In re the Complaint of Ingram Barge Co.

187 F.R.D. 262, 1999 U.S. Dist. LEXIS 14698
CourtDistrict Court, M.D. Louisiana
DecidedMarch 23, 1999
DocketCiv.A.No. 97-226-A-1
StatusPublished
Cited by3 cases

This text of 187 F.R.D. 262 (In re the Complaint of Ingram Barge Co.) is published on Counsel Stack Legal Research, covering District Court, M.D. Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Complaint of Ingram Barge Co., 187 F.R.D. 262, 1999 U.S. Dist. LEXIS 14698 (M.D. La. 1999).

Opinion

RULING ON MOTION IN LIMINE TO EXCLUDE NACHMAN BRAUTBAR AS AN EXPERT WITNESS

RIEDLINGER, United States Magistrate Judge.

This matter is before the court on the motion of limitation plaintiffs Ingram Barge Company and Ingram Ohio Barge Company (Ingram) to exclude Dr. Nachman Brautbar as an expert witness. Record document number 3818. The motion is opposed.

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court instructed district courts to function as gatekeepers and to permit only reliable and relevant expert testimony to be presented to the trier of fact. The district court must be assured that the proffered witness is qualified to testify by virtue of his “knowledge, skill, experience, training or education.” Rule 702, Federal Rules of Evidence. A district court should refuse to allow an expert witness to testify if it finds that the witness is not qualified to testify in a particular field or on a given subject. Wilson v. Woods, 163 F.3d 935, 937 (5th Cir.1999).

The primary focus of this obligation is Rule 702, which clearly contemplates some degree of regulation of the subjects and theories about which an expert may testify. “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue” the expert “may testify thereto.” The subject of an expert’s testimony must be “scientific ... knowledge.” The adjective “scientific” implies a grounding in the methods and procedures of science. Similarly, the word “knowledge” connotes more than subjective belief or unsupported speculation. The term “applies to any body of known facts or any body of ideas inferred from such facts or accepted as truths on good grounds.” Webster’s Third New International Dictionary 1252 (1986). Of course, it would be unreasonable to conclude that the subject of scientific testimony must be “known” to a certainty; arguably, there are no certainties in science. But, in order to qualify as “scientific [264]*264knowledge” an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validation — i.e., “good grounds,” based on what is known. In short, the requirement that an expert’s testimony pertain to “scientific knowledge” establishes a standard of evidentiary reliability.

Daubert, 509 U.S. at 589-90, 113 S.Ct. at 2794-95 (emphasis in original) (internal citations omitted).

The Court enumerated a five-factor, non-exclusive, flexible test for district courts to consider when assessing whether the methodology is scientifically valid or reliable. These factors include: (1) whether the expert’s theory can be or has been tested; (2) whether the theory has been subject to peer review and publication; (3) the known or potential rate of error of a technique or theory when applied; (4) the existence and maintenance of standards and controls; and (5) the degree to which the technique or theory has been generally accepted in the scientific community. Id., at 593-95, 113 S.Ct. at 2796-97.

To determine the admissibility of expert testimony the district court, applying Rule 104(a), Federal Rules of Evidence, conducts preliminary factfinding in order to make a “preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology properly can be applied to the facts in issue.” Daubert, 509 U.S. at 592-93, 113 S.Ct. at 2796.

This preliminary factfinding, assessment of the expert’s reasoning or methodology, and the application of the Daubert factors is required not only in cases of “hard science,” but also when the case involves questions of medical causation. Moore v. Ashland Chemical, Inc., 151 F.3d 269 (5th Cir. 1998).

Thus, the party seeking to have the district court admit expert testimony must demonstrate that the expert’s findings and conclusions are based on the scientific method, and, therefore, are reliable. This requires some objective, independent validation of the expert’s methodology. The expert’s assurances that he has utilized generally accepted scientific methodology is insufficient. See Daubert v. Merrell-Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1316 (9th Cir.1995) (on remand). The pro- , ponent need not prove to the judge that the expert’s testimony is correct, but she must prove by a preponderance of the evidence that the testimony is reliable. See In Re Paoli R.R. Yard PCB Litigation, 35 F.3d 717 (3rd Cir.1994); see also 2 Stephen A. Saltzberg, et al., Federal Rules of Evidence Manual 1229-40 (7th Ed.1998).

Moore, 151 F.3d at 276.

Dr. Brautbar’s Qualifications

The Claimants’ Steering Committee (CSC) identified Dr. Nachman Brautbar as its expert in the fields of toxicology and internal medicine. A review of Dr. Brautbar’s curriculum vitae, expert report, and deposition testimony supports the finding that he is qualified to offer expert testimony in the fields of toxicology and internal medicine.1 Dr. Brautbar is board certified in internal medicine. Although he is not board certified in toxicology, his medical practice encompasses this field, and he has taught and written extensively in this field. See, e.g., Brautbar CV, p. 5; Brautbar expert report, Ingram Exhibit C, pp. 1-2.

Dr. Brautbar’s Opinions

To determine whether Dr. Brautbar’s testimony should be admitted the court must first determine what that testimony is or will be. Dr. Brautbar’s expert report begins with several paragraphs setting forth his qualifications. Brautbar expert report, pp. 1-2, ¶¶ 1-7. Next, he set out the factual information upon which he bases his conclusions and opinions. Id., at pp. 2-12, ¶¶ 8-10. His conclusions and opinions followed. [265]*265Brautbar expert report, pp. 12-13, ¶¶ 11-13. These are:

11. As a result of these releases, patients exposed must be evaluated for neuro-toxic damages, pulmonary toxic damages, ear, nose and throat damages, and dermatological damages. The fear of cancer which is a common complication of exposure to known carcinogenic agents must be considered as well. As a result of neurotoxic exposure, loss of memory, concentration ability and cognitive function is known to result from the exposure described above.
12. As a result of these releases, patients were exposed to carcinogenic agents and as such their risk of developing cancer has increased significantly as compared to the non-exposed normal population.

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Bluebook (online)
187 F.R.D. 262, 1999 U.S. Dist. LEXIS 14698, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-complaint-of-ingram-barge-co-lamd-1999.