                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 16 2013

                                                                       MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT

HARRY WHITLOCK, et al.,                          No. 11-16958

              Plaintiffs,                        D.C. No. 3:08-cv-02742-SI

  and
                                                 MEMORANDUM *
DANIELLE SMITH; JO ANN
WAKELAND,

              Plaintiffs - Appellants,

  v.

PEPSI AMERICAS; et al.,

              Defendants - Appellees.



                    Appeal from the United States District Court
                      for the Northern District of California
                      Susan Illston, District Judge, Presiding

                        Argued and Submitted April 16, 2013
                             San Francisco, California




        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: GRABER and CHRISTEN, Circuit Judges, and TUNHEIM,** District
Judge.

      Plaintiffs Danielle Smith and Jo Ann Wakeland allege that Defendants Pepsi

Americas, Whitman Corporation, Pneumo Abex Corporation, and unnamed

individuals caused personal injuries to Plaintiffs by releasing trichloroethylene

("TCE") and hexavalent chromium from a chrome-plating facility in Willits,

California. The district court granted summary judgment to Defendants after

excluding, under Federal Rule of Evidence 702, Plaintiffs’ expert testimony on

exposure and causation as scientifically unreliable. See Daubert v. Merrell Dow

Pharm., Inc., 509 U.S. 579, 589 (1993). Reviewing the district court’s evidentiary

rulings for abuse of discretion, Primiano v. Cook, 598 F.3d 558, 563 (9th Cir.

2010), and its summary judgment rulings de novo, Travelers Cas. & Sur. Co. of

Am. v. Brenneke, 551 F.3d 1132, 1137 (9th Cir. 2009), we affirm in part and

reverse in part and remand.

      1. The district court abused its discretion in excluding the expert testimony

of Dr. O’Connor, Dr. Sawyer, and Dr. Byers.

      The O’Connor rebuttal report provided a reasoned ground for its assumption

that TCE emissions between 1971 and 1975 would be similar to reported


       **
          The Honorable John R. Tunheim, United States District Judge for the
District of Minnesota, sitting by designation.

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trichloroethane emissions in 1988 and 1990; that premise is subject to attack by

cross-examination, not exclusion. See Dorn v. Burlington N. Santa Fe R.R. Co.,

397 F.3d 1183, 1196 (9th Cir. 2005) (holding that an expert’s underlying

assumptions and final conclusions go to the weight of the expert’s testimony).

Although Dr. O’Connor’s testimony regarding hexavalent chromium exposure,

alone, might not establish causation, his report is not inadmissible on that ground.

      The district court exceeded its gatekeeping function in excluding Dr.

Sawyer’s testimony that the alleged TCE and chromium exposure levels were

"within [a] reasonable range of that known [from several studies] to induce" the

alleged injuries. Plaintiffs’ alleged exposures were not so low that the

occupational studies were irrelevant. Dr. Sawyer’s consideration of the heightened

sensitivity of children and Plaintiffs’ probable ingestion of TCE-contaminated

groundwater does not render his opinion inadmissible. Furthermore, Appendix G

to the 2004 Public Health Assessment states that "hexavalent chromium releases

from 1975-1995[ ] were likely orders of magnitude higher than estimates produced

by the air model." Finally, the district court rested its decision in part on an

erroneous interpretation of Dr. Sawyer’s deposition testimony: He identified 50

ìg/m 3, not 300 ìg/m 3, as a threshold TCE exposure associated with the effects

observed in the Byers study. Because Dr. Sawyer’s opinion "rests on a reliable


                                           3
foundation and is relevant to the task at hand," Daubert, 509 U.S. at 597, it is

admissible. Whether it proves causation is not a question of admissibility. See

Primiano, 598 F.3d at 564 ("Shaky but admissible evidence is to be attacked by

cross examination, contrary evidence, and attention to the burden of proof, not

exclusion.").

      The district court impermissibly excluded Dr. Byers’ report without

explanation. Cf. Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 691–92 (9th

Cir. 1993) (holding that the failure to explain a discretionary decision was an abuse

of discretion, where the reason was not apparent from the record). To the extent

that it excluded the opinion because Dr. Byers relied on Dr. O’Connor’s and Dr.

Sawyer’s reports, exclusion on that ground is impermissible in light of our decision

that those experts’ opinions are admissible.

      2. The district court correctly granted summary judgment as to Plaintiffs’

post-1975 claims relating to TCE exposure. Plaintiffs’ experts did not testify that

there is a causal connection between Plaintiffs’ minimal TCE exposure during that

period and their alleged injuries or medical monitoring requirements. See Potter v.

Firestone Tire & Rubber Co., 863 P.2d 795, 800 (Cal. 1993); Jones v. Ortho

Pharm. Corp., 209 Cal. Rptr. 456, 460 (Ct. App. 1985).




                                           4
      3. The district court erred in granting summary judgment in favor of

Defendants as to Plaintiffs’ remaining claims because there are disputed issues of

fact regarding exposure and causation.

      AFFIRMED in part; REVERSED in part and REMANDED. The parties

shall bear their own costs on appeal.




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