Bryant v. 3M Co.

78 F. Supp. 3d 626, 96 Fed. R. Serv. 1142, 2015 U.S. Dist. LEXIS 24022, 2015 WL 858977
CourtDistrict Court, S.D. Mississippi
DecidedFebruary 27, 2015
DocketCivil Action No. 2:13-CV-104-KS-MTP
StatusPublished
Cited by5 cases

This text of 78 F. Supp. 3d 626 (Bryant v. 3M Co.) is published on Counsel Stack Legal Research, covering District Court, S.D. Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bryant v. 3M Co., 78 F. Supp. 3d 626, 96 Fed. R. Serv. 1142, 2015 U.S. Dist. LEXIS 24022, 2015 WL 858977 (S.D. Miss. 2015).

Opinion

Memorandum Opinion and Order

KEITH STARRETT, District Judge.

For the reasons stated below, the Court grants Defendant’s Motion to Exclude [208] the testimony of Darell Bevis.

I. Background

This is a product liability/silicosis case. Plaintiff worked around sandblasting for approximately one year in the late seventies. During that year, he spent approximately forty percent of his working time sandblasting or tending the sandblasting pot, while the rest was spent painting and cleaning. While Plaintiff was sandblasting or tending the pot, he wore a disposable, single-use respirator designed and manufactured by Defendant: the 3M 8710.

Plaintiff contends that he has pneumoco-niosis caused in part by inhalation of silica because Defendant’s respirator was defective. He asserted claims under the Mississippi Product Liability Act (“MPLA”) for design, manufacturing, and warning defects. Defendant filed several motions [208, 210, 212, 226] to exclude the testimony of Plaintiffs proposed experts — Darell Bevis, Dr. Vernon Rose, and Dr. Steven Haber. The Court now considers Defendant’s Motion to Exclude [208] the testimony of Darell Bevis.

II. Discussion .

According to his report [208^1], Bevis believes that the 3M 8710 is defective in three general ways. First, he claims that the 3M 8710 does not properly seal to the face because a “malleable aluminum strip across the nose area ... relaxes and reshapes itself very quickly,” and the respirator’s “valveless design ... promotes considerable condensed moisture collection on the paper which increases the pressure drop or breathing resistance causing the loss of rigidity and ... seal leakage.” Second, Bevis stated that the “paper/fabric media” of the 8710 is “the lowest efficiency acceptable” under the pertinent regulations. Finally, Bevis maintains that the 8710’s design makes it impossible to conduct a proper fit test or seal check. In light of these alleged defects, Bevis concluded that “the subject respirators did not provide sufficient protection to prevent inhalation exposure of Mr. Bryant to very substantial amounts of respirable silica.”

Federal Rule of Evidence 702 provides:

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
[630]*630(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed.R.Evid. 702. Therefore, “when expert testimony is offered, the trial judge must perform a screening function to ensure that the expert’s opinion is reliable and relevant to the facts at issue in the case.” Watkins v. Telsmith, Inc., 121 F.3d 984, 988-89 (5th Cir.1997).

In Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court provided a nonexclusive list of “general observations intended to guide a district court’s evaluation of scientific evidence,” including: “whether a theory or technique can be (and has been) tested, whether it has been subjected to peer review and publication, the known or potential rate of error, and the existence and maintenance of standards controlling the technique’s operation, as well as general acceptance.” Id. at 989 (punctuation omitted).

Not every guidepost outlined in Daubert will necessarily apply to expert testimony based on engineering principles and practical experience, but the district court’s 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 is no less important.

Id. at 990-91 (punctuation omitted).

“Overall, the trial court must strive to ensure that the expert, whether basing testimony on 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.” Id. The testimony must be supported by “more than subjective belief or unsupported speculation.” Paz v. Brush Eng’red Materials, Inc., 555 F.3d 383, 388 (5th Cir.2009). However, the Court’s rule as gatekeeper is not meant to supplant the adversary system because “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596, 113 S.Ct. 2786. While the Court should focus solely on the proposed expert’s “principles and methodology, not on the conclusions that they generate,” Daubert, 509 U.S. at 595, 113 S.Ct. 2786, “nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert.” GE v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997).

“The proponent of expert testimony ... has the burden of showing that the Testimony is reliable,” United States v. Hicks, 389 F.3d 514, 525 (5th Cir.2004), and must establish the admissibility requirements “by a preponderance of the evidence.” United States v. Fullwood, 342 F.3d 409, 412 (5th Cir.2003).

A. Qualiñcation

First, Defendant argues that Be-vis is not qualified to provide expert testimony because he has no specialized knowledge, skill, experience, training, or education in respirator design or manufacturing. “Whether a witness is qualified to testify as an expert is left to the sound discretion of the trial judge, who is in the best position to determine' both the claimed expertise of the witness and the helpfulness of his testimony.” Sullivan v. Rowan Cos., 952 F.2d 141, 144 (5th Cir.1992). The proponent of expert testimony must establish the expert’s qualifications by a preponderance of the evidence. United States v. Griffith, 118 F.3d 318, 322 (5th Cir.1997).

[631]

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78 F. Supp. 3d 626, 96 Fed. R. Serv. 1142, 2015 U.S. Dist. LEXIS 24022, 2015 WL 858977, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bryant-v-3m-co-mssd-2015.