United States District Court, E.D. North Carolina, Southern Division
Earl Britt Senior U.S. District Judge.
matter is before the court on defendant's motions to
exclude the expert testimony of James Merchant, M.D., Dr.
P.H. and Robert Taylor, Ph.D. pursuant to Federal Rule of
Evidence 702 and in accordance with Daubert v. Merrell
Dow Pharms., Inc., 509 U.S. 579 (1993). (DE ## 68, 74.)
Plaintiffs have filed responses in opposition to the motions.
(DE # 117, 120.)
court is aware of its gatekeeping function under Rule 702 and
Daubert in regards to expert testimony, as the
Fourth Circuit Court of Appeals has summarized.
[A] district court's gatekeeping responsibility [is] to
“ensur[e] that an expert's testimony both rests on
a reliable foundation and is relevant to
the task at hand.”
Relevant evidence, of course, is evidence that helps
“the trier of fact to understand the evidence or to
determine a fact in issue.” To be relevant under
Daubert, the proposed expert testimony must have
“a valid scientific connection to the pertinent inquiry
as a precondition to admissibility.”
With respect to reliability, the district court must ensure
that the proffered expert opinion is “based on
scientific, technical, or other specialized knowledge and not
on belief or speculation, and inferences must be derived
using scientific or other valid methods.”
Daubert offered a number of guideposts to help a
district court determine if expert testimony is sufficiently
reliable to be admissible. First, “a key question to be
answered in determining whether a theory or technique is
scientific knowledge that will assist the trier of fact will
be whether it can be (and has been) tested.” A second
question to be considered by a district court is
“whether the theory or technique has been subjected to
peer review and publication.” Publication regarding the
theory bears upon peer review; “[t]he fact of
publication (or lack thereof) in a peer reviewed journal will
be a relevant, though not dispositive, consideration in
assessing the scientific validity of a particular technique
or methodology on which an opinion is premised.” Third,
“in the case of a particular scientific technique, the
court ordinarily should consider the known or potential rate
of error.” Fourth, despite the displacement of
Frye, “‘general acceptance'”
is nonetheless relevant to the reliability inquiry.
“Widespread acceptance can be an important factor in
ruling particular evidence admissible, and a known technique
which has been able to attract only minimal support with the
community may properly be viewed with skepticism.”
Daubert's list of relevant considerations is not
exhaustive; indeed, the Court has cautioned that this
“list of specific factors neither necessarily nor
exclusively applies to all experts or in every case, ”
and that a trial court has “broad latitude” to
determine whether these factors are “reasonable
measures of reliability in a particular case.”
Nease v. Ford Motor Co., 848 F.3d 219, 229 (4th
Cir.), cert. denied, 137 S.Ct. 2250, 198 L.Ed.2d 680
(2017) (citations omitted) (most alterations in original).
seeks to exclude the expert testimony of Dr. Merchant, who
has an extensive background in public health and
epidemiology, on 13 topics. The motion essentially amounts to
a request to exclude his testimony in its entirety. As the
court has previously ruled, it declines to bar him from
testifying, (see DE # 476, at 31), and accordingly
will deny defendant's motion in this regard. The court
will, however, allow defendant's motion to the extent
necessary to limit Dr. Merchant's testimony in certain
aspects. The court concludes that the following topics are
not within Dr. Merchant's expertise: complaint-driven
systems (topic 8); corporate responsibility (topic 12); and
warnings (topic 13). The court further concludes that Dr.
Merchant's testimony about the following topics would not
be helpful to the jury: occupational exposures (topic 9); and
defendant's knowledge of community health
effects studies (topic 11), except that Dr. Merchant may
testify as to the state of knowledge regarding
community health effects as shown by pertinent scientific
studies and literature.
Taylor is an agricultural economist. Defendant claims Dr.
Taylor's overriding opinions about defendant's
vertical integration and market power and the economic
feasibility of implementing alternative waste management
technologies are irrelevant and unreliable. The court
disagrees. The issues defendant raises go primarily towards
the weight of Dr. Taylor's testimony, not its
admissibility. Also, defendant requests that the court
exclude Dr. “Taylor's irrelevant and inflammatory
references to China and the minority population in
southeastern North Carolina, ” (DE # 75, at 3).
Defendant filed a motion in limine covering these topics,
which the court allowed in part and denied in part.
(See DE # 135; 3/21/18 Oral Order.) Dr.
Merchant's testimony shall be limited, to the extent
necessary, consistent with the court's prior ruling.
foregoing reasons, defendant's motions to exclude the
expert testimony of Dr. Merchant and Dr. Taylor are ...