Mixed Decision on Defendants’ Motion in Limine to Preclude Dr. James Millette U.S. District Court for the Eastern District of Louisiana, October 11, 2016

The defendants (pump and valve manufactures) filed a motion in limine to exclude certain studies and videos produced by the plaintiff’s expert Dr. James Millette. The defendants challenged two aspects of Dr. Millette’s proposed testimony. First, they argued that some — but not all — of the academic studies that Dr. Millette relied on are not reliable and do not fit the facts of the case, and thus should be precluded from discussing them at trial. Second, the defendants argued that Dr. Millette should not be able to display any videos he created that rely on the “Tyndall Lighting” technique. (The court held this second argument was premature and denied this challenge without prejudice).

As to the defendants’ first argument, the court’s analysis began with an examination of Federal Rule 702, which governs the admissibility of witness testimony under Daubert. This standard provides that a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise 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. The court also noted a number of nonexclusive factors may be relevant to the reliability inquiry, including: (1) whether the technique has been tested, (2) whether the technique has been subjected to peer review and publication, (3) the potential error rate, (4) the existence and maintenance of standards controlling the technique’s operation, and (5) whether the technique is generally accepted in the relevant scientific community. [Citation Omitted].

Addressing the defendants’ specific challenge, the court emphasized that both the reliability and the fit prongs of the Daubert examination require that an expert’s analysis be reasonably connected to the facts of a case. However, this requirement does not require that expert testimony be relevant to every single issue in the case. This court believed that studies conducted in more confined working environments will nonetheless be of “some use” to the jury in setting the upper-bounds of the plaintiff’s possible exposure to asbestos from any one particular activity. The court used the following analogy to illustrate the point: Although it does not provide an exact fit, it has found to be “acceptable to introduce evidence examining whether a chemical causes cancers in animals when examining whether that chemical causes cancer in humans because the animal studies would be of some use in eliminating those chemicals not likely to cause disease in humans”. [Citation Omitted]. Further, the defendants will have the opportunity to use cross-examination to highlight that the plaintiff did not perform all of the activities examined in some of the studies cited by Dr. Millette. Accordingly, the court denied the majority of the defendants’ Daubert challenge to Dr. Millette’s proposed testimony.

Although the court believed that Dr. Millette can testify as to laboratory studies that were not substantially similar to the plaintiff’s working environments, the court will require that (1) those studies be put in the proper context, and (2) the plaintiffs will not be able to use Dr. Millette’s testimony as a subterfuge to speculate as to the plaintiff’s working conditions. It is neither reliable nor permissible for Dr. Millette to testify — as he suggests in his expert report — that the studies conducted in wholly disparate working environments represents the likely exposure plaintiff had from performing a particular activity on a ship. Accordingly, the court will grant the defendants’ motion insofar as Dr. Millette cannot testify that a particular study represents plaintiff’s likely exposure to asbestos until—at the very least—making a threshold showing in a Daubert hearing that that study took place under conditions substantially similar to the plaintiff’s working conditions.

Read the full decision here.

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