UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Mareld Company, Inc. Case No. 16-cv-390-PB v. Opinion No.

New England Telephone and Telegraph Company n/k/a Verizon New England Inc.

ORDER

The remaining cause of action set for trial in this matter

is Mareld’s claim for contribution under Section 147-B:10 of the

New Hampshire Revised Statutes. Mareld and NET have filed

motions to exclude each other’s expert reports and testimony

pertinent to that claim.

NET seeks to exclude the opening expert report, a portion

of the rebuttal report, and the associated testimony of Mareld’s

expert Manu Sharma on the ground that they are inadmissible

under Federal Rule of Evidence 702 and Daubert v. Merrell Dow

Pharmaceuticals, Inc.,

(1993). See Doc. No. 36.

Specifically, NET challenges the admissibility of Mr. Sharma’s

opinions that (1) NET used or stored PCB-containing capacitors,

inductors, transformers, and hydraulic fluids at the site; (2)

the pattern of PCB detections is consistent with NET’s

operations as the source of PCBs; and (3) NET bears the

responsibility for any PCB contamination attributable to the construction of the facility because it provided the building

specifications. According to NET, the first and second opinions

are the products of unreliable methods and insufficient facts

and data, and the third opinion reflects legal conclusions that

invade the province of the court and do not assist the

factfinder. Additionally, NET argues that portions of Mr.

Sharma’s rebuttal report improperly introduce new evidence and

arguments.

Mareld, in turn, seeks to exclude all expert reports and

testimony of NET’s expert Dr. James S. Smith as inadmissible

under Daubert and Federal Rules of Evidence 702 and 703. See

Doc. No 61. Mareld argues that Dr. Smith lacks the requisite

qualifications to provide admissible opinions on the source of

the PCB contamination. Further, Mareld moves to exclude Dr.

Smith’s opinions that (1) a sealant applied to the garage floor

was the source of the PCB contamination inside the building; (2)

dust particles from the PCB-laden sealant migrated outdoors to

cause the contamination in the pole yard; and (3) the

contamination did not originate from hydraulic equipment,

capacitors, transformers, or other equipment that NET utilized

or stored at the facility. Mareld attacks these opinions as

based on unreliable scientific methods and insufficient facts

and data.

2 As Mareld noted in its opposition to NET’s motion, the

First Circuit has held that “[a] trial setting normally will

provide the best operating environment for the triage which

Daubert demands” in light of “the complex factual inquiry”

required. Cortes-Irizarry v. Corporacion Insular De Seguros,

(1st Cir. 1997). Because it would be most

efficient to address the present challenges at trial, I deny the

motions without prejudice to the parties renewing their

objections at trial.

SO ORDERED.

/s/ Paul Barbadoro Paul Barbadoro United States District Judge

December 4, 2018

cc: Terri L. Pastori, Esq. Beth A. Deragon, Esq. Jeffrey M. Karp, Esq. Nathaniel R. Koslof, Esq. Nicholas M. O’Donnell, Esq. Kyle M. Noonan, Esq. Mark B. Rosen, Esq.

3