United States of America v. Ameren Missouri

Filing 1058

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Ameren Missouri's motion to exclude Dr. Philippe Grandjean's expert opinion, 963 , is DENIED. Signed by District Judge Rodney W. Sippel on 3/27/19. (KEK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
and
SIERRA CLUB,
Plaintiff-Intervenor,
vs.
AMEREN MISSOURI,
Defendant.

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No. 4:11 CV 77 RWS

MEMORANDUM & ORDER
Defendant Ameren Missouri moves to exclude the opinion of PlaintiffIntervenor Sierra Club’s expert witness, Dr. Philippe Grandjean. Dr. Grandjean’s
opinions are relevant to determining the balance of equities under an eBay
analysis, he is well-qualified to opine on the significance of mercury emissions,
and his methods are reliable. As a result, I must deny Ameren’s Daubert motion to
exclude Dr. Grandjean’s testimony.
BACKGROUND
On January 23, 2017, after a bench trial, I found that Ameren violated the
Clean Air Act, 42 U.S.C. § 7401 et seq., by failing to obtain a permit before

making major modifications to its Rush Island Plant. (ECF No. 852). The liability
and remedies phases of this case were severed.
At the remedy phase trial, the Sierra Club seeks to call Dr. Philippe
Grandjean as an expert witness. Dr. Grandjean teaches environmental medicine at
Harvard University and the University of Southern Denmark. (Brief in opposition,
filed under seal at ECF No. 989 at 2). His research focuses on methylmercury, a
form of mercury known to cause severe human health impacts. (Id. at 3). He has an
M.D. and a Ph.D. and has published more than 500 articles on human health
effects of toxic exposure. (Id. at 2-3).
Dr. Grandjean’s expert disclosure report explains how elemental and
airborne mercury released from power plants are transported through the
environment and transformed into methylmercury. Dr. Grandjean’s report
discusses, for example, (1) that all airborne and elemental mercury eventually
becomes methylmercury (2) that methylmercury bioaccumulates in fish, (3) that it
is difficult keep one’s methylmercury exposure below the Environmental
Protection Agency’s (EPA) reference dose when eating recommended quantities
of fish, (4) that about 16% of childbearing age women in the U.S. have blood
mercury concentrations higher than the recommended amount, and (5) that
methylmercury causes neurophyschological and neurophysiological deficits for
fetuses detectable through young adulthood, among other harms.

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The Sierra Club intends to use Dr. Grandjean’s report to demonstrate the
benefits of installing FGD on Rush Island as part of an “historic BACT analysis.”
According to the Sierra Club, an historic analysis is necessary to determine what
emissions limit Rush Island should have been subject to, the excess emissions
released above that limit, and correspondingly, what remedy is appropriate now.
Ameren argues that such an historic analysis is irrelevant to determining an
appropriate remedy under the eBay four-factor test. eBay Inc. v. MercExchange,
L.L.C., 547 U.S. 388, 391 (2006). For that reason, Ameren argues that Dr.
Grandjean’s opinion is unhelpful, unreliable, and should be excluded.
LEGAL STANDARD
Pursuant to Federal Rule of Evidence 702 and Daubert, I must “ensure that
any and all scientific testimony or evidence admitted is not only relevant, but
reliable.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589, (1993). Expert
testimony must be excluded if its reasoning or methodology is either unreliable or
unreliably applied to the facts of the case. Id. 592-93. The burden is on the party
offering the expert testimony to prove that it is reliable. Wagner v. Hesston Corp.,
450 F.3d 756, 758 (8th Cir. 2006). The objective of these requirements are to
make sure that experts “employ[] in the courtroom the same level of intellectual
rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire
Co. v. Carmichael, 526 U.S. 137, 152 (1999). Even so, “Rule 702 reflects an

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attempt to liberalize the rules governing the admission of expert testimony. . . .The
rule clearly is one of admissibility rather than exclusion.” Lauzon v. Senco Prod.,
Inc., 270 F.3d 681, 686 (8th Cir. 2001) (internal citations and quotations removed).
ANALYSIS
Ameren argues that Dr. Grandjean’s proposed testimony is (1) unreliable
and (2) unhelpful to the trier of fact, because it is not applied properly to the facts
at issue. Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 758 (8th Cir. 2006).
Both arguments derive from Dr. Grandjean’s failure to analyze the specific fate of
mercury released from Rush Island. According to Ameren,
Dr. Grandjean did no analysis of how far mercury emissions from
Rush Island travel away from the plant . . . He did no modeling of
mercury emissions from Rush Island, and he gave no opinions on
which, if any, bodies of water may be polluted with mercury from
Rush Island. . . . . He also testified that he did no analysis of adverse
health effects that might result from consuming fish from bodies of
water near Rush Island. . . . Dr. Grandjean testified that he did not
perform any risk assessment to estimate what benefit might occur
from reducing the amount of mercury emitted from Rush Island . . . .
(ECF No. 964 at 9). These omissions would be fatal if the Sierra Club intended to
use Dr. Grandjean to quantify the specific health effects of excess mercury
emissions. The Sierra Club, however, plans to use Dr. Grandjean’s testimony to
explain why mercury, in general, is a harmful pollutant. Coupled with the
testimony of Dr. Stoudt, the Sierra Club plans to use this information to
demonstrate the benefits of FGD control technology for an historic BACT

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determination at Rush Island. Specifically, (1) Dr. Stoudt plans to testify that
162 pounds excess mercury was emitted because Rush Island had no FGD
installed; (2) Dr. Grandjean plans to testify that this release of mercury is generally
bad for society, because it will all be converted to methylmercury, which is a grave
threat to public health; and (3) the Plaintiffs would then argue that the benefit of
avoiding excess mercury emissions would have weighed in favor of installing FGD
at Rush Island.
Most finders of fact have an understanding that mercury is harmful to human
health. Dr. Grandjean’s testimony is not needed to establish that point. However,
the chemical speciation of toxic mercury and its general fate in the environment are
not common knowledge. Elemental or airborne mercury, for example, is not in
itself toxic, according to Dr. Grandjean. (ECF No. 964-2 at 10). However,
elemental mercury is eventually converted to toxic, methylmercury in the
environment. (ECF No. 995 at 11). These are the kinds of details that will assist a
trier of fact in determining how expected emissions should be considered as part of
an historic BACT analysis.
Ameren argues that these details are irrelevant, because “past” benefits do
not factor into the eBay analysis, when evaluating an injunction. (ECF No. 1017
at 1). However, the eBay factors are broad. The first two factors include whether a
plaintiff has “suffered irreparable injury” and whether “remedies available at law,

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such as monetary damages, are inadequate to compensate for that injury.” 547 U.S.
at 391. Environmental harm such as mercury pollution “by its nature, can seldom
be adequately remedied by money damages and is often permanent or at least of
long duration, i.e., irreparable.” Amoco Prod. Co. v. Gambell, 480 U.S. 531, 545
(1987). For this reason, the Sierra Club may refer to excess mercury emissions
when arguing for injunctive relief. As a result, I cannot say that Dr. Grandjean’s
testimony is unhelpful to the trier of fact.
Ameren also argues that Dr. Grandjean’s testimony is unreliable because
Ameren installed a mercury pollution control device on Rush Island in 2015. Dr.
Grandjean has not identified how that device would affect mercury emissions from
Rush Island. However, Dr. Staudt considered that installation date when estimating
the excess mercury that was emitted. For that reason, Dr. Grandjean’s failure to
discuss that pollution control device does not make his opinion unreliable.
As a result, I cannot say that Dr. Grandjean’s opinions are “so
fundamentally unsupported that [they] could offer no assistance” to the factfinder
in this case. Synergetics, Inc. v. Hurst, 477 F.3d 949, 956 (8th Cir. 2007). Dr.
Grandjean’s opinions may have weaknesses because his analysis explains the
societal impact of all mercury, rather than the specific impact of mercury emitted
from Rush Island. However, Ameren can challenge those weaknesses with

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“[v]igorous cross-examination” and “presentation of contrary evidence.” Daubert,
509 U.S. at 596.
Accordingly,
IT IS HEREBY ORDERED that Ameren Missouri’s motion to exclude Dr.
Philippe Grandjean’s expert opinion, [No. 963], is DENIED.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 27th day of March, 2019.

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