United States District Court, D. New Jersey, Camden Vicinage
MARIE BUMB UNITED STATES DISTRICT JUDGE.
matter comes before the Court upon Defendant Dilbet,
Inc.'s (“Defendant” or the
“Windrift”) Motion for Summary Judgment. Mot.
Summ. J. [ECF No. 120]. On April 7, 2017, this Court held
oral argument. Prior thereto, Plaintiffs Maureen Horan and
Dennis Vachon (“Plaintiffs”) had satisfied this
Court - barely - that they could demonstrate to a jury by a
preponderance of the evidence that the clams that were
delivered to the Windrift did not contain an
infective dose of Vibrio at the time of
delivery. The Court believed this demonstration
would occur through the testimony of Plaintiffs' expert
witness, Dr. James D. Oliver. Generously granting all
inferences in favor of Plaintiffs at summary judgment, this
Court construed Dr. Oliver's testimony to be tethered to
facts that he would ultimately rely on, such as the
temperature of the waters at the time of the harvesting, the
place of harvesting, etc. Such facts, he testified, would
tend to support his testimony that the clams did not have an
infective dose of Vibrio at the time they were harvested and
delivered to the Windrift. In the Court's view, this was
barely enough evidence to go before a jury. Through the
subsequent briefing and pruning of the case for trial,
however, it appeared that Plaintiffs had no such evidence to
present to the jury and Dr. Oliver's opinion was based on
much speculation. This was the subject of a status conference
with the parties on April 19, 2016.
at oral argument this Court pressed Plaintiffs as to the
evidence they intended to present through Dr. Oliver - or
through other means - that the clams delivered to the
Windrift more likely than not contained a non-infective dose
of Vibrio. Under that theory, the Windrift's alleged
mishandling would potentially be (if proven) the proximate
cause through an increased risk of injury. Plaintiffs offered
several arguments supporting the notion that they had
sufficiently adduced evidence to make it a jury question. The
Court addresses each of Plaintiffs' points below.
Plaintiffs contend that even without Dr. Oliver's
testimony, the “evidence” that the State of New
Jersey permitted harvesting of these clams could give rise to
the inference that they did not contain an infective dose of
Vibrio. In other words, per Plaintiffs, the State of New
Jersey would never allow clam harvesting if the clams
contained infective doses of Vibrio. Therefore, Plaintiffs
contend, the possible inference is that they did not contain
such infective dosages. This, however, is belied by the
record, and indeed, by Dr. Oliver's own testimony:
Q. Did you happen to review the defendant's answers to
interrogatories indicating that there was a tag of a delivery
that day, July 30th, from Sea-Lect Seafood? Did you happen to
see that tag, sir?
A. I may have. I don't recall it.
THE COURT: An illegal harvest is?
THE WITNESS: Well, the -- certain regions of estuarine
environments, coastal environments, are set aside where
it's allowed to harvest shellfish. They are leased to
various seafood entities, seafood companies. They can be
closed, for example, if there is a lot of runoff and maybe
salmonella, E. coli from cattle, or something like that,
contaminating the area. So periodically the shellfish areas
might be closed. But typically a region is leased by a
harvest company and then they have the right to harvest the
shellfish there. So they are designated by the states where
they can harvest.
THE COURT: And so the question that was asked, you don't
have any information to believe that there was any harvesting
done here that was not legal?
THE WITNESS: I have no knowledge of that, no.
Q. And I believe, sir, in your expert report and your
deposition you didn't bring up the fact there was
anything but a legal harvest of shellfish here; is that
A. I have nothing to indicate it was anything other than
Q. Okay. Now, in the State of New Jersey is it legal to sell
raw shellfish with vibrio if it's a legal harvest?
A. It's not possible, not -- would you say the question
again so I can try to answer it correctly?
Q. Okay. In New Jersey can raw shellfish from a legal harvest
be sold with vibrio?
Q. And you told us about an infective dose of 100 to 300 as
the number you use; is that correct?
A. As an estimate, yes.
Q. And there is no law in New Jersey that makes selling raw
shellfish with an infective dose of 100 to 300 vibrio
illegal; is that correct?
A. No, that's correct.
Q. In fact, you can legally sell raw shellfish in New Jersey
with a hundred thousand vibrio in it; is that correct?
A. To my knowledge no state has any regulations about what
the numbers of vibrio must be, so you are correct.
Tr. of Proceedings of June 30, 2015 at 57:20-59:14 [ECF No.
83] (hereinafter, “Tr. at ___”). As both parties
recognized, clams containing infective dosages of Vibrio are
routinely harvested and sold to consumers.
Plaintiffs contend that Dr. Oliver's testimony alone is
sufficient to go before the jury because his opinion that the
Windrift increased the risk of Vibrio infection and
Plaintiffs' injury “logically” or
“necessarily” presumes an underlying opinion that
the clams delivered to the Windrift did not contain infective
levels of Vibrio. Plaintiffs are mistaken. This is precisely
why the Court held a Daubert hearing to ascertain
under Rule 702 what evidence Dr. Oliver relied upon to reach
Oliver's opinion relating to the Windrift's proximate
cause of Plaintiffs' injury must be tethered to
“sufficient facts or data, ” and not presumption
or supposition. Fed.R.Evid. 702(b). Rule 702 requires this.
At oral argument Plaintiffs conceded that they could not
introduce evidence of the very factors Dr. Oliver opined
might be relevant, e.g., water temperature. Without
that evidence, the record contains only an assumption -
unconnected to facts in the record - that the clams did not
contain infective Vibrio at the time of delivery. Even more
to the point, disregarding what this Court saw as potential
disputed facts that prevented this Court's entry of
summary judgment, Plaintiffs' own witness, Dr. Oliver,
opined that there was no way one could determine whether the
clams had infective levels of Vibrio at the time of the
delivery to the Windrift:
Q. I'd like to talk about the infective dose. You told us
earlier that all shellfish in estuarine waters would have a
VV content; is that correct?
A. That's virtually the case, yes.
Q. And in some cases because of the valve pumping or the way
these shellfish process their own nutrients there could be up
to a hundred thousand vibrio organisms in any given