In this water contamination case, Plaintiff Suffolk County Water Authority (“Suffolk”) brought suit against manufacturers Dow Chemical Company (“Dow”) and Vibrantz Corporation (“Ferro”).
Suffolk contended that dioxane-stabilized TCA is the source of dioxane contamination in the TCA Claim Wells and offered the opinions of its expert witnesses in support. Dow rebuts this proof through the opinions of its own expert, Steve L. McGinnis. Suffolk sought to exclude a narrow subset of McGinnis’ opinions.
Environmental Engineering Expert Witness
Steve Lee McGinnis received a B.S. in Biological and Agricultural Engineering with a secondary major in Natural Resources and Environmental Science from Kansas State University. He received a Masters of Engineering degree in Civil and Environmental Engineering from the Massachusetts Institute of Technology. He is also certified as a Professional Engineer in fifteen states, a Certified Groundwater Professional, a Board-Certified Environmental Engineer, and a Petroleum Release Remediator in South Dakota.
McGinnis has over twenty years of engineering experience “in the fields of environmental engineering, contaminated site investigation and remediation, contaminant fate and transport, and environmental forensics.” Moreover, he has consulted for numerous sites and facilities regarding contaminant releases, including in Suffolk County. In his consulting experience, McGinnis has overseen site investigation and remediation efforts, including specific experience treating 1,4-dioxane and 1,1,1-TCA.
According to McGinnis, Suffolk’s experts “failed to consider fully the implications of Suffolk County’s unique and long-standing reliance on an archaic network of hundreds of thousands of cesspools and septic systems to discharge sanitary wastewater in the subsurface of Suffolk County on the loading of 1,4-dioxane to the SCWA claim wells from the everyday use of common consumer products, which have long contained 1,4-dioxane.”
Suffolk sought to exclude McGinnis’ opinion that the use and discharge of consumer products in residential areas likely constitutes a primary source of 1,4-dioxane, as well as his opinion that 1,4-dioxane trends are more closely linked to consumer products rather than 1,1,1-TCA.
After walking through the historical implications of Long Island’s lack of sewering and longstanding reliance on a dense system of cesspools and septic systems, McGinnis explained that “residentially recharged contribution areas are known to consist of 1,4-dioxane sources due to everyday use of common, everyday consumer products.” He then stated that his “review of historical land use data confirms that the vast majority of claim wells (238 of 286) capture water from predominantly suburban residential areas” and opined that “the abundant suburban residential land uses in the contribution areas for these claim wells likely constitute a primary source of 1,4-dioxane due to the use and discharge of common, everyday consumer products containing 1,4-dioxane.”
McGinnis summarized this opinion as follows: “it is my opinion that 1,4-dioxane trends are more closely linked to the historical and ongoing use of consumer products containing 1,4-dioxane, rather than 1,1,1-TCA use.”
Analysis
The Court agreed with Suffolk that McGinnis’ challenged opinions must be excluded for several reasons. First, it would mislead and confuse the jury to permit McGinnis to simultaneously opine that 1) a well-by-well analysis is required for a true source identification and 2) that consumer products are a “primary source” of dioxane in 238 wells without performing such a well-by-well analysis himself. It is permissible for McGinnis to opine that Suffolk’s experts failed to properly account for the impact of Suffolk County’s lack of sewering and the Claim Wells’ location on predominantly residential land. However, McGinnis cannot take the additional step of opining that consumer products are “likely” to be a “primary source” of dioxane in 238 wells while disavowing that he undertook a well-by-well analysis, which he opined was necessary to determine the source of dioxane in each well.
McGinnis’ land use analysis must also be excluded for another reason: he did not identify in his report what analysis he used to classify each Claim Well’s contribution area or whatever judgment he may have used to reach his conclusions.
Finally, McGinnis’ opinion that “1,4-dioxane trends are more closely linked to the historical and ongoing use of consumer products containing 1,4-dioxane, rather than 1,1,1-TCA use,” must be excluded for yet another, independent reason. Namely, McGinnis never analyzes TCA as a source of the dioxane in the Claim Wells at all.
Held
The Court granted Defendants’ motion to exclude the opinions of Steve McGinnis.
Key Takeaway
Exclusion is required because the link, if any, between the data McGinnis analyzed and his final land use conclusions is written in invisible ink.
Please refer to the blog previously published about this case:
In this water contamination case, Defendants Dow Chemical Company and Vibrantz Corporation (collectively, “Defendants”) challenge the proof which Plaintiff Suffolk County Water Authority (“Suffolk”) proffers through its expert witnesses that dioxane-stabilized TCA is the source of the contaminant 1,4-dioxane in what it calls the TCA Claim Wells.
Defendants did so through the opinions of their own expert witnesses John A. Connor and David T. Adamson. Suffolk did not challenge the bulk of the Connor/Adamson opinions, which are rebuttals to Suffolk’s experts. Rather, Suffolk filed a motion to exclude one subset of those opinions, namely, those opinions which affirmatively assert well-by-well conclusions as to source identification of the 1,4-dioxane in the wells.
Environmental Engineering Expert Witnesses
John A. Connor has over forty years of experience in environmental engineering, including specialization in “environmental site investigation, human health and ecological risk assessment, corrective action design, water resource development and remediation, and design and permitting of treatment facilities.”
He received an M.S. in Civil Engineering from Stanford University and is a registered Professional Engineer, a licensed Professional Geoscientist, and a Diplomate in the American Academy of Environmental Engineering.
David T. Adamson received his Ph.D. in Civil and Environmental Engineering from the University of Iowa and has over twenty-two years of research and environmental consulting experience. He has conducted research and authored technical articles on a wide range of topics related to subsurface contamination, including serving as Principal or co-Principal Investigator on research projects sponsored by the U.S. Department of Defense on topics such as 1,4-dioxane fate, transport, and treatment. Adamson has also consulted on a broad range of topics, including “chemical fate and transport, site investigation, remedy screening, risk assessment, remedial design, drinking water distribution, and litigation matters.”
Connor and Adamson opined that TCA is the source of the 1,4-dioxane in only a small fraction of the TCA Claim Wells. Rather, they asserted, that the predominant source is septic system and wastewater releases. This conclusion appears in Section 3.3 of their Report, which consisted of pages 70-76 out of 160 pages, plus a mass of appended charts. Connor and Adamson opined that they identified ten relevant “lines of evidence” and that they used a “weight-of-evidence” methodology to assess the likely source of 1,4-dioxane in each of the TCA Claim Wells.
The lines of evidence include, for example, TCA detections in each well, and land use within the capture zone. Section 3.3 contains an explanation of the lines of evidence as well as the experts’ ultimate conclusions that the weight of the evidence is consistent with a septic system and wastewater source of 1,4-dioxane in the vast majority of well fields containing TCA Claim Wells.
Upon review of the Connor/Adamson Report and the appended charts, the Court found that there was in fact no well-by-well analysis in the report or in the charts.
In the Report, Connor and Adamson did not assign numeric weight to the various lines of evidence or follow a decision tree to reach an ultimate conclusion.
Analysis
Defendants acknowledged that Section 3.3 contains only (1) a discussion of the ten lines of evidence and (2) Connor and Adamson’s ultimate conclusions as to the likely source of 1,4-dioxane in each of the TCA Claim Wells.
Indeed, review of these appendices reveals a complete absence of analysis as to how the experts reached those final conclusions. Put another way, it is impossible to glean what the experts’ thought processes were in considering the cumulative effect of the thousands of data points that make up the purported “full form” well-by-well analysis.
The Court rejected Defendants’ argument that the detailed narratives through which the experts intended to present their testimony, which they estimate could take up to three hours per well, can be discerned merely by looking at the charts. On the contrary, it is clear that Defendants intended to use the trial testimony to supply the missing explanations as to how each line of evidence factored into the ultimate conclusion as to each well.
Indeed, if the charts themselves were a sufficient basis for understanding the experts’ reasoning in reaching their ultimate source identification conclusions, as the Defendants contended, then—after the experts’ general testimony applicable to all wells—the Defendants would need only to present the charts to the jury.
There is no way for the Court to evaluate whether the methods the experts used or the judgment they applied was reliable or not. As an example of why this is important, consider the undisputed fact that, with respect to some wells, the experts’ lines of evidence point to inconsistent or conflicting results as to the source of the 1,4 dioxane. Nowhere did the experts provide any analysis of how they resolved—or can resolve—such inconsistencies or conflicts. Rather, it is clear that their application of judgment is separate for each well, yet no effort has been made in the Report to set forth how those individual judgments were made.
Finally, Defendants’ suggestion that they can have their experts describe in narrative form how they reached their source identification conclusions well-by-well for the first time at the trial, without having provided their analyses pre-trial, violated fundamental principles of pre-trial expert discovery.
Held
The Court granted Suffolk’s motion to exclude John Connor and David Adamson’s well-by-well assessment of dioxane sources.
Key Takeaway
The question is not simply whether Connor and Adamson may consider various lines of evidence together in reaching a conclusion. Rather, as explained above, the problem is that their Report does not present any analysis of how the various lines of evidence led them to their ultimate conclusions. In these circumstances, the Court is unable to determine the reasoned bases for Connor and Adamson’s analysis and whether it is truly reliable “at every step.”
Case Details:
Case Caption:
Suffolk County Water Authority V. The Dow Chemical Company
Anthony Perrotti was an engineer who designed navigation control systems for air- and spacecraft. Aside from a brief stint at another aerospace company, he worked for Lockheed for his entire career, from when he was an intern in college until he died from gastroesophageal cancer at age 47. After his death, Jennifer Perrotti, his widow, brought this suit against Lockheed for negligence and strict liability, alleging that toxic chemicals at the facility where he worked caused his cancer.
Plaintiff relied on Dr. Ranajit Sahu, a fate-and-transport engineer to establish causation. The Court filed a motion to exclude the testimony of Sahu.
Environmental Engineering Expert Witness
Dr. Ranajit (Ron) Sahu has over thirty one years of experience in the fields of environmental, mechanical, and chemical engineering. He has over twenty eight years of project management experience and has successfully managed and executed numerous projects in this time period. He has provided consulting services to numerous private sector, public sector and public interest group clients.
Sahu’s opinions are as follows. In the companion case, Sahu used Lockheed’s reported emission rates to model the concentrations of the substances at issue to which people in the area surrounding the facility were exposed, and then he compared those concentrations to the background exposures of the general population of the state. He concluded that the concentrations modeled in the area nearby were many times higher than the background exposures. The Court found that methodology reliable.
Adopting that analysis in this case, Sahu then concluded that the decedent was “likely exposed” to the substances at issue via “occupational exposures.”
Sahu characterized the decedent’s exposures as “elevated,” but he declined to quantify particular levels of exposure, instead performing a qualitative assessment. In his rebuttal report, Sahu noted that the studies he relied on concerning occupational exposures likewise did not quantify particular dosages.
He pointed out that precise quantification would have required historical recordkeeping that Lockheed did not do, and he noted that any modeling he could conduct now would not capture the emissions to which this decedent in particular was exposed beginning three decades ago.
Specifically, Lockheed argued: (1) because Sahu did not quantify the dose levels, no reliable data shows the decedent was likely exposed to the substances at issue; (2) Sahu’s failure to investigate exactly where the decedent worked in the facility and model exposures inside the facility means he cannot reliably show exposure; (3) the studies Sahu cited did not reliably support his conclusions because they do not all pertain to cancer; and (4) Sahu improperly relied on some data outside the time period of the decedent’s work.
Analysis
The Court held that the lack of a quantitative dosage assessment specific to the decedent did not make Sahu’s methodology unreliable. Based on his three decades of experience as an engineer in the field of air emissions, Sahu reconstructed data from the time of the decedent’s employment using Lockheed’s records to show the emissions coming from the facility, examined the ventilation system to determine that the decedent would have been exposed to those emissions through the air, and concluded that the decedent was likely exposed at elevated levels comparable to subjects in occupational exposure studies.
Therefore, the conclusion that the decedent was exposed on-site at elevated levels logically flows from Sahu’s reliable opinion that individuals nearby were exposed to elevated levels against background.
The Court found Lockheed’s secondary arguments similarly unavailing. Sahu explained that no matter where the decedent was working at the facility, he would have been exposed throughout.
Sahu opined that insufficient containment and ventilation systems meant the decedent would have been exposed inside or out. He explained why he did not model inside the facility and why doing so would not have been useful anyway. He relied on studies examining occupational exposures because that was the opinion he was asked to provide—on workplace exposure, not the decedent’s particular cancer. Sahu referenced chemical usage records during the years of the decedent’s employment, and he explained that emissions prior to the decedent’s work also caused ongoing contamination.
Held
The Court denied Lockheed’s motion to exclude the testimony of Ranajit Sahu.
Key Takeaway:
Lockheed may quibble with exactly what Sahu’s opinion—that the decedent was “likely exposed” to the chemicals at “elevated” levels—can (and cannot) tell the jury about whether the chemicals caused his cancer. But there is nothing about this methodology or the data it interprets that is insufficient or unreliable from a Daubert standpoint.
Plaintiffs Tonya Clayton and Hazel Stroble allege that an automobile assembly plant operated by Defendant FCA US LLC (“FCA”) near their homes in Detroit, Michigan (the “Detroit Plant”) emitted noxious odors into their neighborhood. They said that these odors unreasonably interfere with their ability to use and enjoy the residences that they own and depreciate the values of those residences.
In this putative class action, Clayton and Stroble asserted claims of nuisance and negligence against FCA based on FCA’s operation of the Detroit Plant.
Plaintiffs asked the Court to certify the following class: “All owner-occupants and renters of residential property located, in whole or in part, within one mile (1.0) of [the Detroit Plant], located at 2101 Connor Street/4000 St. Jean Street, Detroit, Michigan from March 1, 2021 to the present.”
FCA filed two motions to exclude the opinions of Plaintiffs’ expert witnesses, Dr. Mark P. Cal and Orell C. Anderson. Plaintiffs relied upon Cal and Anderson in support of their class certification motion.
Environmental Engineering Expert Witness
Dr. Mark P. Cal obtained a B.S. in Chemical Engineering and a M.S. and Ph.D. in Civil & Environmental Engineering from the University of Illinois at Urbana-Champaign (UIUC). He is currently the Campus Director and Vice President for Academic Affairs and a Professor of Civil and Environmental Engineering at New Mexico State University (NMSU) Alamogordo. For nearly 12 years, he was Chair and Professor in the Department of Civil and Environmental Engineering at New Mexico Tech (NMT). Cal’s research and consulting experience spans 36-years, and he has worked on projects in the areas of air pollution control, air quality science, atmospheric dispersion modeling (odors, gases and particles), chemical fate and transport, water resources engineering, and heat and mass transfer.
Orell C. Anderson is a valuer and expert forensic consultant with extensive experience in appraisal, diminution-in-value and litigation support matters involving commercial, industrial, subdivisions, and vacant land properties, as well as single- and multi-family residences.
He specializes in real property damage economics and property value diminution on a local to global basis and has worked on some of the most notable environmental, social justice, and terrorist cases in recent times.
Cal did not acknowledge or account for the mitigation efforts that FCA undertook beginning in the fall of 2021
Cal opined that (1) “the entire 1.0-mile proposed class area displayed some level of elevated odor concentrations above [one odor unit per cubic meter]” and (2) “there is clear and convincing evidence that odors were dispersed throughout [the] proposed class area at an odor threshold level that residents would find offensive.”
It is not clear from Cal’s report whether he is offering these opinions with respect to the limited time period for which he had actual sampling data (October and November of 2021) or, alternatively, with respect to the entire time frame covered by Plaintiffs’ proposed class definition (March of 2021 to the present).
To begin with, Cal did not acknowledge or account for certain mitigation efforts that FCA undertook beginning in the fall of 2021. According to the Court, his failure to consider those mitigation efforts, and to explain what effect, if any, those efforts had on the odor unit level in the proposed class area during the class period (March 1, 2021, through the present), rendered his opinions unreliable.
Next, if Cal’s opinion is limited to the time period for which he had sampling data, then it must be excluded because it is not an appropriate fit for the proposed class. As noted above, Plaintiffs are seeking to certify a class that spans from March 1, 2021, to the present. But an opinion covering only a small fraction of that period – i.e., the two-month period in the fall of 2021 for which Cal had sampling data – says little, if anything, about whether the criteria for class certification are satisfied for the entire proposed class period.
There is no reliable basis for Cal’s opinion that all of the members of the proposed class would find the odor level emitted from the Detroit Plant to be offensive
Cal bases that opinion solely on the fact that the odor emanating from the Detroit Plant was measured at one odor unit per cubic meter. But as Cal acknowledged, at that level, only “50 percent of the people” would even be able to “smell” the odor.
The Court ruled that Cal has not sufficiently explained how an odor that only 50 percent of people can even detect could reasonably be considered offensive to the entire proposed class. Moreover, his opinion that the class members would find the odor offensive because it measured one odor unit per cubic meter is at odds with his acknowledgment that five odor units per cubic meter, not one, is “generally” the “threshold level that residents would find offensive.”
Orell Anderson
The Court next turns to Anderson’s opinion that he could develop a reliable model to determine the economic damages suffered by the proposed class members.
Plaintiffs sought to certify a class that includes both “owner-occupants and renters” in the class area. But Anderson’s proposed model does not apply to renters. Instead, he intended to measure only the diminution in property values caused by the odors emanating from the Detroit Plant, and it is only property owners that could have suffered such a potential diminution.
That Anderson’s proposed model does not apply to renters is a significant problem because FCA has presented evidence that approximately 45% of the proposed class members are renters, not owners. Because Anderson’s proposed model did not apply to the many renters in the proposed class, the Court held that it is not a proper fit for that class.
Held
The Court granted FCA’s motions to exclude Plaintiffs’ expert witnesses, Dr. Mark Cal and Orell C. Anderson.
Key Takeaways:
To be clear, Cal certainly was not required to agree with FCA that its mitigation efforts meaningfully decreased the odors emitted from the Detroit Plant. But to be reliable, his analysis had to at least acknowledge those efforts and explain how, if at all, those efforts impacted the odor levels and his analysis.
Anderson’s proposed model has a major flaw—it doesn’t apply to renters. This is a serious issue because FCA has shown that about 45% of the proposed class members are renters, not owners.
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.
All remaining Plaintiffs relied on environmental engineering expert witness, Ranajit Sahu’s testimony, which was central to their specific causation theory. He used air modeling data to demonstrate that Lockheed’s facility emitted five toxic chemicals and the Plaintiffs were exposed to these chemicals while in a nearby building.
In response, Lockheed sought to exclude Sahu’s testimony, arguing that his methodology was unreliable. The Plaintiffs opposed this motion, asserting the validity of Sahu’s methods.
Environmental Engineering Expert Witness
Ranajit Sahu has over twenty-three years of experience in the fields of environmental, mechanical, and chemical engineering. His expertise includes program and project management services, design and specification of pollution control equipment, soil and groundwater remediation, and combustion engineering evaluations. He conducted energy studies and addressed multimedia environmental regulatory compliance, working with statutes and regulations such as the Federal Clean Air Act and its amendments, the Clean Water Act, TSCA, RCRA, CERCLA, SARA, OSHA, and NEPA, along with various related state statutes.
Sahu is also skilled in transportation air quality impact analysis, multimedia compliance audits, and multimedia permitting, which includes air quality NSR/PSD permitting, Title V permitting, and NPDES permitting for industrial and stormwater discharges. He has conducted multimedia/multi-pathway human health risk assessments for toxic substances, air dispersion modeling, and regulatory strategy development and support, including the negotiation of consent agreements and orders.
Sahu relies on AERMOD, a recognized model for estimating air concentrations based on emission rates provided by the modeler. He modeled concentrations using the “actual emission rates” for each chemical, sourced from Lockheed’s chemical management system (CMS) reports. Subsequently, he compared these results to the expected background levels of each chemical in Florida. He used EPA data to assess the relative exposures of individuals in the Plaintiffs’ building against the general state population. Sahu concluded that the Plaintiffs’ exposures significantly exceeded the highest background levels.
Lockheed’s Concerns
Lockheed raised several objections to Sahu’s methodology. They claimed that the “actual emission rates” he used were inflated estimates, aimed at ensuring regulatory compliance rather than reflecting true emissions. To maintain its federal permit, Lockheed adopted the high-end percentages of chemicals from each product’s safety data sheet (SDS). For instance, if an SDS indicated a product contained 20-25% arsenic, Lockheed assumed 25%. This resulted in inflated CMS numbers that Sahu input as “actual emission rates.” Lockheed contended that these overestimates compromised the model’s accuracy.
Lockheed also criticized Sahu’s reliance on the CMS data. They argued that the data did not factor in capture, control, and transfer efficiencies. Consequently, this led to an overestimation of actual emissions. However, Sahu defended his approach, noting that the CMS data represented what Lockheed reported to regulators.
Analysis
Sahu’s reliance on Lockheed’s reported data did not undermine his methodology’s reliability. The validity of Sahu’s methods remained intact, despite Lockheed’s claims. The Court emphasized that questions regarding the accuracy of Sahu’s data were appropriate for cross-examination rather than discrediting the overall scientific validity of his methods.
Lockheed’s additional critiques included Sahu’s focus on outdoor air concentrations and the use of EPA data. Sahu clarified that typical building filters would not capture the chemicals in question. He also explained that he used statewide EPA data to establish conservative background exposure levels. Furthermore, Sahu noted that both parties lacked knowledge of alternative local sources for emissions.
Ultimately, the Court recognized that the Eleventh Circuit allows modeling to estimate emissions. The AERMOD model, which Sahu used, has received widespread approval. Sahu articulated his rationale for the model inputs and their applications, adhering to accepted scientific standards. The Court decided that Lockheed’s objections called into question the weight of the evidence instead of its admissibility. Thus, Sahu’s methodology was sufficiently reliable to warrant presentation to the jury.
Held
The Court denied Defendant Lockheed’s motion to exclude Plaintiffs’ environmental engineering expert witness, Ranajit Sahu.
Key Takeaways:
The Court allowed the testimony of environmental engineering expert Ranajit Sahu, emphasizing the reliability of his methodology despite Lockheed’s objections. Sahu used the AERMOD model to estimate air concentrations based on emission rates from Lockheed’s chemical management system, demonstrating that Plaintiffs were exposed to toxic chemicals exceeding background levels.
The Court noted that Lockheed’s concerns regarding data accuracy and methodology did not discredit Sahu’s scientific validity. Instead, these issues were appropriate for cross-examination, reinforcing the notion that the jury, not the Court, should weigh the evidence. Thus, Sahu’s testimony was deemed reliable and relevant for the jury’s consideration.
Please refer to the blog previously published about this case:
On Feb. 3, 2023, a train carrying chemicals jumped the tracks in East Palestine, Ohio, rupturing railcars filled with hazardous materials and fueling chemical fires at the foothills of the Appalachian Mountains. The Defendant Norfolk Southern Railway Company (“NSR”) was held responsible for the train derailment and chemical spill (vinyl chloride), which adversely affected not less than 500,000 people. It necessitated immediate evacuation of all homes and businesses in an approximate one-to-two-mile radius of the Site.
EPA’s handling of chemical testing was called into question in the wake of the derailment, which has led to serious personal and professional repercussions. As a result, multiple whistleblowers came forward to testify to the Environmental Protection Agency’s (EPA) investigation and potential manipulation of data collection regarding chemical contamination in East Palestine.
Scott Smith, for instance, conducted multiple rounds of testing in and around East Palestine to come up with evidence of significant environmental contamination. Testimony from forensic engineer and environmental contamination expert, Stephen Petty, has validated independent data collected by Government Accountability Project client Scott Smith.
Environmental Engineering Expert Witness
Stephen Petty is currently President of Engineering & Environmental Services, Inc. (EES). He also served as an Adjunct Professor at Franklin University, where he taught courses in environmental and earth sciences. Prior to starting EES Group, Inc. in 1996, Petty was the Manager of Residential and Commercial Technology at Columbia Energy and a Senior Research Engineer at Battelle. He has 32 years of forensic engineering, health and safety, environmental engineering, and energy experience.
Since the derailment, Smith has traveled to East Palestine 27 times and has conducted 31 rounds of testing on homes, soil, and water. His work revealed dangerous levels of dioxins and furans in the town’s air, water, soil, and homes, which counters the EPA narrative that it is safe to live in East Palestine.
Some EPA staffers had dismissed Smith as a “fake scientist,” while class counsel told the Court that misinformation has been spread about the settlement including “inaccurate commentary attributable to Scott Smith, a non-class member with no formal scientific or medical training or education.”
Petty, an expert who previously worked for attorneys pursuing the class action settlement, submitted a declaration validating his environmental testing and sampling work. He praised Smith’s quality control and methodology as meeting professional standards.
This new filing by Petty substantiated Smith’s credibility, pointing to the lack of human health assessment studies in East Palestine.
Held
Plaintiffs’ attorneys own testing expert validated Scott Smith’s data and methodologies.
Key Takeaway:
Despite facing personal and professional challenges, Smith stood up for the health of the East Palestine community. He provided concrete evidence that the EPA is altering data to downplay the dangers.
The case involves allegations concerning the contamination of drinking water in Hoosick Falls, New York, by perfluorooctanoic acid (PFOA), a chemical commonly referred to as PFOA. Plaintiffs claim that the primary source of this contamination was a fabric coating facility located on McCaffrey Street. According to their allegations, DuPont manufactured and sold aqueous fluoropolymer dispersions (AFD) containing ammonium perfluorooctanoate (APFO) to Saint-Gobain and Allied Signal, who used these products at the facility. APFO, when dissociated in water, forms perfluorooctanoate (PFO) and, under acidic conditions, transforms into PFOA, which contributed to the contamination.
Plaintiffs allege that DuPont supplied PFOA-containing AFD products to these companies from the 1950s through 2015, despite being aware of the health hazards associated with PFOA exposure by 1984. They further assert that DuPont was also aware of technologies that could have reduced or eliminated PFOA emissions but chose not to advise its customers or recommend testing for PFOA in groundwater near their facilities. Instead, DuPont allegedly prioritized profits over safety, continuing to sell these products without warning about the risks.
DuPont, in its defense, denied many of the allegations and disputed its role as a direct and proximate cause of the contamination. It argued that it was not a significant contributor to the contamination of the Hoosick Falls water supply. To support this, DuPont submitted expert reports from Adam Love and David Duffus, suggesting that the company contributed only around 15% of the total AFDs delivered to the McCaffrey Street facility between 1991 and 2003. Plaintiffs, however, sought to exclude their expert testimony, arguing that they were not relevant to the case.
Environment Engineering Expert Witness
Dr. Adam Love earned a Bachelor of Arts in Geosciences from Franklin & Marshall College in 1996, followed by a Master of Science in Material Science and Mineral Engineering in 1998, and a Doctor of Philosophy in Civil and Environmental Engineering in 2002, both from the University of California, Berkeley. He accumulated over 20 years of experience in environmental forensics, site characterization, remediation, exposure assessment, human health risk, and contamination transport analysis.
From 1996 to 2002, Love worked as a graduate student researcher at UC Berkeley, contributing to contaminant transport and environmental forensic evaluations. He developed new techniques for environmental pollution reconstruction and allocation. From 2002 to 2009, he served as a scientist at the Forensic Science Center at Lawrence Livermore National Laboratory.
David Duffus is a forensic accountant with over 25 years of experience across diverse industries. He earned a BA in Economics and Political Science, an MBA in Accounting and Finance, and held several professional designations, including CPA, ABV, CFE, and CFF.
Throughout his career, Duffus served as an expert on more than 100 occasions, testifying over 90 times in depositions, trials, and alternative dispute settings. He handled disputes involving values up to $275 million and project values exceeding $300 million. Additionally, he acted as an arbitrator and neutral accountant in post-acquisition and valuation-related disputes.
Since 1992, Duffus specialized in complex litigation services, forensic accounting, and valuation assignments for a wide range of businesses, from start-ups to Fortune 100 companies. He collaborated extensively with legal counsel through all phases of litigation, providing expert witness and deposition testimony in both state and federal courts, as well as in alternative dispute settings. Before joining HKA, Duffus dedicated nearly 17 years to Baker Tilly’s Global Forensics & Litigation Services practice, including 15 years as a partner.
Plaintiffs sought to exclude Love’s testimony on the grounds of irrelevance, asserting that his opinions did not cover the full period during which DuPont supplied chemicals to the McCaffrey Street site. They argued that Love’s data only reflected roughly a third of the known supply period, making it insufficient to determine DuPont’s contribution to the contamination. Plaintiffs further contended that his opinions did not make it less probable that DuPont significantly contributed to the contamination in Hoosick Falls.
The Court, however, found Love’s testimony relevant under Rule 401 of the Federal Rules of Evidence, which allows evidence that has any tendency to make a fact more or less probable. The comparative data he presented could reasonably lead a jury to conclude that DuPont was not a significant contributor to the contamination. Additionally, the Court noted that Love’s report explicitly recognized the limitations in the available data, particularly regarding the APFO content in the AFDs supplied by DuPont. While Plaintiffs argued that this limited scope could confuse the jury, the Court emphasized that such concerns could be addressed through cross-examination rather than by excluding the testimony. Thus, Love’s testimony was found to be both relevant and based on a sufficient foundation.
David Duffus
Plaintiffs also sought to exclude Duffus’ expert testimony, arguing that his reliance on a limited data set—specifically, records from Saint-Gobain covering a narrow time frame—rendered his conclusions irrelevant. Duffus’ report addressed DuPont’s supply of AFDs between 1991 and 2003, but Plaintiffs argued that this narrow focus could not accurately assess DuPont’s contribution to the contamination.
In response, the Court found Duffus’ testimony relevant under Rule 702, which establishes a broad standard for the admissibility of expert opinions. Despite the limited data set, the Court concluded that Duffus had based his opinions on the best available information, which was accessible to both parties. The Court also rejected Plaintiffs’ argument that the source of the data—Saint-Gobain—undermined the testimony’s foundation. Instead, it held that any limitations in Duffus’ analysis could be explored during cross-examination, rather than serving as grounds for exclusion. Permitting Plaintiffs’ able counsel to cross examine Duffus about the perceived limitations of the data set and what, if any, information can be gleaned from his opinion about DuPont’s potential contribution of APFOs is considered a better remedy than total preclusion of this opinion.
Held
The Court denied the Plaintiffs’ motions to exclude expert testimonies from Adam Love and David Duffus, ruling they met relevance and admissibility standards under Federal Rules 401(a) and 702.
Key Takeaways:
Relevance of Expert Testimony: The Court affirmed that expert testimony can be relevant even if it doesn’t cover the entire time period of alleged contamination. Partial data can still be useful in assessing a party’s potential contribution to environmental damage.
Cross-Examination vs. Exclusion: The Court favored allowing expert testimony and subjecting it to cross-examination rather than excluding it entirely, even when there were potential limitations in the data or analysis.
Foundation for Expert Opinions: The Court found that expert opinions based on limited available data can still have sufficient foundation, especially in cases where complete historical records may not exist.
Source of Data: The Court determined that the source of data (in this case, from one of the parties) does not automatically render expert testimony inadmissible or lacking foundation.
Please refer to the blog previously published about this case:
This case concerns the operation of the Jefferson Parish Landfill in Waggaman, Louisiana (the “JPLF”), and the resulting odors emitted from the JPLF between July 1, 2017, and December 31, 2019 (the “relevant time period”). Plaintiffs, who are Jefferson Parish residents, filed several individual lawsuits that were consolidated into a mass action, Addison v. Louisiana Regional Landfill Co., which contains over 500 individual Plaintiffs.
The Defendants asserted several “alternative source arguments,” including that: (1) Plaintiffs’ alleged damages were sustained in whole or in part as a result of intervening or superseding causes, including noxious odors originating from sources other than the JPLF; and (2) Plaintiffs’ claims are barred or diminished to the extent their injuries were caused by their own comparative fault or the comparative fault of third parties or sources of odors for which the Defendants are not responsible.
The Defendants offered Michael Corn, P.E., as an expert in emissions rates, fate and effect analysis, and non-landfill odors and emissions sources.
The Plaintiffs sought to exclude Corn’s testimony under Rules 401, 403, and 702, insofar as Corn’s testimony is not relevant, is unreliable, and will not assist the trier of fact, and has the potential to confuse the issues and mislead the jury.
Environmental Engineering Expert Witness
Michael Corn has over 50 years of experience as an environmental and water resources engineer and environmental consultant, working in industrial and government-operated facilities, like the non-landfill emissions sources.
Corn has conducted or supervised other engineers and scientists in developing air emissions estimates, air permitting, air modeling, and Toxics Release Inventory reporting.
The subject of Corn’s testimony may be relevant under Rule 401
The Defendants contended that Corn’s testimony supports their alternative source arguments and is directly relevant to the causation element of Plaintiffs’ claims.
On July 17, 2024, the Court issued its Order and Reasons determining, in relevant part, that “evidence related to Defendants’ alternative source arguments is relevant under Rule 401, as ‘any potential alternative theories of causation go directly toward a key underlying issue’ in this case.” Because Corn’s proposed testimony is relevant to the Defendants’ alternative source arguments, the Court will not exclude Corn’s testimony under Rule 401.
Corn’s testimony will be excluded under Rules 702 and 403
Corn expressed four distinct opinions based on his findings:
First, given that the weather data collected do not show a preferential wind direction, it is my opinion that no one source (i.e., the Landfill) could have impacted all [Trial Plaintiffs] at all times.
Second, emissions from the alternative odor sources, permitted or not, resulted in odors in areas that the [Trial Plaintiffs] lived and traveled through.
Third, the proximity of the receptor to sources released at or near ground level is more likely to impact a receptor.
Fourth, given the variable wind direction in the area and the plaintiffs’ close proximity to many known odor sources, he opined that the [Trial Plaintiffs] are more likely than not subjected to multiple different pollutants released from the industrial facilities
Plaintiffs argued Corn’s testimony should be excluded under Rule 702 because his opinions are “matters of common knowledge,” which “ordinary jurors” can ascertain from their own experience without “special expertise or training,” and thus will not assist the trier of fact.
A. Non-Facility Emissions Sources
Corn supports Opinion No. 2 in part by his finding that localized emissions from the Sewer System generated odors that likely impacted the Trial Plaintiffs “resid[ing] nearby.” The Court held that Corn provides no analysis of the extent of the impact of this one event or how long the impact would have lasted. Corn’s documentation of this one incident report does not support his finding that localized emissions from the Sewer System generated odors that likely impacted the Trial Plaintiffs.
Corn supports Opinion No. 2 by pointing to the “the large expanse of wetlands and forested wetlands that surround the local areas,” which he says “presents a significant likely alternative emissions source to the [Trial Plaintiffs] at their residences and the areas [through which] they travel.” The Court held that Corn’s finding, which is based purely on his speculation with no data relevant to the specific wetlands at issue, does not provide sufficient support for Opinion No. 2. His speculation does not support his finding that localized emissions from the Wetlands generated odors that likely impacted the Trial Plaintiffs.
B. Facility Emissions Sources
Corn based Opinion No. 2 in part by his finding that several “industrial and municipal facilities . . . more likely than not” emitted odiferous pollutants in quantities sufficient to “impact[] the individual [Trial Plaintiffs] at their residence[s].”
The Court held that to the extent Corn relies on LDEQ Incident Reports of emissions events outside the 30-month relevant time period (i.e., July 1, 2017, through December 31, 2019), his findings on those facilities are excludable under Rule 401 because they are irrelevant to the issue of whether an alternative source of odors impacted the Trial Plaintiffs during the relevant time period.
1. Cornerstone Chemical Complex
Corn supported Opinion No. 2 in part by his finding that several operating facilities within the Cornerstone Complex generated emissions that likely impacted the Trial Plaintiffs.
The Court held that Corn does not explain the significance of the emissions rates reported therein of other pollutants or explain how the data is relevant to his finding that operating facilities in the Cornerstone Complex generated odors that could have been detected by the Trial Plaintiffs, effectively nullifying any probative value they may have.
a.The Acrylonitrile Plant
Corn based Opinion No. 2 in part by his finding that the Acrylonitrile Facility is a potential alternative source of odors that may have impacted the Trial Plaintiffs.
The Court held that assumptions based on emissions events that occurred outside the relevant time period are irrelevant to the issue of whether the Acrylonitrile Plant impacted the Trial Plaintiffs during the relevant time period. Because the basis of Corn’s finding on the Acrylonitrile Plant is unreliable and irrelevant, it does not support Opinion No. 2.
b. The Urea and Melamine Plant
Corn supports Opinion No. 2 in part by his finding that the Urea and Melamine Plant is an alternative source of odors that “might have” impacted the Trial Plaintiffs.
The Court held that Corn’s documentation of the facility’s air permit, the two incident reports during the relevant time period, the several incident reports that occurred outside the relevant time period, and the Facebook video does not support his finding that emissions from the Urea and Melamine Plant generated odors that likely impacted the Trial Plaintiffs.
c.The Sulfuric Acid Regeneration Plant
Corn supports Opinion No. 2 in part by his finding that the Sulfuric Acid Regeneration Plant (the “Regeneration Plant”) is an alternative source of “regularly occurring” emissions that “likely” impacted nearby Trial Plaintiffs.
Summarizing Corn’s evidence to support his finding that the Regeneration Plant “likely” impacted the Trial Plaintiffs during the relevant period, the Court found there was one odor complaint during the 30-month relevant time period, documented in the LDEQ Incident Report dated December 13, 2018. The other two LDEQ Incident Reports and the two Cornerstone Letters cited in the Corn Report concern releases from the facility for which there were no related odor complaints. Corn failed to provide evidence or opinion supporting his finding that the isolated incident, which was the subject of the odor complaint “likely” affected the Trial Plaintiffs.
d. The Utilities Plant/Site Services
Corn based Opinion No. 2 in part by his finding that the Utilities Plant “was a source of likely odors in Jefferson Parish.”
The Court held that the finding was unreliable because it was based on the unfounded and speculative extrapolation of three isolated incidents of de minimis releases during the 30-month relevant time period.
e. The Dyno Nobel Ammonia Plant
Corn bases Opinion No. 2 in part by his finding that the Dyno Nobel Ammonia Plant is an alternative source of odors that “likely” impacted some of the Trial Plaintiffs.
The Court held that Corn’s documentation of the facility’s air permit, TRI Reports, two incident reports from the relevant time period, and the Facebook video does not support his finding that emissions from the Dyno Nobel Ammonia Plant generated odors that likely impacted the Trial Plaintiffs.
f. The Roehm America Plant
Corn based Opinion No. 2 in part by his finding that the Roehm America Plant is an alternative source of odors that may have impacted the Trial Plaintiffs.
The Court held that Corn’s documentation of the facility’s air permit, TRI Reports, and the one incident report during the relevant time period does not support his finding that emissions from the Roehm America Plant generated odors that likely impacted the Trial Plaintiffs.
g. The Kemira Chemicals Plant
With respect to the Kemira Chemicals Plant located within the Cornerstone Complex, Corn represents the Kemira Chemicals Plant has a Title V Permit and presents information related to the facility’s Title V Permit for the relevant time period in Table 19 of the Corn Report.
The Court held that inferring the types and quantities of pollutants emitted by a facility from the facility’s air permit is unreliable. Accordingly, the basis of any purported finding of Corn on the Kemira Chemicals Plant is unreliable and does not support Opinion No. 2. Corn’s documentation of the facility’s air permit does not support his finding emissions from the Kemira Chemicals Plant generated odors that likely impacted the Trial Plaintiffs.
2. The ARTCO Facility
Corn supported Opinion No. 2 in part by his finding that the ARTCO Facility is an alternative source of odors that “likely impacted nearby [Trial Plaintiffs].”
The Court held that Corn does not describe the duration of this event nor how the odor travelled. To the extent that Corn’s finding on the ARTCO Facility is based on the unfounded and speculative extrapolation of one isolated incident of a de minimis release during the 30-month relevant time period, the finding is unreliable.
3. The IMTT Facility
Corn supported Opinion No. 2 in part by his finding that the IMTT Facility is an alternative source of odors that “might have” had an impact on the Trial Plaintiffs.
The Court held that Corn’s documentation of the facility’s air permit and one incident report from outside the relevant time period does not support his finding that emissions from the IMTT Facility generated odors that might have impacted the Trial Plaintiffs.
4. The Harahan Waste Treatment Plant
Corn based Opinion No. 2 in part by his finding that the Harahan WTP is an alternative source of odors that “likely” had an impact on the Trial Plaintiffs.
The Court held that Corn bases his vague conclusion on two isolated complaints of sewage intrusion onto individuals’ properties during the relevant time period, rather than any widespread complaint of noxious odors in the air.
5. The ADM Grain Facility
Corn supported Opinion No. 2 in part by his finding that the ADM Grain Facility is an alternative source of odors that “might have” had an impact on the Trial Plaintiffs.
The Court held that Corn’s documentation of the facility’s air permit and incident reports from outside the relevant period does not support his finding that the ADM Grain Facility generated odors that might have impacted on the Trial Plaintiffs.
6.The Cargill Westwego Marine Terminal
Corn supports Opinion No. 2 in part by his finding that Cargill is an alternative source of odors that “might have” had an impact on the Trial Plaintiffs.
The Court held that Corn’s documentation of the facility’s air permit and four incident reports during the relevant time period does not support his finding that emissions from Cargill generated odors that might have impacted the Trial Plaintiffs.
7.Kirby Inland Marine
Corn supported Opinion No. 2 in part by his finding that Kirby Inland Marine is an alternative source of odors that “likely” impacted Trial Plaintiffs.
The Court held that assumptions based on emissions events that occurred outside the relevant time period are irrelevant to the issue of whether emissions from Kirby Inland Marine impacted the Trial Plaintiffs during the relevant time period. Further, to the extent that Corn’s finding on Kirby Inland Marine is based on the unfounded and speculative extrapolation of one isolated incident of a de minimis release during the 30-month relevant time period, the finding is unreliable.
8. The Composing Facility
Corn supported Opinion No. 2 in part by his finding that “odor emissions (ammonia, hydrogen sulfide, etc.) during composting are practically unavoidable,” thus “numerous unpermitted air emissions events” associated with the Composting Facility that occurred “before the relevant time period . . . illustrate the impacts the facility might have [had] on [the Trial Plaintiffs] during the relevant time period.”
The Court held that Corn’s documentation of the facility’s incident reports from outside the relevant time period does not support his finding that emissions from the Composting Facility generated odors that might have impacted the Trial Plaintiffs.
9. Non-landfill operations at the River Birch Landfill
Corn supported Opinion No. 2 in part by his finding that non-landfill operations at the River Birch Landfill constituted alternative sources of odors that might have impacted the Trial Plaintiffs.
The Court held that Corn’s documentation of the facility’s air permit and one incident report during the relevant time period does not support his finding that emissions from River Birch generated odors that might have impacted the Trial Plaintiffs.
Held
The Court granted Plaintiffs’ motion in limine to exclude the testimony of Michael Corn.
Key Takeaway:
Rule 702 charges the Court as “gate-keeper” with the responsibility of conducting a preliminary assessment into whether the reasoning and methodology underlying expert testimony is scientifically valid and reliable. As set forth above, the proponent of expert testimony must prove by a preponderance of the evidence that the testimony is reliable. Having conducted a comprehensive review of Opinion No. 2 and the relevant reliance documents, the Court finds that the Defendants have not satisfied their burden of proving Corn’s testimony is reliable by a preponderance of the evidence. Corn’s opinion is peppered with his statements that the emissions sources “may have” or “might have” impacted the Trial Plaintiffs, or at the very best “likely” did so.
This case concerns the operation of the Jefferson Parish Landfill in Waggaman, Louisiana (the “JPLF”), and the resulting odors emitted from the JPLF between July 1, 2017, and December 31, 2019 (the “relevant time period”). Plaintiffs, who are Jefferson Parish residents, filed several individual lawsuits that were consolidated into a mass action, Addison v. Louisiana Regional Landfill Co., which contains over 500 individual Plaintiffs.
The Defendants asserted several “alternative source arguments,” including that: (1) Plaintiffs’ alleged damages were sustained in whole or in part as a result of intervening or superseding causes, including noxious odors originating from sources other than the JPLF; and (2) Plaintiffs’ claims are barred or diminished to the extent their injuries were caused by their own comparative fault or the comparative fault of third parties or sources of odors for which the Defendants are not responsible.
Motion to preclude
The Defendants engaged Matthew Stutz, P.E.—represented to be an expert in “landfill design, engineering, management, and operations”—to offer opinions about modeled emissions and emission rates of landfill gas and hydrogen sulfide (“H2S”) from the JPLF and two neighboring landfills, the River Birch Landfill (the “RBLF”) and the Highway 90 construction and demolition (“C&D”) Landfill (the “Hwy 90 Landfill” or “Hwy 90”).
Stutz is also offered as a rebuttal expert to rebut the opinions of Plaintiffs’ experts, specifically regarding: (1) the generation and emissions of landfill gas and hydrogen sulfide; (2) the design, operation, and maintenance of the JPLF, including its cover, leachate, landfill gas, and odor control systems; and (3) the acceptance of nonhazardous industrial waste at the JPLF. Stutz expressed several opinions in his expert report (the “Stutz Report”) related to modeled gas generation and emissions estimates for the JPLF, the RBLF, and the Hwy 90 Landfill.
Plaintiffs filed their Motion in Limine seeking to preclude Stutz from offering testimony related to certain opinions expressed in the Stutz Report under the law-of-the-case doctrine and Federal Rule of Evidence Rule 702.
Environmental Engineering Expert Witness
Matthew K. Stutz is a Principal with Weaver Consultants Group, LLC. He has extensive work experience in landfill gas collection and control system design, leachate systems, and air quality permitting and compliance, and he has prepared numerous landfill gas collection and control system designs, landfill gas evaluations, emission inventories, air quality permits, emission calculations, and odor control plans.
Stutz received a Bachelor of Science in Civil/Environmental Engineering in 1997, from The University of Texas at Arlington. He currently serves on a panel of the U.S. Environmental Protection Agency (“EPA”) which provides comments on landfill air quality regulations.
After preparing landfill gas generation models and emissions estimates for the JPLF, the RBLF, and the Hwy 90 Landfill, using mathematical analysis and relevant source material, Stutz expressed several opinions in his Report.
Stutz’s testimony related to the Hwy 90 Landfill will be excluded under Rule 702
Plaintiffs sought to exclude the portion of Opinion No. 2B in which Stutz opines “the Hwy 90 Landfill was the largest and most significant source of H2S emissions of the three landfills” during the relevant time period. The Stutz Report represents “[a] main component[] used in gas generation modeling is the concentration of the specific gas being modeled,” which in this case is H2S.
After comparing the modeled H2S emission rates for the Hwy 90 Landfill, the RBLF, and the JPLF, Stutz concluded “the majority of H2S emissions during [the relevant time period] came from Hwy 90.”
The Court found that the scant and uncharacteristic H2S concentration data from February 2008, on which Stutz based the Hwy 90 Model for the relevant time period, rendered Opinion No. 2B unreliable.
In this case, Stutz relied on two data points collected on a single day nearly one decade before the relevant time period to derive the H2S concentration that informs his Hwy 90 Model. Hwy 90 records demonstrate the landfill experienced elevated H2S concentrations in 2008, which likely resulted from the burial of organic vegetative and gypsum sheetrock debris when the LDEQ designated the landfill an Emergency Debris Site post-Hurricane Katrina.
The Court also found that the probative value of Stutz’s testimony on the Hwy 90 Landfill is substantially outweighed by the risk of misleading the jury. Thus, the Court will also exclude Stutz’s testimony related to the Hwy 90 Landfill under Rule 403.
Stutz may offer testimony on the JPLF and the RBLF
Stutz’s testimony on the JPLF and RBLF will not be excluded under Rule 702
Plaintiffs also sought to exclude the portion of Opinion No. 2B in which Stutz expressed findings related to the JPLF and the RBLF under Rule 702. Plaintiffs argued Stutz improperly neglected to calculate the total H2S that may be generated from material at the landfills, which rendered his modeled H2S emissions from those facilities “nothing more than a wild guess.” Specifically, Plaintiffs claim Stutz’s modeled H2S emissions from the JPLF are not the product of reliable principles or methods because his model does not account for “the forty-six million [] pounds of spent lime buried in [Phase IVA].”
The Court has reviewed the bases of the portions of Opinion No. 2B related to the JPLF and the RBLF. Unlike the H2S concentration used in his Hwy 90 Model, a review of Opinion Nos. 1B and 2B reveals the H2S concentrations Stutz used in the H2S Generation Models for the JPLF and the RBLF (the “JPLF Model” and “RBLF Model,” respectively) are more “grounded in the methods and procedures of science” than in Stutz’s unsupported speculative or subjective belief.
With respect to the JPLF Model, Stutz represented he “uses the same average H2S concentrations as the Plaintiffs’ experts,” and Plaintiffs do not challenge this assertion. With respect to the RBLF Model, although Stutz’s H2S concentration is based on limited data, the H2S concentration is based on a study from June 2018, during the relevant time period.
Stutz’s testimony on the JPLF will not be excluded under the law-of-the-case doctrine
Plaintiffs sought to exclude the remaining contested opinions on the basis that the opinions relate to issues adjudicated in the general causation phase and should be excluded under the law-of-the-case doctrine.
The Court has reviewed the Stutz Report and finds Plaintiffs’ argument is without merit. Table 4 of the Stutz Report provides a comparison of 2019 H2S concentrations at the JPLF, which identifies an average H2S concentration at the JPLF Phase IVA of: (1) 3,633 ppm (i.e., 3,633,000 ppb) collected inside the landfill; (2) 0.43 ppm (i.e., 430 ppb) at the landfill surface; and (3) 1.126 ppm (i.e., 1,126 ppb) collected from ambient readings at approximately three feet from the landfill surface. To the extent the Plaintiffs challenge Stutz’s opinions under the law-of-the-case doctrine, Stutz input the H2S concentration of 3,633 ppm into his JPLF Model for Phase IVA, which is the same figure relied upon by Plaintiffs’ H2S emissions model.
Held
The Court granted in part and denied in part the Plaintiffs’ motion to exclude expert testimony of Matthew Stutz. Stutz may not offer testimony related to the Hwy 90 Landfill. He may offer testimony related to the JPLF and the RBLF. Stutz may offer his rebuttal of Plaintiffs’ experts’ opinions on the JPLF and RBLF, as necessary, but may not offer rebuttal opinion related to the Hwy 90 Landfill.
Key Takeaways:
Stutz offered no explanation as to the validity or general acceptance in the scientific community of his methodology for deriving an H2S concentration based on such scant and uncharacteristic data.
To the extent Plaintiffs challenge Stutz’s omission of site-specific data, including his failure to calculate the total H2S generated at the landfills, the Court finds these concerns go to the weight of Stutz’s opinions rather than their reliability and should be left for the factfinder’s consideration.
Case Details:
Case Caption:
Addison, Et Al. V. Louisiana Regional Landfill Company, Et Al
On March 13, 2020, sixteen Montana youth (collectively Plaintiffs or Youth Plaintiffs), then between two and 18 years old, filed a complaint against the State of Montana challenging the constitutionality of the State’s fossil fuel-based state energy system, which they alleged caused and contributed to climate change in violation of their constitutional rights guaranteed under Article II, Section 3; Article II, Section 4; Article II, Section 15; Article II, Section 17; Article IX, Section 1; Article IX, Section 3 of the Montana Constitution; and the Public Trust Doctrine.
Specifically, the complaint challenged the constitutionality of certain fossil fuel-based provisions which prohibited the State and its agents from considering the impacts of greenhouse gas (GHG) emissions or climate change in their environmental reviews; and the aggregate acts the State took to implement and perpetuate a fossil fuel-based energy system.
Youth Plaintiffs asked the Court to acknowledge the [Montana Environmental Policy Act] Limitation’s contribution to the depletion and degradation of Montana’s environment and natural resources.
Ecology Expert Witnesses
Dr. Steven Running is a University Regents Professor Emeritus of Global Ecology in the College of Forestry and Conservation at the University of Montana. Running currently co-chairs the standing Committee for Earth Science and Application from Space of the National Academy of Science. In 2007, Running shared the honor of the Nobel Peace Prize as a chapter Lead Author for the 4th Assessment Report of the Intergovernmental Panel on Climate Change (IPCC).
Dr. Dan Fagre holds a Ph.D. from the University of California, Davis. He joined the National Park Service as a research scientist in 1989 and, in 1991, he became the Climate Change Research Coordinator at Glacier National Park as part of the nationwide United States Global Change Research Program. His position was transferred to the United States Geological Survey (USGS), where he served until his retirement in 2020, after which he has continued as Scientist Emeritus. He also served as a Research Ecologist at the Northern Rocky Mountain Science Center.
Dr. Jack Stanford received his Ph.D. in Freshwater Ecology at the University of Utah.He is Professor Emeritus at the Flathead Lake Biological Station (FLBS) of the University of Montana. He was the Director and Bierman Professor of Ecology at the University of Montana (1980-2016). His primary area of research is aquatic ecosystem processes, including influences of human activities.
Dr. Cathy Whitlock is Regents Professor Emerita of Earth Sciences and a Fellow of the Montana Institute on Ecosystems at Montana State University (MSU). Whitlock was lead author of the 2017 Montana Climate Assessment, and in 2020 co-authored a state-level Montana Climate Solutions Plan and a 2021 special report of the Montana Climate Assessment entitled Climate Change and Human Health in Montana. Whitlock was also co-lead author of the 2021 Greater Yellowstone Climate Assessment.
Dr. Lori Byron obtained a Doctor of Medicine degree in 1984. She has been a board-certified pediatrician since 1988. Byron earned a M.S. in Energy Policy and Climate from Johns Hopkins in 2020. From 1988-2015, Byron worked with the Indian Health Service in Crow Agency, Montana, providing primary care, emergency care, and public health services to Crow Indian children. Byron now works as a pediatric hospitalist at SCL Health in Billings, Montana. Byron has decades of experience caring for children who have suffered Adverse Childhood Events (ACEs). Over the past decade, Lori Byron and her husband, Rob Byron, have made presentations on climate change and health locally, nationally, and internationally.
Dr. Lise Van Susteren is a board certified general and forensics clinical psychiatrist, in practice for thirty years. She is a Clinical Associate Professor of Psychiatry and Behavioral Sciences at George Washington University in Washington, D.C. In 2009, Van Susteren co-convened one of the first conferences on the psychological effects of climate change. In 2013, Van Susteren worked with Dr. James Hansen and other experts on a paper, Assessing “Dangerous Climate Change”: Required Reductions of Carbon Emissions to Protect Young People, Future Generations and Nature. She received the Distinguished Fellow award of the American Psychiatric Association, its highest membership honor in May 2018. Van Susteren has helped develop youth climate anxiety assessment tools, conducted research and reviewed data in assessing the mental health of young people faced with climate change.
Michael Durglo, Jr., is a member of the Confederated Salish and Kootenai Tribes (CSKT). He has a Bachelor of Science degree in Environmental Science from Salish Kootenai College. Durglo has worked in different capacities for the CSKT for over three decades. In his current role as Head of the Tribal Preservation Department and Chairman of the Climate Change Advisory (CCAC), Durglo has worked extensively with tribal elders and youth on climate related issues.
Anne Hedges received a B.S. in environmental policy analysis and planning from the University of California at Davis in 1988 and a Master of Environmental Law, magna cum laude, from Vermont Law School in 1993. She is Co-Director and Director of Policy and Legislative Affairs at the Montana Environmental Information Center (MEIC). She directs MEIC’s program work, including its legislative, regulatory, policy, and legal activities.
Peter Erickson received a bachelor’s degree in Geology in 1998 at Carleton College, Minnesota, as well as coursework in intermediate microeconomics and macroeconomics at the University of Washington. Erickson has worked as an environmental and climate policy and technical analyst in greenhouse gas emission accounting, most recently with the Stockholm Environment Institute, an international research institution providing, in part, technical analysis to government and NGOs on the details of climate policy and emissions accounting.
Terry Anderson has published widely in the popular press and professional journals, including The Wall Street Journal, Christian Science Monitor, Fly Fisherman, Journal of Law and Economics, and Economic Inquiry. During his career at Montana State University, Anderson received several outstanding teaching awards and is now professor emeritus of economics. He received his B.S. from the University of Montana and earned a Ph.D. in economics from the University of Washington.
Mark Jacobson obtained a M.S. in Environmental Engineering, from Stanford University. Dr. Jacobson also obtained both a M.S. and later a Ph.D. in Atmospheric Sciences from UCLA. In 1994, Jacobson became an Assistant Professor in the Department of Civil & Environmental Engineering at Stanford. Since 2007, he has been a full professor in that Department. Jacobson was a co-founder and is Director of Stanford’s Atmosphere/Energy Program, as well as a Senior Fellow at Stanford’s Precourt Institute for Energy, and Stanford’s Woods Institute for the Environment.
Steven Running provided testimony in the general areas of the climate system, including the energy balance and imbalance, the physics of GHG emissions that are driving climate change, the global carbon cycle, the global hydrologic cycle, how they control this energy imbalance, and then how human caused fossil fuel development is harming Montana’s ecosystems and hydrology while Cathy Whitlock explained how human-caused fossil fuel development and the resulting release of CO2 into the atmosphere are harming Montana’s ecosystems, water supplies, communities, and the Plaintiffs themselves. Whitlock’s testimony included projections for Montana’s future based on continuing or increasing the present rate of GHG emissions.
CLIMATE CHANGE HARMS CHILDREN AND SPECIFICALLY THE YOUTH PLAINTIFFS
Lori Byron provided testimony that climate change and the air pollution associated with it are negatively affecting children in Montana, including Youth Plaintiffs, with a strong likelihood that those impacts Will worsen in the absence of aggressive actions to mitigate climate change. Lise Van Susteren provided testimony on the physiological harms caused by climate change to Montana’s youth, including the Youth Plaintiffs, the psychological harms caused by the MEPA Limitation, and the availability of remedies to alleviate Plaintiffs’ psychological injuries. Michael Durglo brought to the table his extensive experience working with tribal elders and youth on climate related issues. The Court found their testimony informative and credible.
CLIMATE CHANGE IS ALREADY ADVERSELY AFFECTING MONTANA’S NATURAL ENVIRONMENT
Dan Fagre helped develop a national climate change research program within the National Park Service, coordinating with other scientists at national parks from Florida to Alaska. He built a research program centered on Glacier Park as a representative mountain ecosystem, engaging faculty and scientists from Montana universities and across the U.S.
Jack Stanford has published over 220 scientific papers and books on aquatic ecosystem processes, including influences of human activities.
Both Stanford and Fagre were of the opinion that anthropogenic climate change was impacting, degrading, and depleting Montana’s environment and natural resources.
The Court observed that of the approximately 146 glaciers present in Glacier National Park in 1850, only twenty-six glaciers larger than twenty-five acres remained in 2015. 82% of Glacier Park’s glaciers were gone and there had been a 70% loss of area of all glaciers. Moreover, Montana’s water resources were critically important to Youth Plaintiffs and all Montana citizens and to many people beyond the State’s borders. Anthropogenic climate change was disrupting the natural range of variation in the flow paths of Montana’s river systems.
DEFENDANTS’ ACTIONS CONTRIBUTE TO CLIMATE CHANGE AND HARM PLAINTIFFS
Anne Hedges shed light on pollution-related policy issues in Montana, emphasizing on impacts to air, water, landscapes, and climate from fossil fuels.
Peter Erickson testified about Montana’s fossil fuel consumption, extraction, and infrastructure, focusing on three categories: (1) extraction of fossil fuels; (2) processing and transportation of fossil fuels; and (3) consumption of fossil fuels by end users. For each of these categories, Erickson quantified the amount of coal, oil, and gas and translated that in units of carbon dioxide (CO2) emissions released from the fuels once they are combusted. Erickson added up all the coal, oil, and gas to determine the emissions associated with the extraction, consumption, and transportation of those fuels. In his opinion, emissions from Montana’s fossil fuel consumption, extraction, and infrastructure were globally significant quantities.
Defendants offered the testimony of Terry Anderson as an expert economist. Purporting to be based on data from the Energy Information Agency (EIA), Anderson provided extremely limited testimony in response to three questions: (1) the total greenhouse gas emissions for the world; (2) the 2020 greenhouse gas consumption emissions for the state of Montana; and (3) the 2022 greenhouse gas consumption emissions for the state of Montana.
The Court held that Anderson’s testimony was not well-supported and contained errors.
Defendants permitted three types of fossil fuel-related activities: (1) extraction of fossil fuels; (2) processing and transportation of fossil fuels; and (3) consumption of fossil fuels by end users.
Data indicated that in 2019, total annual fossil fuels consumed in Montana led to about 32 million tons of CO2 being released into the Atmosphere.
THE MEPA LIMITATION PREVENTS FULL REVIEW OF THE TECHNOLOGICALLY AND ECONOMICALLY AVAILABLE ALTERNATIVES TO FOSSIL FUEL ENERGY IN MONTANA
In this case, Mark Jacobson summarized his research related to Montana and the feasibility of transitioning Montana swiftly from fossil fuels to clean and renewable energy in all sectors by mid-century, where all energy sectors include electricity, transportation, heating/cooling, and industry.
Data indicated that it was technically and economically feasible for Montana to replace 80% of existing fossil fuel energy by 2030 and 100% by no later than 2050, but as early as 2035.
Held
The Court ruled that the MEPA Limitation deprived Plaintiffs of their constitutionally guaranteed rights. It upheld Plaintiff’s fundamental constitutional right to a clean and healthful environment, which includes climate as part of the environmental life-support system.
Key Takeaways:
Informative and credible testimony presented by experts helped the Court see that Montana has already warmed significantly more than the global average. The science is clear that there are catastrophic harms to the natural environment of Montana and Plaintiffs and future generations of the State due to anthropogenic climate change.
In terms of per capita emissions, Montana’s consumption of fossil fuels is disproportionately large and only five states have greater per capita emissions. Montana is a major emitter of [greenhouse gas] emissions in the world in absolute terms, in per person terms, and historically. The current barriers to implementing renewable energy systems are not technical or economic, but social and political. Such barriers primarily result from government policies that slow down and inhibit the transition to renewables, and laws that allow utilization of fossil fuel development and preclude a faster transition to a clean, renewable energy system.
Case Details:
Case Caption:
Held V. State
Docket Number:
CDV-2020-307
Court:
First Judicial District Court of Montana, Lewis and Clark County
