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Best v. Lowe's Home Centers

June 5, 2008

DAVID L. BEST, PLAINTIFF,
v.
LOWE'S HOME CENTERS, INC., D/B/A LOWE'S HOME IMPROVEMENT WAREHOUSE STORE OF KNOXVILLE, STORE NO. 0637, DEFENDANT.



The opinion of the court was delivered by: C. Clifford Shirley, Jr. United States Magistrate Judge

MEMORANDUM AND ORDER

This civil action is before the Court pursuant to 28 U.S.C. § 636(c), Rule 73(b) of the Federal Rules of Civil Procedure, and the consent of the parties, for all further proceedings, including entry of judgment [Doc. 22] on the defendant's Third Motion In Limine Re: Exclusion of Expert Testimony [Doc. 42] and Motion for Summary Judgment. [Doc. 43] On May 12, 2008, the parties appeared before the Court for a hearing on the instant motions. After the hearing, the Court took the matter under advisement, and the motions are now ripe for adjudication. The Court will address each of the motions in turn.

I. Brief Summary of Relevant Facts

On June 14, 2003, plaintiff David Best ("Plaintiff") was shopping for pool chemicals at the Lowe's Home Improvement Warehouse ("Defendant") located at 6600 Clinton Highway in Knoxville, Tennessee. [Doc. 1] While at the Defendant store, Plaintiff reached for a container of pool chemicals, described in the complaint as BPL 5040, manufactured by Buckman Laboratories. [Id.] The product at issue was latter described as Aqua EZ Super Clear Clarifier. ("Aqua EZ") [Doc. 36] While retrieving the container of Aqua EZ, the contents of the container splashed out, striking Plaintiff in the face, shirt, and leg. [Doc. 1] After being struck, Plaintiff noticed that the container he had retrieved had been cut open. [Id.] Defendant alleges that, because of the incident, he has suffered injuries, including permanent anosmia (a loss of the sense of smell).

II. Exclusion of Dr. Moreno

The defendant moves the Court to exclude the testimony of the plaintiff's medical expert, Dr. Francisco Moreno ("Dr. Moreno"), arguing that Dr. Moreno's opinions do not satisfy the dictates of Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), and thus should be excluded. Specifically, the defendant contends that Dr. Moreno's opinions are unreliable and lack a reasonable basis in fact. The plaintiff disagrees, arguing that Dr. Moreno's opinions satisfy Daubert and are admissible.

A. Applicable Law: Admissibility of Expert Testimony

Defendant's motion challenges the admissibility of Dr. Moreno's testimony under Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Fed. R. Evid. 702. The trial judge must act as a gatekeeper, admitting only that expert testimony that is relevant and reliable. Daubert, 509 U.S. at 589. With regard to scientific knowledge, the trial court must initially determine whether the reasoning or methodology used is scientifically valid and is properly applied to the facts at issue in the trial. Id. To aid the trial court in this gatekeeping role, the Supreme Court has listed several key considerations: (1) whether the scientific knowledge can or has been tested; (2) whether the given theory or technique has been published or been the subject of peer review; (3) whether a known error rate exists; and (4) whether the theory enjoys general acceptance in the particular field. Id. at 592-94. The Court's focus "must be solely on principles and methodology, not on the conclusions that they generate." Id. at 595. "[T]he test under Daubert is not the correctness of the expert's conclusions but the soundness of his methodology." Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311 (9th Cir. 1995).

Although Daubert centered around the admissibility of scientific expert opinions, the trial court's gatekeeping function applies to all expert testimony, including that based upon specialized or technical, as opposed to scientific, knowledge. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-48 (1999); Berry v. City of Detroit, 25 F.3d 1342, 1350 (6th Cir. 1994). The trial court's objective "is to make certain that an expert, whether basing testimony upon 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." Kumho Tire, 526 U.S. at 152. The trial judge enjoys broad discretion in determining whether the factors listed in Daubert reasonably measure reliability in a given case. Id. at 153. The party proffering the expert testimony bears the burden of showing its admissibility under Rule 702 by a preponderance of the evidence. Daubert, 509 U.S. at 592 n.

10. With this framework in mind, the Court will now address Defendant's motion.

B. Dr. Moreno's Deposition Testimony

Dr. Moreno did not appear for the May 14, 2008, hearing, with the parties instead arguing the matter based upon the previous deposition of Dr. Moreno.*fn1 Having reviewed the deposition testimony, the Court finds the following segments helpful in resolving the question of whether Dr. Moreno's expert testimony is admissible. In the interests of judicial economy, the Court will summarize portions of the testimony, rather than quoting the entirety of each section.

In pages nine through twelve of his deposition, Dr. Moreno testified that he did not review any of Plaintiff's hospital records following Plaintiff's alleged exposure at the Defendant store and stated "I didn't really particularly see a need for it. The patient complained of an exposure to a chemical and becoming anosmic after that." [Dep. at p. 9] Dr. Moreno went on to confirm that his opinions were based on an exposure by way of inhalation and agreed that it would be important to know whether Plaintiff actually reported an inhalation exposure at that hospital on the day of the accident. [Id. at pp. 9-10] However, Dr. Moreno also claimed that, while it would be important, "it wouldn't be the only. . . it wouldn't be the only cue to his problem." [Id. at p. 9] He also stated that if Plaintiff had denied inhaling the product while at the emergency room on June 14, 2003, "that would be relatively important, but the denial of inhalation does not necessarily constitute a total denial that he inhaled some of the product." [Id. at p. 10]. In explaining that response, Dr. Moreno stated "the fact that, as I understand. . . I haven't reviewed the records, so I can't really say. Until I review those, I can't really expound anymore." [Id.]

After being shown the records from Plaintiff's emergency room visit, which allegedly indicate that Plaintiff denied any inhalation of the chemicals, Dr. Moreno was again asked if that type of information would have been important to him in his capacity as an expert testifying with regard to a relationship between an alleged inhalation and his diagnosis. [Id. at p. 11] Dr. Moreno responded that "I believe he had an exposure to a chemical. As I understand, it was spilled on him. I believe that he inhaled some of the chemical. This is a note that was made, I assume, by the nurse. I don't really know. In times of. . . . sometimes in times of seeing a patient acutely in the emergency room some things may or may not be missed or misdirected." [Id.] When asked if he believed that the account in the emergency room record was incorrect, Dr. Moreno stated that he simply did not know. [Id.] When asked if the account in the emergency room record was correct, and when asked to assume that it was correct and that Plaintiff had denied inhaling the substance, and then asked if that would be detrimental to his opinion that Plaintiff inhaled something on June 14 causing his loss of smell, Dr. Moreno testified that: this is what you attorneys refer to as cause and affect. The patient was normal before the accident, he was smelling, didn't have any problems, he is exposed to chemical that we have since then identified, and he now can not smell. So, I would have to assume that regardless of the statements made that he had to have had some exposure. [Id. at pp. 11-12]

In addition, when asked if he had formulated his own opinion that inhalation of the chemical in issue could cause the type of damage claimed by Plaintiff, Dr. Moreno testified that "what I formulated was a cause-and-effect-type relationship." [Id. at p. 19] When asked if Plaintiff's alleged injury was caused by the exposure to the chemical, Dr. Moreno testified affirmatively. [Id.] However, when asked how much of the chemical Plaintiff was exposed to, Dr. Moreno stated that he had no idea. [Id.]

A key portion of Dr. Moreno's testimony on this issue occurred as follows: after being asked if propenyl chloride (one of the chemicals in issue) was able to cause a loss of sense of smell through inhalation, and after testifying that according to the MSDS sheets, it is a respiratory irritant, which can irritate the mucosa, and after testifying that he did not know how much was necessary to cause that type of irritation or damage, and further did not know how much Plaintiff was exposed to, the following colloquy occurred:

Q: - How can you say that this chemical caused his loss of sense of smell?

A: - It's a cause and effect.

Q: - I don't understand what you mean?

A: - I mean, the patient had an accident, he was exposed to a chemical and he has lost his sense of smell. If we are to assume that. . . you know, I believe the patient, my patient's statement that. . .

Q: - So is really all your going off is the history that was given to you that he had an ...


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