Good v. Fluor Daniel Corp.

• Decision Date: 11 September 2002
• Docket Number: Nos. CT-00-5021-EFS, CY-00-3038-EFS.,s. CT-00-5021-EFS, CY-00-3038-EFS.
• Parties: Angel GOOD, et al., Plaintiffs, v. FLUOR DANIEL CORPORATION, et al., Defendants. Arthur Aylsworth, et al., Plaintiffs, v. Fluor Daniel Corporation, et al., Defendants.
• Court: U.S. District Court — District of Washington

222 F.Supp.2d 1236

Angel GOOD, et al., Plaintiffs, v. FLUOR DANIEL CORPORATION, et al., Defendants.

Arthur Aylsworth, et al., Plaintiffs, v. Fluor Daniel Corporation, et al., Defendants.

Nos. CT-00-5021-EFS, CY-00-3038-EFS.

United States District Court, E.D. Washington.

September 11, 2002.

COPYRIGHT MATERIAL OMITTED

Scott A. Johnson, Todd M. Johnson, Johnson Law Group, LLP, Minnetonka, MN, Hugh V. Plunket, III, Robert K. Shelquist, J. Michael Schwartz, Lockridge, Grindal, Nauen, PLLP, Minneapolis, MN, Richard C. Eymann, Eymann, Allison, Fennessy, Hunter & Jones PS, Spokane, WA, for Plaintiffs.

William Randolph Squires, III, Summit Law Group, Seattle, WA, Michael B. Saunders, Larry E. Halvorson, Halvorson & Saunders PLLC, Seattle, WA, for Fluor Daniel Corp.

Richard W. Oehler, Perkins Coie LLP, James R. McCullagh, Seattle, WA, for McDermott Intern.

Michael Jon Myers, Randall & Danskin PS, Spokane, WA, for John Smith.

James Bernard King, Keefe, King & Bowman, Spokane, WA, for Kadlec Medical Center.

ORDER GRANTING DEFENDANTS' MOTION TO EXCLUDE OPINION TESTIMONY OF PLAINTIFF'S EXPERTS DR. WILLIAM W. AU AND WOLFGANG HOFFMAN UNDER EVIDENCE RULE 702 AND GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT DISMISSAL OF PLAINTIFF'S PLA AND STATE LAW CLAIMS

SHEA, District Judge.

On April 25, 2002, the Court heard argument on Co-Defendants B & W Hanford Company's and Fluor Hanford Company's Motion to Exclude Opinion Testimony of Plaintiff's Experts Dr. William W. Au and Wolfgang Hoffman Under Evidence Rule 702, (Ct.Rec.161).¹ The Court also heard argument on Co-Defendants Fluor and BWHC's Motion for Summary Judgment Dismissal of Plaintiff's PLA and State Law Claims, (Ct.Rec.165). The parties were represented at the hearing as set forth in this Court's minutes of that hearing, (Ct. Rec.214). The Court hereby grants Defendants' motion to exclude expert testimony under rule 702, grants in part and denies in part Defendants' motion for summary judgment, and retains jurisdiction of the state law claims pursuant to 28 U.S.C. § 1367(a).

I. Factual Background and Procedural History

On May 14, 1997, at 7:53 p.m., a chemical explosion occurred in Room 40 of the Plutonium Reclamation Facility ("PRF") in the Plutonium Finishing Plant ("PFP") at the Hanford Nuclear Reservation. That explosion occurred due to "an autocatalytic chemical reaction of the solution stored in Tank A-109, in Room 40 of the PRF." (Ct. Rec. 180 Ex. 14 at 4.) The Plaintiffs in these cases consist of thirteen workers who were in the vicinity of the PRF at the time of the explosion ("the Worker Plaintiffs"), as well as twenty-eight family members of the Worker Plaintiffs ("Family Plaintiffs").

The present suits with both federal and state law claims were filed on March 31, 2000, and May 15, 2000. (Ct.Rec.1.) The sole basis for federal subject matter jurisdiction is a Public Liability Action ("PLA") claim under the Price-Anderson Act, 42 U.S.C. § 2210, et seq., which confers federal jurisdiction over any public liability action arising out of, or resulting from a nuclear incident.² See 28 U.S.C. § 2210(n)(2). Almost immediately, several of the defendants moved for varying forms of dismissal.

On November 9, 2000, the Court heard argument on many of them. (Ct.Rec.111.) Following that hearing, the Court entered an Order, dated November 30, 2000. (Ct. Rec.113.) The Court held that "an essential element of a PLA claim ... is that the exposure exceeded limits mandated by federal regulations.... For `general employees' such as Plaintiffs, the allowable dose limit is 5 rems per year. 10 C.F.R. § 835.202(a)(1)." (Ct. Rec. 113 at 2 ll. 27-28—3 ll. 1-6 (citations omitted).) The Court further stated that "there are plenty of references to hazardous and toxic waste, but that is not relevant to a PLA claim, and when it comes to spelling out the levels of radioactivity to which Plaintiffs were exposed, the Complaint falls short." (Id. at 3 ll. 8-10.) However, the Court reasoned that outright dismissal at that stage was not warranted: "limited discovery is warranted to address the big issue; i.e. were Plaintiffs exposed to excessive radiation?" (Id. at ll. 13-14.) Consequently, the Court ordered discovery "limited to the issue of whether Plaintiffs received a dose of radiation in excess of the limits established by federal regulation." (Id. at 4 ll. 2-3.) Denying the motions, the Court finally ordered that "all motions pending will be deemed automatically renewed when the limited discovery provided for above has been accomplished, and BWXT (or any other Defendant), is prepared to test the PLA claims in a summary judgment proceeding." (Id. at ll. 9-11.)

Following the November 30, 2000, Order, the parties engaged in limited discovery. Upon stipulation of the parties, the Court entered a Scheduling Order on June 29, 2001, which established deadlines for the completion of the ordered discovery. (Ct. Rec. 134.) Again on stipulation of the parties, the Court revised that scheduling order to extend several cutoffs. (See Ct. Rec. 148.) Pursuant to this Court's Revised Scheduling Order on Price-Anderson Jurisdictional Issue, any motions relating to the Court's jurisdiction over this case were to be filed by January 7, 2002. (Ct. Rec. 148 at 5.) That order also set up deadlines regarding the discovery process for such motions. Id. Because the Defendants were not satisfied with the Plaintiffs' performance of that order, they filed a Motion to Strike Plaintiff's Expert Opinions, (Ct.Rec.149). That motion was originally noted for hearing on December 28, 2001, before the Court's motion deadline. On December 13, 2001, Judge Whaley transferred this case to Judge Shea. (Ct. Rec.158.) That transfer necessitated moving the hearing on their motion to January 31, 2002, well beyond the deadline. At that hearing, this Court denied the motion to strike, (Ct.Rec.175), construed it as a motion to compel and ordered production of several items, (Ct.Rec.184). The Court, recognizing that ordering discovery might require supplementation or amendment of the pending motions, timely filed on January 7, 2002, conferred with counsel and decided that it would allow the Defendants to supplement their filings.

On March 15, as required by this Court's order, the Defendants filed a Supplemental Memorandum in Support of their Motion to Exclude Opinion Testimony of Plaintiff's Experts Dr. William W. Au and Wolfgang Hoffman Under Evidence Rule 702. (Ct.Rec.192.) On April 5, 2002, as required by this Court's order, the Plaintiffs filed their Supplemental Memorandum in Opposition to Defendants' Motions to Exclude Opinion Testimony of Plaintiffs' Experts and for Summary Judgment. (Ct.Rec.199.) On April 12, 2002, as required by this Court's order, the Defendants filed their reply memoranda in support of their motions for Summary Judgment Dismissal of Plaintiffs PLA and State Law Claims, (Ct.Rec.208), and to Exclude Opinion Testimony of Plaintiff's Experts Dr. William W. Au and Wolfgang Hoffman Under Evidence Rule 702, (Ct. Rec.209).

II. Discussion

A. Motion to Exclude Experts under Daubert

1. Daubert Standard

Federal Rule of Evidence 702 allows admission of a qualified expert if "(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." FED. R. EVID. 702. To qualify under this rule, expert testimony must pass a preliminary assessment by the trial judge that (1) the reasoning or methodology is scientifically valid and (2) the reasoning or methodology can "properly be applied to the facts in issue." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93, 113 S.Ct. 2786, 2796, 125 L.Ed.2d 469 (1993). Daubert requires the experts' testimony "reflect `scientific knowledge,' ... their findings [be] `derived by the scientific method' and ... their work product amount to `good science.'" Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1315 (9th Cir.1995) (Daubert II) (quoting Daubert, 113 S.Ct. at 2795, 2797). Daubert also requires that the proposed testimony have a "valid scientific connection to the pertinent inquiry as a precondition of admissibility." Daubert, 509 U.S. at 591-92, 113 S.Ct. at 2796.

To guide district courts in applying the foregoing, the Supreme Court suggested four factors: (1) whether a theory or technique can be or has been tested, (2) whether the theory or technique has been subjected to peer review and publication, (3) the known or potential rate of error, and (4) whether the theory or technique has attained "general acceptance" in the relevant scientific community. Daubert, 509 U.S. at 593-94, 113 S.Ct. at 2796-97. The Ninth Circuit has acknowledged that these factors are illustrative and may not be applicable in some cases. "Rather we read the Supreme Court as instructing us to determine whether the analysis undergirding the expert's testimony falls within the range of accepted standards governing how scientists conduct their research and reach their conclusions. Daubert II, 43 F.3d at 1316-17. Here, the issue is not whether the technique of cytogenetic analysis itself is the proper subject of expert testimony,³ but whether the opinions of Dr. Au and Dr. Hoffman, based upon that analysis comport with Daubert. In this situation the Supreme Court has explained that: "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. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered." General Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997).

Analysis

i. Dr. Au

Dr. Au performed a cytogenetic evaluation on nine of the Worker Plaintiffs.⁴ According to Dr. Au, it is...