Hughes, et al v. The United States of America

UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
PATRICK FEINDT, JR., et al.,
Plaintiffs,
vs.
UNITED STATES OF AMERICA,
Defendant.
CIV. NO. 22-00397 LEK-KJM
ORDER DENYING PLAINTIFFS’ MOTION TO EXCLUDE THE OPINIONS
AND TESTIMONY OF DR. WALTER GRAYMAN PURSUANT TO DAUBERT
AND FEDERAL RULE OF EVIDENCE 702; AND DENYING PLAINTIFFS’ MOTION
TO EXCLUDE THE OPINIONS AND TESTIMONY OF DRS. MICHAEL KOSNETT,
TIMUR DURRANI, LYLE BURGOOD AND ROBYN PRUEITT
PURSUANT TO DAUBERT AND FEDERAL RULE OF EVIDENCE 702
Before the Court are the Bellwether Plaintiffs’ Motion
to Exclude the Opinions and Testimony of Dr. Walter Grayman
Pursuant to Daubert & Federal Rule of Evidence 702 (“Grayman
Motion”), [dkt. no. 235,] and the Bellwether Plaintiffs’ Motion
to Exclude the Opinions and Testimony of Drs. Michael Kosnett,
Timur Durrani, Lyle Burgoon and Robyn Prueitt Pursuant to
Daubert & Federal Rule of Evidence 702 (“Kosnett et al.
Motion”), [dkt. no. 240,] both filed on January 16, 2024. On
March 5, 2024, Defendant United States of America (“Defendant”
or “United States”) filed its oppositions to both motions, [dkt.
nos. 301, 302,] and on March 8, 2024, Plaintiffs filed their
replies, [dkt. nos. 309, 310]. The Court finds these matters
suitable for disposition without a hearing pursuant to Rule
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LR7.1(c) of the Local Rules of Practice for the United States
District Court for the District of Hawaii (“Local Rules”). For
the reasons set forth below, the Grayman Motion is denied, and
the Kosnett et al. Motion is denied.
BACKGROUND
The parties are familiar with the facts of this case
and the Court will not repeat them here, except as relevant to
the issues at hand. Briefly, this case arises out of the May 6
and November 20, 2021 fuel leaks from the United States Navy’s
(“the Navy”) Red Hill Bulk Fuel Storage Facility on Joint Base
Pearl Harbor-Hickam (“Red Hill” and “JBPHH”). [Fifth Amended
Complaint, filed 12/1/23 (dkt. no. 210), at pgs. iii, 1; ¶¶ 4,
9.] Plaintiffs allege that Defendant owns and operates Red Hill
and the water system that serves JBPHH, as well as the housing
that Plaintiffs leased and resided in. [Id. at ¶¶ 6, 9, 530.]
Defendant was allegedly negligent in releasing fuel into the
water supply, among other things. [Id. at ¶¶ 4, 467, 481.]
Plaintiffs allege the following claims against Defendant: (1) a
negligence claim (“Count I”); (2) a negligent undertaking claim
(“Count II”); (3) a nuisance claim (“Count III”); (4) a medical
negligence claim alleging failure to treat and delayed care
(“Count IV”); (5) an infliction of emotional distress claim
(“Count V”); and (6) a premises liability claim alleging breach
of the duty to control force (“Count VII”). [Id. at pgs. 161-
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79.] Plaintiffs seek damages for, among other things, past and
future: pain and suffering, emotional distress, medical
expenses, loss of income and earning capacity, physical
impairment, loss of enjoyment and quality of life; as well as
increased risk of future harm and medical monitoring for life,
and loss of life expectancy. [Id. at pgs. 190-91.]
I. 	Dr. Grayman
Defendant retained Walter M. Grayman, Ph.D., P.E. as
an expert witness to model the movement of JP-5 contaminated
water from the Red Hill Shaft through the Joint Base Pearl
Harbor Hickman (“JBPHH”) water distribution system to specific
points of use. 1 See Grayman Motion, declaration by Frederick C.
Baker (“Grayman Motion Baker Decl.”), Exh. 1 (Expert Report Dr.
Walter M. Grayman, Ph.D., P.E., dated 10/6/23) (“Grayman
Report”) at 3. Dr. Grayman has “practiced as a
civil/environmental engineer in the field of water resources for
over 50 years, and [his] field of specialization since the mid-
1980s has been modeling and assessment of the movement of water
through a water distribution system.” [Id.] Dr. Grayman has a
Bachelor of Science degree in Civil Engineering from Carnegie
1 “JP-5” refers jet propulsion 5 jet fuel. See, e.g., Order
Granting in Part and Denying in Part Defendant’s Motion to
Exclude the Expert Report and Testimony of Dr. Steven Bird,
[Filed 1/16/24 (Dkt. No. 234)], filed 4/9/24 (dkt. no. 410), at
4.
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Mellon University, and a Master’s degree and Ph.D. in Civil
Engineering from Massachusetts Institute of Technology.
Dr. Grayman developed “the first dynamic water distribution
system model for modeling chemicals and water age in
distribution systems,” while working as a consultant to the
United States Environmental Protection Agency (“EPA”). [Id.] Dr.
Grayman has published extensively on water distribution system
modeling. See id.; id., App’x C (Curriculum Vitae of Walter M.
Grayman, Ph.D., P.E.) at 4-11 (listing over 100 publications);
id., App’x D (Walter M. Grayman, Ph.D., P.E.’s Publications
Related to Water Distribution Analysis).
Dr. Grayman opines that his “best estimate is that the
average concentration of jet fuel entering the distribution
system followed an S-shaped growth curve over a period of about
36 hours or less starting around November 26 to a maximum of
2,000 μg/L 2 entering the distribution system.” [Grayman Report at
31, ¶ 3.]
Dr. Grayman based his model on the Navy contractor
AH/BC JV Navy LLC’s model (“AH Model”) developed for the Naval
Facilities Engineering Systems Command Pacific (“NAVPAC”), which
ran with software called WaterGEMS. Dr. Grayman used a converted
file of that AH Model to do his own modeling with the software
2 μg/L means micrograms per liter. 1,000 μg/L is equivalent
to 1 mg/L (milligram per liter).
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EPANET. [Id. at 7-8.] The AH Model Dr. Grayman used as a
starting point modelled the flow within the JBPHH water system
from November 24, 2021 to December 5, 2021. [Id. at 8.] Dr.
Grayman verified the AH Model by comparing it to the Navy’s
Supervisory Control and Data Acquisition (“SCADA”) records. [Id.
at 9-11.]
Dr. Grayman then changed the model’s assumptions of
when jet fuel entered the JBPHH water system. [Id. at 11-16.]
Dr. Grayman then modelled a range of values for the average
total petroleum hydrocarbons - diesel (“TPH-d”) concentrations
that entered the JBPHH water system: 2,000 μg/L, 6,000 μg/L,
17,000 μg/L, and later 85,250 μg/L. [Id. at 16-18; Grayman
Motion Baker Decl., Exh. 16 (Report in Response to Rebuttal
Expert Report of Dr. Joseph B. Hughes Dated November 8, 2023 in
the Matter of Feindt et al. v United States, by Walter M.
Grayman, Ph.D., P.E., F. EWRI, dated 11/20/23) (“Grayman
Rebuttal Report”) at 2-3.]
Dr. Grayman then verified his model through comparison
to quantitative sample results. [Grayman Report at 16-23.] For
each of the four starting concentrations, Dr. Grayman estimated
the concentrations of TPH-d at each of the Bellwether
Plaintiffs’ residences hourly. [Id. at 23-27.] Dr. Grayman did
the same for the five other JP-5 constituents: benzene, toluene,
ethylbenzene, xylene, and naphthalene. [Id. at 27.]
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II. 	Drs. Kosnett, Durrani, Burgoon, Prueitt
Defendant retained Michael J. Kosnett, MD, MPH; Timur
S. Durrani, MD, MPH; Lyle D. Burgoon, Ph.D., ATS; and Robyn L.
Prueitt, Ph.D., DABT to opine on the Bellwether Plaintiffs’
exposure to the jet-fuel contaminated water and air, and whether
such exposures were sufficient to cause their injuries. [Kosnett
et al. Motion, Mem. in Supp. at 1.]
Dr. Kosnett was retained by Defendant to conduct
Independent Medical Examinations (“IMEs”) for adult Bellwether
Plaintiffs Kevin Aubart, Elizabeth Witt, Natasia Freeman,
Patrick Feindt, Jr., Richelle Dietz, and Sheena Jessup to assess
whether they “had experienced medical problems attributable on a
toxicological basis to constituents of JP-5 jet fuel that may
have been present in [their] residential tap water subsequent to
an accidental fuel release on November 20, 2021.” See, e.g.,
Bellwether Plaintiffs’ Notice of Filing Exhibits 1 through 6 and
9 through 19 in Support of Bellwether Plaintiffs’ Motion to
Exclude the Opinions of Drs. Michael Kosnett, Timur Durrani,
Lyle Burgoon and Robyn Prueitt Pursuant to Daubert & Federal
Rule of Evidence 702 (“Notice of Refiling”), filed 1/18/24 (dkt.
no. 246), Exh. 1 (excerpt of Medical Toxicology and Occupational
and Environmental Medicine Report on Kevin Aubart by Michael J.
Kosnett, MD, MPH, dated 11/3/23) at PageID.11519 (footnote
omitted).
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Dr. Durrani was retained by Defendant to conduct IMEs
for each minor Bellwether Plaintiff in order to assess whether
each minor Bellwether Plaintiff’s exposures to JP-5 jet fuel
from the JBPHH drinking water system resulted in long-term
injuries or future increased risk of injury as claimed in the
instant case, and the scope of any long-term medical monitoring
due to such exposures. See, e.g., Notice of Refiling, Exh. 9
(excerpt of report by Timur S. Durrani, M.D., M.P.H., dated
11/2/23 regarding Sheena Jessup’s minor child) at PageID.11551.
Dr. Durrani is a clinical professor of medicine and pharmacy in
the Department of Medicine, Division of Occupational and
Environmental Medicine and the School of Pharmacy at the
University of California, San Francisco (“UCSF”), among other
roles. He is currently an attending physician for the Medical
Toxicology Inpatient Service at UCSF’s San Francisco General
Hospital and Trauma Center. [Id. at PageID.11551.]
Dr. Burgoon was retained by Defendant to opine on
Plaintiffs’ exposure to the chemical constituents of JP-5 from
the November 20, 2021 fuel spill through air inhalation while
showering, cooking, using the washing machine, washing hands,
and washing dishes. [Kosnett et al. Motion Opp., Decl. of
Caroline W. Stanton, Exh. A (Report of Lyle D. Burgoon, Ph.D.,
ATS, dated 10/6/23) at 1, 5-7.] Dr. Burgoon is certified in
toxicology by the Academy of Toxicological Sciences. Dr. Burgoon
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has a dual Ph.D. in Pharmacology and Toxicology with
Environmental Toxicology from Michigan State University. [Id. at
2.]
Dr. Prueitt was retained by Defendant to opine on
whether the Bellwether Plaintiffs’ health effects were
attributable to exposure to JP-5 from the release of JP-5 into
the JBPHH water distribution system from the November 20, 2021
fuel spill. See Kosnett et al. Motion, Baker Decl., Exh. 24
(excerpt of Expert Report of Robyn L. Prueitt, Ph.D., DABT,
dated 10/9/23) at 1. Dr. Prueitt is “a board-certified
toxicologist with expertise in toxicology, carcinogenesis, and
human health risk assessment.” [Id.] She received her Ph.D. in
cell and molecular biology/human genetics from the University of
Texas Southwestern Medical Center. [Id. at 1.]
STANDARD
Federal Rule of Evidence 702 provides that expert
opinion evidence is admissible if: (1) the witness is
sufficiently “qualified as an expert by knowledge, skill,
experience, training, or education”; (2) the witness’s
“scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a
fact in issue”; (3) the witness’s “testimony is based on
sufficient facts or data”; (4) the witness’s “testimony is the
product of reliable principles and methods”; and (5) the witness
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has reliably applied the relevant principles and methods to the
facts of the case. Fed. R. Evid. 702. Under Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (“Daubert I”), a
trial judge is required to apply a gatekeeping role to expert
witness testimony. White v. Ford Motor Co., 312 F.3d 998, 1007
(9th Cir. 2002), opinion amended on denial of reh’g, 335 F.3d
833 (9th Cir. 2003). The Rule 702 inquiry under Daubert I,
however, “‘is a flexible one,’ and the ‘factors identified in
Daubert may or may not be pertinent in assessing reliability,
depending on the nature of the issue, the expert’s particular
expertise, and the subject of his testimony.’” Id. (quoting
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150, 119 S. Ct. 1167
(1999)).
To fulfil its substantive gatekeeping obligations,
courts must determine if the proffered testimony is reliable,
and if it fulfills the “fit” requirement, meaning that the
expert’s testimony “logically advances a material aspect of the
proposing party’s case.” Daubert v. Merrell Dow Pharms., Inc.,
43 F.3d 1311, 1315 (9th Cir. 1995) (“Daubert II”).
To determine reliability,
[s]cientific evidence is reliable “if the
principles and methodology used by an expert are
grounded in the methods of science.” Clausen v.
M/V New Carissa, 339 F.3d 1049, 1056 (9th Cir.
2003). The court’s focus “must be solely on
principles and methodology, not on the
conclusions that they generate.” Daubert v.
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Merrell Dow Pharms., Inc., 509 U.S. 579, 595
(1993). Courts must determine whether the
reasoning or methodology underlying testimony is
scientifically valid and whether that reasoning
or methodology can be applied to the facts in
issue. Id. at 592-93. Among the factors
considered in determining whether to admit expert
testimony under Rule 702 are: (1) whether the
expert’s theory or method is generally accepted
in the scientific community; (2) whether the
expert’s methodology can be or has been tested;
(3) the known or potential error rate of the
technique; and (4) whether the method has been
subjected to peer review and publication. Id. at
593-94.
Zucchella v. Olympusat, Inc., CV 19-7335 DSF (PLAx), 2023 WL
2628107, at *1 (C.D. Cal. Jan. 10, 2023). “[A] trial court . . .
has broad latitude in determining whether an expert’s testimony
is reliable” as well as in deciding how to determine the
reliability of that testimony. Hangarter v. Provident Life &
Acc. Ins. Co., 373 F.3d 998, 1017 (9th Cir. 2004) (citations
omitted).
For evidence to be relevant, it must meet the “fit”
requirement. However,
the “fit” requirement is not merely a reiteration
of the relevancy standards in Federal Rules of
Evidence 401–403. Because “[e]xpert evidence can
be both powerful and quite misleading [given] the
difficulty in evaluating it,” “the judge in
weighing possible prejudice against probative
force under Rule 403 of the [Federal Rules of
Evidence] exercises more control over experts
than over lay witnesses.” [Daubert I, 509 U.S.]
at 595, 113 S. Ct. 2786 (citation omitted).
Courts must therefore exclude proffered expert
testimony pursuant to Rules 702 and 403 unless
they are convinced that the testimony speaks
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clearly and directly to a disputed issue and that
it will not mislead the jury. Daubert II, 43 F.3d
at 1321 n.17 (discussing scientific expert
evidence, specifically). And to be admissible,
“the subject matter [of the testimony] at issue
must be beyond the common knowledge of the
average layman.” United States v. Finley, 301
F.3d 1000, 1007 (9th Cir. 2002); United States v.
Hanna, 293 F.3d 1080, 1086 (9th Cir. 2002).
United States v. Alo-Kaonohi, 635 F. Supp. 3d 1074, 1079-80 (D.
Hawai`i 2022) (some alterations in Alo-Kaonohi) (some citations
omitted). “Expert opinion testimony is relevant if the knowledge
underlying it has a valid connection to the pertinent inquiry.”
Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. 2010) (quotation
marks and citation omitted).
District courts have wide discretion when acting as a
gatekeeper for the admissibility of expert testimony. Kumho
Tire, 526 U.S. at 151–52. Further, the Daubert gatekeeping
function of courts is intended to protect juries, making the
inquiry less relevant and the barriers less stringent in a bench
trial. See United States v. Flores, 901 F.3d 1150, 1165 (9th
Cir. 2018).
DISCUSSION
I. 	Dr. Grayman
It is clear that Dr. Grayman’s opinions will aid the
trier of fact. Plaintiffs object to Dr. Grayman’s testimony on
qualification and reliability grounds. Plaintiffs argue that
Dr. Grayman’s opinions must be excluded because he is not
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qualified to model JP-5 contamination in a water distribution
system, and he did not employ reliable principles and methods.
[Grayman Motion, Mem. in Supp. at 1.] Plaintiffs argue
Dr. Grayman is not qualified to model two-phase contaminants
like JP-5, which has both a dissolved phase and a non-aqueous
liquid (“NAPL”) phase, through a water distribution system
because Dr. Grayman has never done work analyzing petroleum
hydrocarbon contamination, and Dr. Grayman incorrectly treated
JP-5 as a single-phase contaminant. [Id. at 9-10.] Next,
Plaintiffs argue Dr. Grayman’s “core opinion” – that 2,000 μg/L
of JP-5 entered the JBPHH water distribution system – is
unreliable because: (1) the software he used, EPANET, is
incapable of modeling dual-phase contaminants like petroleum;
(2) the timeframe of the model – November 24, 2021 to
December 5, 2021 - was not long enough; [id. at 11-12;] and
(3) “Dr. Grayman did not account for observed empirical evidence
of sheen to validate his modeling methodology,” [id. at 13].
Finally, Plaintiffs contend the sampling inputs for his higher-
level input analyses of 17,000 μg/L and 85,250 μg/L are flawed
because they include four low-flow pump samples and one pre-
chlorination spigot sample, which, Plaintiffs contend, are not
designed to collect multi-phase contaminant samples. [Id. at 15-
16.]
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First, Dr. Grayman is qualified to model JP-5 movement
through a water distribution system. “Rule 702 contemplates a
broad conception of expert qualifications,” and therefore only a
“minimal foundation of knowledge, skill, and experience [are]
required in order to give expert testimony.” Hangarter, 373 F.3d
at 1015-16 (emphases, citations, and quotation marks omitted).
Dr. Grayman has a great deal of expertise in the field of water
modelling. He developed the first dynamic water distribution
system model for modeling chemicals and water age in
distribution systems, while working as a consultant to the EPA.
[Grayman Report at 3.] Dr. Grayman has published extensively on
modelling water systems. See id.; Grayman Report, App’x C at 4-
11 (listing over 100 publications); Grayman Report, App’x D
(Walter M. Grayman, Ph.D., P.E.’s Publications Related to Water
Distribution Analysis).
Dr. Grayman is not required to be hyperspecialized in
modeling a two-stage dissolution rather than single-stage
dissolution flow of a water distribution system in order for his
opinions to be admitted. “[A]s long as an expert stays within
the reasonable confines of his subject area,” lack of
specialization is an issue of “weight, not admissibility.” Avila
v. Willits Env’t Remediation Tr., 633 F.3d 828, 839 (9th Cir.
2011) (citation and quotation marks omitted). Here, Dr. Grayman
stayed within the confines of his subject matter expertise,
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using the EPANET software he helped develop in constructing his
model. Insofar as Dr. Grayman has not previously modelled a two-
stage dissolution contaminant such as JP-5, this goes to weight
rather than admissibility. See id.; see also Johnson v. Nissan
N. Am., Inc., Case No. 3:17-cv-00517-WHO, 2022 WL 2869528, at *9
(N.D. Cal. July 21, 2022) (“The general rule is that courts do
not prevent experts from testifying merely because, though
otherwise qualified, they do not have expertise in some
hyperspecialized corner of their field that they are competent
to testify in from their more general expertise.” (brackets,
citation, and internal quotation marks omitted)); Abarca v.
Franklin Cnty. Water Dist., 761 F. Supp. 2d 1007, 1028 (E.D.
Cal. 2011) (“Defendants take an overly-narrow view of the degree
of expertise necessary to calculate fugitive air emissions in
the context of air modeling. An air modeler, who is also an
experienced atmospheric scientist and meteorologist, does not
need to have a ‘sub-specialty’ or advanced degree in chemistry
or soil science before that person has sufficient qualifications
to perform air emissions [modeling].”).
The Court is unpersuaded by Plaintiffs’ argument that
Dr. Grayman’s opinions are unreliable. Dr. Grayman’s estimations
of the concentrations of JP-5 in the JBPHH water distribution
system and his opinions on the representativeness of his
estimations are scientific opinions. As such, “the court must
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assess the reasoning or methodology, using as appropriate such
criteria as testability, publication in peer reviewed
literature, and general acceptance . . . .” Primiano, 598 F.3d
at 564. This “inquiry is a flexible one,” and “[s]haky but
admissible evidence is to be attacked by cross examination,
contrary evidence, and attention to the burden of proof, not
exclusion.” Id. Dr. Grayman’s opinions are examined within this
framework.
As to Plaintiffs’ contention that the software
Dr. Grayman used, EPANET, is incapable of modeling dual-phase
contaminants like petroleum, Dr. Grayman admits that the EPANET
software only models single-phase contaminants. See Grayman
Motion Baker Decl., Exh. 6 (transcripts excerpts of 11/6/23
deposition of Dr. Grayman) (“Grayman Depo.”) at 57. However,
Defendant points out that Plaintiffs’ own expert, Paul E.
Rosenfeld, Ph.D. does not separately model a dissolved phase and
a light NAPL (“LNAPL”) phase. See Kosnett et al. Motion Opp.,
Declaration of Eric Rey (“Rey Decl.”), Exh. 4 (transcript
excerpts of 11/29/23 remote videotaped deposition of
Dr. Rosenfeld) (“Rosenfeld Depo.”) at 174. Dr. Grayman’s
decision to use EPANET software as opposed to a well-mixed model
akin to the one that Dr. Rosenfeld used can be challenged
through cross-examination and presentation of contrary evidence
rather than by exclusion. See Abarca, 761 F. Supp. 2d at 1031
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(“In this Circuit, an expert’s decision to use one form of
scientific methodology over another goes to the expert’s
credibility rather than the admissibility of the testimony.”
(citing United States v. Garcia, 7 F.3d 885, 889–90 (9th Cir.
1993))).
Similarly, Plaintiffs’ contention that the timeframe
of Dr. Grayman’s model is too short goes to weight rather than
admissibility. “Criticisms over the start date or an input for a
model, rather than a criticism of the model itself, are factual
disputes that do not go against the reliability of the expert.”
ImprimisRx, LLC v. OSRX, Inc., Case No. 21-cv-01305-BAS-DDL,
2023 WL 7390842, at *10 (S.D. Cal. Nov. 8, 2023) (citations
omitted).
As to Dr. Grayman’s failure to account for sheen in
the water to validate his modeling methodology, this again is an
issue of weight rather than admissibility. Here, Dr. Grayman
chose not to rely on reports of sheen because said reports are
qualitative rather than quantitative. [Rey Decl., Exh. 1
(Grayman Depo.) at 102.] Comparing a water distribution model to
quantitative data as Dr. Grayman did appears to be an accepted
means of verifying water distribution models, and Plaintiffs
offer no caselaw or other sources to the contrary. See id. at 48
(stating comparing modeled results to empirical evidence is “a
fairly common way to” perform verification of water models).
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Insofar as the means by which Dr. Grayman verified his model
relates to what facts he relied on for verification, “[t]he
factual basis of an expert opinion goes to the credibility of
the testimony, not the admissibility, and it is up to the
opposing party to examine the factual basis for the opinion in
cross-examination.” See Hangarter, 373 F.3d at 1018 n.14
(quoting Children’s Broad. Corp. v. Walt Disney Co., 357 F.3d
860, 865 (8th Cir. 2004)). Therefore, challenges to
Dr. Grayman’s model verification will be left to cross
examination, presentation of contrary evidence, and attention to
the burden of proof at trial.
Finally, Plaintiffs contend Dr. Grayman’s sampling
inputs for his higher-level input analyses of 17,000 μg/L and
85,250 μg/L are flawed because they include four low-flow pump
samples and one pre-chlorination spigot sample, which –
Plaintiffs contend - are not designed to collect multiphase
contaminant samples. [Grayman Motion, Mem. in Supp. at 15-16.]
Because these challenges take issue with the inputs to the
model, not the methodology itself, this goes to weight rather
than admissibility. See CZ Servs., Inc. v. Express Scripts
Holding Co., No. 3:18-CV-04217-JD, 2020 WL 4518978, at *8 (N.D.
Cal. Aug. 5, 2020) (“These challenges take issue with the inputs
Ms. Snow used, and not the model itself, and so go to the weight
rather than admissibility of her testimony.” (citing Alaska
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Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 968-70
(9th Cir. 2013)).
Accordingly, Dr. Grayman’s opinions are admissible.
Challenges to his opinion will be left to cross examination,
presentation of contrary evidence, and attention to the burden
of proof at trial.
II. 	Drs. Kosnett, Durrani, Burgoon, and Prueitt
Plaintiffs do not object to the qualifications of
Drs. Kosnett, Durrani, Burgoon, and Prueitt, and it is clear
that each of these experts has the requisite experience and
training, and that their specialized knowledge will aid the
trier of fact. Plaintiffs seek to exclude the opinions of
Drs. Kosnett, Burgoon, and Prueitt in their entirety, and
Dr. Durrani’s opinions pertaining to the exposure and dose of
contamination experienced by the minor Bellwether Plaintiffs
because these opinions are based on Dr. Grayman’s water
concentration data and modelling. [Kosnett et al. Motion, Mem.
in Supp. at 12-13.]
In light of the denial of the Grayman Motion, the
Court will not exclude the expert opinions of Drs. Kosnett,
Burgoon, Prueitt and Durrani on the basis that they relied on
Dr. Grayman’s opinions. Insofar as the weight of Dr. Grayman’s
opinions ultimately may be discounted at trial, so too may the
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weight of the opinions of Drs. Kosnett, Burgoon, Prueitt and
Durrani insofar as they rely on Dr. Grayman’s opinions.
CONCLUSION
For the foregoing reasons, the Bellwether Plaintiffs’
Motion to Exclude the Opinions and Testimony of Dr. Walter
Grayman Pursuant to Daubert & Federal Rule of Evidence 702,
filed January 16, 2024, is DENIED in its entirety. The
Bellwether Plaintiffs’ Motion to Exclude the Opinions and
Testimony of Drs. Michael Kosnett, Timur Durrani, Lyle Burgoon
and Robyn Prueitt Pursuant to Daubert & Federal Rule of
Evidence 702, filed January 16, 2024, is DENIED in its entirety.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, April 11, 2024.
PATRICK FEINDT, JR., ET AL. VS. USA; CV 22-00397 LEK-KJM; ORDER
DENYING PLAINTIFFS’ MOTION TO EXCLUDE THE OPINIONS AND TESTIMONY
OF DR. WALTER GRAYMAN PURSUANT TO DAUBERT AND FEDERAL RULE OF
EVIDENCE 702; AND DENYING PLAINTIFFS’ MOTION TO EXCLUDE THE
OPINIONS AND TESTIMONY OF DRS. MICHAEL KOSNETT, TIMUR DURRANI,
LYLE BURGOOD AND ROBYN PRUEITT PURSUANT TO DAUBERT AND FEDERAL
OF EVIDENCE 702
Case 1:24-cv-00059-LEK-KJM Document 32 Filed 04/11/24 Page 19 of 19
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