Walters et al v. Flint et al
Filing
523
OPINION AND ORDER granting in part and denying in part 340 Motion to Exclude Testimony and Report of Mr. Richard Humann; granting 454 Motion for Leave to File Supplement; and Scheduling Evidentiary Hearing on 349 Motion to Exclude Testimony. Signed by District Judge Judith E. Levy. (WBar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
In re Flint Water Cases
Judith E. Levy
United States District Judge
__________________________________/
This Order Relates To:
Bellwether I Cases
Case No. 17-10164
__________________________________/
OPINION AND ORDER GRANTING PLAINTIFFS’ MOTION FOR
LEAVE TO FILE SUPPLEMENT [454]; GRANTING IN PART
AND DENYING IN PART DEFENDANTS VEOLIA NORTH
AMERICA, LLC, VEOLIA NORTH AMERICA, INC., AND VEOLIA
WATER NORTH AMERICA OPERATING SERVICES, LLC’S
MOTION TO EXCLUDE THE TESTIMONY AND REPORT OF
MR. RICHARD HUMANN [340]; AND SCHEDULING
EVIDENTIARY HEARING ON LOCKWOOD, ANDREWS &
NEWNAM, INC.’S MOTION TO EXCLUDE THE TESTIMONY
AND REPORT OF MR. RICHARD HUMANN [349]
This opinion is the sixth in a series addressing the admissibility of
the testimony and reports of eight experts retained by Plaintiffs in
anticipation of the first bellwether trial, currently set to begin on
February 15, 2022. Defendants argue that none of these experts can meet
the standards set by Federal Rule of Evidence 702 and Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
Currently before the Court are motions by Veolia North America,
LLC, Veolia North America, Inc., and Veolia Water North America
Operating Services, LLC (collectively “VNA”) and Lockwood, Andrews
and Newnam, Inc., (“LAN”) to exclude the testimony and report of Mr.
Richard Humann. (ECF No. 340, 349.) Also before the Court is Plaintiffs’
motion for leave to file a second supplement to Mr. Humann’s report.
For the reasons set forth below: (1) Plaintiffs’ motion for leave is
GRANTED, (2) VNA’s motion to exclude is GRANTED IN PART and
DENIED IN PART and (3) an evidentiary Daubert hearing is ordered to
take place on January 10, 2022, at 2:00PM, by video teleconference to
assist the Court in evaluating LAN’s motion to exclude.
I.
Background
Mr. Richard Humann is the President and CEO of H2M Architects
and Engineers (“H2M”). H2M provides consulting services and
specializes in the supply, treatment, and distribution of water. (ECF No.
330-26, PageID.15187.) Mr. Humann has over two decades of experience
in water engineering and is a licensed professional engineer in 10 states,
2
including Michigan. (ECF No. 365-3, PageID.22696.) Prior to becoming
H2M’s CEO, Mr. Humann worked as its chief water resources engineer.
Id.
Plaintiffs offer Mr. Humann as their expert on the standard of care.
They retained Mr. Humann to determine whether VNA and LAN
breached the standard of care in their work related to Flint’s water
supply. Mr. Humann concludes that “LAN and [VNA] clearly did not
fulfill their obligations as expert water supply consultants and do have
responsibility in the crisis.” (ECF No. 330-26, PageID.15189.)
To evaluate the conduct of VNA and LAN, Mr. Humann considered
a series of nine reports and studies: (1) a 1994 corrosion control study
performed for the Detroit Water and Sewage Department (“DWSD”), (2)
a 2009 preliminary engineering report prepared by LAN and several
other engineers, analyzing whether Flint and several other counties
should switch to the Karegnondi Water Authority (“KWA”), (3) a 2011
report prepared by LAN and Rowe Professional Services analyzing the
viability of using the Flint River as a water supply, (4) a 2013 report by
a third-party engineer analyzing the financial benefits of switching Flint
to the KWA, (5) LAN’s June 2013 proposal to the City of Flint, (6) the
3
June 2013 executed agreement between LAN and the City of Flint, (7)
the Change Order #2 agreement between LAN and the City of Flint, (8)
VNA’s 2014 Peer Review Report evaluating the DWSD system, and (9)
VNA’s 2015 Water Quality Report for the City of Flint. Mr. Humann did
not rely on any other documents for his evaluation. (ECF No. 432,
PageID.33079.)
According to Mr. Humann, it is the professional responsibility of
water engineering consultants to act so as to protect public health and
safety. Mr. Humann concludes that both VNA and LAN breached that
standard of care.
In his initial report, Mr. Humann opines that LAN acted
negligently in three ways: (1) in its 2009 and 2011 reports, LAN should
have warned the City of Flint that it needed to start upgrades to the Flint
Water Treatment Plant (“FWTP”) much earlier than planned to make the
April 2014 deadline (ECF No. 330-26, PageID.15194.), (2) it did not
sufficiently highlight the importance of corrosion control for the
protection of public health, and (3) in its 2013 proposal, LAN should have
explained to the City of Flint that switching to the Flint River before
April 2014 was now no longer possible. (Id. at PageID.15197.) In his
4
deposition, however, Mr. Humann qualified his first conclusion by noting
that if LAN “wasn’t aware of the fact that there was going to be a switch”
when it wrote those reports, then “I don’t think that they could have been
as proactive as I thought they could have been.” (ECF No. 438,
PageID.34466.)
Mr. Humann concludes that VNA acted negligently in two ways: (1)
in light of its expertise and work for DWSD in 2014, VNA “had an
obligation
as
an
expert
water
supply
consultant”
to
warn
“decisionmakers” of the dangers of switching to Flint River water by
November 2014 at the latest (Id. at PageID.15199), and (2) while VNA
worked for the City of Flint in 2015, it should either have recommended
much more forcefully that a corrosion inhibitor be used, or recommended
that the City return to DWSD for its water. According to Mr. Humann,
the report VNA submitted to the City of Flint only “weakly suggests”
corrosion controls, with a buried reference that does not address the
severe health risks involved. (Id. at PageID.15204.)
Plaintiffs submitted two supplements in which Mr. Humann
further explains his opinions. (ECF No. 414-1, ECF No. 454-1) In the first
supplemental affidavit, Mr. Humann cites to several ethical standards
5
supporting his view that reasonable engineers must “hold paramount the
safety, health, and welfare of the public,” and must warn the authorities
they know of a danger to public health. (ECF No. 414-1, PageID.3127831279.) Mr. Humann also provides additional support for his view that
VNA had a duty to warn the authorities of the dangers of switching to
Flint River water by November of 2014. (Id. at PageID.414-1,
PageID.31282-31283.) According to Mr. Humann, VNA’s work for DWSD
would have put it on notice of the impending Flint River switch, and “any
reasonable engineer” would have known that one year (from April 2013
to April 2014) is not sufficient time to “adequately test and monitor a
surface water source, like the Flint River, to determine which corrosion
control method” to use. (Id. at PageID.31283.)
In his second supplement, Mr. Humann reviews four additional
documents concerning VNA’s work for DWSD and explains that those
documents reinforce his view that VNA’s work for DWSD was related to
the City of Flint’s leaving the DWSD system. (ECF No. 454-1).
Both LAN and VNA filed motions to exclude the entirety of Mr.
Humann’s testimony (ECF No. 340, 349). VNA also filed motions to strike
Mr. Humann’s first supplemental affidavit, and to deny Plaintiffs’ motion
6
for leave to submit the second supplemental affidavit. (ECF No. 415, No.
520).
The Court heard argument on the motions to exclude and the
motion to strike on November 2. On November 4, the Court granted in
part and denied in part VNA’s motion to strike Mr. Humann’s first
supplemental affidavit. (ECF No. 421). Now before the court are LAN and
VNA’s motions to exclude Mr. Humann’s testimony, and Plaintiffs’
motion for leave to file Mr. Humann’s second supplement.
II.
Legal Standard
The admissibility of expert testimony is governed by Federal Rule
of Evidence 702, which sets forth three requirements: (1) the witness
must be qualified, (2) the testimony must be relevant, and (3) the
testimony must be reliable. Fed. R. Evid. 702; In re Scrap Metal Antitrust
Litig., 527 F.3d 517, 528–29 (6th Cir. 2008). As the Supreme Court
explained in Daubert, Rule 702 imposes a “gatekeeping” obligation on the
courts to ensure that scientific testimony “is not only relevant, but
reliable.” Daubert, 509 U.S. at 589; See also Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 147 (1999).
7
Daubert provides a non-exclusive list of factors courts may consider
when evaluating reliability: (1) whether the theory or technique at the
basis of the opinion is testable or has been tested, (2) whether it has been
published and subjected to peer review, (3) what the known error rates
are, and (4) whether the theory or technique is generally accepted.
Daubert, 509 U.S. at 593; see also In re Scrap Metal, 527 F.3d at 529
(listing same factors). Not every factor needs to be present in every
instance, and courts may adapt them as appropriate for the facts of an
individual case. Kumho 526 U.S. at 150.
“Rejection of expert testimony is the exception, rather than the
rule.” United States v. LaVictor, 848 F.3d 428, 442 (6th Cir. 2017)
(quoting In re Scrap Metal, 527 F.3d at 529–30)). Nevertheless, the
burden is on Plaintiffs to show by a “preponderance of proof” that the
proffered expert meets the standards of Rule 702 as interpreted by
Daubert. Pride v. BIC Corp., 218 F.3d 566, 578 (6th Cir. 2000) (quoting
Daubert, 509 U.S. at 592).
District courts have significant “latitude in deciding how to test an
expert’s reliability.” Kumho, 526 U.S. at 152; see also Nelson v. Tenn. Gas
Pipeline Co., 243 F.3d 244, 249 (6th Cir. 2001). Where it is helpful to the
8
investigation of an expert’s reliability, the Court may order special
proceedings, including an evidentiary Daubert hearing. Id.
An expert’s initial report is required to include “a complete
statement of all opinions the witness will express and the basis and
reasons for them.” Fed. R. Civ. P. 26(a)(2)(B)(i)-(ii). When an expert
learns of new information, she must file a supplemental report. Fed. R.
Civ. P. 26(e)(1). Supplemental reports may not be used “to disclose
information that should have been disclosed in the initial expert report.”
Moonbeam Capital Invs., LLC, v. Integrated Constr. Sols., Inc., No. 2:18cv-12606, 2020 WL 1502004, at *6 (E.D. Mich., March 30, 2020) (quoting
Moore’s Federal Practice 3d, §26.131[2]).
Evidence in late supplemental filings is excluded unless its
admission is harmless, or the delay was justified. See Howe v. City of
Akron, 801 F.3d 718, 747-48 (6th Cir. 2015). The Sixth Circuit has
adopted a five factor test to determine whether a party’s “omitted or late
disclosure” should be admitted:
(1) the surprise to the party against whom the evidence would be
offered; (2) the ability of that party to cure the surprise; (3) the
extent to which allowing the evidence would disrupt the trial; (4)
9
the importance of the evidence, and (5) the nondisclosing party’s
explanation for its failure to disclose the evidence.
Id. at 748 (quoting Russel v. Absolute Collection Serv’s, 763 F.3d 385, 396
(4th Cir. 2014)).
III. Analysis
VNA and LAN contest every part of Mr. Humann’s testimony. LAN
argues that Mr. Humann is not qualified to provide expert testimony
under Rule 702, and that all of Mr. Humann’s opinions regarding LAN’s
conduct are based on pure speculation. VNA argues that (1) Mr.
Humann’s opinions about the standard of care are not reliable because
Mr. Humann does not understand what the standard of care is, and (2)
his opinions about VNA’s conduct are unreliable because they are not
supported by the facts of this case. Both parties argue that any opinions
Plaintiffs elicited from Mr. Humann during redirect at his deposition
constitute an impermissible attempt to amend Mr. Humann’s report, and
that Mr. Humann’s opinions about the ethics of Defendants’ conduct are
more prejudicial than probative. Finally, VNA asks the Court to exclude
Mr. Humann’s second supplemental affidavit.
10
For the reasons set forth below, Plaintiffs’ motion for leave to file a
second supplement is granted, and Mr. Humann’s general testimony
about the standard of care applicable to engineers is reliable and
admissible. The remainder of Mr. Humann’s testimony is subject to the
limitations set forth below, with one exception. Mr. Humann’s opinion
that LAN had a duty to warn the City of Flint in 2013 that the FWTP
work could not be completed on schedule cannot be evaluated on the
current record. Accordingly, an evidentiary Daubert hearing will take
place on January 10, at 2:00 PM to address this issue.
A. Second Supplement
VNA argues that Plaintiffs’ motion for leave to file a second
supplement should be denied because it contains information Mr.
Humann should have considered in his initial report, and because the
information it contains could not help Plaintiffs establish that VNA owed
a duty to them in 2014.
Because the information on which Mr. Humann relies is not new
and was served on Plaintiffs several times, VNA is correct that Plaintiffs’
supplemental filing is improper. See, e.g., Moonbeam, 2020 WL 1502004,
at *6. This does not end the question, however, because the Court must
11
consider the five factor test adopted in Howe v. City of Akron to determine
whether Plaintiffs’ delay was justified or harmless. Howe, 801 F.3d. at
748.
The first two Howe factors require consideration of the degree to
which the party against whom the new evidence is offered would be
surprised by that evidence, and whether that surprise could be cured. Id.
Mr. Humann’s second supplement seeks to provide additional evidence
on a single issue: his opinion that VNA’s work for DWSD gave rise to a
duty to the bellwether Plaintiffs. The parties have been litigating that
issue for months, both in these Daubert motions and in motions for
summary judgment. Moreover, the only evidence considered in the
supplement concerns meetings attended by VNA or documents generated
by VNA. Accordingly, the contents of this supplemental filing could not
be surprising to VNA. These factors weigh in favor of admission.
Since trial has not yet begun, the third factor is not relevant. The
fourth factor—the importance of the evidence—does not strongly weigh
in either direction. The scope of VNA’s work for DWSD in 2014 is a
significant issue in the pending summary judgment motions, because
Plaintiffs argue that this work gave rise to a legal duty to them even
12
before VNA began its work in Flint. While VNA correctly points out that
none of these documents establish that it owed such a duty, Mr.
Humann’s review may provide context helpful to determining what
VNA’s relationship was to the City of Flint and DWSD in 2014. Under
Michigan law, the nature of those relationships must be considered
before a duty can be established. In re Certified Question, 479 Mich. 498,
505-506 (2007). Accordingly, Mr. Humann’s second supplement may be
of some relevance to the duty analysis.
The final factor—Plaintiffs’ reason for failing to disclose this
evidence in a timely manner—weighs in favor of VNA. After all, it is not
disputed that Plaintiffs had access to these documents long before filing
this motion for leave. But because there is no indication that Plaintiffs’
failure to use the evidence earlier was anything other than an “honest
mistake,” this is not dispositive. Cf. Moonbeam, 2020 WL 1502004 at *7.
Because Plaintiffs’ second supplement is deficient but harmless
under Howe, 801 F.3d 748, Plaintiffs’ motion for leave is granted.
B. Qualification
Turning now to the Daubert motions, the Court must first consider
whether Mr. Humann is qualified to testify as an expert under Federal
13
Rule of Evidence 702. According to LAN, Mr. Humann is not qualified
because (1) “nothing” in his “background, training, or experience imbues
him with the qualifications necessary to offer the opinions he does,” and
(2) his failure to correctly explain the governing standard of care shows
that he is not qualified to testify about that standard. (ECF No. 348,
PageID.22036.) LAN is incorrect.
An expert witness must “establish his expertise by reference to
knowledge, skill, experience, training or education.” Berry v. Crown
Equipment Corp., 108 F.Supp.2d 743, 749 (E.D. Mich. 2000) (quoting Fed.
R. Evid. 702). This requirement “has always been treated liberally.” Pride
v. BIC Corp., 218 F.3d 566, 577 (6th Cir. 2000) (quoting In re Paoli RR
Yard PCB Litig., 916 F.3d 829, 855 (3d Cir. 1990)). Nevertheless, the
Court must “determine whether the expert’s training and qualifications
relate to the subject matter of his proposed testimony.” Berry, 108
F.Supp.3d at 749 (citing Kumho, 526 U.S. at 157).
Mr. Humann has over thirty years of experience in water
engineering, and over two decades of consulting experience. His
testimony concerns the standard of care that applies to professionals who
provide water engineering consulting services. Mr. Humann has
14
extensive experience in the precise area of work under consideration in
this case. Accordingly, he is qualified to provide expert testimony. See,
e.g., E.I. du Pont de Nemours and Comp C-8 Pers. Injury Litig., 345
F.Supp.3d 897, 917 (S.D. Oh. 2015) (finding similarly positioned engineer
qualified).
LAN argues that Mr. Humann is not qualified because he
incorrectly identified the standard of care. But this conflates the
reliability of Mr. Humann’s conclusions with his personal qualifications.
It is possible for a qualified expert to provide incorrect or deficient
testimony. Even if Mr. Humann’s testimony were wholly speculative,
that would not impugn his qualifications, only his work in this case. Cf.
Sanchez v. Boston Scientific Corp., 2014 WL 4851989, at *33 (S.D. W. Va.,
Sept. 29, 2014) (finding expert qualified but excluding expert’s standard
of care opinions as speculative).
Accordingly, Mr. Humann is qualified.
C. General Standard of Care Testimony
Both VNA and LAN object to Mr. Humann’s general testimony
about the obligations of professional engineers and the applicable
standard of care. According to Defendants, this testimony is inadmissible
15
because Mr. Humann (1) only opines about what he himself would have
done, not about what any reasonable engineer would have done and (2)
he does not know the standard of care because he does not recite it in his
deposition.
In support of its view that Mr. Humann only testifies about what
he personally would have done, not what a reasonable engineer would
have done, VNA cites to passages of Mr. Humann’s deposition where he
speaks in the first person. Mr. Humann explains that the basis for his
opinions is “my experience over the years” and that his role in this
litigation is “about my experience as a consulting engineer.” (ECF No.
340, PageID.20465, VNA’s emphases). Plaintiffs respond that the mere
fact that an expert speaks in the first person does not show that the
expert is testifying only about his personal opinions.
Plaintiffs are correct. Even where Mr. Humann casts his opinions
in the first person, context shows that he is doing so to describe
obligations he believes apply to all engineers. For instance, Mr. Humann
testifies in the first person that:
If I were in [VNA’s position in 2014] and I had evaluated and had
an in-depth understanding of the corrosion inhibitors that were
16
being utilized by Detroit, knowing what happens when you stop
using those corrosion inhibitors…You raise that issue of what you
know to people that can use the guidance.
(ECF No. 432, PageID.33176). But when Mr. Humann is pressed to
explain the grounds for his opinion, he clearly refers to the obligations of
professional engineers generally, not to his personal opinions or
preferences:
Q: Okay. And when you say “an ethical professional obligation,” can
you tell me what the source, in your opinion, is, Mr. Humann, for
that ethical professional obligation?
A: So…as a practicing professional engineer…we have an obligation
to put the protection of public health and safety above all else…This
is an obligation that engineers have as professionals.
(Id. at PageID.33176-33177.) Accordingly, it is clear that Mr. Humann
does not simply opine about his personal preferences or opinions.
Defendants next point to the requirement that a standard of care
expert have “knowledge of the applicable standard of care.” Bahr v.
17
Harper-Grace Hosp’s., 448 Mich. 135, 151 (1995).1 The parties agree that
in this case, the standard of care is “the care, skill, and diligence
ordinarily possessed” by water engineering consultants. Cox ex rel. Cox
v. Board of Hosp. Managers for City of Flint, 467 Mich. 1, 21 (2002).
Because Mr. Humann did not recite the Cox standard during his
deposition, Defendants argue that he does not “know” the standard of
care.
This argument fails for two reasons. First, it is rendered moot by
Mr. Humann’s supplemental affidavit, in which Mr. Humann does cast
his opinions in terms of what any “reasonable engineer” would do. (See
ECF No. 414-1). Second, it misunderstands the standard set forth in
Bahr. A standard of care expert must know what level of care is
ordinarily possessed by professionals in her field. Such knowledge is
demonstrated by referring to the expert’s practical experience and
relevant education. Bahr, 448 Mich. at 142. But there is no reason why
an expert would need to know how Michigan courts have described this
requirement. Knowledge of the ordinary care taken by members of one’s
Plaintiffs do not object to the application of this state law rule in this federal
diversity case.
1
18
profession is distinct from knowledge that the Michigan courts have
defined the standard of care as “the care, skill, and diligence ordinarily
possessed” by members of one’s profession. Mr. Humann need only
demonstrate the former to show that he “knows” the standard of care in
the relevant sense. See Bahr, 448 Mich. at 151-152. Accordingly, Mr.
Humann’s failure to recite the Cox standard does not show that he lacks
the required knowledge.
Mr. Humann explains in his deposition that professional engineers
have an obligation “to put the protection of public health and safety above
all else.” (ECF No. 432, PageID.33177.) Mr. Humann’s opinion is
informed by his lengthy professional experience and by widely accepted
ethical and professional guidelines (ECF No. 414-1, PageID.3127831279). It therefore meets the standards set forth by Rule 702 and
Daubert.
D. Testimony regarding LAN
According to LAN, even if Mr. Humann correctly identifies the
standard of care, his application of that standard to LAN’s conduct is not
reliable because it is based on serious misunderstandings of the facts.
19
Mr. Humann initially offered three opinions about LAN: (1) it failed
to warn the City of Flint in 2009 and 2011 to start its upgrades to the
FWTP immediately, so as to be ready for the impending switch in April
2014, (2) it failed to warn the City of Flint throughout 2013 that readying
the FWTP in time for the April 2014 switch would be impossible, and (3)
it failed to insist that the City of Flint use corrosion control measures to
treat Flint River water.
Mr. Humann’s first opinion has now been withdrawn. Mr. Humann
retracted it during his deposition, (ECF No. 438, PageID.34466), and
Plaintiffs’ counsel indicated at oral argument that the opinion was
retracted. (ECF No. 424, PageID.31673). LAN’s motion to exclude this
opinion is therefore moot.2
Mr. Humann does maintain that, by 2013, LAN should have been
warning the City of Flint that upgrades to the FWTP could not be
completed in time for the April 2014 switch. The Court cannot fully
evaluate the reliability of this opinion on the current record because Mr.
LAN also objects to testimony Mr. Humann provides during his redirect examination regarding the
contents of LAN’s website. That testimony was meant to reinforce Mr. Humann’s views regarding
LAN’s pre-2013 failure to warn. Since this testimony has been withdrawn, these objections are also
moot.
2
20
Humann does not clearly explain his reasons for it and provides
testimony that appears contradictory.
In his report, Mr. Humann opines that there was a “clear lack of
time to get the FWTP operational by April 2014,” but does not explain
either why it would have been impossible to conduct the necessary
upgrades, or which additional upgrades would have had to be conducted
for the FWTP to be fully operational. (ECF No. 330-26, PageID.15206.)
In his first supplemental affidavit, Mr. Humann suggests that any
reasonable engineer would have known that it “would take far more than
a year for any municipality…to adequately test and monitor a surface
water source, like the Flint River, to determine which corrosion control
method would be most appropriate.” (ECF No. 414-1, PageID.31283.) It
may be that this is why there was no time in 2013 to upgrade the FWTP,
but other testimony seems to contradict this. First, Mr. Humann suggests
in his report that it had been clear for years that orthophosphates had to
be added to Flint River water to ensure proper corrosion inhibition. (ECF
No. 330-26, PageID.15205-15206.) Second, Mr. Humann testified in his
deposition that there would have been time in 2013 to implement
corrosion inhibitors:
21
Q: Okay. Is it your testimony that the corrosion—there was not
sufficient time to put in corrosion inhibitors by April 2014 if the
decision had been made to use them?
[…]
A. So in the overall schedule, you could always have built in
sufficient time to put in a corrosion inhibitor.
(ECF No. 438, PageID.34414.) This testimony suggests that, if a timely
upgrade of the FWTP was impossible in 2013, this was not because it
would have been impossible to ensure proper corrosion control within a
year. But Mr. Humann also testified that he did not know of any other
work that was not done in 2013, that would have been necessary to
ensure that drinking water would be safe:
Q. Okay. Is there anything else besides the corrosion inhibitor that
was not done by April 2014 related to water quality?
A. I’m not aware specifically of the work that would have been done
in terms of the treatment process and things like that. So I couldn’t
tell you one way or the other.
22
Id. Accordingly, it is not clear from the testimony currently in the record
precisely what made it impossible for the City of Flint, in 2013, to
upgrade the FWTP in time for the 2014 switch. The Court cannot
evaluate whether Mr. Humann’s opinions are based on “good grounds,”
Daubert, 509 U.S. at 590, without a proper understanding of the grounds
for Humann’s opinions.
Accordingly, it is necessary to hold an evidentiary Daubert hearing
on this portion of Mr. Humann’s testimony. At the hearing, the Court will
ask Mr. Humann to clarify the apparent inconsistencies in his testimony
and to explain the basis for his opinion that LAN should have warned the
City of Flint in 2013 that upgrading the FWTP by April 2014 was
impossible. This hearing will take place on January 10, 2022, at 2:00 PM.
It will be limited exclusively to this issue and may not be used to
relitigate any other question decided in this opinion. The parties should
not interpret this ruling as an invitation to submit further supplemental
briefs or reports prior to the January 10 hearing.
This leaves Mr. Humann’s third opinion about LAN: that it should
have insisted that the City of Flint use corrosion controls to treat Flint
River water. That opinion has two components: (1) a reasonable engineer
23
in LAN’s position would have had a duty to warn its employers that
corrosion controls would be necessary to ensure public health, and (2)
LAN did not issue this warning.
Mr. Humann clearly explains the basis for (1): engineers have a
professional obligation to consider public health and safety as they
conduct their work (ECF No. 414-1, PageID.31278-31279), and the use of
corrosion inhibitors would have prevented the leaching of lead into Flint’s
drinking water, creating a public health hazard (see, e.g., ECF No. 438,
PageID.34414-34415.) LAN does not argue that corrosion controls were
unnecessary. Accordingly, Mr. Humann may testify to his general view
that an engineer in LAN’s position would have had a duty to warn the
City of Flint that proper corrosion controls would be necessary to protect
public health and safety.
As LAN points out, however, Mr. Humann did not consider any part
of the voluminous record of communications between LAN and the City
of Flint. Accordingly, Mr. Humann did not investigate whether LAN in
fact did warn the City of Flint, consistent with its obligations. Because
Mr. Humann did not consider the underlying record, his opinion that
LAN failed to warn the City of Flint does not have a sufficient “basis in
24
established fact.” McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 801 (6th
Cir. 2000) (citing Skinner v. Square D. Co., 445 Mich. 153, 172-73 (1994)).
It is therefore inadmissible. At trial, the parties may elicit testimony from
fact witnesses to establish whether LAN issued the requisite warnings.
E. Testimony regarding VNA
Like LAN, VNA also argues that Mr. Humann’s opinions about its
conduct are unreliable. According to VNA, Mr. Humann’s opinions must
be excluded because Mr. Humann did not know nearly enough about
VNA’s involvement in Flint to offer any reliable opinions about VNA’s
compliance with the standard of care. VNA also argues that Mr.
Humann’s opinions about the knowledge of VNA employees in 2015—
elicited
at
redirect
during
his
deposition—are
improper,
late
amendments to his report.
Mr. Humann’s first conclusion regarding VNA is that VNA
breached its duties as a professional engineer when, in 2014, it failed to
warn City of Flint or State of Michigan officials about the dangers of
failing to use proper corrosion controls. (ECF No. 330-26, PageID.15207.)
As will be set forth in the Court’s forthcoming opinion on VNA’s
pending motion for summary judgment, Michigan law does not support
25
imposing a duty to warn on VNA in 2014, even if Mr. Humann reliably
opines that engineers have a professional duty to warn. Whether a legal
duty exists is a question of law. Dyer v. Trachtman, 470 Mich. 45, 49
(2004) (citing Simko v. Blake, 448 Mich. 648. 655 (1995)). To determine
whether a legal duty can be imposed under Michigan law the Court must
apply the framework set forth in In re Certified Question, 479 Mich. 498
(2007). Expert testimony does not replace the required legal analysis, and
the professional duties of an engineer are not necessarily the same as her
legal duties under Michigan law.
It is a longstanding rule of the common law that “the fact that [an]
actor realizes or should realize that action on his part is necessary for
another’s aid or protection does not of itself impose upon him a duty to
take such action.” Restatement (Second) of Torts, §314.3 Accordingly,
even if all of Mr. Humann’s opinions relating to VNA’s conduct in 2014
were reliable and accurate, they would not establish that VNA owed a
legal duty to the four bellwether Plaintiffs in 2014. These opinions are
therefore not relevant, and Mr. Humann will not be permitted to testify
In its summary judgment opinion and order the Court will review the exceptions to this rule and
explain why they do not apply in this case.
3
26
to them at trial for the purpose of establishing that VNA had a legal duty
to Plaintiffs in 2014.
Mr. Humann next opines that once VNA became employed by the
City of Flint, it should have insisted that the City use proper corrosion
controls. Alternatively, if VNA knew that the City of Flint would not use
corrosion controls, VNA should have recommended that the City return
to DWSD for its drinking water.
Mr. Humann explains that VNA, like any professional engineer
with similar expertise, would have known that corrosion controls are
required to control lead and copper in drinking water. (ECF No. 330-26,
PageID.15204.)
Indeed, DWSD—VNA’s
prior employer—did
add
orthophosphates for precisely that purpose. Id. It is undisputed that
when VNA wrote its 2015 report to the City of Flint, it knew that
orthanophosphates were not being used. Accordingly, Mr. Humann
opines that VNA knew of a danger to public health at that time,
triggering a duty to warn its employers.
Mr. Humann then reviews VNA’s 2015 report. That report contains
the following discussion of corrosion control:
27
Corrosion Control--The primary focus of this study was to assure
compliance with the TTHM limits. That is not the only problem
facing the city and its customers though. Many people are
frustrated and naturally concerned by the discoloration of the water
with what primarily appears to be iron from the old unlined cast
iron pipes. The water system could add a polyphosphate to the
water as a way to minimize the amount of discolored water.
Polyphosphate addition will not make discolored water issues go
away. The system has been experiencing a tremendous number of
water line breaks the last two winters. Just last week there were
more than 14 in one day. Any break, work on broken valves or
hydrant flushing will change the flow of water and potentially cause
temporary discoloration.
(Id. at PageID.15204.) It is clear that this passage does not contain a
warning about the dangers of lead leaching into the water. VNA does not
argue that the report warns about that danger in any other way.
Moreover, Mr. Humann has extensive experience both writing and
reviewing similar reports in similar contexts. Accordingly, his opinion
that VNA’s 2015 report failed to warn of an ongoing danger to public
health is reliable.
VNA argues that Mr. Humann’s opinions should be disregarded in
their entirety because of Mr. Humann’s lack of knowledge about the facts
of this case. It is true that Mr. Humann did not read the depositions of
VNA employees or review records of communications between VNA and
the City. But while this means that Mr. Humann cannot testify that VNA
28
never issued the required warning, it does not affect the reliability of his
evaluation of VNA’s 2015 report. That testimony is admissible.
VNA also objects to opinions Plaintiffs’ counsel elicited from Mr.
Humann during redirect examination, regarding e-mails sent by VNA
employees. It is not clear how Mr. Humann’s role as an expert witness on
engineering is served by testimony about the contents of VNA employee
emails. Experts testify in order to clarify issues that are “beyond the ken
of ordinary lay persons.” See In re Heparin Prod’s Liab. Litig., 803
F.Supp.2d 712, 745 (N.D. Oh. 2011). The jury will be capable of
determining whether a message implies knowledge without the aid of
expert testimony. If Plaintiffs do seek to elicit this testimony at trial, and
the purpose is not supported by the Rules of Evidence, VNA can raise its
objections at that time. Plaintiffs will be required to inform the Court the
day prior to Mr. Humann’s testimony if they intend to pursue this line of
questioning.
F. Testimony Regarding Unethical Conduct
Finally, Mr. Humann’s report contains some references to ethical
violations, as distinct from violations of the applicable standard of care.
Both VNA and LAN argue that any testimony regarding ethical
29
violations on their part should be excluded as more prejudicial than
probative.
Although one informs the other, ethical standards are distinct from
legal standards and the morality of Defendants’ conduct is not at issue in
this case. Accordingly, Mr. Humann will not be permitted to testify to his
personal views about the ethics of Defendants’ conduct. District courts
routinely exclude such testimony in similar circumstances. E.g., In re
Welding Fume Prods. Liab. Litig., 2010 WL 7699456 at *24 (N.D. Oh.,
June 3, 2010) (distinguishing ethical from legal standards, holding
former to be irrelevant); In re Rezulin Prods. Liab. Litig., 309 F.Supp.2d
531, 544 (S.D.N.Y. 2004) (same); In re Baycol Prods. Litig., 532 F.Supp.2d
1029, 1054 (D. Minn. 2007) (expert could testify to standard of care but
without reference to his personal views as to whether defendants acted
ethically).
This restriction should not be interpreted to extend to general
testimony regarding the contents of ethical and professional guidelines.
Such testimony is clearly relevant, because ethical and professional
guidelines inform the “the care, skill, and diligence ordinarily possessed,”
by engineers—the core of Mr. Humann’s testimony. Cox, 467 Mich. at 21.
30
Mr. Humann may explain and apply those guidelines consistent with this
decision. Only testimony regarding Mr. Humann’s personal opinions
about the morality of Defendants’ conduct is prohibited.
IV.
Conclusion
For the reasons set forth above, Plaintiffs’ motion for leave is
GRANTED and VNA’s motion to exclude Mr. Humann’s opinions and
testimony is GRANTED IN PART and DENIED IN PART.
A limited Daubert evidentiary hearing regarding the single
undecided issue in LAN’s motion to exclude will be held on January 10,
2022, at 2:00 PM.
IT IS SO ORDERED.
Dated: December 24, 2021
Ann Arbor, Michigan
s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on December 24, 2021.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager
31
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?