Herbst v. Givaudan Flavors Corp.

Decision Date03 December 2018
Docket NumberNo. C 17-4008-MWB,C 17-4008-MWB
CourtU.S. District Court — Northern District of Iowa
PartiesMARLIN HERBST, Plaintiff, v. GIVAUDAN FLAVORS CORPORATION and EMORAL, INC., f/k/a Polarome International, Inc., Defendants.
OPINION AND ORDER REGARDING DEFENDANT GIVAUDAN'S MOTIONS TO EXCLUDE EXPERTS AND FOR SUMMARY JUDGMENT ON ALL CLAIMS
TABLE OF CONTENTS

I. INTRODUCTION ........................................................................... 1

II. LEGAL ANALYSIS ........................................................................ 3

A. The Challenges To Experts ....................................................... 3
1. Standards for admissibility of expert opinions ........................ 3
2. Application of the standards ............................................. 6
B. Summary Judgment ................................................................ 8
1. Applicable standards ....................................................... 8
2. Application of the standards ........................................... 10

III. CONCLUSION ............................................................................ 11

I. INTRODUCTION

In this case, plaintiff Marlin Herbst alleges that he suffers from bronchiolitis obliterans (aka "popcorn lung") and/or other lung or respiratory diseases or impairments from working with butter flavorings containing diacetyl at the American Popcorn Company (APC) plant in Sioux City, Iowa, between 1991 and August 1993. On January 27, 2017, Herbst brought products liability claims under strict liability and negligence and a claim of breach of implied warranties against various "manufacturing defendants," which are companies that allegedly designed, manufactured, distributed, and/or sold diacetyl-containing butter flavorings to APC, and against various "diacetyl defendants," which are companies that allegedly designed, manufactured, marketed, distributed, and/or sold diacetyl that was used by APC. The remaining "manufacturing defendant" is Givaudan Flavors Corporation, and the remaining "diacetyl defendant" is Emoral, Inc.

This case is now before me on four motions by Givaudan: (1) its September 4, 2018, First Daubert Motion To Exclude General Causation Testimony By Plaintiff's Expert, relating to Dr. Robert Harrison; (2) its September 4, 2018, Second Daubert Motion To Exclude The Testimony And Opinions Of Charles Pue, M.D. (Plaintiff's Proffered Expert On Plaintiff's Alleged Exposures To Diacetyl And Specific Causation); (3) its September 4, 2018, Third Daubert Motion To Exclude Warnings Testimony And Opinions By Plaintiff's Expert, again relating to Dr. Robert Harrison; and (4) its September 4, 2018, Motion For Summary Judgment As To All Claims. After various extensions, resistances and replies have now been filed, and the motions are ripe for consideration.

Givaudan requests oral arguments on each of its motions, but I conclude that the parties' written arguments and supporting materials are sufficient for me to resolve the pending motions.1 Therefore, all four motions are deemed fully submitted without oral arguments.

II. LEGAL ANALYSIS

A. The Challenges To Experts

Givaudan relies on my anticipated exclusion of the experts' challenged opinions among its grounds for summary judgment. Consequently, I will begin my consideration of the pending motions with Givaudan's challenges to experts.

1. Standards for admissibility of expert opinions

As the Supreme Court has explained, Rule 702 of the Federal Rules of Evidence governs the admission of expert testimony and requires the district court to serve as a gatekeeper to "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993).2 The Eighth Circuit Court of Appeals has stated that the standard for what expert testimony is relevant and helpful under Rule 702 is "low," that is, that the expert's evidence should be admitted if it has any tendency to make a fact of consequence moreor less probable. United States v. Holmes, 751 F.3d 846, 851 (8th Cir. 2014) (citing FED. R. EVID. 401). In short, to satisfy the relevance requirement of Rule 702 and Daubert, "'the proponent must show that the expert's reasoning or methodology was applied properly to the facts at issue.'" Smith v. Bubak, 643 F.3d 1137, 1138 (8th Cir. 2011) (quoting Barrett v. Rhodia, Inc., 606 F.3d 975, 980 (8th Cir. 2010)). For example, expert testimony is relevant where such testimony is required to establish an element of a claim. See, e.g., Barrett, 606 F.3d at 981 (concluding that a plaintiff in a toxic tort strict liability case is required to establish causation through expert testimony).

I recognize that, under Daubert, I have a duty to perform a "gatekeeper" function, under Rule 702 of the Federal Rules of Evidence, so that only expert testimony that is relevant and reliable is admitted. 509 U.S. at 589. More specifically,

The objective of the Daubert inquiry "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." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). [T]his is a flexible, case-specific inquiry. "The trial court ha[s] to decide whether this particular expert had sufficient specialized knowledge to assist the jurors in deciding the particular issues in the case." Id. at 156, 119 S.Ct. 1167 (quotation omitted); see Fed. R. Evid. 702 and Advisory Committee Notes.

American Auto. Ins. Co. v. Omega Flex, Inc., 783 F.3d 720, 722-23 (8th Cir. 2015). I also recognize that this "gatekeeper" function under Daubert requires me to "make a 'preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.'" Kudabeck v. Kroger Co., 338 F.3d 856, 860 (8th Cir. 2003) (quoting Daubert, 509 U.S. at 592-93).

I must also take into account Rule 704 of the Federal Rules of Evidence, concerning the scope of expert opinions. As the Eighth Circuit Court of Appeals has explained,

Rule 704(a) provides that expert evidence is not inadmissible because it embraces an ultimate issue to be decided by the jury. If the subject matter is within the jury's knowledge or experience, however, the expert testimony remains subject to exclusion "because the testimony does not then meet the helpfulness criterion of Rule 702." [United States v.] Arenal, 768 F.2d [263,] 269 [(8th Cir. 1985)]. Opinions that "merely tell the jury what result to reach" are not admissible. Fed.R.Evid. 704 advisory committee's note.

Lee v. Andersen, 616 F.3d 803, 808-09 (8th Cir. 2010); accord United States v. Coutentos, 651 F.3d 809, 821 (8th Cir. 2011) ("'Where the subject matter is within the knowledge or experience of lay people, expert testimony is superfluous.'" (quoting Ellis v. Miller Oil Purchasing Co., 738 F.2d 269, 270 (8th Cir. 1984) (per curiam))); United States v. Whitted, 11 F.3d 782, 785 (8th Cir. 1993) (noting that, although Rule 704(a) allows expert testimony that "embraces an ultimate issue to be decided by the trier of fact," it does not allow "[o]pinions that are 'phrased in terms of inadequately explored legal criteria' or that 'merely tell the jury what result to reach'" (quoting FED. R. EVID. 704, Advisory Committee Note)). Thus, to the extent that an expert lays a proper foundation by demonstrating an adequate basis for an opinion, even an opinion about an ultimate issue, then such an opinion may be admissible at trial. On the other hand, "'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 theexpert.'" American Auto. Ins. Co., 783 F.3d at 725 (quoting General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)).3

Finally, the Eighth Circuit Court of Appeals has also observed that expert evidence, even if relevant, is subject to exclusion if its potential for prejudice substantially outweighs its probative value. Holmes, 751 F.3d at 851; see also FED. R. EVID. 403 (relevant evidence may be excluded if its probative value is substantially outweighed by its potential for prejudice); Coutentos, 651 F.3d at 821 (considering whether the district court had properly excluded expert evidence under Rule 403, after affirming exclusion of the expert's evidence as irrelevant under Rule 702).

2. Application of the standards

Contrary to Givaudan's contentions, the challenged experts' opinions are not so poorly supported as to amount to nothing more than ipse dixit. See American Auto. Ins. Co., 783 F.3d at 725. Rather, after reviewing Herbst's extensive responses to the motions to exclude the testimony of these experts, my "preliminary assessment" is that these experts are qualified to state their proffered opinions, the reasoning and methodology underlying the challenged opinions are scientifically valid, and the experts' reasoning and methodology can be applied to the facts in issue. See Daubert, 509 U.S. at 592-93 (first step in the court's "gatekeeper" function under Rule 702); Kudabeck, 338 F.3d at 860 (explaining that the "gatekeeper function" involves this "preliminary assessment"). The challenged opinions meet the "low" standard for admissibility underRule 702 in that they make facts of consequence more or less probable. Holmes, 751 F.3d at 851.

I am also convinced that the testimony of these experts is relevant and will aid the trier of fact. Daubert, 509 U.S. at 592 (second step in the analysis); Kudabeck, 338 F.3d at 860 (same). For example, while Givaudan contends that neither Dr. Harrison's "general causation" opinions nor Dr. Pue's "specific causation" opinions should be admissible, because neither expert can identify...

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