Readers know we don’t have the resources here to update every case we post on, but here is an update on a case we posted about nearly six years ago. See Henry v. St. Croix Alumina, LLC, No. 12-1844 (3rd Cir. 7/10/14)(unpublished).
The case arose out of the effects of Hurricane Georges, which hit the Virgin Islands in 1998. The plaintiffs filed suit in1999, alleging that during the storm two materials, bauxite and red mud, were distributed around the island. Bauxite is a red colored ore with the consistency of dirt or dust from which alumina is extracted and used to produce aluminum. A by-product of the alumina extraction process is a substance called red mud, which was stored in piles outside the refinery using a method known as dry-stacking. Appellants allegedly sustained property damage and also mild illnesses/injuries as a result of contact with the red dust during and after the hurricane. Generally, Appellants experienced rashes, irritation of the eyes and skin, and itching. All but one of the seventeen Appellants had their symptoms disappear completely in the weeks and months following the hurricane.
The case had a long procedural history, with class certification, decertification, and partial certifications. Eventually the property damage claims settled, and the personal injury claims were dismissed. The dismissal of Appellants’ personal injury claims was founded in large part on the court’s rejection of their four proposed experts. The experts did not satisfy the requirements of Fed. R. Evid. 702 and the accompanying test enunciated in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). Without any expert testimony as to the cause of Appellants’ injuries, the District Court ruled that the personal injury claims could not proceed and granted summary judgment to Appellees on those counts.
Three of the experts had opined on the amount of red mud that escaped the refinery and reached Appellants. Tarr concluded that some 160,000 pounds of particulates escaped from the refinery, and experts Bock and Kleppinger each stated that red mud was a “preponderance” or large component of the red dust that contacted Appellants. However, as the District Court noted, each of the experts relied upon unique, qualitative methodologies to reach these conclusions. The District Court properly found that none of these methods had any of the hallmarks of reliable expert testimony under Daubert. The experts did not utilize a peer-reviewed methodology, subject to any known rate of error, which is generally accepted in the scientific community, or has otherwise been utilized outside the judicial context.
Much of the remaining opinion submitted by these experts was then excluded by the District Court as it did not “fit” with the case. For instance, Kleppinger and Bock testified as to the pH and toxicity of red mud stored at the refinery. The District Court held that this did not bear on the danger posed by the material that actually came into contact with Appellants. Critically, as the Court pointed out, Appellants offered no reliable testimony as to the amount and toxicity of the red dust which came into contact with Appellants. Finally, the District Court found Dr. Brautbar’s testimony inadmissible, as it relied on the excluded expert opinions to establish that Appellants had come into contact with sufficient quantities of red mud to cause their claimed symptoms.
In sum, the District Court performed an exhaustive analysis of the proposed expert testimony, and determined that it was inadmissible. The court of appeals agreed with the reasoning and conclusions of the District Court, and affirmed its evidentiary rulings.