Nelson, et al v. TN Gas Pipeline Co.

• Decision Date: 02 February 2001
• Docket Number: No. 99-6618,99-6618
• Citation: 243 F.3d 244
• Parties: (6th Cir. 2001) James Nelson, et al., (each and every plaintiff in this class action suit), Plaintiffs-Appellants, v. Tennessee Gas Pipeline Company; El Paso Tennessee Pipeline Company, Defendants-Appellees. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 244

243 F.3d 244 (6th Cir. 2001)

James Nelson, et al., (each and every plaintiff in this class action suit), Plaintiffs-Appellants, v. Tennessee Gas Pipeline Company; El Paso Tennessee Pipeline Company, Defendants-Appellees.

No. 99-6618

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: February 2, 2001

Decided and Filed: March 9, 2001

Appeal from the United States District Court for the Western District of Tennessee at Jackson: No. 95-01112, J. Daniel Breen, Magistrate Judge. [Copyrighted Material Omitted] Gordon W. Jenkins, JENKINS LAW OFFICE, Idaho Falls, Idaho, for Appellants. William H. Farmer, WALLER, LANSDEN, DORTCH & DAVIS, Nashville, Tennessee, for Appellees.

William H. Farmer, Walter H. Crouch, WALLER, LANSDEN, DORTCH & DAVIS, Nashville, Tennessee, Russ M. Strobel, ALTHEIMER & GRAY, Chicago, Illinois, for Appellees.

Before: GUY, NORRIS, and SILER, Circuit Judges.

OPINION

RALPH B. GUY, JR., Circuit Judge.

Plaintiffs appeal from denial of their motion to alter or amend the court's earlier orders excluding plaintiffs' expert witness testimony and granting summary judgment to defendants on all of the plaintiffs' personal injury claims. Plaintiffs alleged that they were injured by environmental exposure to polychlorinated biphenyls (PCBs), which were released into the air, water, and soil surrounding a natural gas pipeline pumping station located in Lobelville, Tennessee. Defendants are the Tennessee Gas Pipeline Company (TGPC), which operated the station, and its parent company El Paso Tennessee Pipeline Company (formerly known as Tenneco, Inc.).

Plaintiffs claim that the district court abused its discretion by excluding the expert testimony of Kaye H. Kilburn, M.D., and Alan R. Hirsch, M.D., under Fed. R. Civ. P. 702 and the standards adopted in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Plaintiffs also argue that the district court abused its discretion by failing to either hold an evidentiary hearing on the motions in limine, or provide plaintiffs an opportunity to offer other expert testimony. After careful review of the record, the applicable law, and the arguments presented on appeal, we find no abuse of discretion and affirm for the reasons ably articulated in the magistrate judge's order of August 31, 1998. ¹ We write additionally to address the plaintiffs' specific claims of error.

I.

Defendants operate a natural gas pipeline running from the Gulf Coast to New England and numerous compressor stations along the way that restore pressure to the natural gas. The compressor station in Lobelville, Tennessee (Station 79), is located on property along the Marrs Branch Creek. Plaintiffs, who lived, worked, or spent time near Station 79 and the Marrs Branch Creek, alleged that defendants' use of Pydraul AC as a lubricant in the compressors at Station 79 resulted in the release of PCB-contaminated condensates into the environment.

Until 1971, Pydraul AC was manufactured with a fire-retardant PCB known as Aroclor 1254 in concentrations of 500 parts per million (ppm) or greater. Defendants purchased this lubricant for use at Station 79 between 1954 and 1969. In 1978, Congress banned the production and sale of PCBs and the use of PCBs other than in a totally enclosed manner, with some limited exceptions. See 15 U.S.C. §2605(e)(2)(A). The EPA issued regulations, effective July 2, 1979, restricting the manufacture, distribution, use, storage, and disposal of PCBs. See 40 C.F.R. §§ 761.1-761.218. Plaintiffs maintain that PCBs have been detected on and near the site in concentrations that exceed allowable amounts. In 1993, the EPA charged defendants with improper use and disposal of PCB-contaminated condensates and materials at Station 79 as well as thirty-five other compressor stations. A consent decree was entered in August 1994, under which Tenneco paid over $6 million in civil penalties and agreed to set aside funds for cleanup efforts.

Plaintiffs commenced this action in May 1995, alleging that they suffered injuries as a result of long-term environmental exposure to PCBs. Plaintiffs' claims are brought under the tort theories of negligence, trespass, nuisance, and strict liability. In January 1997, the parties selected seven "flagship plaintiffs" who consented to having the magistrate judge resolve their claims, and the case was reassigned to the magistrate judge for all further proceedings and entry of judgment. To establish medical causation, plaintiffs relied upon the expert testimony of Drs. Kilburn and Hirsch. Kilburn studied ninety-eight adults from Lobelville, including the seven flagship plaintiffs, and compared them to a control group of fifty-eight adults from other Tennessee communities. ² Kilburn's results were set forth in a paper entitled Visual and Neurobehavioral Impairment Associated with Polychlorinated Biphenyls (PCBs) From a Natural Gas Pipeline. Kilburn and Hirsch also conducted separate evaluations of the seven flagship plaintiffs.

Defendants moved to exclude the testimony of Kilburn and Hirsch. Defendants also filed a motion for summary judgment arguing that without that expert testimony, plaintiffs could not establish causation. On August 31, 1998, the magistrate judge issued his decision excluding the testimony because it did not meet the standards for admission of scientific evidence under Daubert and its progeny. In a separate order entered a few days later, the magistrate judge granted summary judgment to defendants as to plaintiffs' personal injury claims on the grounds that the evidence was insufficient to establish by a preponderance of the evidence that plaintiffs suffered personal injuries as a result of exposure to PCBs from Station 79.

Plaintiffs filed a motion to amend these orders arguing that the magistrate judge misunderstood "the extent of the evidence present in this case to support the validity of the plaintiffs' medical expert testimony." Although the motion was made under Fed. R. Civ. P. 52(b), which contemplates a trial without a jury, the motion was nonetheless treated as a timely motion to alter or amend judgment under Fed. R. Civ. P. 59(e). After full briefing, the magistrate judge denied plaintiffs' motion because they had not shown a clear error of law, newly discovered evidence, an intervening change in the law, or manifest injustice. See GenCorp., Inc. v. Am. Int'l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999). This timely appeal followed.

II.

We review the magistrate judge's decision to exclude the testimony of plaintiffs' expert witnesses for an abuse of discretion, even when that decision results in the entry of summary judgment. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142-43 (1997). Further, the same abuse of discretion standard applies to the magistrate judge's decisions regarding how to determine the admissibility of the evidence in question. Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). "A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or a clearly erroneous assessment of the evidence." Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990).

A. Evidentiary Hearing

Quoting at length from In re TMI Litigation, 199 F.3d 158, 159 (3d Cir. 2000), modifying 193 F.3d 613 (3d Cir. 1999),cert. denied, 120 S. Ct. 2238 (2000), plaintiffs contend that the magistrate judge abused his discretion by deciding defendants' motions in limine without ordering an evidentiary hearing. Plaintiffs concede that they did not request a hearing, but imply that a hearing is always required. On the contrary, we have stated that the district court is not required to hold an actual hearing to comply with Daubert. See Greenwell v. Boatwright, 184 F.3d 492, 498 (6th Cir. 1999). While we did not analyze the issue in Greenwell, the Supreme Court's decision in Kumho makes clear that whether to hold a hearing is a question that falls within the trial court's discretion.

The trial court must have the same kind of latitude in deciding how to test an expert's reliability, and to decide whether or when special briefing or other proceedings are needed to investigate reliability, as it enjoys when it decides whether or not that expert's relevant testimony is reliable.

Kumho, 526 U.S. at 152 (emphasis in original). With this in mind, we find no abuse of discretion by the magistrate judge in failing to order an evidentiary hearing on the motions in limine. The admissibility of the testimony of Kilburn and Hirsch under Daubert was fully briefed by the parties. Further, it is clear from the extensive record and the magistrate judge's opinion that there was an adequate basis from which to determine the reliability and validity of the experts' opinions. ³

B. Opportunity to Cure

Plaintiffs also claim that the magistrate judge abused his discretion by not affording them an opportunity to obtain expert testimony to remedy deficiencies in the proffered testimony before granting summary judgment. They argue that considerations of equity and fair play demand that they have an opportunity to cure the deficiencies in their proofs. This assertion, made without any authority to support it, is without merit. Plaintiffs had adequate opportunity to develop their expert testimony, test their theories, and respond to defendants' specific challenges to the testimony. We recently rejected a similar claim that the district court abused its discretion by refusing a request to reopen the Daubert inquiry after the plaintiff's proffered expert testimony was found to be inadmissible under Rule 702. See Pride v. BIC Corp., 218 F.3d 566, 578-79 (6th Cir. 2000).

Also instructive is the decision in Weisgram v. Marley Co., 528 U.S. 440 (2000), which involved a challenge to the admissibility of expert witness testimony in a product liability action. Over the defendant's objections, the plaintiff offered the testimony of three expert witnesses and obtained a favorable verdict at trial. Af...