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Patrick v. Firstenergy Generation Corp.

United States District Court, W.D. Pennsylvania

March 13, 2014

Patrick et al., Plaintiffs,
v.
FirstEnergy Generation Corp., Defendant. Price et al., Plaintiffs,
v.
FirstEnergy Generation Corp., Defendant.

MEMORANDUM OPINION

JOY FLOWERS CONTI, Chief District Judge.

I. Introduction

Before the court are expert challenges filed by defendant FirstEnergy Generation Corporation ("FirstEnergy" or "defendant") in two cases consolidated for discovery, Patrick v. FirstEnergy Generation Corp. (No. 08-1025) and Price v. FirstEnergy Generation Corp. (No. 08-1030).[1] These cases involve FirstEnergy's Bruce Mansfield Power Plant ("Bruce Mansfield"), which is located along the Ohio River in Shippingport, Pennsylvania. The plaintiffs in each case allege harm from air pollution discharged by Bruce Mansfield. The alleged pollution came in the form of "white rain, " a chronically discharged corrosive material, and "black rain, " a dark-colored sooty residue discharged on two occasions in 2006 and 2007. The white rain and black rain were deposited on the area surrounding Bruce Mansfield, allegedly causing property damage and adverse health effects. The named plaintiffs in Patrick are four couples who make class-action claims for damages due to diminution of property value and seek to enjoin the plant from operating until it can prevent the white rain emissions. In Price, nineteen plaintiffs seek monetary damages for adverse health effects and property damage and seek injunctive relief.

The parties conducted extensive fact and expert discovery in these cases. Defendant filed motions to limit or preclude the testimony of twelve of plaintiffs' experts. Plaintiffs filed motions to limit or preclude the testimony of seven of defendant's experts. This memorandum opinion addresses two of the plaintiffs' challenged geology and sampling experts-Wayne C. Isphording, PhD ("Isphording") and James R. Millette, PhD ("Millette").[2] The motions to exclude these experts are fully briefed, and the court heard testimony and argument on January 13 and January 14, 2014. Because, as explained below, the court finds that the expert testimony of Isphording and Millette would not be helpful to the trier of fact, the court will grant the motions to exclude their testimony.

II. Standard of Review

Federal Rule of Evidence 702 governs the admissibility of expert testimony and states:

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.

FED. R. EVID. 702. Under the seminal case of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), district courts must act as gatekeepers to "ensure that any and all scientific testimony or evidence admitted is... reliable."[3] Id. at 589. The United States Court of Appeals for the Third Circuit explained that Rule 702 "embodies a trilogy of restrictions" that expert testimony must meet for admissibility: qualification, reliability and fit. Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003). The party offering the expert testimony has the burden of establishing each of these requirements by a preponderance of the evidence. In re TMI Litig., 193 F.3d 613, 663 (3d Cir. 1999).

A. Qualification

An expert witness's qualification stems from his or her "knowledge, skill, experience, training, or education." FED. R. EVID. 702. The witness therefore must have "specialized expertise." Schneider, 320 F.3d at 405. The court of appeals interprets the qualification requirement "liberally, ' holding that a broad range of knowledge, skills, and training qualify an expert as such.'" Calhoun v. Yamaha Motor Corp., U.S.A., 350 F.3d 316, 321 (3d Cir. 2003) (quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741 (3d Cir. 1994)). When evaluating an expert's qualifications, district courts should not insist on a certain kind of degree or background. Robinson v. Hartzell Propeller Inc., 326 F.Supp.2d 631, 667 (E.D. Pa. 2004). An expert's qualifications are determined with respect to each matter addressed in the proposed testimony. Calhoun, 350 F.3d at 322 ("An expert may be generally qualified but may lack qualifications to ...


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