Danielle Smith v. Pepsi Americas , 527 F. App'x 660 ( 2013 )

FILED
NOT FOR PUBLICATION MAY 16 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
HARRY WHITLOCK, et al., No. 11-16958
Plaintiffs, D.C. No. 3:08-cv-02742-SI
and
MEMORANDUM *
DANIELLE SMITH; JO ANN
WAKELAND,
Plaintiffs - Appellants,
v.
PEPSI AMERICAS; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
Argued and Submitted April 16, 2013
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: GRABER and CHRISTEN, Circuit Judges, and TUNHEIM,** District
Judge.
Plaintiffs Danielle Smith and Jo Ann Wakeland allege that Defendants Pepsi
Americas, Whitman Corporation, Pneumo Abex Corporation, and unnamed
individuals caused personal injuries to Plaintiffs by releasing trichloroethylene
("TCE") and hexavalent chromium from a chrome-plating facility in Willits,
California. The district court granted summary judgment to Defendants after
excluding, under Federal Rule of Evidence 702, Plaintiffs’ expert testimony on
exposure and causation as scientifically unreliable. See Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 589 (1993). Reviewing the district court’s evidentiary
rulings for abuse of discretion, Primiano v. Cook, 598 F.3d 558, 563 (9th Cir.
2010), and its summary judgment rulings de novo, Travelers Cas. & Sur. Co. of
Am. v. Brenneke, 551 F.3d 1132, 1137 (9th Cir. 2009), we affirm in part and
reverse in part and remand.
1. The district court abused its discretion in excluding the expert testimony
of Dr. O’Connor, Dr. Sawyer, and Dr. Byers.
The O’Connor rebuttal report provided a reasoned ground for its assumption
that TCE emissions between 1971 and 1975 would be similar to reported
**
The Honorable John R. Tunheim, United States District Judge for the
District of Minnesota, sitting by designation.
2
trichloroethane emissions in 1988 and 1990; that premise is subject to attack by
cross-examination, not exclusion. See Dorn v. Burlington N. Santa Fe R.R. Co.,
397 F.3d 1183, 1196 (9th Cir. 2005) (holding that an expert’s underlying
assumptions and final conclusions go to the weight of the expert’s testimony).
Although Dr. O’Connor’s testimony regarding hexavalent chromium exposure,
alone, might not establish causation, his report is not inadmissible on that ground.
The district court exceeded its gatekeeping function in excluding Dr.
Sawyer’s testimony that the alleged TCE and chromium exposure levels were
"within [a] reasonable range of that known [from several studies] to induce" the
alleged injuries. Plaintiffs’ alleged exposures were not so low that the
occupational studies were irrelevant. Dr. Sawyer’s consideration of the heightened
sensitivity of children and Plaintiffs’ probable ingestion of TCE-contaminated
groundwater does not render his opinion inadmissible. Furthermore, Appendix G
to the 2004 Public Health Assessment states that "hexavalent chromium releases
from 1975-1995[ ] were likely orders of magnitude higher than estimates produced
by the air model." Finally, the district court rested its decision in part on an
erroneous interpretation of Dr. Sawyer’s deposition testimony: He identified 50
ìg/m 3, not 300 ìg/m 3, as a threshold TCE exposure associated with the effects
observed in the Byers study. Because Dr. Sawyer’s opinion "rests on a reliable
3
foundation and is relevant to the task at hand," Daubert, 509 U.S. at 597, it is
admissible. Whether it proves causation is not a question of admissibility. See
Primiano, 598 F.3d at 564 ("Shaky but admissible evidence is to be attacked by
cross examination, contrary evidence, and attention to the burden of proof, not
exclusion.").
The district court impermissibly excluded Dr. Byers’ report without
explanation. Cf. Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 691–92 (9th
Cir. 1993) (holding that the failure to explain a discretionary decision was an abuse
of discretion, where the reason was not apparent from the record). To the extent
that it excluded the opinion because Dr. Byers relied on Dr. O’Connor’s and Dr.
Sawyer’s reports, exclusion on that ground is impermissible in light of our decision
that those experts’ opinions are admissible.
2. The district court correctly granted summary judgment as to Plaintiffs’
post-1975 claims relating to TCE exposure. Plaintiffs’ experts did not testify that
there is a causal connection between Plaintiffs’ minimal TCE exposure during that
period and their alleged injuries or medical monitoring requirements. See Potter v.
Firestone Tire & Rubber Co., 863 P.2d 795, 800 (Cal. 1993); Jones v. Ortho
Pharm. Corp., 209 Cal. Rptr. 456, 460 (Ct. App. 1985).
4
3. The district court erred in granting summary judgment in favor of
Defendants as to Plaintiffs’ remaining claims because there are disputed issues of
fact regarding exposure and causation.
AFFIRMED in part; REVERSED in part and REMANDED. The parties
shall bear their own costs on appeal.
5