This case involves a dispute concerning the contamination of the drinking water in Hoosick Falls, New York by perfluorooctanoic acid, a chemical commonly referred to as PFOA. Following multiple settlement agreements with certain Defendants, DuPont is the only remaining Defendant. Plaintiffs alleged that DuPont is liable for producing the PFOA that ultimately contaminated the water supply in Hoosick Falls.
Plaintiffs retained Jamie DeWitt to opine on the information DuPont possessed in the 1980s regarding potential adverse risk to human health from PFOA exposure which required that they conduct a thorough and comprehensive human health risk assessment. According to DeWitt, DuPont never completed an appropriate human risk assessment for PFOA exposure consistent [with] generally recognized and accepted methodology.
DuPont sought to exclude testimony from DeWitt on three specific aspects of her opinion:
- First, DeWitt opines that, as early as the late 1970s, human exposures and initial animal tests known to DuPont obligated it to “inform and involve” health agencies regarding the human health risks of PFOA.
- Second, DeWitt asserts that, although DuPont possessed sufficient information to do so, it never completed and produced an “appropriate” final, written report of human health risk assessment for PFOA exposure in the late 1990s/early 2000s as part of its “C-8 PACE Team” effort.
- Third, DeWitt claims that if DuPont had conducted a “proper” human health risk assessment in the late 1990s or early 2000s and prepared a final “report” using EPA guidelines, it would have uncovered information that may have led DuPont to (i) issue additional or different warnings regarding PFOA exposure and (ii) eliminate sooner the use of PFOA as a surfactant in certain products.
Toxicology Expert Witness
Jamie DeWitt’s research career has focused on synthetic compounds of industrial significance that are or might become environmental contaminants of concern.
She has co-authored 20 review articles/commentaries on PFAS toxicity and use, two book chapters related to PFAS immunotoxicity, and edited one of the first comprehensive texts on the toxicity of PFAS. Her other publications concern toxicological effects of environmental contaminants, including their impact on human diseases.
Discussion by the Court
Dewitt’s Qualification to Offer Expert Testimony
Defendant first sought to exclude testimony from DeWitt on the ground that she is not qualified to offer expert testimony. This argument was primarily based on the fact that while DeWitt offers opinions about DuPont’s failure to perform proper human risk assessments, she has never performed one herself.
The Court held that her educational and professional background involve significant study and work in the field of toxicology or risk assessment. Her doctorate work included a concentration in risk assessment. She has teaching and work experience in the conduct of risk assessments. The record amply demonstrates that her background involves “knowledge, skill, experience, training, or education” sufficient to render her qualified to offer an expert opinion in this case.
Admissibility of the Second Opinion
The second opinion is that, based on information then available to it, DuPont was required to conduct a human health risk assessment in the 1980s. DuPont maintained that this opinion is based on nothing beyond DeWitt’s own personal views and thus should be excluded because it lacks any scientific basis.
Environmental Protection Agency had, in the early 1980s, published material on the need for risk assessment. The Court held that there is a factual basis for DeWitt to testify about the nature of risk assessments, what information was available about conducting such studies in the 1980s and 1990s, what information was available to DuPont that could or should have led them to conduct such an assessment, and what form such an assessment should, in her opinion have taken.
On one point, however, Defendant has carried its burden of warranting preclusion. DeWitt’s Report opines that DuPont was “required” to conduct a risk assessment in the 1980s based on information then known by DuPont and 3M. That opinion does appear to lack a reliable basis in fact sufficient to permit its introduction to the jury. It appears to the Court that the record is devoid of evidence that DeWitt knew of any specific standard that mandated such a reporting requirement. Moreover, DeWitt’s report also makes no connection between any then-existing protocol that would have required DuPont to take the actions set forth in her report. This is especially true given DeWitt’s separate testimony that she did not believe the EPA had standards requiring chemical companies to conduct human health risk assessments.
Admissibility of the Third Opinion
The Court reached a different opinion regarding the third opinion, namely what actions DuPont may have taken had a proper risk assessment been conducted.
Nothing in the present record establishes a solid basis for DeWitt to opine on what DuPont could have done decades ago if it had performed a particular type of study. She does not even offer an opinion about what DuPont should have done, only that it could have provided greater notice to customers or remove PFOA-related chemicals from products altogether — her opinion simply is that DuPont could have done one or both of these things. Defendant may have done exactly what DeWitt suggests, but it may not. DeWitt does not appear to offer an opinion that DuPont was obligated to do either by any legal authority nor by any industry standard.
Held
The Court limited the testimony of Jamie DeWitt in response to Defendant’s motion to exclude her testimony.
Key Takeaways:
- Despite never performing a human risk assessment, the Court noted her significant experience in the conduct of risk assessments and allowed her to testify.
- DeWitt was allowed to testify about the nature of risk assessments and what information was available about conducting such studies in the 1980s and 1990s since it was based on her review of toxicological and blood studies.
- The third opinion seems to be based solely on a speculative assumption that had DuPont done a study it would have become aware of information that could have led it to take the actions described.
Please refer to the blogs previously published about this case:
2. Chemical Engineering Expert Witness’ Testimony About the Harms Surrounding PFOA Limited
Case Details:
| Case Caption: | Baker v. Saint-Gobain Performance Plastics Corp. |
| Docket Number: | 1:16cv917 |
| Court: | United States District Court for the Northern District of New York |
| Order Date: | September 19, 2024 |
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