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Lipson v. On Marine Services Company, LLC

United States District Court, Ninth Circuit

December 13, 2013

JOANNE K. LIPSON, individually and as personal representative of the Estate of James B. Turner, Plaintiffs,
v.
ON MARINE SERVICES COMPANY, LLC, FERRO ENGINEERING DIVISION, Defendant.

ORDER

THOMAS S. ZILLY, District Judge.

THIS MATTER comes before the Court on Defendant ON Marine Services Company, LLC's ("ON Marine") motions in limine, docket no. 114, and Defendant Lone Star Industries, Inc.'s ("Lone Star") motions in limine, docket no. 139-1.[1] Defendants moved to exclude or limit the testimony of three of Plaintiffs' expert witnesses: (1) Dr. William Longo, Ph.D., Plaintiffs' material science expert, (2) Dr. Carl Andrew Brodkin, M.D., Plaintiffs' occupational health expert, and (3) Susan Raterman, Plaintiffs' industrial hygiene expert. The Court previously denied the motions with respect to each expert, see docket nos. 243 and 250, and now enters the following Order explaining its reasoning.

Background

The parties are familiar with the facts of the case and they will be stated only briefly for purposes of this Order. Plaintiff James B. Turner, along with his wife Joanne K. Lipson (collectively, "Plaintiffs"), brought suit against Defendants for Mr. Turner's alleged exposure to asbestos-containing products manufactured or distributed by Defendants. Mr. Turner alleged that he was directly exposed to asbestos through Ferro hot tops and Ferroboard liners, asbestos-containing products manufactured by ON Marine, during Mr. Turner's employment with Bethlehem Steel from 1973 to 1976.

Discussion

A. Standard of Review

Under Rule 702 of the Federal Rules of Evidence, an expert witness, "qualified... by knowledge, skill, experience, training, or education, " may testify 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. The Court has broad discretion concerning the admissibility or exclusion of expert testimony. Wood v. Stihl, Inc. , 705 F.2d 1101, 1104 (9th Cir. 1983).

A trial judge has the "task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 597 (1993). The party presenting the expert, the Plaintiffs in this case, "must show that the expert's findings are based on sound science, and this will require some objective, independent validation of the expert's methodology." Daubert v. Merrell Dow Pharmaceuticals, Inc. (Daubert II) , 43 F.3d 1311, 1316 (9th Cir. 1995).

The Court's inquiry as to relevance and reliability is subject to no set list of factors. See Kumho Tire v. Carmichael , 526 U.S. 137, 141-42 (1999). "For scientific opinion, the court must assess the reasoning or methodology, using as appropriate such criteria as testability, publication in peer reviewed literature, and general acceptance, but the inquiry is a flexible one." Primiano v. Cook , 598 F.3d 558, 564 (9th Cir. 2010). "The district court has discretion whether to hold a Daubert hearing in determining whether to admit expert testimony." Millenkamp v. Davisco Foods Int'l, Inc. , 562 F.3d 971, 979 (9th Cir. 2009).

The Court's focus is on the expert's methodology, not his or her conclusion. Metabolife Intern., Inc. v. Wornick , 264 F.3d 832, 841 (9th Cir. 2001). Once the Court has assured itself that the expert's testimony "rests on a reliable foundation and is relevant to the task at hand, " its gatekeeping function is satisfied. Daubert , 509 U.S. at 597. Because the trial court is "a gatekeeper, not a fact finder" United States v. Sandoval-Menxoza , 472 F.3d 645, 654 (9th Cir. 2006), "[s]haky but admissible evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion, " Primiano , 598 F.3d at 564.

B. Dr. William Longo, Ph.D.

Defendants seek to limit the testimony of Dr. William Longo, Plaintiffs' material science expert, and to exclude Dr. Longo's video demonstrations using Tyndall lighting. The Court has reviewed the briefs and supporting materials filed by the parties, including the declaration of Dr. Longo, and finds that a Daubert hearing is unnecessary.

Defendants do not challenge Dr. Longo's qualifications as an expert, and the Court finds that he is qualified to testify. Dr. Longo has a bachelor's degree in microbiology, a master's degree in engineering, and a doctorate degree in material science and engineering. Declaration of William Longo, docket no. 165, at ΒΆ 3.

Furthermore, the Court finds that Dr. Longo's testimony will assist the jury in understanding the evidence and that Dr. Longo's opinions are relevant and reliable. Lone Star argues that Dr. Longo should be precluded from testifying about his work practice simulations because (1) his test chamber does not replicate conditions similar to Mr. Turner's work environment, and (2) Dr. Longo uses an unreliable ...


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