Town of Westport et al v. Monsanto Company et al

Filing 241

Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER - The Court ALLOWS the motion for summary judgment, D. 205, and DENIES the motion for partial summary judgment, D. 201, as moot. Furthermore, the Court DENIES the motions to exclude expert testimony, D. 153, D. 157, D. 159, D. 164, D. 167, D. 170, D. 173, as moot. While the Court would otherwise have partially granted the motions to exclude at trial the expert testimony of Jack V. Matson, D. 155, and Michael Duarte, D. 158, for the reasons discussed supra, the Court also DENIES those as moot in light of its allowance of the motion for summary judgment. (Hourihan, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
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TOWN OF WESTPORT,
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Plaintiff,
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v.
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Civil Action No. 14-12041
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MONSANTO COMPANY et al.
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Defendants.
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)
)
__________________________________________)
MEMORANDUM AND ORDER
CASPER, J.
I.

April 7, 2017

Introduction
Plaintiff Town of Westport (“Westport”) has filed this lawsuit against Defendants

Monsanto Company, Pharmacia Corporation and Solutia, Inc. (collectively “Pharmacia”) alleging
that one of its school buildings, Westport Middle School (“WMS”), was contaminated with
polychlorinated biphenyls (“PCBs”) that originated from plasticizers produced by Pharmacia. D.
1. Pharmacia has moved for summary judgment as to Westport’s claims of breach of the implied
warranty of merchantability for defective design (Count I), breach of the implied warranty of
merchantability for failure to warn (Count II) and negligence (Count III). D. 205. Alternatively,
Pharmacia has moved for partial summary judgment on Westport’s claim of damages, asking that
the Court limit Westport’s damages to no more than the fair market value of WMS. D. 201. Lastly,
both parties have filed numerous motions to exclude the expert reports and anticipated testimony
of a number of proposed experts. D. 153; D. 155; D. 157; D. 158; D. 159; D. 164; D. 167; D. 170;
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D. 173. For the reasons stated below, the Court ALLOWS the motion for summary judgment, D.
205, and DENIES the motion for partial summary judgment, D. 201, as moot. Furthermore, the
Court DENIES the motions to exclude expert testimony as moot, D. 153; D. 155; D. 157; D. 158;
D. 159; D. 164; D. 167; D. 170; D. 173.
II.

Factual Background
Unless otherwise noted, the following undisputed material facts are drawn from the parties’

statements of material facts and their responses. WMS was built in or about 1970. D. 207 ¶ 38;
D. 212-1 ¶ 38. The construction specifications of WMS called for the use of caulk. D. 207 ¶¶ 3839; D. 212-1 ¶¶ 38-39. While Pharmacia did not manufacture, formulate, sell or market caulk, it
did sell chemical additives—called plasticizers—that were then used by intermediary distributors
and product manufacturers (or “formulators”) in their caulk formulations. D. 207 ¶ 9; D. 212-1 ¶
9. One such formulator, Product Research & Chemical Corporation (“PRC”), supplied caulk to
the contractors hired by Westport for the construction of WMS. D. 207 ¶¶ 15, 39; D. 212-1 ¶¶ 15,
39. Pharmacia did not determine the caulk formulation; this was instead determined exclusively
by the formulators. D. 207 ¶ 10; D. 212-1 ¶ 10. Thus, while Pharmacia played a role in suggesting
particular chemical compositions to formulators based on Pharmacia’s own studies, the
formulators ultimately determined the composition of the various interacting components that
would make up the caulk—such as the base resin, fillers, plasticizers and other additives. Id. As
such, caulk formulations—like the one supplied to the WMS contractors by PRC—were
proprietary to their manufacturer. Id. ¶ 14; D. 212-1 ¶ 14.
Some Pharmacia plasticizers consisted of mixtures of PCBs, which are a class of 209
nonpolar chlorinated hydrocarbons with a biphenyl nucleus on which one to ten of the hydrogens
have been replaced by chlorine. D. 207 ¶¶ 1, 3; D. 212-1 ¶¶ 1, 3. Commercial PCBs, like those

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manufactured by Pharmacia, were sold as complex mixtures containing multiple PCB isomers
(congeners) at different degrees of chlorination. D. 207 ¶ 1; D. 212-1 ¶ 1. The Pharmacia PCBcontaining Aroclor numbers included but were not limited to 1248 and 1254. D. 207 ¶ 3; D. 2121 ¶ 3. In 1970, in response to growing information regarding PCBs’ environmental presence,
Pharmacia began voluntarily phasing out the sale of PCBs for various applications, but continued
to sell certain PCB-containing plasticizers after this date. D. 207 ¶ 7; D. 212-1 ¶ 7. Pharmacia
ended the manufacture and sale of PCBs for all uses by 1977. D. 207 ¶ 8; D. 212-1 ¶ 8.
In 2010, Westport planned to replace multiple windows at WMS as a part of the
Massachusetts State Building Authority’s Green Repair Program. D. 207 ¶ 44; D. 212-1 ¶ 44. In
furtherance of this project, Westport tested the WMS facility for potentially hazardous materials,
including PCBs, on May 11, 2011. D. 207 ¶¶ 45-46, 48; D. 212-1 ¶¶ 45-46, 48. These tests
identified PCBs in window glazing, exterior window caulking and interior door caulking
throughout WMS. D. 207 ¶ 48; D. 212-1 ¶ 48. These PCBs were identified as Aroclor 1248 and
Aroclor 1254. D. 212-1 ¶ 1; D. 229 ¶ 1. Westport then began a multimillion dollar PCB
remediation project to remove all material containing PCBs from WMS. D. 207 ¶ 48; D. 212-1 ¶
48.
III.

Procedural History
Westport instituted this action on May 7, 2014. D. 1. Pharmacia filed a partial motion to

dismiss on July 3, 2014. D. 22. The Court granted the motion and dismissed the claims alleging
public nuisance (Count IV), private nuisance (Count V), trespass (Count VI) and violation of the
Massachusetts Oil and Hazardous Material Release Prevention and Response Act, Mass. Gen. L.
c. 21E §§ 5(a)(3)-(5) (Count VII). D. 44. After the Court denied the motion to dismiss, the parties
proceeded with discovery. The claims for breach of warranty and negligence (Counts I-III) remain.

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The Court heard the parties on the pending motions on March 8, 2017 and took these matters under
advisement. D. 233.
IV.

Motions to Exclude Expert Testimony
Pursuant to Federal Rule of Evidence 702, expert opinion is admissible if 1) “scientific,

technical, or other specialized knowledge will help the trier of fact,” 2) the expert is qualified “by
knowledge, skill, experience, training, or education” to testify on that subject, 3) the expert's
proposed testimony is based upon “sufficient facts or data,” 4) that testimony is the product of
“reliable principles and methods” and 5) the expert “reliably appl[ies] the principles and methods
to the facts of the case.” Fed. R. Evid. 702.
The trial judge is required to “ensur[e] that an expert's testimony both rests on a reliable
foundation and is relevant to the task at hand.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
579, 597 (1993). The trial judge has broad discretion to determine the reliability and relevance of
an expert's proposed testimony. Hochen v. Bobst Grp., Inc., 290 F.3d 446, 452 (1st Cir. 2002).
Pharmacia challenges the admissibility of seven of Westport’s proposed experts. Robert
May, the president of Fuss & O’Neill EnviroScience, LLC—lead environmental consultant on the
WMS PCBs remediation project—would opine that Westport followed a reasonable standard of
care in its response to the discovery of PCBs at the WMS, including reasonably testing for PCBs
and following reasonable and necessary steps in response to its discovery of PCB-containing
building materials. D. 165-1 at 3-9. Ross Hartman, who previously worked for Triumvirate
Environmental—a company responsible scraping and disposing of PCB-containing building
material at WMS—would render an opinion as to the reasonableness of Westport’s future
estimated costs. D. 172-1 at 14-15. Michael Duarte, the head of maintenance and facilities for
Westport Schools, would speak to the maintenance and repair of WMS and explain that the

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maintenance of WMS was reasonable and all actions undertaken relating to cleaning, maintenance,
renovations or repairs at WMS were properly and reasonably performed. D. 161-3. Dr. Jack
Matson, an environmental and chemical engineer, would testify that: (1) Pharmacia knew that
PCBs were known to cause systemic toxic effects resulting in physiological harm; (2) Pharmacia
should have conducted tests to determine the PCB exposures likely to occur from the extended
release of PCBs from polysulfide sealants and other building materials and toxic effects prior to
producing and selling PCB-containing Aroclors as plasticizers for building materials; (3)
Pharmacia should not have sold PCB-containing Aroclors as plasticizers for polysulfide sealants
and other materials used in buildings; and (4) Pharmacia did not meet its corporate responsibilities
to protect consumers, communities and the environment from dangers associated with exposure to
PCBs. D. 156-1 at 13-14, 15, 25. Dr. James Olson, a former reviewer and consultant both to the
Environmental Protection Agency and to the U.S. Public Health Service in evaluating the human
health effects of PCBs, would testify that testify that: (1) PCBs pose a significant threat to human
health; (2) Pharmacia knew from the 1930s that PCBs were toxic to humans and laboratory
animals; (3) Pharmacia should have conducted more comprehensive, long-term studies of the
toxicological effects of PCBs; and (4) had Pharmacia conducted these additional studies in the
1930’s-60’s, they would have found a wide range of cancer and non-cancer effects. D. 541-1 at 4.
Robert Herrick, a certified industrial hygienist, would opine that Westport was reasonable in its
decision to take actions to remove or otherwise remediate PCB contamination at WMS to provide
maximum protection for those inside the school building. D. 160-1 at 5-6. He would also testify
that Westport acted reasonable in deciding to remove or otherwise remediate sources of PCB
contamination from WMS. Id. Finally, Franklin Dorman, an expert in gas chromatography, gas
chromatography-mass spectrometry and analytical methodology for environmental forensics and

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persistent organics analysis, would opine that Pharmacia had the ability to detect PCB
volatilization from PCB products in the 1940s and 50s, even at low levels of concentration. D.
187-1 at 3, 7.
Westport challenges the admissibility of two of Defendants’ experts.

D. 157, 173.

Maureen Reitman, a polymer scientist, would opine as to the chemical and physical properties of
PCBs, the use of PCBs as plasticizers, the plasticizer business, the manufacturing process of
formulators and the choices that formulators made with respect to choosing a suitable plasticizer.
D. 173-2 at 17-24. Martin Barry, a certified industrial hygienist who provided an environmental
and safety assessment of WMS and a review of the PCB sampling and analysis performed at WMS,
would testify that the PCBs found in products at WMS were most likely not manufactured by
Pharmacia. D. 157-2 at 5.
Having considered the motions to exclude, as well as the oppositions to same, the Court
excludes Dr. Matson’s opinions in its consideration of the summary judgment motion to the extent
he opines that Pharmacia knew both that PCBs were toxic and that the volatilization of PCBs
would contaminate indoor air. D. 156-1 at 13, 25. The Court does rely on the expert opinion of
Westport’s toxicologist Dr. James Olson regarding similar subjects. D. 154-1 at 6-13. Unlike Dr.
Matson, however, Dr. Olson addresses what was known industry-wide regarding PCBs as opposed
to what Pharmacia, itself, specifically knew at the time. For example, while Dr. Olson offers the
opinion that “PCBs were known to cause adverse health effects as early as the 1930s and 1940s.”
D. 154-1 at 6, Dr. Matson’s opinion concludes that “Monsanto produced and sold PCB-containing
Aroclors as plasticizers for polysulfide sealants and other building materials . . . knowing that
volatilization of PCBs would result in PCB contamination in indoor air, and did not inform its
customers or the public of the dangers associated with products containing PCBs as plasticizers.”

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D. 156-1 at 13. Such testimony about Pharmacia’s specific knowledge would not be admissible
at trial. See In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices & Prods.
Liab. Litig., 978 F. Supp. 2d 1053, 1087 (C.D. Cal. 2013) (explaining that “[Defendant’s]
knowledge (or lack thereof) is not a proper subject for expert testimony, and it must be established
(if at all) by other evidence”).

Similarly, Dr. Matson’s opinions regarding Pharmacia’s

motivations, intentions and awareness of various issues are not a proper subject for expert
testimony. Holmes Grp., Inc. v. RPS Prods., Inc., Civil Action No. 03-40146-FDS, 2010 WL
7867756, at *5 (D. Mass. June 25, 2010) (noting that “[a]n expert witness may not testify as to
another person's intent . . . [n]o level of experience or expertise will make an expert witness a
mind-reader”).
To the extent that Westport seeks to introduce Duarte’s testimony to suggest that the
maintenance provided met a uniform standard of care, such testimony is excluded. Duarte’s
opinions regarding the reasonableness of Westport’s actions do not appear to be based on any
industry standards or state or federal regulations concerning PCBs or building maintenance. D.
190-1. Furthermore, Duarte acknowledged that he had not received training on certain state or
federal regulations. Id. at 10. Without a specific standard, Duarte’s testimony “could only be a
subjective opinion on what [he] believed Defendants could have done rather than what industry or
governmental standards require them to do.” In re Prempro Prods. Liab. Litig., No. MDL C01507WRW, 2010 WL 5663003, at *2 (E.D. Ark. Sep. 16, 2010). To the extent that the record contains
Duarte’s percipient testimony, rather than Duarte’s expert opinion, such would not be excluded at
trial.
For those reasons, the Court’s summary judgment analysis below does not rely on the
portions of Matson’s and Duarte’s opinions outlined above. Finally, the Court notes that while it

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sees no reason to exclude any portion of Reitman or Barry’s expert opinions—as requested by
Westport in its motions to exclude—the Court’s summary judgment analysis and conclusion do
not meaningfully rely upon either expert and, therefore, the Court’s outcome would remain the
same even if exclusion, as urged by Westport, was warranted.
V.

Summary Judgment Standard
Summary judgment is appropriate when “the pleadings, depositions, answers to

interrogatories and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(c). Pursuant to the language of the rule, the moving party bears the
two-fold burden of showing that “no genuine issue exists as to any material fact,” and that he is
“entitled to judgment as a matter of law.” Vega-Rodríguez v. P.R. Tel. Co., 110 F.3d 174, 178
(1st Cir. 1997).
After the moving party has satisfied this burden, the onus shifts to the resisting party to
show that there still exists “a trialworthy issue as to some material fact.” Cortés-Irizarry v.
Corporación Insular De Seguros, 111 F.3d 184, 187 (1st Cir. 1997). A fact is deemed “material”
if it potentially could affect the outcome of the suit. Id. Moreover, there will only be a “genuine”
or “trialworthy” issue as to such a “material fact,” “if a reasonable fact-finder, examining the
evidence and drawing all reasonable inferences helpful to the party resisting summary judgment,
could resolve the dispute in that party's favor.” Id. At all times during the consideration of a
motion for summary judgment, the Court must examine the entire record “in the light most
flattering to the nonmovant and indulg[e] all reasonable inferences in the party's favor.”
Maldonado–Denis v. Castillo–Rodríguez, 23 F.3d 576, 581 (1st Cir. 1994).

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VI.

Discussion
A.

Breach of the Implied Warranty of Merchantability (Counts I and II)

Under the implied warranty of merchantability, manufacturers have a duty to design
products so that they are “fit for the ordinary purposes for which such goods are used.” M.G.L. c.
106 § 2–314(2)(c). To prevail on a breach of implied warranty of merchantability claim, the
plaintiff must show:
(1) that the defendant manufactured or sold the product; (2) that a defect or
unreasonably dangerous condition existed at the time the product left the
defendant's hands so that it was not reasonably suitable for the ordinary uses for
which goods of that kind were sold; (3) that at the time of his injury, the plaintiff
was using the product in a manner that the defendant intended or that could
reasonably have been foreseen; and (4) that the defect or unreasonably defective
condition . . . was a legal cause of the plaintiff's injury.
Lally v. Volkswagen Aktiengesellschaft, 45 Mass. App. Ct. 317, 337 (1998). A product may be
defective because of a design defect or because of a failure to warn.
1.

Defective Design

To demonstrate that a product is defective under a design defect theory, it must be shown
that the product was “made according to an unreasonably dangerous design and does not meet a
consumer's reasonable expectation as to its safety.” Everett v. Bucky Warren, Inc., 376 Mass. 280,
290 (1978) (internal quotations omitted). The focus of the claim must be on the design itself, not
on the manufacturer's conduct and it requires proof of the existence of a safer alternative design.
Id. at 290-91; see Evans v. Lorillard Tobacco Co., 465 Mass. 411, 428 (2013). A manufacturer
may only be held liable for a defective design if it fails to “design against the reasonably
foreseeable risks attending the product's use in that setting.” Back v. Wickes Corp., 375 Mass.
633, 641 (1978).

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a. Alternative Design
Here, Pharmacia argues that Westport cannot show that there is any evidence of a
reasonable alternative design to the PCBs found in the plasticizers used during the construction of
WMS. “To establish a prima facie case of defect, the plaintiff must prove the availability of a
technologically feasible and practical alternative design that would have reduced or prevented the
plaintiff's harm.” Evans, 465 Mass. at 428. In assessing whether a feasible alternative design
exists, the Court bears in mind that Massachusetts law does not allow for the categorical imposition
of liability on an entire class of products. See id. at 431 n. 11 (explaining that “our case law does
not permit a jury to impose categorical product liability on all cigarettes . . . ”). A design defect
claim, in other words, cannot be premised on the conclusion that the product should never have
existed in the first place. Instead, a plaintiff must show that there was a feasible alternative design
for the product that would have reduced or prevented the harm.
In Town of Lexington v. Pharmacia Corp., an action similarly seeking recovery for
environmental remediation of property damage allegedly resulting from the presence of PCBs at a
local public school, this Court explained that “[a] claim for defective design cannot be maintained
where the presence of [PCBs] is the alleged defect in design, and its very presence is a
characteristic of the product itself.” Lexington, 133 F. Supp. 3d 258, 270 (D. Mass. 2015) (quoting
Godoy ex rel. Gramling v. E.I. du Pont de Nemours & Co., 319 Wis. 2d 91, 100 (2009)).
Recognizing that Lexington was challenging the design of the PCBs as PCBs, the Court there
found insufficient evidence of a design defect and granted summary judgment in favor of
Pharmacia. Id. Here, Pharmacia makes the same argument it made in Lexington, namely that
Westport cannot point to any aspect of the PCBs’ design that makes them defective other than the
fact PCBs are an inherently flawed category of product. D. 206 at 4.

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In response, Westport distinguishes its defective design claim here as one premised on the
design of the plasticizers—not on the PCBs, themselves. D. 212 at 4-5. This, however, is a
distinction without a difference. The Aroclor 1248 and Aroclor 1254 plasticizers were complex
mixtures containing multiple PCB isomers. D. 207 ¶ 1; D. 212-1 ¶ 1 (agreeing that these products
had different degrees of chlorination and mixtures of multiple PCB cogeners). That is, the Aroclor
1248 and 1254 plasticizers that Pharmacia shipped to its formulators were raw PCB congeners. D.
207 ¶¶ 1, 13; D. 212-1 ¶¶ 1, 13. Pharmacia’s expert, Dr. Jack Matson, noted as much in his expert
report, observing that “[t]he Aroclor 1200 series signified products that contained only mixtures
of PCBs.” D. 207-1 at 76. In other words, if one removed PCBs from the Aroclor 1248 or Aroclor
1254 products, there would be nothing remaining, as those products were pure PCBs.
Westport maintains that Pharmacia could have used alternatives to PCB-plasticizers given
that Pharmacia manufactured a wide array of various types of plasticizers—some that contained
PCBs and many others that did not. D. 212 at 6. Westport points the Court to several letters from
Pharmacia representatives to its customers informing them of potential replacements for the
Aroclor 1200 series after Pharmacia voluntarily began to phase out the sale of PCBs for various
applications. One such letter, for example, informed customers of Pharmacia’s intention to
discontinue the sale of PCB-containing products and provided customers with a list of “suggested
alternatives for most applications.” D. 212-3 at 142-47 (with accompanying table). Another
document relied upon by Westport is an internal company memorandum entitled “Improved
Plasticizers for Polysulfides” from May 1970, which suggests in relevant part that Aroclor 1248
and 1254 could be replaced by Santicizer 261, Santicizer 148 and Aroclor 5442 blends with
Santicizer 160 or 261. D. 212-3 at 149-50. According to Westport, these documents and other
such memoranda and charts listing possible replacements for plasticizers in the Aroclor 1200 series

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indicate that Pharmacia knew of potential alternatives to its pure PCB plasticizers and, therefore,
that there is at least a factual dispute as to whether an alternative design to the PCB plasticizers
reasonably existed.
The essence of Westport’s argument that Pharmacia should have manufactured a plasticizer
product without PCBs, however, was rejected by this Court in Lexington. The documents to which
Westport directs the Court appear to show Pharmacia’s attempts to find suitable replacements for
the Aroclor 1200 line to continue to maintain business with certain customers after discontinuing
the Aroclor 1200 series. The replacement proposed is an entirely separate type of product. That
is, the evidence presented here does not show an alternative design but, rather, the complete
replacement of one item for another. As this Court noted in Lexington:
As for Lexington’s assertion that Pharmacia should have manufactured a plasticizer
other than PCBs, that argument boils down to a complaint that the caulk
manufacturer defectively designed the caulk when it chose a formula that included
PCBs rather than an alternative plasticizer. Lexington, however, has not sued the
manufacturer of the caulk used at [the public school] (nor can it identify the caulk
manufacturer). It may not impute the absent manufacturer’s liability, if any, to
Pharmacia, which did not develop the caulk formulation.
Lexington, 133 F. Supp. 3d at 271-72. This concern applies with equal force here where, again,
the manufacturer of the PCBs, Pharmacia, is being sued rather than the formulator responsible for
choosing the composition of the various interacting components of the caulk formulation.
In reaching such a conclusion in Lexington, the Court analogized the PCBs found in the
Lexington school to lead paint, which was similarly banned in the late 1970s. See 16 C.F.R. §
1303.1(a). The Court relied, in part, upon a case involving a defective design claim brought against
lead pigment manufacturers. City of Philadelphia v. Lead Indus. Ass'n, Civ. A. No. 90–7064, 1992
WL 98482, at *3 (E.D. Pa. Apr. 23, 1992). There, the plaintiffs argued that the product at issue,
lead pigment, was inherently dangerous and that a reasonable alternative design would have been

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a non-toxic substitute for the lead pigment. Id. The court disagreed, highlighting the fact that the
“challenge is to the product itself, not to its specific design.” Id. Following this logic, Lexington
explained that like the lead pigment at issue in Lead Indus. Ass’n, “here, PCBs cannot be PCBs
without the presence of PCBs themselves, along with their inherent characteristics. Rather,
Lexington must point to some aspect of Pharmacia's design of PCBs, not the mere presence of
PCBs, to sustain its claim for design defect.” Lexington, 133 F. Supp. 3d at 271. While Westport
attempts to meet their alternative design burden by claiming that the defective feature product at
issue (PCBs) is not the product but rather an application of the product (plasticizers), such an
argument does not undermine the legal reasoning that this Court applied to a similar claim against
the same defendants in Lexington. Accordingly, Westport has failed to demonstrate that a feasible
alternative design existed for the Aroclor 1248 and Aroclor 1254 plasticizers.
b. Foreseeability
Even if a feasible alternative design existed, Pharmacia would also need to establish that
the risk of the injury alleged was reasonably foreseeable at the time the caulk was installed at WMS
in 1969. See Vassallo v. Baxter Healthcare Corp., 428 Mass. 1, 23 (1998) (deciding that “a
defendant will not be held liable . . . for failure to warn or provide instructions about risks that
were not reasonably foreseeable”); Bernier v. Bos. Edison Co., 380 Mass. 372, 378 (1980) (ruling
that a product designer “must anticipate the environment in which its product will be used, and it
must design against the reasonably foreseeable risks attending the product’s use in that setting”)
(quoting Back, 375 Mass. at 640-41 (1978)). The foreseeability inquiry asks whether the risk was
“reasonably foreseeable at the time of sale or could not have been discovered by way of reasonable
testing prior to marketing the product.” Vassallo, 428 Mass. at 23.

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In Lexington, the Court considered the question of whether the risks associated with
plasticizers containing PCBs as used in window caulk were reasonably foreseeable or discoverable
at the time the caulk was sold. Lexington, 133 F. Supp. 3d at 267. The Court, there, found that it
was not enough that the evidence might demonstrate that defendants knew that “dangers presented
by PCBs in certain circumstances” or that dangers presented in certain applications of PCBcontaining plasticizers (i.e., in house paints but not in window caulk). Id. at 268. Rather,
Lexington had to produce evidence sufficient to support a conclusion that defendants “knew [or
should have known] of the inherent danger[s] of PCBs” and, more specifically, “of the risks that
PCBs would volatilize into airborne form after being installed as a component in window caulk.”
Id. In other words, “the specific risk at issue [was] the presence of PCBs in caulk and the resulting
presence of PCBs in the indoor air of a building” and plaintiff had to show “that that particular
danger was reasonably foreseeable . . . .” Id. at 269.
In the instant case, Westport has the benefit of a perhaps more developed record than the
parties had in Lexington. To establish that the specific risk of harm associated with caulk
containing PCBs was reasonably foreseeable, Westport sets up the inferential chain that, as of 1969
when WMS was built, Pharmacia knew:
(1) PCBs were known to cause systemic toxic effects resulting in physiological
harm;
(2) PCB-plasticizers were sold for use in polysulfide sealants in applications for
building construction;
(3) All plasticizers volatilized out of polymer products through contact with air,
liquids, or adjacent solids;
(4) PCBs volatilized from PCB-plasticizer-containing polymer products including
polysulfide sealants and persisted in indoor environments, thus exposing
occupants to PCBs;

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(5) PCBs, and specifically Aroclors 1248 and 1254, were persistent,
bioaccumulative, and toxic environmental contaminants.
D. 212 at 4. Westport provides evidence for each claim in the chain, principally in the form of
scientific studies and expert testimony. D. 212 at 4; D. 207-1 at 73, 82; D. 212-2 at 222-235.
Nevertheless, Westport’s evidence still falls short of raising a triable issue of material fact as to
whether the risks associated with PCBs in window caulk were reasonably foreseeable as of 1969,
the date of installation. Although Westport has attempted to differentiate the record from that in
Lexington, they have not produced facts that compel a different legal result.
As an initial matter, Westport’s reliance on a series of inferences rather than discrete
evidence of harms specific to PCB-containing caulk undermines—but does not necessarily
foreclose—their argument that the harms were reasonably foreseeable. The first two steps in the
chain are consistent with the evidence that was before this Court in Lexington. See Lexington,
133 F. Supp. 3d at 268. Numerous studies from the 1930s through 1950s confirmed the potential
toxic effects of PCBs. See D. 212-1 ¶¶ 3-4; D. 229 ¶¶ 3-4. Moreover, in the 1950s, Pharmacia
officials acknowledged that PCBs were toxic in certain concentrations. Id. ¶¶ 11-12; D. 229 ¶¶
11-12. It is equally clear that prior to 1969 Pharmacia manufactured and sold PCBs that were used
in polysulfide sealants (i.e., caulks). Id. ¶ 29; D. 229 ¶ 29. The chain begins to breaks down,
however, at the claim that “[a]ll plasticizers volatilized out of polymer products through contact
with air, liquids, or adjacent solids.” D. 212 at 4. Here, Westport relies principally on the same
paint studies from the 1950s that the Court considered in Lexington. Compare Lexington, 133 F.
Supp. 3d at 268 with D. 212-1 ¶¶ 8-10. Those studies found that under certain conditions PCBs
volatilize out of paint products at potentially dangerous levels. Id. In addition to these studies,

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Westport produces the report of its chemical engineering expert Dr. Matson.1 Id. ¶ 7; see D. 2122 at 183-88. Dr. Matson’s report cites several other studies from the 1960s to suggest that it was
known within the industry that plasticizers (although not specifically plasticizers containing PCBs)
volatilize out of other types of polymers over time at faster or slower rates depending on variables
such as temperature and thickness. D. 212-2 at 184. Yet these studies concerned resin sheets
containing plasticizers, not caulks or other polysulfide sealants. See id. The evidence Dr. Matson
cites concerning the volatility of PCB-containing plasticizers in caulks comes from several of
Pharmacia’s clients who, by the late 1960s, were concerned about the “high volatility” of the
plasticizers for the purposes of certain caulking applications. Id. at 187-88. The customers’
concerns, however, were with the effectiveness of the plasticizers, not with any associated health
or environmental risks. Id. Taken together, this additional evidence does not bridge the gap
identified in Lexington, as it fails to provide any basis to conclude that it was reasonably
foreseeable as of 1969 that PCBs would volatilize out of caulk at dangerous or even concerning
levels. Rather, it allows only for the conclusion PCBs were associated with dangers in certain

1

The Court considers Dr. Matson’s report to the extent that it provides information and testimony
relating to what was known in the industry prior to 1969 regarding the volatilization of PCBcontaining caulk and other polysulfide sealants. As noted above, the Court does not consider Dr.
Matson’s conclusions regarding Pharmacia’s specific knowledge or intent. Even if the Court
accepted Dr. Matson’s testimony that Pharmacia knew or should have known that PCBs were toxic
and that the volatilization of PCBs would contaminate indoor air, however, the Court’s ultimate
conclusions here would remain unchanged. Indeed, the Court has considered a similar opinion
from Dr. Olson about industry-wide knowledge, D. 154-1 at 32, and nonetheless concludes that
Westport has failed in demonstrate that PCBs volatilizing from building products like caulk or
PCBs at levels found at WMS cause human disease. See infra at 17. No such studies existed in
1969 and, tellingly, no such studies exist today. Id. Moreover, even if such studies existed today,
there is no evidence suggesting that a risk of harm from PCBs in caulk would have been reasonably
discoverable at the time WMS was built. See infra at 18.

16

conditions and not that it was foreseeable that the dangers would present in the conditions
applicable in this case. Lexington, 133 F. Supp. 3d at 268.
Pharmacia, for its part, advances two arguments that confirm the conclusion that the risk
of harm from PCBs in window caulk was not reasonably foreseeable as of 1969. D. 206 at 4-6.
First, Pharmacia argues that there were no scientific studies then (or now) that demonstrate either
(1) that PCBs volatilizing from caulk cause human disease, or (2) that the levels of PCBs found at
WMS in 2011 cause human disease.2 Id. at 5. For support, Pharmacia relies principally on the
admissions of Westport’s own experts. Id.; see D. 207 ¶¶ 28-32. For example, Dr. Matson
acknowledged in his deposition that he did not know of any scientific studies demonstrating that
PCBs volatilizing from building materials caused adverse health effects. D. 207 ¶ 30. Westport’s
industrial hygiene expert Robert Herrick also admitted that “those studies haven’t been done.”3

2

The Court recognizes that this is not the precise harm of which Westport complains. But,
the risk of adverse health effects is inextricably linked with the risk of property damage, of which
Westport does complain, from PCBs volatilizing from caulk. Indeed, Westport also frames its
arguments concerning the foreseeability of harm in terms of what was known or knowable
concerning the health risks associated with PCBs generally and PCBs in caulk specifically. See
D. 212 at 2-4.
3

As noted above, Pharmacia moved to exclude Dr. Herrick’s expert testimony. D. 159,
arguing that his opinion as to the reasonableness of Westport’s remediation efforts is inadmissible
on the bases that that (1) the opinion is not scientifically verifiable, (2) Dr. Herrick is not qualified
to offer an opinion as to reasonableness and (3) the opinion does not “fit” the relevant legal issue
in the case (i.e., whether Westport’s remediation efforts were reasonably necessary). D. 160 at 37. Pharmacia also argues that Dr. Herrick’s opinion as to the existence of a “health threat” at WMS
is inadmissible on the bases that (1) the opinion does not “fit” the relevant legal issue in the case
(i.e., whether WMS was unsafe), (2) the opinion is unsupported by scientific data, (3) the opinion
relied on data inapplicable to WMS, (4) Dr. Herrick fails to use a recognized methodology in
reaching his opinion, (5) Dr. Herrick is not qualified to offer an opinion about the health effects of
PCBs and (6) the opinion is cumulative. D. 160 at 7-13.
The Court disagrees and, as the Court previously made clear, considered his opinion here.
First, the Court finds that Dr. Herrick is a trained industrial hygienist with sufficient experience
assessing toxic exposures, including industrial materials containing PCBs. D. 186 at 6-7. Second,
the Court finds that the proffered expert testimony is helpful in assessing the relevant issues in
instant case, even if the language of Dr. Herrick’s opinion does not precisely map onto the legal
standard. Stewart's Case, 74 Mass. App. Ct. 919, 919 (2009). Additionally, the Court finds that
17

Id. ¶ 31. Dr. Matson and Westport’s toxicologist Dr. James Olson also admitted that there are no
available studies demonstrating that the PCB levels detected in WMS were dangerous to human
health. Id. ¶¶ 29-32. In light of these admissions, the Court cannot conclude that there is evidence
sufficient to support a finding that it was reasonably foreseeable more than forty years ago when
it is not clear today that the PCBs contained in caulks posed a danger to human health.
Second, Pharmacia addresses the concern that even if the risk of harm from PCBs in caulk
was not reasonably foreseeable in 1969, it may have been reasonably discoverable. D. 206 at 5-6.
Pharmacia points to the lack of any “legal requirement, government or industry standard, or
recommendation from any source that required long-term toxicology tests” or that required “a
manufacturer of a component part . . . to test the volatilization of PCBs from another
manufacturer’s consumer end product.” Id. at 5; see D. 207 ¶¶ 33, 37. Westport argues, however,
that Pharmacia “consciously decided” in the 1950s not to conduct further studies concerning the
toxicity of PCBs. D. 212 at 3; see D. 212-1 ¶ 12. Regardless of whether this is an accurate
characterization of evidence,4 this argument is unavailing because Westport cannot point to any
evidence that additional toxicity studies would have discovered the potential hams associated with
PCBs in caulk. Indeed, Dr. Olson conceded in his deposition that, even if Pharmacia had
conducted studies of ambient dosage levels for PCBs in the 1950s and 1960s, he could not say that
the company would have discovered anything to suggest a risk of harm. D. 207 ¶ 32; D. 212-1 ¶

Dr. Herrick’s proposed expert testimony is sufficiently reliable for the purposes of FRE 702. Not
only is Herrick qualified to offer an expert opinion regarding Westport’s remediation efforts and
the health threat posed by PCBs at WMS, but he has grounded his opinion in relevant scientific
data and drawn his conclusions from that data based on his relevant experience.
4

The cited document appears to be a recommendation that additional toxicity testing was
not necessary. The document, however, also appears to suggest that additional research would be
worthwhile if it was “directed towards finding out what the concentrations are of [PCBs] during
different operations whether it is industrial or painting.” D. 212-3 at 161.
18

32; see Mason v. Gen. Motors Corp., 397 Mass. 183, 192 (1986) (finding that “failure to perform
[a] particular type of . . . test was simply not relevant” where there is no evidence that such a test
would have provided information to enable the manufacturer to avoid a particular risk or harm).
For all these reasons, the Court concludes that Westport has failed to produce evidence sufficient
to support a finding that the specific risk of harm associated with PCBs in caulk was reasonably
foreseeable or discoverable by Pharmacia as of 1969. As such, summary judgment is GRANTED
as to the breach of the implied warranty of merchantability for design defect (Count I).
2.

Failure to Warn

Westport presents two theories for its failure to warn claims. First, that Pharmacia failed
to provide adequate warnings to end users, like Westport and WMS, at the time of sale. D. 212 at
10-14. Second, that Pharmacia failed to provide adequate warnings post-sale consistent with its
continuing duty to warn. Id. at 14-15. Both of these theories require that the risk of harm be
reasonably foreseeable, Lexington, 133 F. Supp. 3d at 272-73 (concluding that a duty to warn,
both at the time of sale and after the fact, only applied to reasonably foreseeable risks), and so fail
for the reasons already discussed. Nevertheless, the Court considers the merits of the duty to warn
claims independent of its foreseeability analysis, and finds that those claims still fail even if the
risk of harm associated with PCBs were reasonably foreseeable.
Pharmacia argues that to the extent it was subject to a duty to warn end users like WMS
about the foreseeable risks associated with PCBs, it satisfied that duty pursuant to the “bulk
supplier doctrine.” D. 206 at 7-9. The bulk supplier doctrine relieves bulk suppliers of their duty
to warn end users of a product as long as the bulk supplier has “reasonable assurance that the
information will reach those whose safety depends upon their having it.” Hoffman v. Houghton
Chem. Corp., 434 Mass. 624, 632 (2001) (quoting Restatement (Second) of Torts § 388 cmt. n

19

(1965)). For the bulk supplier doctrine to apply, the defendant must produce evidence that its
product was “delivered in bulk to an intermediary vendee.” Id. at 630; see Genereux v. Am.
Beryllia Corp., 577 F.3d 350, 374 (1st Cir. 2009). “This requirement reflects two rationales for
the doctrine: that products delivered in bulk are often reformulated and repackaged by an
intermediary, making it unlikely that the supplier could provide a warning that would reach end
users; and that bulk supplies are often put to ‘multitudinous commercial uses,’ making it unduly
burdensome to require the supplier to warn all foreseeable end users.” Genereux, 577 F.3d at 374
(quoting Hoffman, 434 Mass. at 633). That is, the bulk supplier doctrine is premised on the idea
that “the intermediary vendee, particularly the large industrial company, has its own independent
obligation to provide adequate safety measures for its end users, an obligation on which bulk
suppliers should be entitled to rely.” Hoffman, 434 Mass. at 633. As an affirmative defense,
Pharmacia bears the burden of proof in demonstrating that the bulk supplier doctrine is applicable
here.
It is undisputed that Pharmacia was a bulk supplier of plasticizers containing PCBs to
intermediary vendees that reformulated the plasticizers into caulks and other polysulfide sealants.5
See D. 206 at 7; D. 212 at 10-13; D. 212-1 ¶¶ 9-10. Rather, Westport disputes whether Pharmacia
communicated adequate safety warnings to the intermediary caulk manufacturers and whether it

5

Westport does raise the objection that Pharmacia cannot avoid liability because its PCBcontaining products were reformulated to be included in caulk. D. 212 at 13-14. Westport argues
that Pharmacia can still be held liable under the “component part doctrine” upon showing that the
plasticizers provided by Pharmacia were defective and that the defect caused harm. Id. at 13. The
Court does not read Pharmacia’s argument to suggest that Pharmacia was relieved of its duty to
warn end users simply because the plasticizers were reformulated into caulk. See D. 206 at 8.
Rather, Pharmacia points out that its products were reformulated (1) to demonstrate the
applicability of the bulk supplier doctrine, and (2) to add to its argument that it was reasonable to
rely on the intermediaries to provide the requisite warnings to end users.
20

was reasonable for Pharmacia to rely on those same manufacturers to warn end users such as
WMS. D. 212 at 11-13.
Pharmacia’s warnings to caulk manufacturers throughout the 1940s, 1950s and much of
the 1960s were focused on the potential systemic toxic effects associated with handling and
prolonged exposure to PCB-containing plasticizers for industrial workers. D. 206 at 8; D. 212 at
11-12. Westport maintains that these warnings did not address the potential risks to end users,
specifically the risk that PCBs would volatilize out of open-use products, contaminate indoor air
and adjacent surfaces and persist in the environment for extended periods of time. D. 212 at 1112. Pharmacia’s position is that more specific warnings were unnecessary, not only because those
risks were not reasonably foreseeable as of 1969, but also because it was well known within the
industry that plasticizers would eventually volatilize out of the end products. D. 206 at 8.
Moreover, because the plasticizers were reformulated in ways that influenced the volatilization
rate, Pharmacia was not in a position where it could communicate more specific warnings about
the risks that end users might face. Id. at 10.
Westport counters that even if the intermediary manufacturers knew of the general toxicity
risks and volatilization of plasticizers containing PCBs, the intermediaries still did not know, and
were not warned, about the characteristics of PCBs that lead them to persist and circulate in indoor
environments. D. 212 at 12. Yet, elsewhere in its brief, Westport cites specifically to Pharmacia
technical bulletins and advertisements that discussed how PCBs did not readily degrade or
disintegrate and had an affinity for dust. Id. at 3; see D. 212-1 ¶ 34. Westport’s position boils
down to the argument that Pharmacia was under a duty to provide caulk manufacturers with
complete warnings regarding the potential risks to end users, rather than warnings just about the
risks to industrial workers. D. 212 at 12-13. Yet, that argument runs contrary to the stated purposes

21

of the bulk supplier doctrine. Genereux, 577 F.3d at 374; see Ditto v. Monsanto Co., 867 F. Supp.
585, 591 (N.D. Ohio 1993) (concluding that a manufacturer of PCBs had discharged its duty to
warn under the bulk supplier doctrine where the intermediary was generally apprised of the risks
associated with PCBs), aff'd, 36 F.3d 1097 (6th Cir. 1994). Given these facts, as well as the
conclusion that the specific risks associated with PCBs were not reasonably foreseeable as of 1969,
the Court finds that as a matter of law Pharmacia reasonably relied upon intermediary
manufacturers to pass on the necessary warnings to the end users of PCB-containing plasticizers.
As to Westport’s theory that Pharmacia had a continuing duty to warn end users after 1969,
“[a] continuing duty to warn arises when (1) ‘a seller knows or reasonably should have known of
product dangers discovered post-sale;’ (2) ‘a reasonable person in the seller's position would
provide a warning;’ (3) ‘those to whom a warning might be provided can be identified;’ and (4)
‘the warning [can be] effectively communicated to them.’” Lexington, 133 F. Supp. 3d at 273
(quoting Lewis v. Ariens Co., 434 Mass. 643, 647-48 (2001)). Westport’s position is that
Pharmacia knew or reasonably should have known of the risks associated with PCBs as of 1969
and so had a continuous post-sale duty to warn end users. Although, for reasons already discussed,
the Court disagrees that that there is sufficient evidence to support a finding that Pharmacia knew
or should have known of the risks associated with PCBs as 1969, it is possible that at some point
thereafter Pharmacia did know, or reasonably should have known, of the risks associated with
PCBs and, at that point, a post-sale duty to warn arose. But, even if that were the case, it would
not change the legal outcome here.
Westport has not produced evidence that Pharmacia could have identified or effectively
communicated a warning to Westport at any point after 1969. See id. (granting summary judgment
on post-sale duty to warn claim because plaintiff did “not explain how Pharmacia was to identify

22

[plaintiff] or otherwise effectively communicate any danger associated with PCBs”). Westport
attempts to argue on the basis of Jones v. Bowie Indus., Inc., 282 P.3d 316 (Alaska 2012), that
“[t]he law does not require this level of precise knowledge or communication . . . .” D. 212 at 14.
Rather, Pharmacia could have identified end users and communicated a warning to them simply
by “using public media.” See Jones, 282 P.3d at 336. Pharmacia maintained a list of its customers
that purchased plasticizers containing PCBs which, Westport argues, would have been sufficient
for Pharmacia to identify and communicate with end users like WMS. D. 212 at 15. Yet, this
argument is in tension with the caution that, “[i]n light of the serious potential for overburdening
sellers in this regard, the court should carefully examine the circumstances for and against
imposing a duty to provide a post-sale warning in a particular case.” Lewis, 434 Mass. at 648
(quoting Restatement (Third) of Torts: Products Liability § 10 cmt. a (Am. Law Inst. 1998)).
Moreover, Pharmacia has produced evidence of “a complex supply chain” by which its plasticizers
traveled to end users, undermining Westport’s claim that WMS could have been readily identified
by Pharmacia. D. 206 at 10; see D. 207 ¶¶ 13, 18; D. 212-1 ¶¶ 13, 18. As a legal matter, it is not
enough that Pharmacia could have published a general warning for all conceivable end users of
products containing it plasticizers. See Town of Princeton v. Monsanto Co., Solutia Inc., 202 F.
Supp. 3d 181, 197 (D. Mass. 2016) (dismissing post-sale duty to warn claim for failing to allege
how defendant could identify end users other than through direct purchasers). In the absence of a
showing of how Pharmacia could have identified WMS as an end user of its product, and so
communicated a warning, the Court finds that Westport’s duty to warn claims, to the extent they
are predicated on a post-sale duty to warn, also fail as a matter of law.

23

For these reasons, Pharmacia’s motion for summary judgment is GRANTED as to
Westport’s claim of breach of the implied warranty of merchantability for failure to warn (Count
II).
B.

Negligence (Count III)

Westport also asserts that Pharmacia acted negligently in its manufacturing of PCBcontaining plasticizers under the same theories of design defect and failure to warn outlined above.
Negligent design claims, as with all claims of negligence, require a plaintiff to prove that the
defendant breached a legally cognizable duty of care and that the breach caused the plaintiff actual
harm. Cigna Ins. Co. v. Oy Saunatec, Ltd., 241 F.3d 1, 15 (1st Cir. 2001). Under a design defect
theory, that duty of care requires manufacturers to design products to eliminate foreseeable defects
or dangers to product consumers. Chartier v. Brabender Technologie, Inc., No. 08-40237-FDS,
2011 WL 4732940, at *8 (D. Mass. Oct. 5, 2011). But the Court has already concluded that the
alleged harm caused by the PCBs in Pharmacia’s plasticizer was not reasonably foreseeable as a
matter of law and that a plausible alternative design did not exist. The Court does not reach a
different conclusion here. This is because “[a] defendant in a products liability case in the
Commonwealth may be found to have breached its warranty of merchantability without having
been negligent, but the reverse is not true. A defendant cannot be found to have been negligent
without having breached the warranty of merchantability.” Hayes v. Ariens Co., 391 Mass. 407,
410 (1984), abrogated on other grounds by Vassallo, 428 Mass. 1. Additionally, as for failure to
warn, “[t]he Supreme Judicial Court has effectively collapsed the two standards for negligence
and breach of warranty where the plaintiffs' allegations are based upon a failure to warn,
determining that ‘negligent failure to warn and failure to warn under breach of warranty are to be
judged by the same standard: the reasonableness of the defendant's actions in the circumstances.’”

24

Calisi v. Abbott Labs., No. 11-cv-10671-DJC, 2013 WL 5441355, at *14 (D. Mass. Sept. 27, 2013)
(quoting Hoffman, 434 Mass. at 637 (2001)). Thus, a claim of negligence based on either design
defect or failure to warn cannot be maintained here.
Westport also purports to bring a negligence claim under a theory of negligent marketing
and promotion. D. 212 at 15. It is not clear to the Court whether a claim under a theory of negligent
marketing can be brought independently of a claim of negligence for design defect. Indeed,
numerous courts have found such claims to be one in the same. See Ileto v. Glock Inc., 349 F.3d
1191, 1200 n.11 (9th Cir. 2003) (discussing a California state court case and noting that “although
the plaintiffs characterized their action as a negligence claim, it was in reality a products liability
action . . . and was therefore dismissed”); Hamilton v. Accu–tek, 935 F. Supp. 1307, 1323
(E.D.N.Y. 1996) (suggesting that a negligent marketing claim “really amount[s] to an alternate
pleading of the [strict] product liability theory,” and that the act of marketing a product cannot
“give rise to liability absent a defect in the manufacture or design of the product itself”). While
the Massachusetts courts have recognized claims for negligent marketing in very limited
circumstances, see Killeen v. Harmon Grain Prods., Inc., 11 Mass. App. Ct. 20, 28 (1980) (noting
that negligent marketing could occur through the marketing of a product “in a manner calculated
to induce direct purchases by children whose use would involve unreasonable risk of injury”),
courts in the Commonwealth have not extended negligence liability to situations with facts like
the ones presented in this case. As such, the standard under which such a claim should be adjudged
under this theory is not particularly clear. One commentator has generally described that negligent
marketing claims “would require proof that a reasonable person in defendant's position . . . would
not have marketed the product,” while also weighing the foreseeable risks of harm against the costs
of avoiding that harm. Joseph A. Page, Liability for Unreasonably and Unavoidably Unsafe

25

Products: Does Negligence Doctrine Have a Role to Play?, 72 Chi.-Kent L. Rev. 87, 97 (1996).
In the instant case, to the extent a negligence claim under a theory of negligent marketing can be
brought independent of a design defect claim under the laws of this Commonwealth, the Court
concludes that the foreseeability inquiry discussed above remains dispositive. See Hamilton, 935
F. Supp. at 1323. A manufacturer of a product cannot be held liable for negligent marketing where
the potential dangers of the product were not reasonably foreseeable at the time the marketing
occurred. In addition, Pharmacia marketed and sold PCBs for use as plasticizers to sophisticated
formulators. Given that even Westport’s experts concede that it was common knowledge in the
industry that PCBs, like all other plasticizers, volatilize, Westport has produced no evidence
demonstrating that Pharmacia’s acts exposed others to an unreasonable risk of injury. D. 207-1 at
87-88; D. 207-2 at 14-15, 18-19, 97-99. Consequently, summary judgment is GRANTED as to
the claim of negligence.6
VII.

Conclusion
For the foregoing reasons, the Court ALLOWS the motion for summary judgment, D. 205,

and DENIES the motion for partial summary judgment, D. 201, as moot. Furthermore, the Court
DENIES the motions to exclude expert testimony, D. 153, D. 157, D. 159, D. 164, D. 167, D. 170,
D. 173, as moot. While the Court would otherwise have partially granted the motions to exclude
at trial the expert testimony of Jack V. Matson, D. 155, and Michael Duarte, D. 158, for the reasons

6

In light of summary judgment to Pharmacia as to all three remaining claims in this case,
the Court does not reach Pharmacia’s arguments regarding the alleged lack of compensable injury
and compensable damages, nor does the Court reach Pharmacia’s statute of limitations argument.
Moreover, Pharmacia’s motion for partial summary judgment seeking to limit Westport’s damages
to no more than the fair market value of WMS is DENIED as moot. D. 201. The Court is aware
that Pharmacia moved for leave to file a notice of supplemental authorities addressing whether the
presence of PCB contamination constitutes property damage irrespective of the level shown to
cause human disease. D. 234. The Court considered that motion and the opposition to same, D.
237, and DENIES the motion as moot in light of its summary judgment decision.
26

discussed supra, the Court also DENIES those as moot in light of its allowance of the motion for
summary judgment.
So Ordered.

/s/ Denise J. Casper
United States District Judge

27