Access Business Group International, LLC and Access Business
Group LLC (collectively, “Amway” or “Plaintiff”) sued Defendant Refresco Beverages after the aluminum cans containing Amway’s electrolyte-rich (i.e., salt-laden) sports drinks corroded and leaked. Refresco, engaged in the business of manufacturing canned and bottled drink products, contended that it merely “bottled” the beverages prepared with the exact ingredients specified and provided by Amway, and in aluminum cans with the specific type of liner required by Amway.
The core question in this case and on this motion is which party bore the risk of Amway’s products leaking.
Plaintiff filed a motion in limine to exclude Defendant’s chemistry expert witness, Dr. Gabriel Miller contending he had never worked in aluminum.
Chemistry Expert Witness
Dr. Gabriel Miller was a tenured Professor at New York University from 1969 to 2010. He was Professor of Chemistry from 1994 to 2010, and has expertise in geology, organic chemistry, environmental chemistry, catalysis, and the chemistry of energy storage. He was previously a Professor of Engineering, as well as a Professor of Energy and Atmospheric Science at NYU from 1969 to 1994. Miller conducted studies at NYU and, as a consultant, in numerous energy and environmental areas. His work has addressed a variety of renewables, as well as combustion systems, including gas fired cogeneraion, combustion of municipal and hospital waste, and studies of human exposure to toxic emissions from municipal solid waste facilities. He has performed analyses of manufacturing and power plants, as well as fuel production facilities, for compliance with the Clean Air Act Amendments of 1990. He however did his graduation, post-graduation and doctorate in Aeronautics and Astronautics from the New York University.
Discussions by the Court
Under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., the proponent of expert testimony must demonstrate the expert’s qualification, reliance on sufficient facts, adherence to reliable principles, and reliable application of those principles to the case. Additionally, the proponent must establish the relevance and assistance of the expert testimony to the jury. Rule 702 adopts a liberal standard for expert opinion admissibility, departing from the previously restrictive Frye standard. However, trial judges, per Daubert, have the responsibility to ensure that expert testimony is both based on a reliable foundation and relevant to the case.
Refresco presents Miller as a chemistry expert witness. Initially, Refresco contends that, being a rebuttal expert, Miller is subject to a different standard. However, the Court rejects this argument, clarifying that even though Defendants’ experts may have a less demanding task in terms of reliability, they must still satisfy Rule 702. The Court emphasizes that Refresco cannot offer unreliable expert testimony solely because it doesn’t bear the ultimate burden of proof. Miller is not only presented to counter Access’s expert but also to support Refresco’s theory. Ultimately, the Court, after evaluating each element, determines that Miller satisfies Rule 702 by a preponderance of the evidence.
Access contended that Miller lacked qualification, asserting that his background in aerospace engineering and lack of experience with aluminum made him unqualified. The Court disagreed, considering this characterization too narrow. Miller had served as a chemistry professor for nearly two decades and, even in his aerospace work, dealt extensively with fluid mechanics and chemistry, particularly in areas such as the corrosion of boiler tubes due to electrolytic compounds. Refresco argued that Miller lacked specific experience related to the case’s subject matter, but the Court, citing precedent (In re Zyprexa Prods. Liab. Litig., 489 F. Supp. 2d 230, 285 (E.D.N.Y. 2007), emphasized that as long as the expert possesses educational and experiential qualifications in a closely related general field, lack of expertise in specialized areas directly pertinent to the case does not warrant exclusion. The Court concluded that Miller met this standard.
Access contested the reliability of Miller’s testimony, claiming it was “conclusory and speculative” and based on generalized theories and a single study about hand sanitizer’s effects on aluminum cans. However, the Court dismissed this argument, asserting that Access had a narrow interpretation. The Court cited Kumho Tire Co. v. Carmichael, 526 U.S. 137, 151, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999), stating that if a scientist had not previously been interested in the specific application at hand, extrapolating from general chemistry knowledge might be reasonable.
The Court emphasized that as long as Miller made an effort to consider alternative explanations and demonstrated rigor, his testimony could be deemed reliable. Miller, in his testimony, discussed the chemistry of the acrylic in the liners and the aggressive nature of the drink formulas. Even though he referenced a hand-sanitizer study criticized by Access, the Court argued that the study could still be helpful to a chemist, and Miller logically applied his chemistry expertise to the events in the case.
The Court cited, In re Fosamax Prods. Liab. Litig., 645 F. Supp. 2d 164, 173 (S.D.N.Y. 2009), stating that an expert should only be excluded if there are serious flaws in reasoning or methodology. If the testimony falls within the range where experts might reasonably differ, it should go to the jury for their consideration. The Court concluded that Miller’s testimony did not have serious flaws warranting exclusion, and Refresco demonstrated that it had a sufficient basis, relied on reliable principles, and applied those principles reliably to the case’s facts. The Court suggested that Access’s arguments should be presented to the jury, through vigorous cross-examination and presentation of contrary evidence.
Access contended that Miller’s testimony wouldn’t be helpful to the jury, asserting that he only addressed the undisputed fact that Access’s drink would corrode bare aluminum. The Court disagreed, stating that this misrepresented the scope of Miller’s testimony. Miller’s testimony, according to the Court, served to rebut Access’s theory by discussing the timeline of corrosion and the interaction between the liner and the “aggressive” drink in question. Moreover, Miller could elucidate other technical evidence in the record, such as Refresco’s enamel testing. The Court highlighted that expert testimony is admissible if it substantially assists the average person in understanding the case, even if it simply explains facts and evidence already in the record. The Court concluded that Miller’s testimony met the bar for relevance, and any doubts about its usefulness should generally be resolved in favor of admissibility, unless strong factors such as time or surprise favored exclusion.
Held
The Court denied Access’s motion in limine to exclude Defendant’s expert Gabriel Miller. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways
This case demonstrates the liberal admissibility standard for expert witnesses under Federal Rule of Evidence 702 and Daubert. An expert need not have direct experience with the precise subject matter, so long as they have sufficient background in a closely related field to offer helpful testimony. Here, Miller’s extensive chemistry expertise, despite his background in aerospace engineering, was sufficiently applicable to testify about aluminum corrosion. The Court also reiterated that supposed flaws in an expert’s reasoning generally go to the weight of the testimony, not admissibility, unless the flaws reflect an outright unreliable methodology. While Miller relied in part on a study of dubious relevance, he logically applied chemistry principles to support an alternative explanation for the corrosion, warranting admissibility. His testimony was helpful to the jury in various respects, including explaining technical evidence.
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