Exclusion of expert testimony, FRE 702; Pluck v BP Oil Pipeline Co; Baker v Chevron USA Inc (Unpub 6th Cir); Failure to meet disclosure requirements; FedRCivP 26(a)(2)(B)

The court held that the district court did not abuse its discretion by excluding plaintiffs’ expert’s (Dr. S) causation testimony as to defendant-mining company’s alleged negligence per se resulting in flood damage where the testimony did not meet FRE 702’s requirements and failed to comply with the disclosure requirements in Rule 26(a)(2)(B). Plaintiffs alleged that defendant’s failure to comport with mining regulations caused flooding that destroyed homes and other properties. S was plaintiffs’ only causation expert. Without his testimony, the district court concluded they were unable to make their prima facie case of negligence per se, and granted defendant summary judgment. Plaintiffs argued that it abused its discretion by excluding the testimony. As to exclusion under FRE 702, the court considered Pluck, a benzene contamination case, and Baker, another benzene contamination case involving relevant facts analogous to those here. The court held that like “the district courts in Pluck and Baker,” the district court in this case “did not abuse its discretion and instead correctly spotted red flags in the proffered expert opinion on causation. Here, [S’s] testimony was deficient in all three reliability areas: it unreliably applied unreliable methods to insufficient and even irrelevant data.” The lack of site-specific data made his report of questionable relevance. He also did not conduct flood modeling, which “is ‘the accepted methodology to determine whether land disturbances caused or exacerbated flooding.’” And he neglected to exclude potential alternative causes of plaintiffs’ damages. The court concluded that S’s report raised “various red flags that caution against certifying his opinion: reliance on ‘anecdotal evidence, improper extrapolation, failure to consider other possible causes, and, significantly, a lack of testing.’” It held that the district court did not abuse its discretion by excluding S’s expert testimony under FRE 702. It also found no abuse of discretion in the district court’s exclusion of S’s opinion under Rule 26(a)(2)(B). Defendant asserted four grounds for excluding his report under this rule – (1) it was incomplete, (2) “it reached conclusions without identifying their supporting reasoning[,]” (3) plaintiffs failed to produce all of S’s “considered facts, data, or exhibits[,]” and (4) they failed to “produce a comprehensive list of all the cases in which” he had testified. The district court reasoned that all “these grounds were proper bases for exclusion under Rule 26,” and the court agreed. Affirmed.