Earl v. The Boeing Company, Civil Action 4:19-cv-507

• Decision Date: 26 July 2021
• Docket Number: Civil Action 4:19-cv-507
• Parties: DAMONIE EARL, ET AL., Plaintiffs, v. THE BOEING COMPANY, ET AL., Defendants.
• Court: U.S. District Court — Eastern District of Texas

DAMONIE EARL, ET AL., Plaintiffs, v. THE BOEING COMPANY, ET AL., Defendants.

Civil Action No. 4:19-cv-507

United States District Court, E.D. Texas, Sherman Division

July 26, 2021

MEMORANDUM OPINION AND ORDER

AMOS L. MAZZANT UNITED STATES DISTRICT JUDGE

Pending before the Court is Defendants' Motion to Exclude the Expert Report and Testimony of Dr. Greg M. Allenby (Dkt #253). After considering the Motion and the relevant pleadings, the Court concludes that the Motion should be denied.

BACKGROUND

This case arises out of allegations made by Plaintiffs that Defendants The Boeing Company (“Boeing”) and Southwest Airlines Co. (“Southwest”) colluded to cover up fatal defects in Boeing's 737 MAX 8 aircraft and encourage public confidence to fly aboard these aircrafts while aware of the defects (Dkt. #165). Defendants deny these allegations (Dkts. #191-92). On December 3, 2020, Defendants jointly filed their Motion to Exclude the Expert Report and Testimony of Dr. Greg M. Allenby (Dkt. #253), currently before the Court. On January 29, 2021, Plaintiffs filed their response (Dkt. #296). On February 26, 2021, Defendants filed their reply (Dkt. #314). And on March 26, 2021, Plaintiffs filed their sur-reply (Dkt. #370).

LEGAL STANDARD

The Federal Rules of Evidence permit the introduction of expert testimony when the offering expert demonstrates “genuine ‘scientific, technical, or other specialized knowledge that will help the trier of fact to understand the evidence or to determine a fact in issue.'” Williams v. Illinois, 567 U.S 50, 80 (2012) (brackets omitted) (quoting Fed.R.Evid 702(a)). But “prior to admitting expert testimony ‘district courts must be assured that the proffered witness is qualified to testify.'” Taylor Pipeline Constr., Inc. v. Directional Rd. Boring, Inc., 438 F.Supp.2d 696, 705 (E.D. Tex. 2006) (brackets omitted) (quoting Wilson v. Woods, 163 F.3d 935, 937 (5th Cir. 1999)); see United States v. Herman, 997 F.3d 251, 269 (5th Cir. 2021) (“[D]istrict courts act as gatekeepers to determine the relevance and reliability of expert testimony.”). This gatekeeping function guarantees 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.” Kuhmo Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999); see Black v. Food Lion, Inc., 171 F.3d 308, 311 (5th Cir. 1999) (“[An] expert's self-proclaimed accuracy is insufficient.”).

Courts review the admissibility of expert opinions under the framework the Supreme Court set out in Daubert. Sandifer v. Hoyt Archery, Inc., 907 F.3d 802, 807 (5th Cir. 2018). “The party offering an expert's testimony must prove ‘(1) the expert is qualified, (2) the evidence is relevant to the suit, and (3) the evidence is reliable.'” Scrum All., Inc. v. Scrum, Inc., No. 4:20-CV-227, 2021 WL 1725564, at *1 (E.D. Tex. Apr. 30, 2021) (quoting Hall Arts Ctr. Office, LLC v. Hanover Ins. Co., 327 F.Supp.3d 979, 1001 (N.D. Tex. 2018)). “A proffered expert witness is qualified to testify by virtue of his or her ‘knowledge, skill, experience, training, or education.'” Little v. Tech. Specialty Prods., LLC, 940 F.Supp.2d 460, 467 (E.D. Tex. 2013) (quoting Fed.R.Evid. 702). “[E]xpert testimony is admissible only if it is both relevant and reliable.” Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir. 2002); see Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004) (“It goes without saying that Daubert clarified a district court's gate-keeping function: the court must ensure the expert uses reliable methods to reach his opinions; and those opinions must be relevant to the facts of the case.”). “This gate-keeping obligation applies to all types of expert testimony, not just scientific testimony.” Kuhmo, 526 U.S. at 147. And, as the Fifth Circuit recently clarified in Prantil v. Arkema Inc., a full-scale Daubert analysis must be conducted here because an expert opinion inadmissible at trial “should not pave the way for certifying a proposed class.” 986 F.3d 570, 576 (5th Cir. 2021)

“Critically, the party offering expert testimony ‘must prove by a preponderance of the evidence that the testimony is reliable,' not that it is correct.” Swanston v. City of Plano, Tex., No. 4:19-CV-412, 2021 WL 327588, at *2 (E.D. Tex. Feb. 1, 2021) (quoting Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998)). At this point in the proceedings, district courts must simply ensure “the proposed expert testimony meets the Daubert threshold of relevance and reliability”-“the accuracy of the actual evidence is to be tested before the jury.” Lapsley v. Xtek, Inc., 689 F.3d 802, 805 (7th Cir. 2012); see Watkins v. Telsmith, Inc., 121 F.3d 984, 991 (5th Cir. 1997) (explaining the district courts' role under Daubert is deciding “whether the expert is a hired gun or a person whose opinion in the courtroom will withstand the same scrutiny that it would among his professional peers”). It is imperative for district courts to bear in mind that the Daubert regime does not conscript judges into service as the adversary system. United States v. 14.38 Acres of Land, 80 F.3d 1074, 1078 (5th Cir. 1996); Moore v. Intuitive Surgical, Inc., 995 F.3d 839, 850 (11th Cir. 2021) (“[C]ourts must remain chary not to improperly use the admissibility criteria to supplant a plaintiff's right to a jury trial.”). In fact, “Daubert itself stressed the importance of the ‘conventional devices' of ‘vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof' (rather than wholesale exclusion by the trial judge) as ‘the traditional and appropriate means of attacking shaky but admissible evidence.'” In re Lipitor (Atorvastatin Calcium) Mktg., Sales Pracs. & Prods. Liab. Litig. (No II) MDL 2502, 892 F.3d 624, 631 (4th Cir. 2018) (brackets omitted) (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 596 (1993)). Nevertheless, “[e]xpert testimony that usurps the role of the factfinder or that serves principally to advance legal arguments should be excluded.” Choi v. Tower Rsch. Cap. LLC, 2 F.4th 10, 20 (2d Cir. 2021).

Courts consider the factors put forward by the Daubert Court to help assess the reliability of expert testimony, which include:

(1) whether the theory or technique has been tested; (2) whether the theory or technique has been subjected to peer review; (3) the known or potential rate of error of the method used and the existence and maintenance of standards controlling the technique's operation; and (4) whether the theory or method has been generally accepted by the scientific community.

SEC v. Life Partners Holdings, Inc., 854 F.3d 765, 775 n.4 (5th Cir. 2017). These factors are “non-exclusive and ‘do not constitute a definitive checklist or test.'” United States v. Norris, 217 F.3d 262, 269 (5th Cir. 2000) (quoting Kumho, 526 U.S. at 150). Importantly, when courts evaluate challenges to expert testimony, the analysis is “limited to ‘principles and methodology, not on the conclusions they generate.'” Prosper v. Martin, 989 F.3d 1242, 1249 (11th Cir. 2021) (quoting Daubert, 509 U.S. at 595).

The immediate inquiry is a “flexible one, ” allowing district courts “to identify the most germane considerations.” Roman v. W. Mfg., Inc., 691 F.3d 686, 692 (5th Cir. 2012); see Kumar v. Frisco Indep. Sch. Dist., 476 F.Supp.3d 439, 475 (E.D. Tex. 2020) (“The test for determining reliability can adapt to the particular circumstances underlying the testimony at issue.”). Nevertheless, “caselaw after Daubert shows that the rejection of expert testimony is the exception rather than the rule.” Fed.R.Evid. 702 advisory committee's note to 2000 amendment. Whether to allow or exclude expert testimony is committed to the sound discretion of district courts, Weiser- Brown Operating Co. v. St. Paul Surplus Lines Ins. Co., 801 F.3d 512, 529 (5th Cir. 2015), and such decisions will be overturned only if a district court abuses its discretion, Gen. Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997). See United States v. Pon, 963 F.3d 1207, 1219 (11th Cir. 2020) (explaining that this level of deference is “especially pronounced in the Daubert context, where the abuse of discretion standard places a ‘heavy thumb'-‘really a thumb and a finger or two'- ‘on the district court's side of the scale'” (citation omitted)).

ANALYSIS

I. Admissibility vs. Certifiability

Before evaluating Allenby's expert testimony in earnest, the Court addresses the conflicting views on the intersection of the Supreme Court's decisions in Daubert and Comcast. The parties present diverging views on these cases (see, e.g., Dkt. #296 at pp. 9-13; Dkt. #314 at pp. 6-10), and the Court takes this opportunity to briefly clarify how Daubert and Comcast determine the analytical rubric for class-action litigation.

In Daubert, the Supreme Court held that courts must ensure the admissibility of expert testimony by confirming that it “rests on a reliable foundation and is relevant to the task at hand.” 509 U.S. at 597. That is, courts must evaluate the “evidentiary reliability” of expert testimony. Id. at 590 n.9; see United States v. Gissantaner, 990 F.3d 457, 463 (6th Cir. 2021) (Sutton, J.) (“The key handholds of Rule 702 . . . bear repeating: To be admissible, any relevant scientific or technical evidence must be the ‘product of reliable principles and methods' and must have been ‘reliably applied' in the case.”). By contrast, in Comcast, the Supreme Court held that courts must ensure damages are “susceptible of measurement” across a putative 23(b)(3) class by confirming that the proposed damages model “measure[s] only those damages attributable” to plaintiffs' theory of...