS MOOT Pentair’s m otion in lim ine as it pertains to the testim ony of Bryan Durig. Thibodeaux proffers Sm ith as a m aterials science expert to testify about the alleged design, m anufacturing, and warning defects of the tank at issue. 8 Thibodeaux filed an opposition to Pentair’s m otion in lim ine on February 23, 20 16. 9 STAN D ARD OF LAW Rule 70 2 of the Federal Rules of Eviden ce governs the adm issibility of expert witness testim ony: A witness who is qualified as an expert by knowledge, skill, experience, training, or education m ay testify in the form of an opin ion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the eviden ce or to determ ine a fact in issue; (b) the testim ony is based on sufficient facts or data; (c) the testim ony is the product of reliable principles and m ethods; and (d) the expert has reliably applied the prin ciples and m ethods to the facts of the case. 10 The United States Suprem e Court’s decision in Daubert v. Merrell Dow Pharm aceuticals, Inc., 11 provides the analytical fram ework for determ ining whether expert testim ony is adm issible under Rule 70 2. Under Daubert, courts, as “gatekeepers,” are tasked with m aking a prelim inary assessm ent of whether expert testim ony is both relevant and reliable. 12 The party offering 6 Id. See R. Doc. 118 at 4; R. Doc. 150 at 8 – 9. 8 R. Doc. 114-2 at 5. 9 R. Doc. 10 0 . 10 F ED . R. E VID . 70 2. 11 50 9 U.S. 579 (1993). 12 See Pipitone v. Biom atrix, Inc., 288 F.3d 239, 243– 44 (citing Daubert, 50 9 U.S. at 592– 93). 7 2 the expert opin ion m ust show by a preponderance of the eviden ce that the expert’s testim ony is reliable and relevant. 13 The reliability of expert testim ony “is determ ined by assessing whether the reasoning or m ethodology underlying the testim ony is scientifically valid.”14 In Daubert, the Suprem e Court enum erated several non-exclusive factors that courts m ay consider in evaluating the reliability of expert testim ony. 15 “These factors are (1) whether the expert’s theory can or has been tested, (2) whether the theory has been subject to peer review an d publication, (3) the known or potential rate of error of a technique or theory when applied, (4) the existence and m aintenance of standards and controls, and (5) the degree to which the technique or theory has been generally accepted in the scientific com m unity.”16 The Suprem e Court has cautioned that the reliability analysis m ust rem ain flexible: the Daubert factors “m ay or m ay not be pertinent in assessing reliability, depending on the nature of the issue, the expert’s particular expertise, and the subject of his testim ony.”17 Thus, “not every Daubert factor will be applicable in every situation . . . an d a court has discretion to consider other factors it deem s relevant.”18 The district court is offered broad latitude in m aking expert testim ony determ in ations. 19 As a general rule, questions relating to the bases and sources of an expert’s opinion affect the weight of the eviden ce rather than its adm issibility and should be left for the finder of fact. 20 “Unless wholly unreliable, the data on which the expert relies goes to the 13 Mathis v. Exxon Corp., 30 2 F.3d 448, 459– 60 (5th Cir. 20 0 2). Knight v. Kirby Inland Marine Inc., 48 2 F.3d 347, 352 (5th Cir. 20 0 7). See also Burleson v. Texas Dep’t of Crim inal Justice, 393 F.3d 577, 584 (5th Cir. 20 0 4); Bocanegra v. Vicm ar Servs., Inc., 320 F.3d 581, 584– 85 (5th Cir. 20 0 3). 15 Daubert, 50 9 U.S. at 592– 96. 16 Bocanegra, 320 F.3d at 58 4– 85 (citin g Daubert, 50 9 U.S. at 593– 94). 17 Kum ho Tire Co., Ltd. v. Carm ichael, 526 U.S. 137, 150 (1999). 18 Guy v . Crow n Equip. Corp., 394 F.3d 320 , 326 (5th Cir. 20 0 4). 19 See, e.g., Kum ho Tire, 526 U.S. at 151– 53. 20 See Prim rose Operating Co. v. N at’l Am . Ins. Co., 38 2 F.3d 546, 562 (5th Cir. 20 0 4). 14 3 weight and not the adm issibility of the expert opinion.”21 Thus, “[v]igorous crossexam ination, presentation of contrary evidence, an d careful instruction on the burden of proof are the traditional and appropriate m eans of attacking shaky but adm issible eviden ce.”22 The Court is not concerned with whether the opinion is correct but whether the preponderance of the evidence establishes that the opinion is reliable. 23 “It is the role of the adversarial system , not the court, to highlight weak eviden ce.”24 AN ALYSIS In Sm ith’s report, Sm ith concludes that the Wellm ate 12 water pressure tank at issue was “unreasonably dangerous in construction and com position,” “unreasonably dangerous in design,” and “unreasonably dangerous because the m anufacturer failed to provide adequate and sufficiently perm anent warning[s] about latent dangers associated with this system .”25 Her report states that her investigation included “the analysis of an injection m olded PVC drain pipe, a fractured elastom er air cell that was blow m olded during m anufacturing, a fiber-reinforced com posite tank, polym er warning labels, and label adhesives that m ay have been subjected to weathering conditions during service.”26 Pentair’s m otion calls into question Sm ith’s qualifications to render an opinion in this m atter. 27 In addition, Pentair argues that Sm ith’s testim ony is speculative, lacks foundation, and is unreliable. 28 21 Rosiere v . W ood Tow ing, LLC, No. 0 7-1265, 20 0 9 WL 982659, at *1 (E.D. La. Apr. 8, 20 0 9) (citing United States v. 14.38 Acres of Land, 80 F.3d 10 74, 10 77 (5th Cir. 1996)) (em phasis added); W olfe v. McN eil-PPC, Inc., No. 0 7-348, 20 11 WL 167380 5, at *6 (E.D. Pa. May 4, 20 11). 22 Pipitone, 288 F.3d at 250 (quoting Daubert, 50 9 U.S. at 596) (internal quotation m arks om itted). 23 See Johnson v. Arkem a, In c., 685 F.3d 452, 459 (5th Cir. 20 12). 24 Prim rose, 38 2 F.3d at 562. 25 R. Doc. 10 2-13 at 15. 26 Id. at 5. 27 See, e.g., R. Doc. 94-1 at 9. 28 Id. at 16– 19. 4 Sm ith has a bachelor’s degree in m aterials science and engin eering. 29 Her curriculum vitae reflects that she has a wide array of experience regarding m aterials scien ce an d investigative chem istry. For exam ple, for m ore than five years, Sm ith served as the m an ager of m aterial analysis with Uponor North Am erica, “an engineering services laboratory dedicated to failure analysis of m etals and extruded/ injection m olded polym ers, investigative chem istry, process research and developm ent, and m aterials engineering related to warranty claim s resolution and n ew product developm ent.”30 For six years, she worked as a m etallurgical failure analyst with AlliedSignal Engin es, where she “[c]onducted sophisticated failure analysis of num erous gas turbine engin e com ponents,” according to her curriculum vitae. 31 Sm ith also has experience m anaging a failure analysis and investigative chem istry group, where she conducted “hands-on failure analysis” for projects involving m aterials such as m etals, plastics, and com posite system s. 32 Since 20 0 9, Sm ith has been the prin cipal, president, and technical m anager of Paragon Polym er Consulting, LLC, which provides forensic consulting for m etals, polym ers, and com posites; failure analysis; investigative chem istry; and m aterials testing and analysis. 33 Her “[a]nalyses include determ ination of the root cause of failure, evaluation of m aterial integrity, and investigation to determ ine if a m anufacturing defect, environm ental degradation, atypical residual and/ or applied stresses, or im proper installation m ay have contributed to failure.”34 29 R. Doc. 10 2-16 at 2. Id. 31 Id. at 3. 32 Id. 33 Id. at 2. 34 Id. 30 5 The opin ions contain ed in Sm ith’s report regarding the construction, com position, and design of the Wellm ate 12 tank are based on Sm ith’s “detailed visual exam in ation” and “detailed inspection” of the m aterials in the tank and bladder at issue. 35 According to Sm ith’s report, both she and Pentair’s engin eering expert Tom Proft “jointly perform ed the following analyses to evaluate the condition of the incident com ponents: Stereom icroscopy[;] Scanning Electron Microscopy with Energy Dispersive X-ray Spectroscopy[;] Tensile Testing . . . [;] Tear Testing . . . [;] Fourier Transform Infrared Spectrom etry[;] Differential Scanning Calorim etry[;] Melt Flow Testing . . . [; an d] Shore A Durom eter Hardness Testing.”36 Much of Sm ith’s report details her findings as a result of each of the analyses. 37 The Court finds that, given Sm ith’s extensive experience, she is qualified to testify about the m aterial com position, construction, and design of the tank, the bladder, an d the drain assem bly. 38 The Court further finds that Sm ith has relied on sufficient facts and that her opinions regarding the m aterial com position, construction, and design of the tank are the product of reliable principles and m ethods—nam ely, the analyses she perform ed jointly with Pentair’s engineering expert. Sm ith’s report and proposed testim ony are directly relevant to the issues in this case, as she provides inform ation about the com position an d construction of the tank and bladder as well as opinions regardin g whether the tank at issue had a design or m anufacturing defect. 39 35 See, e.g., R. Doc. 10 2-13 at 10 – 11. Id. at 11– 12. 37 See id. at 12– 15. 38 See Fed. R. Evid. 70 2 (governing “[a] witness who is qualified as an expert by knowledge, skill, experience, trainin g, or education”); an expert m ight draw a conclusion from a set of observations based on extensive and specialized experience. 36 Kum ho Tire Co. v. Carm ichael, 526 U.S. 137, 156, 119 S. Ct. 1167, 1178, 143 L. Ed. 2d 238 (1999) 39 Pentair does not argue Sm ith’s opin ions are irrelevant to the issues in this case. See R. Doc. 94-1. 6 Sm ith, however, m ay not provide testim ony regarding the adequacy of the warning labels, regarding whether warning labels were present on the Wellm ate tank at the tim e the tank left Pentair’s control, regarding the adhesion and perm anency of the warnings on the tank, or regarding whether Pentair’s procedure for affixing the prim ary brand label was m ore rigorous than its procedure for affixing the warning labels to the tank. In Sm ith’s report, she opines, “I[t] appears that very little priority was given to the need for perm anen cy with regard to warning labels.”40 She notes that a label exhibiting the Wellm ate brand nam e rem ained on the tank’s exterior while the warning labels Pentair attached to the tank at the tim e of m anufacture no longer rem ain ed on the tank’s exterior or drain pipe. 41 From this, she concludes that “Pentair possessed the knowledge an d ability to provide a greater level of perm anency for their warning labels at the tim e of m anufacture than appears to have been dem onstrated by the warning labels that were allegedly applied to the incident tank . . . .”42 Further, Sm ith rem arks skeptically in her report that the tank ever had warning labels affixed to it as Pentair contends. For exam ple, she states in her report, “Pentair possessed the knowledge and ability to provide a greater level of perm anency for their warning labels at the tim e of m anufacture than appears to have been dem onstrated by the warning labels that were allegedly applied to the incident tank (if those labels w ere actually applied at all).”43 In her deposition, Sm ith testified, “[A]t this point I have not found convincing eviden ce that there necessarily ever was a label on the drain pipe.”44 40 R. Doc. 10 2-13 at 10 . at 9– 10 . 42 Id. 43 R. Doc. 10 2-13 at 9– 10 (em phasis added). 44 R. Doc. 93-14 at 33. 41 Id. 7 Sm ith’s conclusions with respect to the existence and perm anency of the warnings appear to be alm ost entirely drawn from the fact that the warnings were not present at the tim e she inspected the tank, several years after the tank left Pentair’s control. 45 She did not know what kind of adhesive Pentair used to attach the labels to the tank, and she did not test the adhesive on any warnings associated with Wellm ate tanks. 46 Because her testim ony with regard to the adhesion and perm anency of the warnings on the Wellm ate tank is not based on sufficient facts or data and is not the product of reliable principles and m ethods, the Court will not allow Sm ith to provide testim ony on the adequacy, existen ce, or perm anency of the warnings. 47 Moreover, Sm ith m ay not provide testim ony regarding the likelihood that other sim ilar accidents occurred. 48 Sm ith did not address this issue in her report. It does not appear that Sm ith will be asked to testify about the likelihood that other sim ilar accidents occurred, but, to the extent she is, it will not be allowed. CON CLU SION IT IS ORD ERED that Pentair’s m otion in lim ine to strike the expert testim ony of Cynthia Sm ith is GRAN TED IN PART AN D D EN IED IN PART as set forth above. 49 45 See id.; R. Doc. 10 2-13 at 9– 10 . R. Doc. 10 2-13 at 9– 10 . 47 See F ED . R. E VID . 70 2. 48 Sm ith testified in her deposition that Pentair has “reported with trem endous specificity that [it has] not had any other reports of failures occurrin g in this exact m anner, with this exact air cell, with this exact tan k. The sheer specificity of [its] answer, in m y opin ion, im plies that [it] indeed [has] likely had other failures and [it is] usin g sem antics to bury those failures.” R. Doc. 93-14 at 34– 35. 49 R. Doc. 94. Pentair also filed a m otion in lim ine to preclude Thibodeaux’s experts from providing speculative testim ony. R. Doc. 125. That m otion was filed beyond the deadline to file m otions in lim ine regarding the adm issibility of expert testim ony and was therefore untim ely. See R. Doc. 74 at 6. Accordingly, that m otion will not be considered and is D EN IED . Nevertheless, m any of the issues raised in that m otion have been addressed herein . 46 8 N e w Orle a n s , Lo u is ian a, th is 2 4 th d ay o f May, 2 0 16 . _____________ __________________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 9
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