Over sixty Plaintiffs alleged that Defendant Lockheed Martin Corporation’s weapons manufacturing facility in Orlando released toxic chemicals that contaminated the air, soil, and groundwater, leading to various injuries among the Plaintiffs. The instant case formed a part of a group of related toxic tort cases.
Following a complex history during the dispositive motion stage, the Court resolved the general causation issues. It then shifted focus to specific causation for the limited number of remaining Plaintiffs.
The Plaintiffs filed motions to exclude several of Defendant Lockheed Martin Corporation’s experts: Michael Ballenger, Kristine Davies, Dr. Rene’ Salazar, Stephen Emsbo-Mattingly, and Dr. Shahrokh Rouhani.
Air Quality Expert Witnesses
Michael Ballenger began his career with Trinity in Maryland, where he gained significant experience navigating the stringent environmental requirements of the Mid-Atlantic and Northeast. He has developed a specialty in air permitting and compliance by working with both industry and government to implement business objectives while conforming to complex environmental regulations such as MACT and Nonattainment New Source Review.
P. Kristine Davies is a Principal Consultant in Trinity’s Salt Lake City Office. She specializes in regulatory applicability analysis, preparation of emission inventories, Nonattainment New Source Review (NNSR)/Prevention of Significant Deterioration (PSD) permit applications, Title V operating permit applications, and Maximum Achievable Control Technology (MACT) compliance. Since joining Trinity, she has assisted in permitting and compliance projects for facilities in every state and U.S. territory.
Industrial Hygiene Expert Witness
Rene’ Salazar holds an undergraduate degree in Microbiology, and Master’s and Doctor of Philosophy degrees in Public Health, both with specialization in the discipline of Industrial Hygiene and has 30+ years of experience in the field of industrial hygiene, both academically and professionally.
Environmental Science Expert Witnesses
Stephen Emsbo-Mattingly possesses more than 30 years of applied chemistry experience. He specializes in the source identification of chlorinated organics, solvents, surfactants, petrochemicals, carbonization byproducts, paper mill wastes, heavy metals, metallurgical wastes, petroleum, fuels, tar, combustion byproducts, soot, ash, slag, dusts, emissions, coke, coal, radiological materials, hydraulic oils, lubricants, asphalts, pesticides, petrochemicals, dielectric fluids, Askarels, and other industrial products in various environmental media.
Shahrokh Rouhani is an environmental scientist and professional engineer, a tenured university professor, and a consultant in environmental statistics, modeling, and data analysis. He holds a Ph.D. in Environmental Sciences (1983) and an S.M. in Environmental Engineering (1980), both from Harvard University, as well as a B.S. in Civil Engineering and B.A. in Economics from the University of California, Berkeley (1978).
Discussion by the Court
Michael Ballenger
First, Ballenger, an air quality engineer, is one of Lockheed’s rebuttal experts to Ranajit Sahu. Plaintiffs filed a motion to exclude his testimony, arguing essentially that Ballenger merely challenges the reliability of Sahu’s testimony rather than using reliable methodology of his own. But Ballenger’s opinions are admissible for the same reasons Sahu’s are: both sides disagree about the correctness of Sahu’s inputs on the air model and the accuracy of the emissions data provided by Lockheed, a classic clash of two qualified expert views the jury will have to weigh and decide.
Kristine Davies
Davies is another air quality engineer rebutting Sahu’s and other testimony. Plaintiffs filed a motion to exclude her testimony largely for the same reasons as Ballenger—and for the same reasons, her rebuttal testimony is largely admissible.
That said, the Court held that Davies’ report raises some red flags that can only be addressed fully in context at trial. As an expert, Davies may not testify that facts she was instructed to assume are true—she may only testify that she relied on certain facts as true in forming her conclusions.
To the extent that certain sections of her report purport to introduce fact testimony, she will not be allowed to give improper lay testimony about facts for which she lacks personal knowledge, nor will she be allowed to indiscriminately merge together fact and expert testimony.
If Davies did garner personal knowledge of information from Lockheed employees, that information (and the source of the information, including from whom and when it was received) either must have been fully disclosed in her report or must have been provided to Plaintiffs through discovery for her to be permitted to testify to those facts.
This trial will not devolve into a game of gotcha: the facts are the facts and they must be known to both sides, and the experts can then interpret them as they may. To the extent Plaintiffs are concerned that Davies’ opinions lack support or stray beyond the scope of her expertise, the Court held that they can cross her on those grounds or present contrary evidence.
But to the extent Davies begins giving improper undisclosed fact testimony, Plaintiffs should contemporaneously object and the Court will be on guard to limit it.
Rene Salazar
Plaintiffs later filed a motion to exclude his testimony because he criticized Plaintiffs’ experts for not performing real-time exposure monitoring—which he purportedly later acknowledged to be impossible.
The Court held that Salazar may properly point out what he perceives to be flaws in Sahu’s methodology; beyond that, holes in his own conclusions are material for Plaintiffs’ cross.
Stephen Emsbo-Mattingly
Plaintiffs filed a motion to exclude his testimony on several grounds. First, they complain about several issues with sampling data he took from a pilot study, arguing that he did not sample deep enough for subsurface soil and sampled from present day but extrapolated to historical conditions. But Emsbo-Mattingly sufficiently explained how he was using the current data to analyze historical emissions and why he sampled the way he did.
The Court held that Plaintiffs’ other arguments against Emsbo-Mattingly are similarly unpersuasive—they simply disagree with his presumptions and the premise of his study, but a dispute about the correctness of his conclusions does not make his methodology unreliable.
Dr. Shahrokh Rouhani
Plaintiffs filed a motion to exclude Rouhani’s testimony purportedly for unreliable methodology—focusing on their competing theory of the case pertaining to historical emissions—but again, the Court held that their attacks amount to nothing more than disagreement with his conclusions and the bases therefore rather than Daubert challenges.
Held
Plaintiffs’ Daubert motions to exclude Michael Ballenger, Kristine Davies, Dr. Rene Salazar, Stephen Emsbo-Mattingly, and Dr. Shahrokh Rouhani are denied.
Key Takeaway:
Expert testimony may be admitted only if: (1) the expert is qualified; (2) the methodology is reliable; and (3) the testimony is helpful. The proponent of the expert must establish the opinion is admissible, but need not prove it is correct.
The different experts in this case have different methods of trying to get at historical exposure data, and the perceived flaws in each approach are fodder for cross, not exclusion.
Please refer to the blog previously published about this case:
Environmental Engineering Expert Witness’ Testimony on Toxic Chemical Exposure Admitted
Case Details:
| Case Caption: | Henderson Et Al V. Lockheed Martin Corporation Et Al |
| Docket Number: | 6:21cv1363 |
| Court: | United States District Court, Florida Middle |
| Order Date: | December 19, 2024 |
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