Blackard v. Hercules, Inc.
| Decision Date | 17 July 2014 |
| Docket Number | CIVIL ACTION NO. 2:12-cv-175-KS-MTP |
| Court | U.S. District Court — Southern District of Mississippi |
| Parties | MARY FRANCES BLACKARD; ERVIN BOOTH; LYNN BOOTH; MILDRED ELAINE BOOTH; BRYAN BROOME and IRIS DEZILE BROOME; LIGHTHOUSE RESCUE MISSION, INC.; JASON LEE SHOWERS; EDGAR SMITH; KENNETH THRONSON; and ALKEN WATTS PLAINTIFFS v. HERCULES, INC.; and ASHLAND, INC. DEFENDANTS |
MARY FRANCES BLACKARD; ERVIN BOOTH; LYNN BOOTH;
MILDRED ELAINE BOOTH; BRYAN BROOME and IRIS DEZILE BROOME;
LIGHTHOUSE RESCUE MISSION, INC.; JASON LEE SHOWERS; EDGAR SMITH;
KENNETH THRONSON; and ALKEN WATTS PLAINTIFFS
v.
HERCULES, INC.; and ASHLAND, INC. DEFENDANTS
CIVIL ACTION NO. 2:12-cv-175-KS-MTP
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI EASTERN DIVISION
Dated: July 17, 2014
This matter is before the Court on the Defendant Ashland, Inc.'s Motion for Summary Judgment [291]; Ashland and Defendant Hercules, Inc.'s Motion for Partial Summary Judgment [293]; and the Plaintiffs' Motion to Exclude and Limit Certain Opinions of Glenn Millner, Ph.D. ("Motion to Exclude") [302]. Having considered the submissions of the parties, the record, and the applicable law, the Court finds that:
1) Plaintiffs' Motion to Exclude [302] should be granted in part and denied in part;
2) Ashland's Motion for Summary Judgment [291] should be granted; and
3) Hercules and Ashland's Motion for Partial Summary Judgment [293] should be granted in part and held in abeyance in part.1
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The above-captioned Plaintiffs own certain parcels of land located in the City of Hattiesburg, Forrest County, Mississippi. Hercules operated a chemical production facility (the "Facility," "Plant," or "Site") in Hattiesburg from 1923 until approximately 2009. Ashland purchased Hercules in 2008.
On October 2, 2012, Plaintiffs filed suit against Hercules and Ashland in this Court. (See Compl. [1].) Subject matter jurisdiction is asserted on the basis of diversity of citizenship under Title 28 U.S.C. § 1332. Plaintiffs allege, inter alia, that the Defendants improperly disposed of hazardous substances at the Facility; that the hazardous substances contaminated the soil and groundwater underneath the Facility; and, that the substances migrated through the environment and damaged their properties. The Complaint asserts the following state law causes of action: negligence; gross negligence; negligence per se; private nuisance; and trespass. Plaintiffs subsequently filed their First Amended Complaint [21], adding a cost recovery claim under section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9607(a).
Plaintiffs move to exclude and limit certain opinions of Glenn Millner, Ph.D. pursuant to Federal Rules of Evidence 403, 702, and 703, and the United States Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). (See Pls.' Mot. to Exclude [302].)
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Ashland seeks summary judgment on the grounds that it never owned or operated the Site, and there is no evidence that it caused the alleged contamination of the Plaintiffs' properties. (See Ashland's Mot. for SJ [291].) In addition, Hercules and Ashland jointly seek summary judgment on all of the Plaintiffs' claims except those of Bryan Broome and Iris Broome. (See Defs.' Mot. for Part. SJ [293].)
Federal Rule of Civil Procedure 56 provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Initially, the movant has "the burden of demonstrating the absence of a genuine issue of material fact." Cannata v. Catholic Diocese of Austin, 700 F.3d 169, 172 (5th Cir. 2012) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). If the movant meets this burden, the nonmovant must go beyond the pleadings and point out specific facts showing the existence of a genuine issue for trial. Id. "'An issue is material if its resolution could affect the outcome of the action.'" Sierra Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010) (quoting Daniels v. City of Arlington, Tex., 246 F.3d 500, 502 (5th Cir. 2001)). "An issue is 'genuine' if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party." Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir. 2010) (citation omitted).
The Court is not permitted to make credibility determinations or weigh the evidence. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009) (citing Turner v.
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Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007)). When deciding whether a genuine fact issue exists, "the court must view the facts and the inferences to be drawn therefrom in the light most favorable to the nonmoving party." Sierra Club, Inc., 627 F.3d at 138. However, "[c]onclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial." Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002) (citation omitted). Summary Judgment is mandatory "'against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" Brown v. Offshore Specialty Fabricators, Inc., 663 F.3d 759, 766 (5th Cir. 2011) (quoting Celotex Corp., 477 U.S. at 322).
Federal Rule of Evidence 702 provides that:
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. A trial judge has a "gatekeeping obligation" under Rule 702 to ensure that all expert testimony is both reliable and relevant. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999) (citing
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Daubert, 509 U.S. at 589). Rule 702's "relevance prong requires the proponent to demonstrate that the expert's 'reasoning or methodology can be properly applied to the facts in issue.'" Johnson v. Arkema, Inc., 685 F.3d 452, 459 (5th Cir. 2012) (quoting Curtis v. M&S Petroleum, Inc., 174 F.3d 661, 668 (5th Cir. 1999)). In order to be reliable under Rule 702, the expert opinion must "be grounded in the methods and procedures of science and . . . be more than unsupported speculation or subjective belief." Id. (citations omitted).
Daubert set forth several factors bearing on the admissibility of expert testimony, including, but not limited to, whether the expert's theory or technique can be tested, whether the theory or technique has been published or subjected to peer review, and the general acceptance of the theory or method in the applicable community. 509 U.S. at 593-94. The Supreme Court later recognized that Daubert's factors "may or may not be pertinent in assessing reliability," since the specific issue, the subject of the expert's testimony, and the expert's area of expertise will vary from case to case. Kumho Tire Co., 526 U.S. at 150 (citation omitted). Nonetheless, "a trial court should consider the specific factors identified in Daubert where they are reasonable measures of the reliability of expert testimony." Id. at 152.
The court s responsibility "is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Id. However, the judge's role as gatekeeper is not meant to supplant the adversary system since "[v]igorous cross-examination, presentation of contrary
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evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert, 509 U.S. at 596 (citation omitted). "'The proponent need not prove to the judge that the expert's testimony is correct, but she must prove by a preponderance of the evidence that the testimony is reliable.'" Johnson, 685 F.3d at 459 (quoting Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998)). Although the court's focus should be on the expert's principles and methodology, as opposed to the conclusions they generate, "nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert." Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S. Ct. 512, 139 L. Ed. 2d 508 (1997).
I. Plaintiffs' Motion to Exclude [302]
Glenn Millner, Ph.D. is a toxicologist designated by Ashland and Hercules to provide expert testimony in the fields of...
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