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MacQueen v. Union Carbide Corp.

United States District Court, D. Delaware

March 14, 2018

MARGUERITE MACQUEEN, Individually and as the Surviving Spouse of David MacQueen, Deceased, Plaintiff,



         Presently pending before the Court in this asbestos-related personal injury action is a motion filed by remaining Defendant Crane Company ("Defendant" or "Crane") seeking to strike Plaintiff Marguerite MacQueen's ("Plaintiff) expert reports, on the ground that the reports are violative of Federal Rules of Evidence 402 and 702 ("Motion"). (D.I. 624) Plaintiff opposes the Motion. For the reasons discussed below, the Motion is DENIED.

         I. BACKGROUND

         The Court incorporates by reference the factual and procedural background regarding this case set out in its December 15, 2017 Memorandum Order. (D.I. 636 at 1-5) Below it makes reference to only those background facts necessary to give context to the instant Motion.

         On March 28, 2013, Plaintiff filed her Complaint in the Superior Court of Delaware, in and for New Castle County. (D.I. l, ex. 1 ("Complaint")) In the Complaint, Plaintiff asserted state law causes of action based on her husband David MacQueen's ("MacQueen") alleged exposure to asbestos and asbestos-containing products while MacQueen was employed: (1) by the United States Navy aboard the U.S.S. Randolph and the U.S.S. Independence from 1956 to 1960; and (2) as a salesman by Union Carbide Corporation from approximately 1963 to 1980. (Id. at ¶ 11) The matter was later removed to this Court, and proceeded as the instant consolidated action.

         Crane is the only remaining Defendant in this case. The only remaining count of the operative Fourth Amended Complaint is Count VII's allegation that Crane and others conspired to suppress and misrepresent the hazards of exposure to asbestos. (D.I. 380 at ¶¶ 48-56; see also D.I. 621 at 2) On April 21, 2017, the Court ordered that, pursuant to the terms of the operative Scheduling Order, expert discovery on Plaintiffs conspiracy claim against Crane would commence. Plaintiff then served initial expert reports on the subject from James R. Bruce, M.D. (dated May 26, 2017), Barry I. Castleman, Sc.D. (dated August 18, 2015) and Captain Francis J. Burger (dated November 18, 2014). (D.I. 622; D.I. 624, exs. A-C; D.I. 625 at 5)

         Crane filed the instant Motion on June 29, 2017, (D.I. 624), in which it moves to strike these three expert reports. The Motion was fully briefed as of July 20, 2017. (D.I. 626) On September 25, 2017, the Court granted Crane's unopposed motion to stay further expert discovery until the Court ruled on the instant Motion. (D.I. 628; D.I. 629)


         Crane asserts in its Motion that Plaintiffs expert reports should be stricken on the ground that they are "in violation of Federal Rules of Evidence 402 and 702 [because they] fail to set forth any opinions relevant to Plaintiffs sole remaining claim against Crane Co." (D.I. 624 at 1) Thus, Crane's Motion is really a motion based on the Supreme Court of the United States' decision in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). (D.I. 584 at ¶ l(b)(ii); D.I. 625 at 5)[1]

         Rule 702 governs the admissibility of qualified expert testimony, providing that an expert witness may testify 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. Rule 702's requirements were examined in detail in Daubert, and have been said to embody "three distinct substantive restrictions on the admission of expert testimony: qualifications, reliability, and fit." Elcockv. Kmart Corp., 233 F.3d 734, 741 (3d Cir. 2000); see also B. Braun Melsungen AG v. Terumo Med. Corp., 749 F.Supp.2d 210, 222 (D. Del. 2010). This Motion implicates only the "fit" requirement.

         With regard to that "fit" requirement, it "goes primarily to relevance"; the testimony at issue must "assist the trier of fact to understand the evidence or to determine a fact in issue" and have "a valid .. . connection to the pertinent inquiry as a precondition to admissibility." Daubert, 509 U.S. at 591-92 (internal quotation marks and citations omitted); see also Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003). The standard for fit, however, is "not high"; it is met "when there is a clear 'fit' connecting the issue in the case with the expert's opinion that will aid the jury in determining an issue in the case." Meadows v. Anchor Longwall & Rebuild, Inc., 306 Fed.Appx. 781, 790 (3d Cir. 2009) (citations omitted).

         Overall, "Rule 702 embodies a 'liberal policy of admissibility.'" B. Braun Melsungen AG, 749 F.Supp.2d at 222 (quoting Pineda v. Ford Motor Co., 520 F.3d 237, 243 (3d Cir. 2008)). Nonetheless, the burden is placed on the party offering expert testimony to show that it meets each of the standards for admissibility. Id. (citing Daubert, 509 U.S. at 592 n.l0).


         With its Motion, Defendant argues that each of Dr. Bruce's, Dr. Castleman's, and Captain Burger's proposed testimony, described in their expert reports, are irrelevant to the remaining claim set out in Count VII. (D.I. 624) The Court's understanding is that with Count VII, Plaintiff is pursuing a claim of civil conspiracy under Delaware law. (D.I. 380 at ¶¶ 48-56; D.I. 625 at 4) The elements of such a claim are: (1) a confederation or combination of two or more persons; (2) an unlawful act done in furtherance of the conspiracy; and (3) damages resulting from the action of the parties to the conspiracy. See AeroGlobal Capital Mgmt., LLC v. Cirrus Indus., Inc.,871 A.2d 428, 437 n.8 (Del. 2005); Nicolet, Inc. v. Nutt,525 A.2d 146, 149-50 (Del. 1987); Wayman Fire Prot., Inc. v. Premium Fire & Sec, LLC, C.A. No. 7866-VCP, 2014 WL 897223, at *24 (Del. Ch. Mar. 5, 2014). As to the "unlawful act" that is said to have been done in furtherance of the conspiracy, Plaintiff is here asserting the tort of intentional misrepresentation. (D.I. 625 at 4 (citing Nicolet, 525 A.2d at 150)) The tort of intentional misrepresentation under Delaware law, in turn, has five elements: (1) deliberate concealment by the defendant of a material past or present fact, or silence in the ...

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