Natural Resources Defense Council et al v. Ameren Energy Resources Company LLC et al

Filing 226

ORDER & OPINION entered by Judge Joe Billy McDade on 11/1/2018. Defendants Motion to Exclude the Testimony of Joel Schwartz 183 and Motion to Strike the Declaration of Ian Fisher 203 are DENIED. Plaintiffs requests for oral argument are DENIED and Plaintiffs Motion for Leave to Respond to Defendants Objection to Consideration of Expert Reports on Summary Judgment 221 is GRANTED. See full Order & Opinion attached. (RK, ilcd)

E-FILED

Friday, 02 November, 2018 08:03:16 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
NATURAL RESOURCES DEFENSE
COUNCIL, RESPIRATORY HEALTH
ASSOCIATION, and SIERRA CLUB,
INC.,
Plaintiffs,
v.
ILLINOIS POWER RESOURCES
GENERATING, LLC,
Defendant.

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Case No. 1:13-cv-1181

ORDER & OPINION
This matter is before the Court on Defendant’s Motion to Exclude the
Testimony of Joel Schwartz (Doc. 183) and Motion to Strike the Declaration of Ian
Fisher (Doc. 203) as well as Plaintiffs’ Motion for Leave to Respond to Defendant’s
Objection to Consideration of Expert Reports on Summary Judgment (Doc. 221) and
requests for oral argument on both cross-motions for summary judgment (Docs. 184
at 2, 198 at 9 n.1). For the reasons discussed below, Defendant’s Motion to Exclude
the Testimony of Joel Schwartz (Doc. 183) and Motion to Strike the Declaration of
Ian Fisher (Doc. 203) are DENIED. Plaintiffs’ requests for oral argument are
DENIED and Plaintiffs’ Motion for Leave to Respond to Defendant’s Objection to
Consideration of Expert Reports on Summary Judgment (Doc. 221) is GRANTED.
Defendant’s Response to Plaintiffs’ Motion for Leave (Doc. 225) is construed as a surresponse to Plaintiffs’ response (Doc. 221-1).

BACKGROUND1
Defendant is liable for violations of the Clean Air Act with respect to certain
opacity exceedances at the Edwards Power Station (“Edwards”) as detailed in this
Court’s Order and Opinion on the parties’ cross-motions for summary judgment on
liability. (Doc. 124). The parties have now filed cross-motions for partial summary
judgment on the potential remedies. (Docs. 180, 184). Plaintiffs requested oral
argument on both motions. (Docs. 184 at 2, 198 at 9 n.1). Attendant to its motion for
partial summary judgment, Defendant filed a Motion to Exclude the Testimony of
Joel Schwartz (Doc. 183) and attendant to its response to Plaintiffs’ motion for partial
summary judgment, Defendant filed a Motion to Strike the Declaration of Ian Fisher
(Doc. 203). Plaintiffs have sought leave to file a response to Defendant’s reply to
Plaintiffs’ Response to Defendant’s motion for partial summary judgment. (Doc. 221).
The parties have fully briefed these motions and requests, so the issues in them are
ready for determination.
DISCUSSION
I.

Defendant’s Motion to Exclude the Testimony of Dr. Joel Schwartz
Defendant challenges the admission of expert testimony from Dr. Joel

Schwartz under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993),
and Federal Rule of Evidence 702.2 (Doc. 183). Dr. Schwartz’s expert report submits

The facts presented are limited to those pertinent to the determination of the
motions ruled on in this Order and Opinion. For a complete factual background, see
this Court’s Order and Opinion from August 23, 2016 on the parties’ cross motions
for summary judgment (Doc. 124).
2 Although Rule 702 was revised in 2000, the Seventh Circuit has explained that
Daubert “remains the gold standard for evaluating the reliability of expert testimony
1

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three primary opinions: “(1) exposure to particulate matter (PM) results in increased
death and hospitalization; (2) . . . any amount of exposure [to PM] has substantial
adverse impacts on health; and (3) the Edward’s [sic] Plant’s illegal emission of PM
have resulted in a quantifiable number of deaths and hospital admissions.” (Doc. 1932 at 8).3 The report provides support for these opinions in two ways. First, Dr.
Schwartz reviews scientific literature and statements by scientific and governmental
organizations responsible for scientific policy. (Doc. 193-2 at 9–73). Second, Dr.
Schwartz performs a quantitative risk analysis (“QRA”) to determine the number of
deaths and hospitalizations caused by emissions at Edwards during the liability
period and estimate the number of deaths and hospitalizations that would be avoided
in the future if Edwards installs certain pollution controls. (Doc. 193-2 at 74–80).
In examining a Daubert challenge, this Court’s role is to serve as a gatekeeper
of expert testimony by ensuring “the principles and methodology reflect reliable
scientific practice”—“the key to the gate is not the ultimate correctness of the expert’s
conclusions.” Schultz v. Akzo Nobel Paints, LLC, 721 F.3d 426, 431 (7th Cir. 2013).
Although this is true in a bench trial as in a jury trial, Kawasaki Kisen Kaisha, Ltd.
v. Plano Molding Co., 782 F.3d 353, 360 (7th Cir. 2015), the Daubert concerns “are of
lesser importance” where the case is tried by the Court, because “the primary purpose
of the Daubert filter is to protect juries from being bamboozled by technical evidence
of dubious merit,” Loeffel Steel Prods., Inc. v. Delta Brands, Inc., 372 F. Supp.2d 1104,

and is essentially codified in the current version of Rule 702.” Manpower, Inc. v. Ins.
Co. of Pa., 732 F.3d 796, 806 (7th Cir. 2013).
3 This Order & Opinion uses “PM” to refer to particulate matter of 2.5 micrograms or
less (PM2.5) rather than other size categories of PM, such as particulate matter of 10
micrograms or less (PM10).
3

1123 (N.D. Ill. 2005) (citing SmithKline Beecham Corp. v. Apotext Corp., 247 F.
Supp.2d. 1011, 1041–42 (N.D. Ill. 2003) (Posner, J., sitting by designation) aff’d on
other grounds, 403 F.3d 1331 (Fed. Cir. 2005)); Whitehouse Hotel Ltd. P’ship v.
Comm’r, 615 F.3d 321, 330 (5th Cir. 2010) (“[T]here being no jury [in a bench trial],
there is no risk of tainting the trial by exposing a jury to unreliable evidence.”).
The Daubert inquiry requires this Court to evaluate three things: “(1) the
proffered expert’s qualifications; (2) the reliability of the expert’s methodology; and
(3) the relevance of the expert’s testimony.” Gopalratnam v. Hewlett-Packard Co., 877
F.3d 771, 779 (7th Cir. 2017) (emphasis in original). In other words, expert testimony
must be presented by a qualified witness, be “grounded in the methods and
procedures of science,” and “assist the trier of fact to understand or determine a fact
in issue.” Krik v. Exxon Mobil Corp., 870 F.3d 669, 674 (7th Cir. 2017) (quoting
Daubert, 509 U.S. at 590–91) (alterations omitted). Plaintiffs, as “[t]he part[ies]
seeking to introduce the expert witness testimony[,] bear[] the burden of
demonstrating that the expert witness testimony satisfies the standard by a
preponderance of the evidence.” Id. at 673.
Defendant wisely does not challenge Dr. Schwartz’s qualifications. (Doc. 183
at 4). Dr. Schwartz’s uncontested credentials include being the most cited author in
the field of air pollution, over 600 peer-reviewed papers on air pollution, numerous
memberships, positions, prior advice to the World Health Organization, and
testimony before both Congress and other courts. (Doc. 193-2 at 7). The Court finds
him qualified. The inquiry becomes whether Dr. Schwartz’s proposed expert
testimony is also reliable and relevant.

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A. Reliability
“Rule 702’s reliability elements require the [Court] to determine only that the
expert is providing testimony that is based on a correct application of a [valid]
methodology and that the expert considered sufficient data to employ the
methodology.” Stollings v. Ryobi Techs., Inc., 725 F.3d 753, 766 (7th Cir. 2013). “The
focus, therefore, ‘must be solely on principles and methodology, not on the conclusions
that they generate.’ ” Gopalratnam, 877 F.3d at 781 (quoting Daubert, 509 U.S. at
595). Although formalistically separate, in practice “conclusions and methodology are
not entirely distinct from one another. Trained experts commonly extrapolate from
existing data.” Manpower, Inc., 732 F.3d at 806 (quoting Gen. Electric Co. v. Joiner,
522 U.S. 136, 146 (1997)).
The inquiry into reliability is “fact-dependent and flexible.” Lapsley v. Xtek,
Inc., 689 F.3d 802, 810 (7th Cir. 2012). Daubert set out four factors of reliability for
scientific evidence: “whether or not the theory or technique has been (1) tested, (2)
subjected to peer review and publication, (3) analyzed for known or potential error
rate, and/or is (4) generally accepted within the specific scientific field.” Id. (citing
Daubert, 509 U.S. at 593–94). The Seventh Circuit has recognized six other factors
set forth in the 2000 Advisory Committee’s Notes to Rule 702 as relevant to the
reliability inquiry:
(5) whether maintenance standards and controls exist; (6) whether the
testimony relates to matters growing naturally and directly out of
research they have conducted independent of the litigation, or developed
expressly for purposes of testifying; (7) whether the expert has
unjustifiably extrapolated from an accepted premise to an unfounded
conclusion; (8) whether the expert has adequately accounted for obvious
alternative explanations; (9) whether the expert is being as careful as
he would be in his regular professional work outside his paid litigation
5

consulting; and (10) whether the field of expertise claimed by the expert
is known to reach reliable results for the type of opinion the expert would
give.
Gopalratnam, 877 F.3d at 779–80 (citations, internal quotation marks, and
alterations omitted).4
Although lengthy, “this list is neither exhaustive nor mandatory.” Id. at 780
(citation omitted). The Seventh Circuit has instructed district courts to “apply these
factors flexibly as the case requires.” Krik, 870 F.3d at 674. Moreover, an expert need
not perform “hands-on testing”; a “ ‘review of experimental, statistical, or other
scientific data generated by others in the field’ may suffice as a reasonable
methodology upon which to base an opinion.” Clark v. Takata Corp., 192 F.3d 750,
758 (7th Cir. 1999) (quoting Cummins v. Lyle Indus., 93 F.3d 362, 369 (7th Cir. 1996)).
Defendant argues that Dr. Schwartz’s opinions are unreliable because (1) he
did not consider the specific type of PM or the regional characteristics of Peoria; (2)
his approach differs from that in his peer-reviewed papers; and (3) his conclusion that
any amount of PM is harmful is unsupported. (Doc. 183 at 11–12).5
1. The Type of PM & the Regional Characteristics of Peoria
It is undisputed that Dr. Schwartz assumes all PM of the same size is equally
harmful to human health. To support this assumption, Dr. Schwartz notes that time
series studies have shown harm to human health from various different types of PM,
including wood smoke, sulfate particles, and traffic particles. (Doc. 193-2 at 46). As

The Court will refer back to the numbering used here when discussing these factors.
Defendant separately argues that Dr. Schwartz “failed to consider the type of PM”
and “there is no basis in science to make the assumption . . . that generic PM is
equipotent to coal fly ash PM.” (Doc. 183 at 11–12). The Court will treat these
contentions together.

4
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Dr. Schwartz explains, “[i]n the absence of good evidence that any source or type of
particle had a different impact, the CASAC [Clean Air Science Advisory Committee]
recommended . . . treating particles from all sources as having the same toxicity.”
(Doc. 193-2 at 46) (emphasis in original). Dr. Schwartz presents further inconclusive
studies in his rebuttal report to suggest that attempting to differentiate effects by
type of PM would not be proper “until better data is developed.” (Doc. 193–7 at 43).
Defendant cites to the Declaration of its own expert witness, Dr. Lucy Fraiser, to
argue that coal fly ash is less toxic than ordinary PM so it is unreliable to apply
generic PM studies to a coal fly ash PM exceedance. (Doc. 183 at 6–8, 12).6
Additionally, and in a separate section, Defendant argues Dr. Schwartz lacks a
scientific basis for the assumption. (Doc. 183 at 14).
It is similarly agreed that Dr. Schwartz assumes a generic concentrationresponse (C-R) curve based on national data rather than a Peoria-specific C-R curve
in his QRA. (Docs. 183 at 12, 193 at 15). As with the type of PM, Plaintiffs urge that
the use of a curve generated from national data is justified in the face of inconsistent
results from studies attempting to determine region-specific C-R curves. (Doc. 193 at
15; Doc. 193-7 at 43). Defendant argues that this differs from Dr. Schwartz’s peerreviewed research and that national data is less representative on a local scale. (Doc.
183 at 12). Plaintiffs respond that Dr. Schwartz used the same assumptions used by

Or so the Court assumes. Defendant cursorily states: “As discussed above, Dr.
Schwartz failed to address the type or species of PM emitted by the plant,”
presumably referring to section I.A.2 of its motion (Doc. 183 at 6–8, 12). At any rate,
the Court cannot consider the differing opinions of dueling experts at the
admissibility stage. Madden v. United States Dep’t of Veterans Affairs, 873 F.3d 971,
973–74 (7th Cir. 2017).
6

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EPA in performing risk analyses (Doc. 193 at 13–15); anticipating this argument,
Defendant argues that EPA’s choices dealing with a scientific gap while making
policy decisions do not justify an assumption in evidence presented in a judicial
proceeding (Doc. 183 at 14).
The fact that this challenge is about the assumptions made by an expert rather
than his methodology dictates the outcome. “The reliability of data and assumptions
used in applying a methodology is tested by the adversarial process and determined
by the [trier of fact]; the court’s [gatekeeping] role is generally limited to assessing
the reliability of the methodology—the framework—of the expert’s analysis.”
Manpower, Inc., 732 F.3d at 808; Gayton v. McCoy, 593 F.3d 610, 616 (7th Cir. 2010)
(“Determinations on admissibility should not supplant the adversarial process;
‘shaky’ expert testimony may be admissible, assailable by its opponents through
cross-examination.”). “Accordingly, a district court must admit expert testimony as
long as it is based on a reliable methodology. It is then for the [trier of fact] to evaluate
the reliability of the underlying data, assumptions, and conclusions.” In re Urethane
Antitrust Litig., 768 F.3d 1245, 1263 (10th Cir. 2014) (citing Manpower, Inc., 732 F.3d
at 806–08).
That is not to say that an expert’s assumptions can never be so speculative as
to warrant exclusion of testimony under Rule 702 and Daubert. The Second Circuit
has explained that a “trial judge should exclude expert testimony if it is . . . based on
assumptions that are so unrealistic and contradictory as to suggest bad faith or to be
in essence an apples and oranges comparison.” Restivo v. Hessemann, 846 F.3d 547,
577 (2d Cir. 2017) (quoting Zerega Ave. Realty Corp. v. Hornbeck Offshore Transp.,

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LLC, 571 F.3d 206, 214 (2d Cir. 2009)). But the Second Circuit still recognizes that,
“[b]y contrast, ‘other contentions that the assumptions are unfounded go to the
weight, not the admissibility, of the testimony.’ ” Id. (quoting Boucher v. U.S. Suzuki
Motor Corp., 73 F.3d 18, 21 (2d Cir. 1996)); accord Kochert v. Greater Lafayette Health
Servs., Inc., 4:01-cv-0027, 2004 WL 5508690, at *2 (N.D. Ind. Nov. 15, 2004).
Dr. Schwartz’s assumptions are not unrealistic. As he has explained, the
science on equitoxicity of PM and regional differences in the health effects of PM has
been inconclusive. It is not an unrealistic possibility, therefore, that all PM of the
same size is equally toxic or that regional differences do not alter the C-R curve. Nor
are his assumptions in the report contradictory. Therefore, there is no reason to
suppose he is engaging in an apples-to-oranges comparison, let alone that he is
offering his conclusions in bad faith. These challenges go solely to the inputs Dr.
Schwartz has plugged into his framework, not the framework itself. They are
therefore not sufficient bases to exclude his testimony under Daubert and Rule 702.
The only caselaw cited by Defendant (Doc. 183 at 15)—and, for that matter,
Plaintiffs (Doc. 193 at 18)—on this point is completely inapposite. In Bielskis v.
Louisville Ladder, Inc., the Seventh Circuit upheld the exclusion of testimony where
the expert in question did not support the challenged part of his testimony with even
his own ipse dixit—the plaintiff’s expert did testify that one of his assertions was
widely accepted in the relevant expert community, but the defendant was challenging
a different assertion. 663 F.3d 887, 895 (7th Cir. 2011); see also Heer v. Costco
Wholesale Corp., 589 F. App’x 854, 861–61 (10th Cir. 2014) (explaining that in
Bielskis, “the expert made no attempt to test his hypothesis, provided no evidence of

9

consensus in the engineering community that his theory was accurate, and failed to
show that his alternative designs were the product of reliable principles and
methods.”) (citation and internal quotation marks omitted). But in that case, the
challenge went to the expert’s methods (or lack thereof), not assumptions he made in
applying those methods. See Bielskis, 663 F.3d at 894–95 (the expert’s “methodology
sounded more like the sort of talking off the cuff—without data or analysis—that [the
Seventh Circuit] ha[s] repeatedly characterized as insufficient” and the expert’s
“ ‘methodology’ of looking at the failed caster stem with his naked eye could not be
subjected to peer review.”) (citation, internal quotation marks, and alterations
omitted). To claim, as Defendant does, that Bielskis presented “similar
circumstances” to the instant case (Doc. 183 at 15) is possible only if one focuses on
cherry-picked statements of law artificially divorced from the facts.
2. The Differences Between Dr. Schwartz’s Published Works and his
Testimony
Defendant argues Dr. Schwartz’s risk analysis differs from his published work
in that he fails to acknowledge differing C-R slopes based on location and because he
does not characterize the uncertainty around his C-R slope. (Doc. 183 at 12). The
contention about location is, as discussed above, a matter of an assumption. To the
extent Dr. Schwartz’s assumption does not accord with his published works, it is a
matter for cross-examination rather than the inquiry on admissibility.
What remains is the lack of characterization of uncertainty. The crux of
Defendant’s argument is Dr. Schwartz provides a confidence interval in his published
and peer-reviewed works, but has not done so here, nor has he discussed the
uncertainty that using national data may have added to his conclusion. (Doc. 183 at
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13). Plaintiffs respond there was no clear way for Dr. Schwartz to define the
confidence intervals here and he used a conservative estimate for the slope—so
conservative, in fact, that it is below the lower bound of the confidence intervals in
his most recent determination of a C-R slope through meta-analysis of studies. (Doc.
193 at 19–21). In debating this issue, the parties’ memoranda talk past each other.
Defendant is arguing the failure to characterize uncertainty is a fatal flaw in the
reliability of Dr. Schwartz’s method of using a C-R slope, while Plaintiffs argue the
slope itself was correct.
Confidence intervals “are statistical estimates of the range within which there
can be reasonable confidence that a correlation or prediction is not the result of
chance variability in the sample on which the correlation or prediction was based; 95
percent confidence is the standard criterion of reasonable confidence used by
statisticians.” ATA Airlines, Inc. v. Fed. Exp. Corp., 665 F.3d 882, 895 (7th Cir. 2011).
It is undisputed that Dr. Schwartz did not use a confidence interval here, but he
typically does in his scholarly work. Defendant’s arguments therefore go to the heart
of two factors in the Daubert analysis: the ability to determine error rate (3) and
whether Dr. Schwartz has been as careful in his expert testimony as he is in his nontestimonial professional work (9).
Dr. Schwartz explained that he did not determine a confidence interval in this
case because he chose the slope “based on advice that EPA’s scientific advisory board
had given them back in 2009,” unlike a slope reached as the result of a meta-analysis,
there was no clear way to generate a confidence interval. (Doc. 183-1 at 224). Even
without a confidence interval, he testified, scientific studies showing that the

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relationship between air pollution and mortality is statistically significant means
that the slope must be greater than zero. (Doc. 183-1 at 225).
The deposition testimony understates the reliability of Dr. Schwartz’s method.
His report explains that the 1.06 slope used has significant scientific backing. It was
the average of the estimates reported in an EPA expert elicitation; it was the slope
used in a United Nations Environment Program and World Meteorological
Association peer-reviewed risk assessment, published in Science; and it was almost
identical to the center of a later expert elicitation, combined with the most prominent
cohort studies, performed by an external scientific peer-review board for EPA (the
precise center was 1.05%). (Doc. 193-2 at 85–87). Dr. Schwartz further justified his
choice by noting that recent published studies tend to show steeper slopes than the
data on which this consensus was founded, making his estimate conservative (Doc.
193-7 at 44), and that his subsequent meta-analysis revealed a slope of 1.29%, with
the lower bound of its confidence interval at 1.09%, which is greater than the
conservative model used in this case (Doc. 193-9 at 3).
The Court understands Dr. Schwartz’s deposition testimony to indicate that
confidence intervals are not standard for slopes derived through expert elicitation,
but rather for slopes derived from meta-analyses. The slopes from expert elicitation
seem to have been tested (1) and subjected to peer review, if not publication (2), and
are generally accepted within the field (4) based upon the recommendation of the
external EPA peer-review organization. Moreover, the Court does not think it fair to
say that Dr. Schwartz was not being as careful in his expert testimony as in his
scholarly work (9) just because he was using a different method, given the care he

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took in ensuring the 1.06% slope was both accurate and conservative. And while it
did not grow out of his non-testimonial work (6), the fact that Dr. Schwartz’s peerreviewed and soon to be published work has confirmed that the 1.06% slope was the
type of conservative estimate—too conservative, in fact—that he supposed it to be
points to reliability as well.
The QRA certainly would have been more reliable if Dr. Schwartz had used the
slope he discovered through meta-analysis with its confidence interval in this case,
regardless of the custom of his field regarding unpublished works. But the care with
which he chose the slope leads the Court to conclude that his methodology of using
the expert elicitation recommended to EPA by an external scientific peer-review
organization was not unreliable. That is not to say the methodology is necessarily
sound. But, even “ ‘shaky’ expert testimony may be admissible, assailable by its
opponents through cross-examination.” Gayton, 593 F.3d at 616. The Court does not
find Defendant’s argument on confidence intervals and uncertainty sufficient to
warrant exclusion under Daubert and Rule 702.
3. The Conclusion that Any Amount of PM is Harmful
Finally, Defendant argues Dr. Schwartz’s conclusion that any incremental
increase in PM emission causes harm has no basis in science. (Doc. 183 at 15). The
Court notes again that a Daubert challenge must focus on the methods used by the
expert, not the expert’s ultimate conclusion. Schultz, 721 F.3d at 431. Nearly the
entirety of Defendant’s argument on this point is “there is no basis in science to make
the leap that such a small amount of PM causes any actual harm, [so] Dr. Schwartz’s
opinion should be excluded.” (Doc. 183 at 15).

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Defendant appears to be challenging the conclusion that a small incremental
increase in PM causes an incremental increase in harm to human health as
untethered from data and thus not the product of reliable methodology. (Doc. 183 at
15). Plaintiffs have demonstrated a basis in science for this conclusion. Dr. Schwartz
cites his own published work indicating both the linear relation between PM exposure
and harm to human health and the lack of a threshold. (Doc. 193-2 at 41–44). Thus,
the methodology Dr. Schwartz is using to arrive at his conclusion is detailed in his
own peer-reviewed, published studies.
Of the ten factors the Seventh Circuit has stated are helpful in conducting
Daubert reviews, Gopalratnam, 877 F.3d at 779–80, this satisfies at least four of
them: Dr. Schwartz’s methodology in the studies has been repeatedly tested (1),
subjected to peer review and publication (2), and was done as part of his scientific
career independent of this litigation (and therefore he was being as careful in
detailing his conclusions here as he was in the peer-reviewed papers) (6 & 9). There
is not enough evidence in the record to suggest the other six considerations point the
other way. In sum, there are significant indicia of reliability supporting Dr.
Schwartz’s conclusion that the relation between PM emissions and harm to human
health is linear, meaning an incremental increase in PM results in an incremental
increase in harm to human health.
Krik, which Defendant cites for the statement that an expert’s testimony can
be excluded as unreliable if the methodology used ignores the dose-dependent nature

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of diseases like cancer (Doc. 183 at 15), is not to the contrary.7 In Krik, the question
was whether a specific individual’s illness was caused by a de minimus exposure to
asbestos. 870 F.3d at 671–72, 674–75. The “each and every exposure” theory rejected
by the district court in that case as unreliable, and which Defendant implies bears on
this case (Doc. 183 at 15), “posit[s] that any exposure to asbestos fibers whatsoever,
regardless of the amount of fibers or length of exposure constitutes an underlying
cause of injury to the exposed individual.” Id. at 672. In Krik, the plaintiff had to
prove that a particular exposure was a “substantial factor” in causing his cancer. Id.
at 677. The each and every exposure theory, by ignoring the dose-dependent nature
of diseases like cancer essentially “improperly shift[ed] the burden to the defendants
to disprove causation and nullifie[d] the requirements of the ‘substantial factor’ test.”
Id. at 675, 677.
Despite the superficial resemblances of determining causation from slight
increases in exposure, the theory in Krik was directed at a completely different
inquiry than Dr. Schwartz’s testimony. In this case, the question is not whether a
specific individual can trace harm to their health to the illegal emissions of Edwards.
Rather, the question is whether the illegal emissions have caused harm to human
health generally. A small increase may result in an increase of harm in a population,
although it is difficult to say which individuals’ conditions were caused by that
increase. Dr. Schwartz’s does not claim to determine that any particular individual
was harmed by the excess emissions, only that the incremental increase in emissions

Defendant cites Bielskis for this proposition as well. (Doc. 183 at 15). For the reasons
discussed above, Bielskis has no application here.
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has quantifiable health impacts. (Doc. 193-2 at 41–45; see also Doc. 193-7 at 31 (The
QRA does not “prove that certain individuals died” due to the excess emissions but
rather calculates “how many excess deaths occurred, compared to what would have
occurred” absent the excess emissions.”)). Krik therefore does not apply to this case.
But that is not the only problem with Defendant’s reliance on Krik. The
portions of Krik Defendant quotes are the Seventh Circuit’s description of the district
court’s decision on a pre-trial motion. 870 F.3d at 674–75. But the ruling on that
motion was not challenged on appeal. Id. at 672. The case was transferred to another
judge, who held that an attempted re-packaging of the theory was the same as the
“each and every exposure” theory, and therefore barred by the earlier ruling. Id. at
677. The question on appeal was whether that determination by the second judge was
an “errant factual determination.” Id. at 672. The Seventh Circuit did ultimately hold
that the second order, excluding the repackaged theory, was correctly reasoned. Id.
at 677. But the portions of Krik cited by Defendant are the reasoning of the district
court, not the circuit court.
This Court is always appreciative of litigants presenting persuasive authority
from other district courts. But Defendant’s lack of care in attributing to the Seventh
Circuit legal statements which were, in fact, the description of a district court opinion
only serves to confuse the case.8 Nevertheless, the quotations from Krik do not apply
in this case for the reasons stated above.

The Court notes Defendant also cited a portion of Bielskis that was a description of
the district court’s reasoning. (Doc. 183 at 15). All of Defendant’s legal citations to
back up this argument were therefore the reasoning of other district courts that
Defendant attributed to the Seventh Circuit.

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B. Relevance
The test for relevance is whether the expert testimony will assist the trier fact.
Owens v. Auxilium Pharm., Inc., 895 F.3d 971, 972 (7th Cir. 2018). Fit is a specific
aspect of relevancy which requires “expert testimony proffered in the case” to be
“sufficiently tied to the facts of the case that it will aid the [trier of fact] in resolving
a factual dispute.” Daubert, 509 U.S. at 591 (quoting United States v. Downing, 753
F.2d 1224, 1242 (3d Cir. 1985)); see also Owens, 895 F.3d at 972 (quoting Hartman v.
EBSCO Indus., Inc., 758 F.3d 810, 819 (7th Cir. 2014)).
Defendant argues Dr. Schwartz’s testimony does not fit this case because: (1)
the QRA did not focus on the harm caused by Edwards’s violations of the Clean Air
Act, but rather the harm from not having stronger pollution control technology
installed; (2) the QRA did not address the specific type of PM—namely, coal fly ash—
that Edwards emits; (3) the QRA did not use a Peoria-specific slope; and (4) the other
opinions offered are drawn from “generic PM on a nationwide basis,” not studies
focused narrowly on the Peoria area and coal fly ash. (Doc. 183 at 4–5, 10). The Court
need not delve far into Defendant’s individual objections because they suffer from a
common flaw: they all go to the weight of the evidence rather than its admissibility.
In Daubert, the Supreme Court illustrated its explanation of fit with the
following example:
The study of the phases of the moon . . . may provide valid scientific
‘knowledge’ about whether a certain night was dark, and if darkness is
a fact in issue, the knowledge will assist the trier of fact. However,
(absent creditable grounds supporting such a link), evidence that the
moon was full on a certain night will not assist the trier of fact in
determining whether an individual was unusually likely to have
behaved irrationally on that night.

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509 U.S. at 591.
To extend the example, Defendant’s argument that opinions drawn from
nationwide data do not fit the case is akin to arguing that the phases of the moon do
not bear on whether a particular night was dark because local factors (cloud cover,
foliage, light from human settlements, etc.) also impact brightness. While those
factors doubtlessly bear on the conclusion, they do not change the relevance of the
generic information of phases of the moon. The fact that the moon is in a certain phase
on a certain night makes it more likely to be the case that the night was bright (or
dark); the fact that, according to Dr. Schwartz, the generic data show any PM
exposure causes harm to human health makes it more likely to be the case that excess
emissions from Edwards caused harm to human health, and future excess emissions
would continue to do so. The same holds true for the use of a C-R slope determined
from national data in the QRA. If, in an average region of the country, incremental
PM emissions increase harm by a certain increment, it is more likely to be true that
they do so in Peoria. And similar is the assumption of equitoxicity—the fact that PM
tends to be toxic at a certain average rate makes it more likely to be true that this
PM was roughly that toxic.
More difficult is the question of whether the QRA is irrelevant because it
focuses on the difference in harm to human health between the current pollution
controls in place at Edwards and if Edwards installed one of the pollution control
options sought by Plaintiffs. Plaintiffs argue this is the only reasonable approach to
measuring the harmful pollution in this case because there is no method of pollution
control that would stop only violations of PM limits without reducing PM generally.

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(Doc. 193 at 12). Be that as it may, this Court is tasked with examining questions of
law, not reason. The QRA—and indeed, all of Dr. Schwartz’s testimony—is relevant
primarily to the issue of injury and harm that could be prevented by the grant of
injunctive relief. But Congress and EPA have determined that a certain level of PM
emission is acceptable. This Court does not think it proper to consider the potential
harm to human health that would be averted by more efficient pollution controls to
the extent those controls would reduce PM emissions already at acceptable levels
according to the Legislative and Executive Branches. Cf. Weinberger v. RomeroBarcelo, 456 U.S. 305, 318 (1982) (reading the Federal Water Pollution Control Act
“as permitting the exercise of a court’s equitable discretion . . . to order relief that will
achieve compliance with the Act.” (emphasis in original)). Plaintiffs have cited no law
to the contrary.
Nonetheless, this too goes to weight rather than admissibility. Dr. Schwartz
opines that if certain anti-pollution technology were installed, the incremental
change in PM emissions would result in quantifiably fewer deaths and
hospitalizations. He also states that any incremental increase in emissions causes
further harm (Doc. 193-2 at 44); it follows that any incremental decrease will prevent
further harm. If the increment at issue is the amount exceeded in violation of law,
the reduction of PM emissions caused by Plaintiffs’ proposed pollution prevention
devices would include that amount because, as Defendant does not dispute, they
would fully prevent any exceedances. It is true that the pollution controls will reduce
emissions already below the amount in exceedance, but some of what they prevent
would be violations of the Clean Air Act. Therefore, the incremental amount of harm

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to human health caused by the exceedances is a portion of the total amount of harm
prevented by the technology. This makes the QRA relevant.
Whether the Court, as the trier of fact at the trial phase, will ultimately find
this testimony credible or of sufficient weight to carry Plaintiffs’ burden is of no
moment for the instant question. And Defendant is free to raise these arguments
about the weight of the evidence at trial through cross-examination or other methods
permitted by the Federal Rules of Evidence. But for the Daubert review, all that
matters is that Dr. Schwartz’s proposed testimony fits the case sufficiently to make
a material fact more likely to be true.
Defendant’s Motion to Exclude the Testimony of Joel Schwartz (Doc. 183) is
denied.
II.

Defendant’s Motion to Strike
This Court’s Local Rules require every motion raising a question of law to

“identify[] the Rule under which the motion is filed.” CDIL-LR 7.1(B)(1). Defendant’s
Motion to Strike the Declaration of Ian Fisher (Doc. 203) did not identify the Rule
under which it was moving. Indeed, it could not have done so for the simple reason
that the Federal Rules of Civil Procedure do not provide for striking affidavits
submitted as part of the summary judgment procedure. In re 3RC Mech. &
Contracting Servs., LLC, 505 B.R. 818, 823 (Bankr. N.D. Ill. 2014). While Rule 12(f)
allows motions to strike, it does so in the context of pleadings and even there only
applies to “any insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter.” Nothing in that Rule suggests it would apply here. United Steel,
Paper and Forestry, Rubber, Mfg., Energy Allied Indus. & Serv. Workers Int’l. Union

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v. Graphic Packaging Int’l., Inc., No. 06-C-1188, 2007 WL 2288069, at *3 (E.D. Wis.
Aug. 4, 2007) (“Graphic Packaging”).
The Seventh Circuit has made clear that motions to strike are strongly
disfavored as they are often nothing more than an attempt to circumvent the
allowance of pages. Custom Vehicles, Inc. v. Forest River, Inc., 464 F.3d 725, 727–28
(7th Cir. 2006) (Easterbrook, J., in chambers); Redwood v. Dobson, 476 F.3d 462, 471
(7th Cir. 2007). Although the Seventh Circuit was speaking in the context of motions
to strike requesting redline edits of appellate briefs, its reasoning applies with the
same force to motions to strike affidavits during the consideration of summary
judgment. Graphic Packaging, 2007 WL 2288069, at *3. Rule 56(c)(2) does allow
parties to object that “material cited to support or dispute a fact cannot be presented
in a form that would be admissible in evidence.” But there is a procedure for making
such objections: the reply memorandum. CDIL-LR 7.1(D)(3); cf. Redwood, 476 F.3d
at 471 (“The Federal Rules of Appellate Procedure provide a means to contest the
accuracy of the other side’s statement of facts: that means is a brief . . . not a motion
to strike.”). Motions to strike “allow parties to circumvent the page limitations of
briefs by providing them an opportunity to present what should be part of the
argument for or against granting the pending motion in an entirely separate round
of briefing.” Graphic Packaging, 2007 WL 2288069, at *3.
The potential to circumvent page limitations is on full display here. The Local
Rules allow reply memoranda an argument section of five pages. CDIL-LR 7.1(D)(5).
Defendant, without objection from Plaintiffs and with the Court’s permission, filed a
six-and-a-half page memorandum in reply (Doc. 208-1) which exceeded that

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limitation. (Docs. 208, 217, 220). Defendant’s Motion to Strike is another nine pages,
meaning if it were allowed, Defendant’s total reply would be three times the number
of pages allowed under CDIL-LR 7.1(D)(5). (Doc. 203). And, as noted in Graphic
Packaging¸ the Motion to Strike triggered another round of briefing. (Doc. 207).
This case is a complex one. Because the Local Rules are designed for all cases
in the district, regardless of the complexity, the Court is understanding of requests
to loosen the Rules where necessary. (Doc. 220 at 2). But the case’s complexities do
not need to be exacerbated by failure to comply with procedural requirements or extra
briefing. Defendant’s Motion to Strike the Declaration of Ian Fisher (Doc. 203) is
therefore denied, and its contents will not be considered by the Court.
III.

Plaintiffs’ Motion for Leave to File a Response
Plaintiffs ask this Court for leave to file a limited response to Defendant’s

objection to the use of unsworn expert witness reports in Plaintiffs’ response to
Defendant’s motion for summary judgment. (Doc. 221). Defendant has filed a
response requesting that the Court “deny, in part, Plaintiffs’ motion.” (Doc. 225 at 2).
Defendant’s response does not actually indicate a position on whether this Court
should allow Plaintiffs to file their proposed response. Rather, it responds
substantively by noting Defendant’s objections to Dr. Schwartz’s testimony and
reserving Defendant’s rights to file further motions concerning evidence as trial
approaches. (Doc. 225 at 1–2).
In ruling on motions for leave to reply in this case, the Court has explained
that it “will permit reply briefs if the opposing motion has introduced new and
unexpected issues.” (Doc. 220 at 2 (quoting Doc. 130 at 12–14)). That standard applies

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in this context as well. Defendant’s objections in their reply (Doc. 208-1) fall into the
category of new and unexpected issues. Therefore, Plaintiffs’ motion for leave to file
a response is granted, and the arguments in their response (Doc. 221-1) will be
considered by the Court.
The Court recognizes that the Local Rules are designed to allow the party
moving for summary judgment a chance to reply to responses. CDIL-LR 7.1(D)(3). In
this spirit, and because Defendant’s submission engages the merits of Plaintiffs’
response, the Court will construe Defendant’s Response to Plaintiffs’ Motion for
Leave (Doc. 225) as a sur-response to Plaintiffs’ Response to Defendant’s Objection to
Consideration of Expert Reports on Summary Judgment (Doc. 221-1) and consider
the sur-response to the extent Defendant’s arguments therein are not rendered moot
by other rulings in this Order & Opinion. Further requests from any party for
opportunities to brief issues arising out of the cross-motions for summary judgment
and attendant motions will be viewed unfavorably.
IV.

Plaintiffs’ Requests for Oral Argument
Plaintiffs properly requested oral argument on their and Defendant’s motions

for partial summary judgment under Local Rule 7.1(D)(4) by placing the requests in
their motion and response, respectively. (Docs. 184 at 2, 198 at 9 n.1). Plaintiffs did
not, however, indicate why they believe oral argument would aid the Court in
deciding the motions. Defendant has not stated a position on these requests. At this
time, the Court does not think oral argument necessary and in its discretion denies
Plaintiffs’ requests. Should the Court determine that oral argument would be helpful,
it will notify the parties.

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CONCLUSION
For the reasons stated, Defendant’s Motion to Exclude the Testimony of Joel
Schwartz (Doc. 183) and Motion to Strike the Declaration of Ian Fisher (Doc. 203) are
DENIED. Plaintiffs’ requests for oral argument are DENIED and Plaintiffs’ Motion
for Leave to Respond to Defendant’s Objection to Consideration of Expert Reports on
Summary Judgment (Doc. 221) is GRANTED.
SO ORDERED.
Entered this 1st day of November, 2018.
s/Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge

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