Walters et al v. Flint et al

Filing 660

OPINION AND ORDER granting in part and denying in part 339 Motion to Exclude Testimony and Report of Dr. John Hoaglund. 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 DENYING IN PART AND GRANTING 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 DR. JOHN
HOAGLUND [339]
This is one in a series of opinions addressing the admissibility of
the testimony and reports of eight experts retained by Plaintiffs in
anticipation of the first Bellwether trial. Defendants argue that none of
Plaintiffs’ experts can meet the standards set by Fed. R. Evid. 702 and
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
Currently before the Court is Veolia North America, LLC, Veolia
North America, Inc., and Veolia Water North America Operating

Services LLC’s (collectively “VNA”) motion to exclude the testimony and
report of Dr. John Hoaglund. (ECF No. 339.) The LAN and LAD
Defendants join VNA’s motion. (ECF No. 344.) For the reasons set forth
below, VNA’s motion to exclude is GRANTED IN PART and DENIED IN
PART.
I.

Background

Dr. John Hoaglund is an expert in the geology and chemistry of
water. (ECF No. 330-30, PageID.15349.) He holds a Ph.D. in geosciences
and an M.S. in geology. He currently works at a consulting and education
bureau. Dr. Hoaglund has long worked on creating flow models of
Michigan’s groundwater. (Id. at PageID.15354.) Plaintiffs retained Dr.
Hoaglund to evaluate “what effects on water quality may have occurred
due to changing the water source from Lake Huron to the Flint River,
and whether these changes may have affected water treatment.” (ECF
No. 330-30, PageID.15277.)
Dr. Hoaglund’s detailed report provides a chemical and geological
analysis comparing untreated Lake Huron water to untreated Flint River
water. Using this analysis, Dr. Hoaglund explains how Flint River water

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became more corrosive than Lake Huron water, which ultimately led to
the leaching of lead into the drinking water.
Dr. Hoaglund’s primary focus is on the ion composition of the water.
(Id., PageID.15279). An ion is a particle with a positive or negative
electrical charge. (Positively charged ions are called cations; negatively
charged ions are called anions.) Major ions are prevalent in natural water
due to their abundance in the soil- and rock-minerals through which
groundwater travels. (Id.) Differences in the major ion composition of
water change the water’s properties and accordingly affect both the
corrosive properties of the water and its likely response to standard water
treatment processes. (Id.)
Dr. Hoaglund concludes that the Flint River is significantly higher
in NA-HCO3 (sodium bicarbonate) than is Lake Huron (Id. at
PageID.15284.) That is so because the water in each of the aquifers
feeding into the Flint River is rich in sodium bicarbonate. (Id.) Moreover,
the groundwater and river flow that ultimately form the Flint River
water arriving in Flint’s treatment plant pass through the Saginaw
Lowlands, which are known to be rich in saline. (Id., at PageID.15283.)
This contributes to the water’s ultimate transition to a major ion
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composition that is high in sodium bicarbonate. (Id., at PageID.15284.)
That is significantly different from the Ca-Mg-HCO3 characterizing Lake
Huron’s water. Id.
This chemical difference is relevant because NA-HCO3 rich water
responds differently than Ca-MG-HCO3 rich water to standard water
treatment

procedures.

Ordinarily,

lime

is

added

to

promote

mineralization, and the water is then aerated with Co2 to build up
alkalinity levels. (Id., at PageID.15296.) Normally this process increases
Ca and HCO3 in water. However, under alkaline conditions this same
procedure results in a “salt out” reaction, or the precipitation of calcium
and bicarbonate out of the water. (See id. at PageID.15294-5.) (In this
context, precipitation is the joining of two ionic bonds in an aqueous
solution to form a non-soluble salt.)
According to Dr. Hoaglund, that is what happened during the
treatment of Flint River water. Standard lime treatment was utilized to
increase calcium and bicarbonate in the water, but due to the composition
of Flint River water it instead resulted in the removal of those elements.
Repeated occurrence of the precipitation reaction would result in highly
unstable pH levels for Flint River water. In fact, Flint River water (unlike
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Lake Huron water that had been used as the former water source) was
found to be highly unstable in this way. (Id. at PageID.15296 (citing
Susan J. Masten et al., Flint Water Crisis: What Happened and Why?,
108 J. AWWA 12, 22 (2016) (“Masten (2016)”). The unstable pH levels
would, in turn, explain the unusual corrosivity of treated Flint River
water that caused the leaching of lead. Id. Dr. Hoaglund’s report thus
aims to provide a causal explanation of the process that led to the Flint
Water crisis.
The Court heard oral argument VNA’s motion to exclude Dr.
Hoaglund’s testimony on November 2, 2021, and it is fully briefed.
II.

Legal Standard

The admissibility of expert testimony is governed by Fed. R. Evid.
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 v. Merrell

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Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993); See also Kumho
Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999).
Daubert provided 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
subjected to peer review or been published, (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 Fed. R. Evid. 702 and Daubert.
Pride v. BIC Corp., 218 F.3d 566, 578 (6th Cir. 2000) (quoting Daubert,
509 U.S. at 592).
III. Analysis
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VNA argues that all of Dr. Hoaglund’s opinions must be excluded
because (1) he is unqualified, (2) his opinions are not sufficiently reliable
to meet the Daubert standard, and (3) his opinions are irrelevant under
Federal Rule of Evidence 402.
For the reasons set forth below, Dr. Hoaglund is qualified to testify
regarding the chemistry and geology of water, but not regarding proper
water treatment procedures. His testimony regarding the chemical
makeup of the Flint River water is sufficiently relevant and reliable to be
admissible under Daubert and Rule 702.
A. Qualification
The parties broadly agree on the scope of Dr. Hoaglund’s
qualifications: he is a qualified expert on the topics of aqueous chemistry
and hydrogeology, but not on the topic of water treatment. Compare ECF
No. 330, PageID.20319 (VNA asserting Dr. Hoaglund is not an expert in
water treatment or corrosion control); with ECF No. 364, PageID.22409
(Plaintiffs asserting Dr. Hoaglund is qualified “to render opinions
relating to the geochemical properties of the Michigan water sources
relevant to this case, as well as the science of water chemistry.”)).
Because Dr. Hoaglund is not—and does not claim to be—an expert in the
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treatment of drinking water, he may not provide any standard of care
testimony about water treatment practices.
Dr. Hoaglund’s report contains some references to alleged
negligence by those who treated Flint River water. (See, e.g., ECF No.
330-30, PageID.15298.) According to Dr. Hoaglund, it should have been
evident to those in charge of the Flint Water Treatment Plant (“FWTP”)
that Flint River water would not respond favorably to the lime treatment
that was used. Because this standard of care testimony is outside of the
scope of Dr. Hoaglund’s expertise, it is inadmissible. Cf. Berry v. Crown
Equipment Corp., 108 F.Supp.2d 743, 749 (E.D. Mich. 2000) (Court must
determine whether “the expert’s training and qualifications relate to the
subject matter of his proposed testimony”) (citing Kumho, 526 U.S. at
157).
According to VNA, virtually all of Dr. Hoaglund’s testimony would
require expertise in water treatment. Thus, VNA argues that Dr.
Hoaglund also should not be permitted to testify about the expected
effects of the lime treatment utilized at the FWTP. (ECF No. 339,
PageID.20317-20319.) This argument overstates the stringency of Rule
702’s qualification requirement, which “has always been treated
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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)). As an
aqueous chemist, Dr. Hoaglund is qualified to explain the consequences
that adding lime (or any of the chemicals used during treatment) would
have on the chemical composition of the water.
B. Reliability
VNA next argues that all of Dr. Hoaglund’s opinions are unreliable
because he (1) merely parrots the work of Dr. Masten, (2) has done no
relevant research, (3) uses too few samples to support his hypotheses,
and (4) provides inaccurate information about the salinity of Flint River
water.1
Experts may not simply “parrot” the work of others. See, e.g., Gould
Elecs. Inc. v. Linvingston City Rd. Comm’n, 2020 6793335 at *9 (E.D.
Mich, Nov. 19, 2020); Arista Recs LLC. v. Usenet.com Inc., 608 F.Supp.2d
409, 424 (S.D.N.Y. 2009) (excluding expert who “simply regurgitate[d]”

VNA also argues that Dr. Hoaglund should have compared untreated Flint
River water to treated Lake Huron water, because Flint previously received treated
Lake Huron water through the Detroit Water and Sewerage Department (“DWSD”).
(ECF No. 339, PageID.20306.) But Dr. Hoaglund’s aim was to explain why Flint River
water is more difficult to treat, and why it would respond differently to standard
treatment procedures. To make that point, Dr. Hoaglund did not need to analyze any
water treated by DWSD.
1

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others’ opinions). But this rule does not prohibit reliance on peerreviewed work to inform one’s own conclusions. Such reliance is part and
parcel of the scientific enterprise and therefore permissible. Best v.
Lowe’s Home Ctr’s, Inc., 563 F.3d 171, 181 (6th Cir. 2009) (quoting
Kumho, 526 U.S. at 152) (expert must “employ in the courtroom the same
level of intellectual rigor that characterizes the practice of an expert in
the relevant field”).
Here, Dr. Hoaglund relies on a paper by Dr. Masten for its detailed
description of the FWTP and its treatment process. See Masten (2016),
Fig. 2. Using his own expertise as an aqueous chemist, Dr. Hoaglund then
explains why those treatment processes would have caused the water to
undergo high fluctuations in pH. While Dr. Masten records those
fluctuations, her paper does not explain why they occurred. Dr.
Hoaglund’s work therefore builds on previous (peer-reviewed) research.
Such reliance is clearly permissible. Best, 563 F.3d at 181; compare Arista
Recs, 608 F.Supp.2d at 424 (expert could not be helpful because his
testimony merely parroted the opinions of others and did not involve the
“application of specialized knowledge”).

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VNA’s other objections to Dr. Hoaglund’s testimony point to more
serious concerns regarding the reliability of his work. It is true that Dr.
Hoaglund did not conduct any further research into the treatment
methods utilized at the FWTP. For instance, he assumed without
verifying that ferric chloride was used in the treatment process, and he
did not know the dosage in which sodium bisulfate was added. (ECF No.
339, PageID.20324-20325.) Moreover, because the FWTP itself did not
properly collect complete information regarding the water, Dr. Hoaglund
partially relied on six samples taken by the MDEQ for his analysis. (ECF
No. 429, PageID.32451.) Using FWTP information and the MDEQ
samples, Dr. Hoaglund “cobbled together one…complete set of major ion
data.” (Id.). As Dr. Hoaglund himself admits, this scarcity of data makes
“complete confirmation” of his hypotheses impossible. (ECF No. 330-30,
PageID.15296). Ultimately, then, Dr. Hoaglund does not offer more than
a hypothesis about what could have caused the corrosivity of the water,
not an iron-clad conclusion about what did cause it.
The Sixth Circuit has discussed the admissibility of an expert’s
hypothetical explanation in two contrasting decisions. In Jahn v. Equine
Serv.’s, PSC., the Court permitted a veterinarian to “use their expertise
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to piece together what probably happened” to the plaintiffs’ horse. Jahn,
233 F.3d 383, 390 (6th Cir. 2000). Such testimony was permissible, the
Court explained, because “although [the expert] did not know the cause
of death…[they] identified what they believed to be the probable cause.”
Id.

The

Court

remarked

that

due

to

the

“lack

of

medical

records…certainty is not to be found in this case.” Id.
By contrast, in Tamraz v. Lincoln Elec. Co. the Sixth Circuit
excluded hypothetical testimony to the effect that exposure to manganese
caused the plaintiffs’ Parkinson’s disease. 620 F.3d 665 (6th Cir. 2010).
Quoting from Daubert, the Court explained that “the scientific project is
advanced by broad and wide-ranging considerations of a multitude of
hypotheses...Conjectures are of little use, however, in the project of
reaching a quick, final, and binding legal judgment.” Id. at 677 (quoting
Daubert, 509 U.S. at 597) (cleaned up).
Dr. Hoaglund’s conclusions more closely resemble the testimony in
Jahn than in Tamraz. In Tamraz, an expert testified to a hypothetical
general causal link between a chemical and a disease which was
unsupported by the scientific literature. Tamraz, 620 F.3d at 675-77.
Because the general claim made by plaintiffs’ expert had not yet been
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scientifically confirmed, permitting it into evidence would allow “the law
to get ahead of science.” Id. at 677. In contrast, like the expert in Jahn,
Dr. Hoaglund used uncontroversial scientific methods to “piece together
what probably happened” in this particular case. Jahn, 233 F.3d at 390.
Dr. Hoaglund’s approach to aqueous chemistry and hydrogeology is not
itself based on merely hypothetical assumptions, nor are his general
causal claims in any way conjectural. It is only Dr. Hoaglund’s
application of reliable methodology to the particular facts of this case that
is hypothetical. Compare Tamraz, 620 F.3d 675-77 (expert’s general
causal claims merely hypothetical) with Jahn, 233 F.3d at 390 (expert
permissibly used reliable methodology to derive a hypothesis about what
probably happened). Jahn makes clear that such testimony is
permissible. 233 F.3d at 390.2
VNA also argues that Dr. Hoaglund’s claims about the flow of
groundwater into the Flint River are factually inaccurate. According to
VNA, the Flint River does not receive its water from the Marshall and

The Court recognizes that Jahn likely represents the outer boundaries of the
Sixth Circuit’s tolerance for hypothetical expert testimony. The Sixth Circuit has
continued to cite Jahn in its Daubert opinions, however, and it therefore continues to
be binding law. See, e.g., In re Scrap Metal, 527 F.3d at 530 (discussing Jahn with
approval).
2

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Saginaw aquifers, contrary to Dr. Hoaglund’s conclusions. (ECF No. 339,
PageID.20337.) But this is a straightforward factual disagreement
outside of Daubert’s scope. “Weaknesses in the factual basis of an expert’s
opinion” present questions for the jury. In re Scrap Metal, 527 F.3d at
530 (quoting United States v. L.E. Cooke Co., 991 F.2d 336, 342 (6th Cir.
1993)).
C. Relevance
VNA next argues that Dr. Hoaglund’s testimony is irrelevant
because it does not help the jury resolve any disputed issue of fact.
Evidence is relevant for purposes of Rule 702 when there is a
“factual issue in dispute that expert testimony can clarify.” United States
v. LaVictor, 848 F.3d 428, 442 (6th Cir. 2017) (citing Lee v. Smith &
Wesson Corp., 760 F.3d 523, 527–28 (6th Cir. 2014)). As the Sixth Circuit
has recently reiterated, “the relevancy bar is low,” and “the rejection of
expert testimony is the exception, rather than the rule.” LaVictor, 848
F.3d at 442 (quoting In re Scrap Metal, 527 F.3d at 529–30)); see also
Mactec, Inc. v. Bechtel Jacobs Co., LLC, 346 F. App’x 59, 77 (6th Cir.
2009) (relevancy requirement should be read broadly) (quoting Morales
v. Am. Honda Motor Co., 151 F.3d 500, 516 (6th Cir. 1998)).
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Dr. Hoaglund’s testimony does not directly address any disputed
question of fact. Plaintiffs intend to use Dr. Hoaglund’s testimony to
“educate the jury” about the underlying causes of the Flint Water Crisis
and to underscore “the importance of water treatment.” (ECF No. 364,
PageID.22435.)
Although Dr. Hoaglund cannot testify about appropriate water
treatment procedures as such, his analysis illustrates a key fact: all
water sources are not created equal. A treatment that would work
perfectly well with water from one source could have precisely the
opposite effect with another. As the Advisory Committee’s Comments to
Rule 702 make plain, experts may permissibly educate the jury on just
such background issues:
[I]t might also be important in some cases for an expert to
educate the factfinder about general principles, without ever
attempting to apply these principles to the specific facts of the
case. For instance, experts might instruct the factfinder on
the principles of thermodynamics, or bloodclotting, or on how
financial markets respond to corporate reports, without ever
knowing about or trying to tie their testimony into the facts of
the case. The amendment does not alter the venerable
practice of using expert testimony to educate the factfinder on
general principles.

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Fed. R. Evid. 702; See also In re Heparin Prod’s Liab. Litig., 803
F.Supp.2d 712, 745 (N.D. Ohio 2011) (quoting Fed. R. Evid. 702).
Accordingly, Dr. Hoaglund’s testimony is not irrelevant under Federal
Rule 702.
IV.

Conclusion

For the reasons set forth above, VNA’s motion to exclude the
testimony and report of Dr. Hoaglund is GRANTED IN PART and
DENIED IN PART.
IT IS SO ORDERED.
Dated: February 3, 2022
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 February 3, 2022.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager

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