Village of Stillwater et al v. General Electric Company et al
MEMORANDUM-DECISION and ORDER. Saratoga's motion to preclude certain experts, Dkt. No. 203 , is DENIED; Halfmoon's motion to preclude certain experts, Dkt. No. 205 , is DENIED; GE's motion to preclude certain of Millspaugh's o pinions, Dkt. No. 209 , is DENIED; GE's motion to preclude certain of Brown's opinion, Dkt. No. 210 , is DENIED; GE's motion to preclude certain of Michaels' opinions, Dkt. No. 211 , is DENIED; GE's motion to preclude cert ain of Carpenter's opinions, Dkt. No. 212 , is DENIED; GE's motion to preclude certain of Whitelaw's opinions, Dkt. No. 213 , is DENIED without prejudice to renew; GE's motion to preclude Halfmoon's claim for replacement costs damages, Dkt. No. 245 , is DENIED without prejudice to renew prior to the damages phase, if any, of trial. Signed by Judge David N. Hurd on 3/3/2016. (lah)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
---------------------------------TOWN OF HALFMOON and COUNTY OF
GENERAL ELECTRIC COMPANY,
---------------------------------SARATOGA COUNTY WATER AUTHORITY,
GENERAL ELECTRIC COMPANY,
NOLAN & HELLER, LLP
Attorneys for Plaintiff Town of Halfmoon
39 North Pearl Street
Albany, NY 12203
DAVID A. ENGEL, ESQ.
DREYER BOYAJIAN LLP
Attorneys for Plaintiffs Saratoga County and
Saratoga County Water Authority
75 Columbia Street
Albany, NY 12210
CRAIG M. CRIST, ESQ.
DONALD W. BOYAJIAN, ESQ.
JAMES R. PELUSO, JR., ESQ.
BENJAMIN W. HILL, ESQ.
WILLIAM J. DREYER, ESQ.
MACKENZIE HUGHES LLP
Attorneys for Defendant
101 South Salina Street
Syracuse, NY 13221
SAMANTHA L. MILLIER, ESQ.
WILLIAMS & CONNOLLY LLP
Attorneys for Defendant
725 12th Street, NW
Washington, DC 20005
NEELUM J. WADHWANI, ESQ.
ROBERT J. SHAUGHNESSY, ESQ.
STEVEN R. KUNEY, ESQ.
CONSTANCE T. FORKNER, ESQ.
JOSEPH G. PETROSINELLI, ESQ.
DAVID N. HURD
United States District Judge
TABLE OF CONTENTS
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
LEGAL STANDARD.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
DISCUSSION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Saratoga's Notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Kirk Brown. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
David O. Carpenter.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
GE's Notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Stephen A. Johnson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Saratoga. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Halfmoon. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Gregg W. Jones. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Theodore C. Schlette. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Neil S. Shifrin. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Halfmoon's Notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Mark P. Millspaugh. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Robert Michaels. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
GE's Supplemental Notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
John Connolly.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Opinion No. 2.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Opinion No. 3.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Opinion No. 4.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Opinion No. 7.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Opinion No. 8.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Opinion No. 9.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Brent Kerger. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
MEMORANDUM–DECISION and ORDER
This is the final installment in a trilogy of decisions necessitated by the flurry of motion
practice that occurred at the completion of discovery in this case, which pits remaining
plaintiffs Town of Halfmoon ("Halfmoon"), County of Saratoga ("Saratoga"), and Saratoga
County Water Authority ("SCWA") (collectively "plaintiffs") against defendant General Electric
Company ("GE") in their bid to recover damages pursuant to the Comprehensive
Environmental Response, Compensation, and Liability Act ("CERCLA") and related state law.
The first of these decisions resolved the bulk of the parties' cross-motions for
summary judgment, denying plaintiffs a summary victory on the issue of GE's liability and
concluding that all of plaintiffs' state law claims, save for one based on New York's
Navigation Law, were pre-empted. Town of Halfmoon v. Gen. Elec. Co., 105 F. Supp. 3d
202 (N.D.N.Y. 2015) ("Halfmoon I").
The second of these decisions denied GE's motion for partial reconsideration of that
latter conclusion, rejecting GE's assertion that proper application of the doctrine of conflict
pre-emption required dismissal of plaintiffs' New York Navigation Law claims as well. Town
of Halfmoon v. Gen. Elec. Co., 2015 WL 6872308 (N.D.N.Y. Nov. 9, 2015) ("Halfmoon II").
The instant decision aims to resolve the parties' still-pending motions to exclude, in
whole or in part, the testimony of a litany of experts, thereby clearing the final major hurdle
left standing before the liability phase of a trial can be scheduled in this matter.
II. LEGAL STANDARD
Federal Rule of Evidence ("Rule") 702 permits a witness "who is qualified as an expert
by knowledge, skill, experience, training, or education" to "testify in the form of an opinion or
otherwise" provided that: (a) the expert's scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the
testimony is based on sufficient facts or data; (c) the testimony is the product of reliable
principles and methods; and (d) the expert has reliably applied those principles and methods
to the facts of the case. FED. R. EVID. 702.
"The law assigns district courts a 'gatekeeping' role in ensuring that expert testimony
satisfies the requirements of Rule 702." United States v. Farhane, 634 F.3d 127, 158 (2d
Cir. 2011), cert. denied, 132 S. Ct. 833 (2011). T his role as gatekeeper requires a court to
make three, related findings before permitting a person to testify as an expert: "(1) the
witness is qualified to be an expert; (2) the opinion is based upon reliable data and
methodology; and (3) the expert's testimony on a particular issue will 'assist the trier of
fact.'" Valente v. Textron, Inc., 931 F. Supp. 2d 409, 415 (E.D.N.Y. 2013) (quoting Nimely v.
City of New York, 414 F.3d 381, 396-97 (2d Cir. 2005)).
In Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), the Supreme Court set
forth a non-exhaustive list of factors that bear on the reliability aspect of this
inquiry: "(1) whether a theory or technique has been or can be tested; (2) whether the theory
or technique has been subjected to peer review and publication; (3) the technique's known or
potential rate of error and the existence and maintenance of standards controlling the
technique's operation; and (4) whether a particular technique or theory has gained general
acceptance in the relevant scientific community." United States v. Williams, 506 F.3d 151,
160 (2d Cir. 2007). "These factors do not constitute, however, a definitive checklist or
test. Rather, [t]he inquiry envisioned by Rule 702 is . . . a flexible one." Davis v. Carroll, 937
F. Supp. 2d 390, 412 (S.D.N.Y. 2013) (citation omitted).1
The flexibility contemplated by Rule 702 is particularly helpful when an expert's
testimony does not rest on traditional scientific methods. "In such cases, where a proposed
expert witness bases her testimony on practical experience rather than scientific analysis,
courts recognize that '[e]xperts of all kinds tie observations to conclusion through the use of
what Judge Learned Hand called 'general truths derived from . . . specialized
experience.'" Davis, 937 F. Supp. 2d at 412 (quoting Kumho Tire Co., Ltd. v. Carmichael,
526 U.S. 137, 149-50 (1999)). "Thus, the Daubert factors do not necessarily apply even in
every instance in which reliability of scientific testimony is challenged, and in many cases, the
reliability inquiry may instead focus upon personal knowledge and experience of the
expert." Id. (citation and internal quotation marks omitted).
Whether based on traditional science or specialized experience, Rule 702 further
mandates that an expert "stay within the reasonable confines of [their] subject area, and
[thus] cannot render expert opinion on an entirely different field or discipline." Lappe v. Am.
Honda Motor Co., Inc., 857 F. Supp. 222, 227 (N.D.N.Y. 1994), aff'd sub nom., Lappe v.
Honda Motor Co. Ltd. of Japan, 101 F.3d 682 (2d Cir. 1996). In other words, "where an
expert is admitted under Rule 702 and then purports to of fer opinions beyond the scope of
their expertise, courts strike the extraneous testimony, as the admission of an expert does
not provide that individual with carte blanche to opine on every issue in the case." Davis, 937
F. Supp. 2d at 413.
Of course, "[e]xpert testimony must also be relevant under Rule 401 and must not be unfairly
prejudicial under Rule 403." Davis, 937 F. Supp. 2d at 412.
As always, "[t]he proponent of the expert testimony bears the burden of 'establishing
by a preponderance of the evidence that the admissibility requirements of Rule 702 are
satisfied.'" Valente, 931 F. Supp. 2d at 415 (quoting Williams, 506 F.3d at 160). Importantly,
however, "[t]he Second Circuit has held that under the Federal Rules of Evidence, there is a
general presumption of admissibility of evidence." Hilaire v. DeWalt Indus. Tool Co., 54 F.
Supp. 3d 223, 235 (E.D.N.Y. 2014) (citation and internal quotation marks
omitted). Accordingly, "the rejection of expert testimony is the exception rather than the
rule." FED. R. EVID. 702 advisory committee's note.
Ultimately, "a trial judge should exclude expert testimony if it is speculative or
conjectural or based on assumptions that are "so unrealistic and contradictory as to suggest
bad faith" or to be in essence "an apples and oranges comparison." Zerega Ave. Realty
Corp. v. Hornbeck Offshore Transp., LLC, 571 F.3d 206, 213-14 (2d Cir. 2009). However,
"[t]o the extent that a party questions the weight of the evidence upon which the other party's
expert relied or the conclusions generated from the expert's assessment of that evidence, it
may present those challenges through cross-examination of the expert." R.F.M.A.S., Inc. v.
So, 748 F. Supp. 2d 244, 252 (S.D.N.Y. 2010). Simply put, "our adversary system provides
the necessary tools for challenging reliable, albeit debatable, expert testimony." Amorgianos
v. Nat'l R.R. Passenger Corp., 303 F.3d 256, 267 (2d Cir. 2002).
The prior decisions delineated five principal issues for the liability phase of trial on
plaintiffs' remaining claims. With regard to Saratoga and SCWA (collectively "Saratoga"),
The parties' familiarity with the extensive factual background in this matter is presumed and will not
be repeated here.
Halfmoon I held that a fact-finder must first determine whether: (1) the decision to locate the
intake at Moreau was part of an effort to avoid the threat of resuspended PCBs during the
dredging project; (2) the construction and operation of the water intake at Moreau was done
in substantial compliance with the National Contingency Plan ("NCP"); and (3) the PCBs are
petroleum-based or have been mixed with petroleum. See 105 F. Supp. 3d at 221. W ith
regard to Halfmoon's claims, the issue of GE's liability first required determinations as to
whether: (1) the construction and operation of the alternative water supply line to the City of
Troy was done in substantial compliance with the NCP; and (2) the resuspended PCBs are
petroleum-based or have been mixed with petroleum. Id. at 221-22.
This decision will confine its analysis of the pending expert motions to only those
aspects of the experts' opinions identified in the notices filed by the parties in accordance
with Halfmoon I; i.e., only those challenged opinions relevant to the liability issues just
outlined above. The remaining aspects of these motions will be denied without prejudice to
renew at the appropriate time.
However, as other courts have observed and as the parties are no doubt acutely
aware, CERCLA and its attendant regulatory framework are just as complex as "the tax code
and Medicare regulations." Amcast Indus. Corp. v. Detrex Corp., 779 F. Supp. 1519, 1534
(N.D. Ind. 1991), rev'd in part on other grounds, 2 F.3d 746 (7th Cir. 1993); see also
Cadlerock Props. Joint Venture, L.P. v. Schilberg, 2005 WL 1683494, at *5 (D. Conn. 2005)
("The Court recognizes full-well that wading through CERCLA's morass of statutory
provisions can often seem as daunting as cleaning up one of the sites the statute is designed
to cover."). Consequently, at least some of the considerations relevant to the issues
surrounding GE's alleged liability appear inextricably linked to issues that Halfmoon I fairly
characterized as questions that were best reserved for the damages phase of the trial.
Accordingly, to the extent that resolution of a party's "entire" challenge to a particular
expert, as opposed to just those opinions clearly relevant to the liability issues outlined
above, is deemed necessary, the entire challenge to that expert's testimony will be decided
here. The parties should not, however, construe this course of action as an invitation to
broaden the scope of the issues properly raised at the liability phase of the trial.
A. Halfmoon's Notice
1. Mark P. Millspaugh
Halfmoon intends to call Mark Millspaugh at the liability phase of the trial to offer his
opinion "as to the issue of NCP compliance in connection with its CERCLA claims." GE has
moved to exclude Millspaugh's opinions on this issue as unreliable—GE claims that an
"[e]xamination of the underpinnings and content of his opinion confirms that it is based
almost entirely on his own ipse dixit and is directly inconsistent with the express terms of the
CERCLA, governing regulations, and applicable case law."
Millspaugh, President of Sterling Environmental Engineering, P.C., is a professional
engineer registered in New York, Pennsylvania, Vermont, and New Hampshire. Millspaugh's
relevant experience stretches back to 1977, the year he graduated with a B.S. in
Environmental Engineering from Rensselaer Polytechnic Institute ("RPI").
Since bolstering his professional credentials by completing an M.S. in that same field
in 1981 (which was also conferred on him by RPI), Millspaugh has enjoyed employment with
a number of professional organizations relevant to this litigation, including a five-year stint
with the New York State Department of Environmental Conservation ("DEC").
In sum, Millspaugh claims over thirty-five years of experience "involving a wide range
of engineering projects in the fields of solid and hazardous waste management, site
development, water and wastewater facilities, and environmental permitting."
As Halfmoon notes, GE does not challenge Millspaugh's qualifications, and an
independent review of his credentials reveals no basis on which to conclude further inquiry
on this issue might be warranted. Rather, GE seeks preclusion of Millspaugh's opinions
regarding Halfmoon's compliance with the provisions of the NCP, a prerequisite to recovery
under the relevant provisions of CERCLA.
Codified at 40 C.F.R. pt. 300, the National Oil and Hazardous Substances Pollution
Contingency Plan, or NCP, is "essentially the federal government's toxic waste playbook,
detailing the steps the government must take to identify, evaluate, and respond to hazardous
substances in the environment." Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc., 596
F.3d 112, 136 (2d Cir. 2010). "Adherence to the plan is the gatekeeper to seeking
reimbursement of response costs." Id.
"The NCP's procedural requirements include, among other things, that the party
seeking response costs conduct a remedial site investigation, prepare a remedial
investigation and feasibility study ("RI/FS"), and provide an opportunity for public
comment." City of Mose Lake v. United States, 458 F. Supp. 2d 1198, 1236 (E.D. W a. 2006)
(internal citations and citation omitted). "Courts presume that actions undertaken by the
federal, or a state, government are consistent with the National Contingency Plan." Niagara
Mohawk Power Corp., 596 F.3d at 137 (citation omitted). However, "private parties that have
responded to hazardous substances must establish compliance" with the NCP or risk being
barred from recovery under the statute. Id.
Importantly, though, "[t]he EPA [has] expressly recognized that requiring private
parties to adhere to a set of mechanical rules would impede this objective." Aviall Servs.,
Inc. v. Cooper Indus., LLC, 572 F. Supp. 2d 676, 691 (N.D. T ex. 2008). As the Aviall Court
observed, the EPA's own rulemaking has noted that "[p]rivate parties generally will have
limited experience in performing cleanups under the NCP, and thus may be unfamiliar with
the detailed practices and procedures in this rather long and complex rule; an omission
based on lack of experience with the Superfund program should not be grounds for defeating
an otherwise valid cost recovery action, assuming the omission does not affect the quality of
the cleanup." Id. at n.16 (citation omitted).
Therefore, the mere fact that a party "did not adhere to particular provisions of the
NCP is not controlling." Aviall Servs., Inc., 572 F. Supp. 2d at 691. Rather, consistency with
the NCP is analyzed under a "substantial compliance" standard, and "immaterial or
insubstantial deviations" will not necessarily render a particular remedial action
inconsistent. Halfmoon I, 105 F. Supp. 3d at 215. "Ultimately, the goal is consistency and
cohesiveness to response planning and actions." Niagara Mohawk Power Corp., 596 F.3d at
136-37 (citation and internal quotation marks omitted); see also AlliedSignal, Inc. v. Amcast
Int'l Corp., 177 F. Supp. 2d 713, 738-43 (S.D. Ohio 2001) (noting NCP compliance focuses
on whether the remedial activities are "protective of health and the environment and . . . [are]
In this case, Halfmoon I found that although the EPA had determined, as a general
matter, that some provision of alternative drinking water would be necessary to protect
plaintiffs' respective communities from the potential hazard of consuming contaminated water
in connection with the dredging projects, there was no indication EPA had "specifically
endorse[d] the plaintiffs' respective plans" for carrying out that important goal. 105 F. Supp.
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3d at 215-16. Accordingly, Halfmoon I concluded:
"Issues of material fact exist regarding whether plaintiffs' specific
projects were chosen and implemented in substantial compliance
with the NCP. For example, a jury must determine whether the EPA
and NYDEC were sufficiently involved in the selection,
implementation, and monitoring of the projects . . . . [and] [w]hether
plaintiffs adequately considered alternatives must also be
105 F. Supp. 3d at 217.
It is against this backdrop that GE challenges Millspaugh's expert conclusions. First,
GE argues Millspaugh's expert opinion fails to correctly apply the relevant provisions of the
NCP because "[w]hen he was specifically asked to draw a connection between the NCP
provisions he actually cited in his report and [Halfmoon's] purchase of alternative water, he
could not do it." GE emphasizes an exchange that took place at Millspaugh's deposition:
Q. Can you tell me which provisions, that you discuss in Section 2
of your report, apply specifically to what Halfmoon did when it chose
to use Troy water full-time?
A. After laying a foundation with the definition of remedial action,
and pointing to the provisions of removal actions, both including
recognition of alternate water, I then stepped through that the
Record of Decision identified that the downstream water users
needed to be protected, and that alternate water would be planned
and implemented as needed. I don't have a particular citation to
an individual provision of the NCP. Rather, I relied on the fact
that EPA managed this through the RIFS process, ultimately led to
a decision that was embodied in a ROD, and that that ROD included
In other words, GE seizes on the bolded statement identified above to claim that
Millspaugh has "disavow[ed] having undertaken any review of relevant facts" in this matter,
leaving his opinions "wholly divorced" from the NCP itself and thus subject to exclusion from
this case. Cf. Parsi v. Daioleslam, 852 F. Supp. 2d 82, 89 (D.D.C. 2012) ("An expert
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proposing to testify about professional standards must, however, identify specific and
objective standards, not rely on his personal opinions about what professional standards
should be."). Halfmoon defends Millspaugh's alleged gaffe by arguing that GE only managed
to elicit this response by resorting to an allegedly deceptive maneuver; that is, asking
Millspaugh to choose between which of two closely related subdivisions of the NCP applied
to a municipality like Halfmoon.3
After careful consideration, Millspaugh's apparent inability to pass GE's impromptu
closed-book examination on particular nuances of the NCP is not itself sufficient to justify
exclusion. Although Millspaugh's highlighted testimony does reflect a degree of possible
inexactitude or imprecision regarding certain sub-sections of the NCP, ("I don't recall
specifically stepping down each and every element of subparagraph 5 and 6."), Halfmoon
correctly notes that Millspaugh's expert report is focused on detailing how the oversight and
approval process undertaken by the EPA in selecting the water supply contingency to be
used during the dredging project is connected to the issues in this case.
This kind of analysis is relevant because, as Halfmoon I noted, one way of
demonstrating compliance with the NCP would be to show that a party's response was
conducted "under the monitoring, and with the ultimate approval, of the state's environmental
agency" or the EPA. 105 F. Supp. 3d at 215. T o be sure, there is a vigorous dispute
between the parties over what GE perceives as Halfmoon's unilateral abandonment of that
monitoring arrangement in favor of the full-time purchase of Troy water, something
According to Halfmoon, an impossible choice that exploits a bit of unsettled law in our Circuit. See
Town of New Windsor v. Tesa Tuck, Inc., 919 F. Supp. 662, 682-84 (S.D.N.Y. 1996) (examining whether a
municipality should be considered a "state" for purposes of CERCLA cost recovery actions, answering that
question in the negative, and surveying the conflict on the issue)
- 12 -
Millspaugh's opinion appears to indicate was nevertheless permissible and in substantial
compliance with the NCP.
That may well be incorrect. But Millspaugh, an expert with specialized experience in
the field of environmental engineering and hazardous waste management, reached this
challenged conclusion after examining the particulars of the EPA's agreement and analyzing
how that agreement was implemented in this case. In short, the best way to resolve the
alleged shortcomings in Millspaugh's expert report is at trial. See Borawick v. Shay, 68 F.3d
597, 610 (2d Cir. 1995) (holding that the Supreme Court in Daubert "expressed its faith in the
power of the adversary system to test 'shaky but admissible' evidence, . . . and advanced a
bias in favor of admitting evidence short of that solidly and indisputably proven to be
GE further faults Millspaugh for his alleged failure to consider the fact Halfmoon never
conducted its own investigation, study, or analysis to substantiate its decision to purchase
Troy water on a full-time basis. Relatedly, GE notes that Millspaugh was unfamiliar with the
"nine evaluation criteria" related to selecting a remedy under the NCP.
Again, though, rigid adherence to a checklist of rules is not necessary to demonstrate
"substantial compliance" with the NCP. That matters in this context, because courts have
endorsed a "purpose-based" approach to the issue of NCP compliance. See, e.g., Aviall
Servs., Inc., 572 F. Supp. 2d at 692. As relevant here, "[t]he remedial investigation and
feasibility study ("RI/FS") requirement of the NCP 'is intended to determine the extent of
contamination and possible remedies.'" Carson Harbor Vill., Ltd. v. Unocal Corp., 287 F.
Supp. 2d 1118, 1172 (C.D. Cal. 2003) (internal citation om itted).
According to Halfmoon, Millspaugh's opinion is that an independent evaluation would
- 13 -
have been "duplicative and unnecessary" in these circumstances, since the EPA had
conducted its own multi-year RI/FS, issued a Record of Decision, and determined that the
provision of alternate water was within the scope of the remedy selected. GE disagrees,
making much of the fact that EPA's Record of Decision does not appear to explicitly
authorize the unilateral purchase of Troy water on a full-time basis. Once again, Millspaugh's
opinion may well be wrong, but it is based on his professional experience in the field, his
review of the exhaustive history of this case, and his own understanding of the strictures of
Finally, GE claims Millspaugh misstates the relevant law on NCP compliance. In
support of its claim, GE points out Millspaugh's alleged misidentification of Halfmoon's action
as "not inconsistent with," rather than "consistent with," the NCP. Of course, this seemingly
trite semantic distinction matters—those phrases, found in different provisions of CERCLA,
"carry with them different standards and burdens of proof." Town of New Windsor, 919 F.
Supp. at 682.
Much like GE's first argument, this is an attempt to highlight Millspaugh's alleged
misunderstanding of consequential distinctions in a complex regulatory scheme. But as
Halfmoon notes, Millspaugh's expert report and his rebuttal report both utilize the "correct"
language—speaking of Halfmoon's actions as being "fully consistent with" the regulations.
On balance, neither Millspaugh's usage of inconsistent language nor any of the other
shortcomings identified by GE warrant exclusion at this juncture. Rather, GE is "free to
challenge any 'shaky or unreliable' testimony before the jury using the 'traditional devices of
vigorous cross-examination, presentation of contrary evidence, and careful instruction on the
burden of proof.'" Hilaire, 54 F. Supp. 3d at 235 (citation omitted).
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2. Robert Michaels
Halfmoon also intends to call Robert Michaels at the liability phase of the trial testify as
to his first three expert conclusions:
The Dredging Project has resulted in elevated levels of PCBs
in the Hudson River, including the presence of sheens of
PCB NAPL (non-aqueous phase liquid PCB oils) on the river
surface. Such PCB NAPL sheens were due to the presence
of PCB NAPL in the bottom sediments of the river.
PCBs, including PCB NAPL, reside in the riverbed because
of their release, discharge, and/or disposal by GE.
The Dredging Project cannot and will not eliminate all PCB
contamination, including PCB NAPL, located in the bottom
sediment of the Hudson River.
GE has not moved to exclude these portions of Michaels's expert report. Rather, GE
previously sought only to exclude Michaels's eighth opinion, which recommends that
Halfmoon obtain water from an alternate source for at least ten years following the
completion of the dredging project.
However, GE argues in its supplemental notice that certain aspects of the first and
third of Michaels's conclusions appear to stray outside the scope of the issues identified by
Halfmoon I for resolution at the liability phase—generally speaking, Michaels's conclusions
regarding the "incompleteness" of the cleanup of the sediment and the long-term
consequences of that fact on the fitness of the drinking water going forward.
As Halfmoon notes, this opinion falls outside the scope of the issues identified for
resolution at the liability phase of the trial. Indeed, Halfmoon's notice explains that
Michaels's involvement at the liability phase of the trial will be limited to testimony as to
(1) the nature and characteristics of oil and NAPL sheens in the river; (2) the mechanisms by
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which those contaminants are released into the water column; (3) the forms or phases in
which these contaminants present themselves; (4) the impact the dredging process has had
on the contaminants present in the sediment; and (5) why these contaminants fall within the
definition of "petroleum" set forth in New York's Navigation Law.
This outlined testimony appears relevant to a technical understanding of PCB
contamination as well as the two liability issues delineated above. Therefore, although
Michaels will certainly be confined to offering opinions relevant to topics suitable for
resolution at the liability phase of the trial, further discussion of the admissibility of his
opinions is unwarranted at this time.
B. Saratoga's Notice
1. Kirk Brown
Saratoga intends to call Kirk Brown at the liability phase of the trial to offer his opinion
regarding the PCBs present in the Hudson River system, including the impact dredging has
had on the existing contamination as well as the long-term consequences of their release on
the river's water as a source of drinking water.4 GE has moved to exclude several of Brown's
opinions, arguing that neither his expertise nor his methodology is sufficient to support his
opinions on these topics.
As an initial matter, a review of Brown's qualifications reveal that his current position
as professor emeritus in the Soil and Crop Sciences Department at Texas A&M University is
the capstone to a career spanning more than fifty years. Brown's educational background
Halfmoon's notice discloses its intention to rely on Brown's testimony as to compliance with the
NCP as well as scientific information regarding the nature, presence, and transport of PCBs in the Hudson
- 16 -
includes a B.S. in Agronomy from Delaware Valley College, an M.S. in Agronomy / Plant
Physiology from Cornell University, and a Ph.D. in Agronomy from the University of
In addition to these academic credentials, Brown's curriculum vitae reflects a laundry
list of professional achievements. All told, the various committee appointments, society
memberships, awards, guest lectures, and scientific publications span nineteen pages of
small-type text. Brown also claims prior experience as a panel member for various EPA
studies addressing issues of toxicity and risk as well as knowledge and experience
evaluating risk assessment and mitigation of risk in the decision-making process for remedial
actions in the context of hazardous waste sites.
Among other things, Brown's expertise has been utilized for:
site assessments, data review and interpretation, waste
management activities, the study of fate and transport of
contaminants in the environment, the movement of contaminants in
groundwater and surface water, the design and implementation of
remedial actions for recalcitrant organic compounds, and other
Brown has also testified as an expert "in civil cases in federal and state courts,
regulatory hearings, and enforcement actions" on issues "pertaining to hazardous wastes,
organic chemical contamination, and the fate and transport of organic chemicals, NAPL,
DNAPL, metals, and other contaminants in environmental media."
GE does not directly challenge Brown's expert qualifications, and for good reason. As
Judge Cardamone observed nearly twenty years ago, "it is difficult . . . to imagine an expert
with more experience and knowledge in the hazardous substances field than Dr.
Brown." B.F. Goodrich v. Betkoski, 99 F.3d 505, 525 (2d Cir. 1996), overruled on other
- 17 -
grounds by New York v. Nat'l Serv. Indus., Inc., 352 F.3d 682, 685 (2d Cir. 2003).
That is not to say, however, that Brown's credentials place his expert conclusions
above responsible scrutiny. See, e.g., Seneca Meadows, Inc. v. ECI Liquidating, Inc., 427 F.
Supp. 2d 279 (W.D.N.Y. 2006) (discounting Brown's expert conclusions as speculative and
characterizing his methodology "unique"). Here, GE seeks to preclude four5 of Brown's
opinions, arguing that he "lacks both the expertise and the reliable factual and
methodological basis necessary" to make certain conclusions that "go well beyond the
boundaries of fate-and-transport issues into questions of PCB health effects and the
implications of those health effects for municipal water suppliers."
Specifically, GE's motion seeks to preclude Brown from opining that:
Communities that used to draw their drinking after from the
Hudson River will require alternative water long after the
Dredging Project is concluded (Opinion 4.5);
Potential spikes in PCB concentrations cannot be predicted
with sufficient certainty to permit municipalities along the
Hudson to use the river as a safe source of drinking water
It will not be safe for residents of Halfmoon to use the river for
drinking water until there are no PCBs in the River (Opinion
The only way to ensure safe drinking water is to provide a
permanent source of alternative water for the Plaintiff
communities (Opinion 4.12).
At the outset, a review of these challenged conclusions suggests that although the
continuing danger from (or successful elimination of) PCB contamination in the river will be
GE also seeks to exclude Brown's opinions regarding PCB handling practices. However, these
opinions appear to bear on certain of plaintiffs' now-preempted claims. See Saratoga Opp'n, ECF No. 217,
12 (discussing New York negligence claims). Accordingly, this branch of GE's motion is denied without
prejudice to renew if necessary.
- 18 -
relevant to the damages phase of the trial, it is likely beyond the scope of the issues flagged
for resolution at the liability phase.
Specifically, Halfmoon I held that, with respect to Saratoga, determinations were
required regarding: (1) whether the decision to locate the intake in Moreau was an effort to
avoid resuspended PCBs during the dredging project or was completely independent from
the proposed dredging project; (2) whether the construction and operation of the water intake
in Moreau was done in substantial compliance with the NCP; and (3) whether the
resuspended PCBs are petroleum-based or have been mixed with petroleum.
Here, Saratoga's expert notice indicates that Brown's testimony at the liability phase
will be focused on: (1) his knowledge of the nature, persistence, fate, and transport of PCBs
discharged and released from GE plants into the Hudson River; (2) federal and state
sampling, monitoring, and testing of those contaminants; (3) the process and effects of
resuspension from the dredging project; and (4) the continued discharge of PCBs into the
environment. This information seems limited to the liability issues outlined above, since it
goes to an understanding of how PCBs are interacting with the Hudson River system and will
assist the trier of fact in understanding the complex issues in this case.
In fact, a review of Brown's expert report reveals that he has carefully documented the
sources (and, according to him, associated uncertainties) of ongoing PCB contamination in
the Hudson River. For instance, Brown begins from his area of indisputable expertise—he
concludes there is a significant likelihood that bedrock fractures and other soil-related
contamination from GE sites along the waterfront are "continuing sources" of PCB
contamination leaching into the river and that, although GE claims these sources are
declining, "they have not ceased and the mass transported to the river is not zero." Brown is
- 19 -
certainly entitled to rely on his review of the data and tests available to him, along with his
expertise, to draw that conclusion.
Relatedly, Brown notes that the effects of PCB resuspension and unpredictable
downstream transportation—both from dredging activities and from naturally occurring
events—make it difficult, if not impossible, to accurately monitor the concentration of PCBs
on a real-time basis. In Brown's view, this issue is further complicated by the heterogeneity
of the water column, which poses additional difficulties when attempting to accurately
measure the levels of PCB contamination present in any one location. Likewise, Brown
adequately explains the basis for his opinion that the presence or absence of visible oil
sheens on the surface has no necessary bearing on the less-visible movement of
contaminants along the river's bed.
In sum, these conclusions are based on Brown's extensive understanding of, and
experience in, the fate and transport of contaminants in a complex system, such as the
Hudson River, and are admissible. GE's motion does take a passing shot at Brown's
apparent lack of academic familiarity in dealing specifically with PCBs, but Saratoga
persuasively responds that Brown's years of experience as a technical advisor to the EPA
and other agencies on issues related to hazardous substances, along with Brown's thorough
review of the particular facts of this case, are a more than sufficient basis on which to
conclude Brown is qualified to opine about the fate and transport of PCBs. See Argonaut
Ins. Co. v. Samsung Heavy Indus. Co. Ltd., 929 F. Supp. 2d 159, 168 (N.D.N.Y . 2013)
(D'Agostino, J.) ("An expert does not have to conduct his own tests and may rely upon data
that he did not personally collect." (citation and internal quotation marks omitted)).
Beyond these foundational opinions, it appears that the f our opinions GE's motion
- 20 -
seeks to preclude specifically concern the length of time that the safety of the Hudson River
water cannot be assured and are likely only relevant to the extent of the damages Saratoga
could claim, not the issues of liability identified above. However, in light of the possibility that
Brown may be called upon to describe how knowledge of the threat of resuspended PCBs
may have played some role in Saratoga's decision to locate its facility at Moreau, the
remainder of GE's challenge to Brown's opinions will be resolved here.
The four opinions GE challenges above are efforts by Brown to do anything beyond
simply describe the complexities and uncertainties of the river system itself—GE maintains
Brown is unqualified to opine about the fitness of the Hudson River as a source of "safe"
First, however, and as Saratoga correctly argues, nothing in Rule 702 precludes
Brown from making "reasonable observations about the widely accepted governmental
position that PCBs are a hazardous substance and a known carcinogen."
Indeed, a review of CERCLA case law reveals that PCB exposure is widely
understood as harmful. See, e.g., NCR Corp. v. George A. Whiting Paper Co., 768 F.3d
682, 688 (7th Cir. 2014) ("PCBs are carcinogenic for humans and animals alike, and they
have harmful noncarcinogenic effects on the immune, reproductive, neurological, and
endocrine systems, as well as the skin."); Consolidation Coal Co. v. Georgia Power Co., 781
F.3d 129, 155 (4th Cir. 2015) (noting PCBs are "potent human carcinogens 'linked to skin
cancer, liver cancer, brain cancer, intestinal cancer, bladder cancer, leukem ia, birth defects
in humans and animals, and other health problems'" (quoting United States v. Gen. Elec.
Co., 670 F.3d 377, 379 n.1 (1st Cir. 2012))).
Importantly, Brown's statements regarding the widely accepted health risks of PCBs
- 21 -
do not include any speculation about the specific, long-term effects of such exposure on the
human body, something which Brown has been precluded from opining about in the
past. Palmer v. Asarco Inc., 2007 WL 2302584 (N.D. Okla. Aug. 7, 2007) ("While Dr. Brown
can testify how lead dust is transported from one place to another, the actual ingestion and
elevation of blood lead levels is outside of his expertise."). However, based on a similar
rationale to Palmer, Brown can permissibly reason that, since a given level of exposure
poses a quantifiable risk, exposure beyond the given level serves to increase that risk. See
id. at *9 ("Dr. Brown can testify about an increased risk of [contaminant] exposure" for
persons in a given area).
In fact, Brown's expert report goes into significant detail regarding the accepted New
York State standards for PCB concentrations and explains how water sampling from the
Hudson River frequently exceeded, and, in his opinion, could be expected to continue to
exceed, these standards. Brown includes a similar discussion of the risk-based
concentrations used by the EPA.
Importantly, Brown notes that his previous, permissible conclusions about "fluctuations
in the flow of the river and widely variable PCB concentrations within the channel of the river"
mean that, in his expert opinion, sample results from monitoring stations "will not be
representative of the water drawn from the river by the public."
This conclusion is based on Brown's opinion that attempts at accurate monitoring
have been imperfect and likely too conservative. For instance, he notes that established
standards during Phase I of the Dredging Project were exceeded at various times and that
the EPA and GE responded by actually relaxing the permissible criteria. In other words,
Brown builds on his earlier conclusions about the uncertain f ate of PCBs in the river system
- 22 -
to conclude it has been, and will continue to be, difficult to ever accurately determine the
true levels of PCB exposure resulting from Hudson River water.
Of course, GE urges adoption of the EPA's position on this issue, which is that
PCB-laden river water below certain concentrations is safe to consume. But although this
expert agency position is likely relevant in this case, it is not the final word on possible
harmful health effects. Cf. United States v. P.H. Glatfelter Co., 768 F.3d 662, 677 (7th Cir.
2014) ("Thus, sediment with a PCB concentration of 0.99ppm will be left alone, not because
it is uncontaminated, but because it is insufficiently contaminated to push the [EPA's chosen
standard of harm] . . ." to a particular level). In other words, while Brown's apparent
disapproval of the EPA standard, or his failure to adopt it, may be troubling, it is not the kind
of "serious flaw" in reasoning that would warrant exclusion. See Fed. R. Evid. 702 advisory
committee's note ("The evidentiary requirement of reliability is lower than the merits standard
of correctness." (quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 744 (3d Cir. 1994)).
Rather, and as Saratoga notes, Brown's opinion that river water must contain "zero
PCBs" before it can be considered "safe," the main conclusion challenged by GE, is based
on Brown's detailed findings of rampant uncertainty regarding the true extent and expected
duration of PCB contamination in the river system. The correctness of this conclusion, as
well as Brown's apparent failure to consider whether filtration of raw water would be a viable
alternative solution, are subjects ripe for cross-examination, not bases for exclusion. Cf.
Argonaut Ins. Co., 929 F. Supp. 2d at 170 (noting the fact that an expert allegedly failed to
perform or consider some "essential" test or measurement goes to the weight, and not
admissibility, of the testimony).
- 23 -
2. David O. Carpenter
Saratoga intends to call Carpenter during the liability phase of the trial to testify,
among other things, as to (1) the toxicity, adverse health effects, and other risks associated
with PCBs on public health; (2) the decision to locate the public w ater intake upstream of
dredging; (3) the issue of NCP compliance; and (4) the public health impact of past, present,
and future PCB concentrations and the need f or alternative water supplies.
However, as GE's supplemental notice points out, Halfmoon I already concluded that
"the dredging project posed an actual threat to human health—a threat sufficiently significant
to necessitate the provision, at least initially, of alternative drinking water to the public. The
issue of whether the threat of harm ever dissipated and when, if ever, the water in the Upper
Hudson River became safe enough for public consumption is altogether separate and may
limit the damages." 105 F. Supp. 3d at 213.
In other words, GE claims certain aspects of Carpenter's expected testimony
regarding the adverse health effects of PCBs, already established as a known harm to the
public in Halfmoon I, would fall outside the scope of the liability phase of trial.6 To be sure,
the reality and/or risk of a continuing harm to the public through PCB exposure, as well as its
possible duration, will be relevant to the issue of damages as framed by Halfmoon I.
However, a review of the material reveals that the possible utility of Carpenter's expert
testimony is not so easily bifurcated. Therefore, out of an abundance of caution, GE's
motion to exclude Carpenter will be resolved here.
As an initial matter, a review of Carpenter's credentials confirms that he is qualified to
Carpenter, like many of plaintiffs' experts, seems to take the position that exposure to any
concentration of PCBs is harmful.
- 24 -
opine on the general public health risks associated with PCB exposure. Currently a
Professor of Environmental Health Sciences in the School of Public Health and Director of
the Institute for Health and the Environment at the University of Albany, Carpenter's career in
"biomedical research and public health" began in 1964, when he graduated from Harvard
For more than twelve years, Carpenter has directed a large, interdisciplinary research
study on PCB contamination emanating from an industrial site in New York funded by the
Superfund Basic Research Program of the National Institute of Environmental Health
Sciences, one of the National Institutes of Health. This project has included, among other
things, health studies of nearby residents, animal toxicology studies on the effects of PCBs,
and detailed determinations regarding PCB levels in the region's humans, animals, soils,
sediments, air, and water.
Carpenter has also served on "several national and international advisory
committees," published numerous articles on the results from human and animal exposure to
PCBs, and has reviewed thousands of medical records in connection with this body of
research. Carpenter currently co-chairs a United States task force of the International Joint
Commission "dealing with the variety of health concerns resulting from contamination" on
Lake Erie and is also a member of a panel of experts assembled to review the newest edition
of the Agency for Toxic Substances and Disease Registry's Toxicological Profiles for
Polychlorinated Biphenyls. In sum, Carpenter is qualified to provide an opinion on the risk to
human health posed by exposure to PCBs.
GE does not contest Carpenters' qualifications, and a review of them indicates he is
well-suited to offer opinions on certain issues in this case. Rather, GE requests exclusion of
- 25 -
three aspects of Carpenter's expert opinions:
"[T]o the effect that plaintiffs acted reasonably in taking steps
to avoid drawing drinking water from stretches of the Hudson
River affected by PCBs and GE's Dredging Project."
About the "superiority" of "congener-specific" PCB detection
methods over "Aroclor" detection methods.
Regarding compliance with the NCP.
First, GE argues that Carpenter's opinions about the reasonableness of plaintiffs'
decision to avoid drawing drinking water from the Hudson River must be excluded because
Carpenter, who is admittedly not an expert in the nuances of municipal "cost-benefit
decision-making," cannot opine on the reasonableness of plaintiffs' chosen courses of
This argument is unpersuasive. Essentially, it is an attempt by GE to cast Carpenter's
opinions about the health effects of PCB exposure as opinions about the totality of the
relevant inputs required for a proper, or "reasonable," cost-benefit analysis of the kind in
which a municipality would be expected to engage when selecting (or avoiding) a particular
drinking water source. But as GE readily admits, information about the "risks associated with
a given water source" is certainly relevant as an input into such a risk-based analysis. And
while it is likely not, as GE argues, the "only input," Carpenter does not purport to make that
Rather, if one assumes that the reasonableness of a chosen response to a threat,
perceived or otherwise, exists on a continuum, then Carpenter's expert opinion substantiates
the degree of one of the factors relevant in that calculus—in his opinion, exposing the
residents of plaintiffs' respective municipalities to PCBs at any concentration poses a
- 26 -
significant health risk.
For example, assume that a hypothetical municipality's decision-makers have chosen,
or have been forced, to engage in such a risk analysis. If these decision-makers had acted
either in the absence of the kind of information substantiating a threat that Carpenter has
offered here, or possibly in the face of some consensus demonstrating there was no risk, one
would likely describe such a response as an "unreasonable" or "unnecessary" one under the
circumstances. N.Y.S. Elec. & Gas Corp. v. FirstEnergy Corp., 808 F. Supp. 2d 417, 522
(N.D.N.Y. 2011) (Peebles, M.J.) (noting "courts generally deny [CERCLA] recovery where
costs incurred are duplicative of others, wasteful, or otherwise unnecessary to address the
hazardous substances involved"), vacated in part on other grounds by 766 F.3d 212 (2d Cir.
2014). In other words, Carpenter's opinions about the degree, reality, and likely duration of
the harm helps put such decision-making, which necessarily exists on a continuum, into
The conclusion on this issue might be different if Carpenter's report attempted to flesh
out a formalized municipal risk assessment or advance an assessment that valued, say, only
the risk of PCB exposure to the exclusion of all else. But as Saratoga notes, Carpenter
explicitly disavows that kind of risk analysis expertise; rather, he readily acknowledges that
he is only contributing his opinion about how the risks stemming from PCB exposure deserve
to be weighed in that equation.
GE cites to Allgood v. General Motors Corp., a case in which Carpenter was precluded
from offering his opinion "as to the proper components and cost of a proper medical
monitoring program," to justify his exclusion here. 2006 WL 2669337, at *29 (S.D. Ind.
2006). But unlike in Allgood, Carpenter's expert opinion here is not about the proper (or
- 27 -
improper) elements of a risk assessment, but rather about how PCB risk might fit into such
an analysis. As Saratoga notes, there is no requirement that Carpenter consider every input
GE identifies as relevant in its preferred equation. Rather, the best way to test the relevance
(or limits) of Carpenter's opinion on this issue is through cross-examination.
Second, GE contends Carpenter's opinion about the relativ e accuracy of two different
methods of PCB measurements are "speculative" and "contrary to available
data." Specifically, GE is challenging Carpenter's opinion that the so-called "Aroclor method"
of analyzing Hudson River water fails to "adequately determine the total exposure coming
from drinking water." Instead, Carpenter touts the superiority of a "congener-specific"
Resolution of this challenge requires some quick background information, since the
term "PCB" actually represents a group of 209 possible molecular variants, known as
"congeners." And although these variants share many common characteristics, different
congeners have different biological actions and cause different adverse health effects.7
According to Carpenter, the Aroclor method of testing for PCBs "does not determine
total PCB concentration, but rather determines only the concentration of PCBs that match the
pattern of the original commercial mixture." Therefore, the Arocolor method "will ignore
concentrations of congeners that don't fit the pattern of the original commercial mixture, and
thus will significantly underestimate the total PCB concentration, especially of lower
GE argues this opinion must be excluded because Carpenter's hypothesis regarding
Monsanto manufactured commercial mixtures of PCBs in the United States under the brand name
Aroclor. Allgood, 2006 WL 2669337, at *6.
- 28 -
the superior accuracy of congener-specific testing has been "shown to be false." To support
this claim of falsity, GE points to a 2008 study conducted by the New York State Department
of Public Health ("DOH"), which collected samples of finished drinking water from nine public
water systems on the Hudson River. DOH performed a "form" of Arocolor analysis and
compared those results to the "Green Bay Method," a "form" of congener-specific analysis.
According to GE, the results published by DOH "showed that in virtually every instance
where the reported PCB level was above the detection limit of the instrumentation, the
Aroclor method reported a higher total PCB concentration than the congener-specific
method." When shown the results of this study at his deposition, GE claims Carpenter
categorically refused to accept this empirical data.
But GE's assertion is an overstatement. A review of Carpenter's deposition transcript
reveals that his position on the relative value of these two methods is not avowedly
anti-science, as GE claims, but is rather an expression of skepticism regarding the outcome
of the particular test run by the DOH in light of his own technical understanding of these
And does this seem to indicate that the values obtained by
the Green Bay method were lower than the values obtained
by the method 508 for finished drinking water?
Well, that would seem what it's showing here, but I don't
believe it. The Green Bay method is not a very sensitive
congener-specific method. I – actually, I – I work with the
laboratory on my research projects, the laboratory that does
all of the the – these analyses. And I've specifically asked
that question of [the chief of the analytical program at the
Pace laboratory]. And he basically totally agrees with me that
the Aroclor method is an underestimation of the total
concentration and the Green Bay method, while it is a
congener-specific method, is just not a very sensitive
congener-specific method. My laboratory only did congener- 29 -
specific analyses, although in my lab, we only had ability to
measure 101 of the 209 congeners, but we got almost all of
the ones that are usually found. And we've done many
comparisons – well, I shouldn't say many, but we've done
comparisons between Aroclor analyses and our congenerspecific analysis, and the – the Aroclor analyses are not – not
And it makes sense, because you have these
commercial mixtures, and there are five major – sometimes
people say six major Aroclors. The Aroclor method looks at
patterns derived from four or five congeners and – and
judges what the total would be on the basis of those four or
five congeners. But in the real world, whether you're talking
about congeners in sediment, in sediment that are anaerobic
bacteria that removes some chlorine, so the pattern changes
from the commercial mixture. Then what goes into solution
is a selective solubility to the lower chlorinated congeners, so
that pattern changes.
As Saratoga notes, GE has not identified some massive body of scientific literature
expressing a consensus that weighs against Carpenter's position on the value of a
congener-specific analysis, but rather has identified a single DOH study, which uses a
congener-specific method that Carpenter specifically challenges as insufficiently "sensitive,"
that appears to possibly contradict his professional opinion. But just as Carpenter's opinions
on the matter are not to be taken as gospel, neither are the DOH's findings on a 2008 study
the final word on the matter. Rather, GE is free to challenge any problems it perceives with
Carpenter's congener-specific analysis on cross-examination.
Finally, GE seeks to preclude Carpenter from opining on the issue of NCP
compliance. As with Millspaugh, GE takes issue with Carpenter's inability to recite the details
of the complex regulatory regime that is the National Contingency Plan, the details of which
Carpenter unsurprisingly characterizes in his deposition as "[e]ven more boring" than
- 30 -
As noted above, GE is no doubt correct to point out that the NCP is at least as
technical as "the tax code and Medicare regulations." Amcast Indus. Corp., 779 F. Supp. at
1534. But, just as with Millspaugh's allegedly unsophisticated understanding of the same
issue, it is not fatal to Carpenter's admissibility. Rather, Carpenter's expert report reflects
that he has reviewed and is familiar with the relevant provisions of CERCLA as well as the
complex, "even more boring" framework of the NCP. Given the plaintiff-friendly nature of the
aforementioned "substantial compliance" standard of the NCP, GE must do more than
demonstrate an expert's inability to recall certain aspects of that complex regulation at a
deposition in order to justify preclusion. Rather, to the extent GE believes Carpenter,
Millspaugh, or other experts lack the requisite understanding of the so-called "toxic waste
playbook," that belief can be tested on cross-examination.
C. GE's Notice
1. Stephen A. Johnson
GE intends to call Johnson to address whether Saratoga's response costs were
"necessary" and "consistent with the NCP." In Johnson's expert opinion, Saratoga's claimed
response costs were not "necessary" because "they were not in fact incurred in response to
a threat to human health or the environment" and were not "consistent with the NCP"
because Saratoga failed to adequately (1) evaluate the risks to be addressed; (2) consider
alternative methods of addressing those risks; and (3) utilize the public participation process.
Johnson, a Professional Engineer licensed in the State of California, claims thirty
years of professional experience in the cleanup of contaminated sites and the related issues
of compliance with environmental laws and regulations. After attending Stanford University,
- 31 -
where he obtained both a B.S. in Civil Engineering and an M.S. in Environmental
Engineering, Johnson joined the EPA, where he began work as a Remedial Project Manager
in the newly created Superfund Program.
In that role, Johnson enjoyed direct responsibility for investigation and cleanup
operations at various Superfund sites in Region IX, the Pacific Southwest. Among other
things, Johnson oversaw private party CERCLA response actions and ensured that those
actions complied with the NCP.
Thereafter, Johnson became an Inspector and Compliance Officer with the EPA
Region IX's Water Management Division and, eventually, Chief of Region IX's Resource
Conservation and Recovery Act ("RCRA") Enforcement Section. In the former role, he
inspected facilities subject to various state and federal regulatory requirements and again
oversaw private party response actions taken "to control releases of hazardous substances
to ground water" being implemented in accordance with the Clean Water Act. In the latter,
Johnson "developed and implemented EPA Region IX's RCRA corrective action program," a
site cleanup program analogous to CERCLA's Superfund program.
Eventually, Johnson left the EPA to become an Assistant Director of the Arizona
Department of Environmental Quality, where he headed the Office of Waste
Programs. There, Johnson developed and implemented all waste-related programs and
coordinated the cleanup of sites contaminated with hazardous substances, hazardous waste,
deleterious solid waste, and other chemicals or wastes that potentially posed threats to
human health or the environment.
These days, Johnson is a Director at Gnarus Advisors LLC, a consulting firm that
provides "economic, financial, and environmental analysis, expert testimony, litigation
- 32 -
support, regulatory analysis, strategic management consulting, and other services to a broad
range of public and private enterprises" on environmentally related issues.
Saratoga does not dispute Johnson's credentials or the relevance of his extensive
professional experience to the issues at play here, and an independent review reveals no
basis on which such a dispute could be based. Rather, Saratog a claims Johnson's expert
opinions: (1) impermissibly rest on conclusions about the "motivations and intent" of
Saratoga's decision-makers; (2) include improper legal conclusions; and (3) employ an
First, Saratoga contends that Johnson's opinions are based on his conclusions about
the "motivations and intent" of Saratoga's decision-makers regarding the construction of the
intake at Moreau. But as GE correctly responds, Johnson's expert report does not "rest on
any effort to read Saratoga's institutional mind." Instead, Johnson's opinions are based on a
review of the paper trail created by Saratoga during its run up to eventually selecting Moreau
as the appropriate site for the facility and an examination of whether or not any documentary
evidence produced in discovery substantiates Saratoga's claim that relocation of the facility
was necessary in light of the threat of PCB contamination. See N.Y.S. Elec. & Gas Corp.,
808 F. Supp. 2d at 523 ("[C]osts motivated solely out of business concerns are not
recoverable under CERCLA; [i]f a party would have incurred identical costs to those recovery
of which is sought in the absence of any threat, then the presence of the threat cannot be
said to have cause[d] the incurrence of response costs." (citation and internal quotation
Second, Saratoga argues "Johnson should not be permitted to opine as to whether
plaintiffs complied with CERCLA and/or the NCP." However, Halfmoon I already concluded
- 33 -
that those issues must be determined by a jury. See 105 F. Supp. 3d at 217 ("Issues of
material fact exist regarding whether plaintiffs' specific projects were chosen and
implemented in substantial compliance with the NCP."). And as GE notes, expert testimony
on those issues is regularly utilized in these cases. See, e.g., Pentair Thermal Mgmt., LLC v.
Rowe Indus., Inc., 2013 W L 1320422, at *16 (N.D. Cal. Mar. 31, 2013) (finding Johnson's
expert testimony on necessary response costs to be "credible and [his] method consistent
with the case law"); see also G.J. Leasing Co. v. Union Elec. Co., 54 F.3d 379, 386 (7th Cir.
1995) (noting a party "could have called an additional expert to bolster its case for the
necessity of its response costs").
To be sure, "[t]he distinction between fact and legal conclusions . . . is extremely fine
and courts faced with determining whether an expert's opinion goes too far are often forced
to recite a slew of case law in an attempt to determine where the line should be drawn." TC
Sys. Inc. v. Town of Colonie, N.Y., 213 F. Supp. 2d 171, 181 (Treece, M.J.). But the mere
fact that an expert's opinion is based on criteria delineated by the applicable law does not
transmogrify it into a legal conclusion. See id. at 182 ("If a proper foundation is laid and [the
expert] can establish a nexus between the [statutory and regulatory] criteria and the facts
here, her testimony may be appropriate.").
Of course, the Court will exercise its supervisory authority at trial to ensure that neither
Johnson's testimony, nor the testimony of any other expert for that matter, "usurp[s] the role
of the trial judge in instructing the jury as to the applicable law or the role of the jury in
applying that law to the facts before it." TC Sys. Inc., 213 F. Supp. 2d at 181 (citation
omitted); see also id. at 182 ("Any testimony as to the intent of the [statute or regulations] or
how the jury should ultimately decide this case, however, is inappropriate." (emphasis
- 34 -
Third, Saratoga challenges Johnson's document-based approach to reconstructing
Saratoga's decision-making process vis-a-vis locating the water intake at Moreau. In
particular, Saratoga argues that Johnson has simply reviewed and summarized "selected
documents," which amounts to an "incomplete historical narrative" that must be
excluded. GE responds by pointing out that the NCP "consists in large part of procedural
and documentary requirements"; in other words, the applicable regulations "call for the
creation of various types of documents in order to ensure that remedial options are properly
considered, evaluated, and tailored to the health risks involved and that the decisional
process is open to objective scrutiny." In GE's view, there is no alternative way to conduct
this kind of analysis.
GE has the better of this argument. There is no doubt that a simple recitation of the
parties' history, without any scientific or technical connection, is not admissible as expert
testimony. Member Servs., Inc. v. Sec. Mut. Life Ins. Co., 2010 WL 3907489, at *26
(N.D.N.Y. Sept. 30, 2010) (McAvoy, S.J.) (excluding expert report that was "little more than a
factual narrative based upon [a] review of select discovery documents and . . . other expert
reports"). Johnson's report does contain a factual narrative that has been drawn from his
review of the paper trail leading up to the siting decision at Moreau. But that is as it must be,
since NCP compliance is evaluated by comparing a record of a party's actions against the
regulations. Cf. Washington State Dep't of Transp. v. Washington Nat. Gas Co., Pacificorp,
59 F.3d 793, 802 (9th Cir. 1995) ("We evaluate consistency with the NCP by reviewing the
actions of the party seeking response costs.").
In other words, Johnson's testimony is admissible insofar as it is helpful to the
- 35 -
factfinder in evaluating whether Saratoga's course of conduct was in "substantial
compliance" with the NCP's "procedures for preparing for and responding to . . . releases of
hazardous substances." Nashua Corp. v. Norton Co., 116 F. Supp. 2d 330, 352 (N.D.N.Y.
2000); cf. Linde v. Arab Bank, PLC, 922 F. Supp. 2d 316, 323 (E.D.N.Y . 2013) (finding
testimony admissible where expert "pull[ed] together information from discrete
sources . . .and cross-referenc[ed] it against other supportive or contradictory information in
reaching his conclusions").
As Saratoga points out, certain of Johnson's conclusions, such as his "astonishing
statement" that "there is no information in the documents I have reviewed that in any way
indicates that PCBs in the Hudson River played any role whatsoever in [Saratoga's]
decision," may well be wrong. But Saratoga is free to highlight those shortcomings on
cross-examination; the factfinder is equally free to consider and discredit them. See APL Co.
Pte. v. Kemira Water Sols., Inc., 999 F. Supp. 2d 590, 622 (S.D.N.Y . 2014) (admitting and
considering similar expert testimony in bench trial on CERCLA case before concluding the
expert's opinions "are based on either an inaccurate or incomplete understanding of the
factual record about which he opined").
GE intends to call Johnson to address substantially the same issues with regard to
Halfmoon; that is, whether the municipality's response costs were incurred in compliance with
the NCP. In Johnson's expert opinion, Halfmoon's costs were not "consistent with the NCP"
because Halfmoon failed to adequately (1) evaluate the risks to be addressed; (3) consider
alternative methods of addressing those risks; and (3) utilize the public participation process.
Halfmoon's exclusion motion presses many of the same claims against Johnson as
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Saratoga, and those claims are rejected for substantially the same reasons articulated
above. However, Halfmoon also claims Johnson's report makes an assumption belied by the
factual record: that Halfmoon's use of Troy water constituted a "separate response action,"
rather than part of the contingency already selected and planned for by the EPA. According
to Halfmoon, any conclusions drawn from this false premise are likely to mislead the jury and
must be excluded.
But as GE notes, Johnson's report does not deny the existence of the EPA agreement
to reimburse Halfmoon for the cost of purchasing Troy water. Rather, Johnson's report
points out that the EPA reimbursement agreement was, at least at first, only triggered by
certain "Water Supply Decision Criteria." This reimbursement was therefore limited to
Measurement of a concentration equal to or exceeding the
Resuspension Standard of 500 ng/l Total PCBs at any of
several enumerated far-field monitoring stations or at any
Upper Hudson River water supply system, or
If there is insufficient time to provide at least four hours
advance notification to Waterford and Halfmoon prior to the
arrival of a potentially contaminated parcel of water at the
water purveyor's intakes, taking into account time-of-travel
However, later EPA documentation demonstrates that the EPA eventually agreed to
cover additional costs incurred by Halfmoon. Of particular relevance here, these were the
incremental costs of obtaining Troy water, on a full-time basis and without reference to the
specific criteria articulated above, (a) year-round from March 2010 through at least the end of
the 2012 dredging season and (b) during all dredging seasons for the remainder of the
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The dispute here is over how this evolving relationship between Halfmoon and the
EPA should be characterized. According to Halfmoon, it is wrong (and consequently
misleading) for Johnson to opine that these changes amounted to reimbursement of
Halfmoon "at certain time periods other than when the EPA Decision Criteria were triggered,"
because it suggests the EPA acted improperly or that Halfmoon's purchase of water was not
part of the original EPA agreement. According to GE, Johnson is merely pointing out that the
two-pronged criteria for reimbursement set forth in the block quote above required a different,
more specific set of condition to be met than the later agreement permitting broader latitude
in when and how to purchase Troy water.
Ultimately, whether Johnson's report is fairly read as suggesting the EPA acted ultra
vires is irrelevant to resolving Halfmoon's motion. A careful review of Johnson's report shows
that it correctly defines the "Decision Criteria" considered the EPA as the two criteria set forth
in the block quote above. In other words, defined on that basis, Johnson is correct to say
that reimbursement eventually occurred under circumstances outside of those initially
GE's further position (ostensibly supported by other aspects of Johnson's analysis) is
that Halfmoon is attempting to avoid exposing a logical fallacy on which its cost recovery
claim is based: that is, that it does not follow that because the EPA agreed to reimburse
certain costs of alternative water (in whatever iteration of the agreement under
consideration), that therefore any costs of alternative water – even those costs incurred in
circumstances and/or at times not covered by the reimbursement commitment (again, in
whatever iteration of the agreement you consider) – necessarily fall within the EPA-selected
remedy and are therefore excused from any independent inquiry into their consistency with
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the NCP's complex requirements. That argument goes to the heart of the trial in this matter
and is best resolved by permitting experts in NCP compliance to offer testimony to the jury.
2. Gregg W. Jones
GE intends to call Jones to address issues related to whether certain response costs
incurred by Saratoga were necessary. In particular, Saratoga contends "that but for the
pending dredging project[,] [the municipality] would have put the water intake in the Town of
Stillwater [a less costly location], which is within the dredging zone." Halfmoon I, 105 F.
Supp. 3d at 209. However, GE claims that Saratoga's decision to ultimately locate the raw
water intake and treatment facility at Moreau actually "had nothing to do" with any
consideration of the dredging, or planned dredging, of the Hudson River. GE relies on
Jones's expert opinion to substantiate this litigation position.
Jones is a professional geologist with twenty-eight years of professional experience
"in all aspects of water supply planning." Jones began his career in the field in 1986 as a
Staff Hydrologist on the Groundwater Quality Monitoring Program at the Southwest Florida
Management District, "a state agency of over 700 employees charged with managing all
aspects of water in a 16-county area."
From 1998 through 2007, Jones held the title of Director of the Water Supply Planning
Department, where he oversaw the efforts of sixty "water resource professionals" in
developing the district's comprehensive, long-term water supply plan. Currently, Jones is
Vice President and Technical Director of Water Resources & Water Supply Management at
Cardno ENTRIX, Inc., a provider of environmental consulting services.8
As of the date of his deposition, Jones was also pursuing a doctorate in Geochemistry.
- 39 -
Jones's expert report centers on a 1990 intermunicipal water study (the "1990 Study")
completed by a consulting firm at Saratoga's behest. The 1990 Study "analyzed population
trends, water demands, and potential plans for the provision of water to municipalities within
the County" and initially concluded that a raw water intake and treatment plant should be
located at Moreau. Halfmoon I, 105 F. Supp. 3d at 207. T wo subsequent studies,
completed by the same consulting firm in 1995 and 2002, substantially re-endorsed that
initial siting location. Id.
Jones seeks to "demonstrate that these original recommendations and
projections . . . remained largely consistent and valid throughout the 20-year period" between
the original analysis in 1990 and the completion of the first phase of the Moreau system in
2010. Ostensibly, Jones's expert testimony lends support to GE's assertion that Saratoga
never seriously considered locating its treatment facility at the less costly Stillwater site.
As an initial matter, Saratoga challenges Jones's fitness to opine on this issue,
arguing his training as a geologist does not supply the necessary expertise in engineering,
demography, or economics necessary to evaluate siting decisions for water supply projects.
However, as GE correctly notes and an independent review of his credentials confirms,
Jones's substantial professional experience as Director of the Water Supply Planning
Department at the Southwest Florida Management District qualifies him to opine on the sort
of issues a municipal organization might encounter when making water supply planning
Although it appears that his professional experience is focused primarily on water planning issues
germane only to Florida, Jones's deposition also indicates he has consulted with various other water
management districts as well as conducted extensive water supply planning on a large scale project in North
Dakota on behalf of the Bureau of Reclamation.
- 40 -
Beyond this threshold issue, Saratoga advances several reasons why Jones's
opinions must nevertheless be excluded. First, Saratoga claims that Jones's opinions are
not the product of any independent study or analysis, but rather limited to an incomplete
assessment of some of the factors considered in the 1990 Study. But as GE correctly
responds, that is not quite what Jones has done here. Rather, Jones's expert report isolates
certain projections made by the studies in 1990, 1995, and 2002, and com pares the
accuracy of those projections with independent analyses of population distribution, water
quality, and certain costs of operation.10
Second, Saratoga identifies certain factors that Jones failed to consider, chief among
them the impact of PCBs. This omission rightly raises suspicion given that PCB
contamination is a core issue in this case. However, Jones's chosen approach limits the
analysis to those factors laid out in the 1990 Study, which was conducted well before the
dredging project became reality. According to Jones, if the projections made in the water
studies proved to be accurate or largely unchanged, then the initial recommendation made in
the 1990 Study—to site the intake at Moreau—should have remained the "preferred" location
irrespective of any concerns about dredging or PCBs.
That may well be the wrong conclusion, but whether and to what extent the spectre of
PCB contamination influenced Saratoga's ultimate siting decision is a vigorously disputed
issue in this case. N.Y.S. Elec. & Gas Corp., 808 F. Supp. 2d at 523 (" There is sometimes
Saratoga also faults Jones for failing to conduct a threshold inquiry into whether, in his opinion, the
original recommendation made in the 1990 Study was correct. But that sort of inquiry would not impact the
validity of the analysis. Jones is not concerned with the "correctness" of the recommendation made in the
1990 Study (since presumably GE would argue Saratoga would have relied on it as written, correct or
otherwise), but rather with whether the projections made in that initial study proved accurate over time (since,
ceteris paribus, there would be no reason to alter the original siting recommendation).
- 41 -
overlap between necessary hazardous waste responses and actions undertaken for other
reasons . . . ."). So while the overall value of Jones's analysis in the context of Saratoga's
claims is suspect (since it carries with it the tacit implication that the 1990 Study's
recommendation regarding the appropriate site for the water intake was the only acceptable
input into that decision-making process), Jones's expert opinions fall on the admissible side
of the divide preventing presentation of so-called "junk" science. In sum, Jones's alleged
failure to consider certain factors in his analysis, and especially his apparent lack of
familiarity (as evidenced by his deposition) with the serious issues raised by PCBs, are all
matters for trial.
Essentially, this expert challenge boils down to the same kind of arguments GE has
pressed against plaintiffs' experts. Here, Saratoga is claiming Jones's analysis fails to
consider certain factors it claims are relevant and/or erroneously focuses on certain other
factors that it claims are not relevant.
However, the issue at this stage of the litigation is not the "correctness" of Jones's
results, but rather whether they are connected to reality. An independent review of his expert
report reveals that he adequately compares his first principles to an established method that
yields logical results. Jones may be well wrong about the relevance of certain factors, and
his analysis may not account for things that Saratoga officials actually considered at the time,
but regardless of the way this issue is framed, it is best resolved at trial.
3. Theodore C. Schlette
GE intends to call Schlette to address issues related to whether the response costs
incurred by Saratoga were necessary. Specifically, Schlette's expert opinion rebuts
Saratoga's economic argument—that Stillwater was a less expensive site for a water
- 42 -
treatment facility and therefore would have been selected were it not for the risks posed by
the dredging project. Schlette accomplishes this task by identifying alleged shortcomings in
the cost comparison analysis of the Moreau and Stillwater sites completed by Edward
Hernandez, an Professional Engineer, on behalf of Saratoga.
Schlette, a Senior Consultant with Cardno ENTRIX, Inc., is an economist with over
thirty years' experience in the field of environmental engineering. Since receiving his B.A. in
Economics and History from Connecticut College in 1975 and a Master's in Resource
Economics from the University of Connecticut three years later, Schlette has accrued a broad
range of experience in utility management, environmental planning, and infrastructure
development. Among other things, Schlette's resume reveals extensive work on evaluating
the costs associated with the provision and treatment of water resources to large facilities
and various municipalities around the northeastern United States.
As relevant here, Schlette claims Hernandez's expert report fails to account for certain
"critical differences" between the existing facility at Moreau and the planned facility at
Stillwater, which results in an "unfair cost comparison" between the two. According to
Schlette, these differences can be attributed to the (1) differences between the intended
objective of each facility and the (2) distinction between the actual, fully constructed cost of
Moreau and the conceptual, estimated cost of Stillwater.
Schlette believes the resulting comparison is "apples to oranges"—it makes little
sense to compare "the actual costs expended to build a system designed to service multiple
customers across Saratoga County" (the site at Moreau) to "the conceptual costs of a system
intended to service a single customer: the [Luther Forest Technology Campus]" (the site at
- 43 -
Specifically, Schlette opines that Hernandez failed to make three, nuanced
"adjustments" to the cost of building at Stillwater: (1) Cost Escalation Adjustment;
(2) Transmission Capacity Allocation Adjustment; and (3) Contingency Adjustment. GE
asserts that each of these supposed claims of error undermine the validity of Hernandez's
Schlette first takes issue with Hernandez's use of a "simple" Consumer Price Index
("CPI") escalator, which was used to adjust the conceptual cost estimate developed in 2002
for the Stillwater project to account for the hypothetical cost to construct such a facility in
2006. According to Schlette, Hernandez's report employs the CPI escalator for an incorrect
number of years. In Schlette's opinion, the estimate of future costs are normally calculated
to the mid-point of construction. Therefore, application of the CPI escalator for the
"appropriate" amount of time—in this case, two additional years—would add "approximately
$3 million to the estimated cost" of Stillwater.
Saratoga argues Schlette's methodology on this issue is flawed because his opinion
fails to consider that Hernandez's calculations are based on the cost of building at the time of
contract award, after a competitive bidding process has been completed. According to
Saratoga, even Schlette acknowledges that such competitive bids would already include the
cost escalation adjustment that Hernandez allegedly "failed" to consider.
GE responds that this issue is basically beside the point, since the crux of Schlette's
opinion on this issue is that any adjustment, CPI-based or otherwise, should have been done
at a date representing the mid-point of the projected construction project rather than the date
when bids were received. According to GE, the CT Male Report, which provides the basis for
the Stillwater cost estimate at issue, "is about as far from a competitive bid as one can get."
- 44 -
Rather, it is a simple estimate based on limited information and therefore some degree of
cost adjustment is appropriate to reflect that fact.
Schlette also takes issue with Hernandez's "simplistic" assumption that no adjustment
would need to be made to the cost of the water transmission main provided for in the
Stillwater design plans. According to Schlette, Stillwater was never conceived as a
county-wide water supply alternative and therefore did not incorporate the necessary
infrastructure to service the entire county's needs. In Schlette's opinion, there should be an
adjustment to the Stillwater cost estimate to "reflect the size and type of transmission main
and the transmission system capacity" that would be necessary to achieve this goal.
Therefore, application of an "appropriate contingency allowance" in this case "could add over
$4 million to the estimated cost presented in the Hernandez Report."
Saratoga argues that this opinion is based on the "incorrect factual assumption" that
the cost to build two comparably sized water treatment plants is affected by the number of
customers that ultimately purchase water. Saratoga also argues Schlette, an economist, is
unqualified to opine on technical issues such as the f acility's water transmission design.
GE responds that this is an unfair characterization of Schlette's opinion, which is more
fairly understood as making the claim that, if distribution costs are part of the calculation for
the Moreau facility, then some level of analysis must also be given to those costs if the facility
had been located elsewhere, such as at Stillwater. In other words, the same costs
considered at Moreau should also have been considered for any comparison to
Stillwater. Further, GE points out that Schlette has decades of experience as an analyst and
project manager economist, working closely with engineering consulting businesses to make
sense of the necessary components of proper cost estimates.
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Lastly, Schlette assails Hernandez's alleged failure to incorporate a contingency
allowance, which is intended to account for "subsequent changes to a conceptual plan that
are likely to increase costs during design and construction." According to Schlette, it is
standard practice to apply a higher contingency (of approximately thirty percent) during the
earlier stages of project planning, with a subsequent reduction in that contingency allowance
"as the project progresses through design and ultimately construction."
Saratoga argues that a contingency allowance is "simply a tool for risk assessment"
and that adding such an adjustment would "improperly alter" Hernandez's comparative
analysis because "no such additional costs beyond the actual cost of construction for
[Moreau] were used" in that report. Saratoga further claims that there is no "foundation or
other basis to believe" such additional costs might actually be incurred during construction
and, in any event, a proper estimate of those costs would require engineering and design
considerations beyond Schlette's expertise. Finally, Saratoga argues that Schlette's
so-called "standard practice" of applying an approximately thirty percent contingency seems
plucked from thin air.
GE responds that "[c]ommon sense dictates that early-stage cost estimates embody
uncertainties that present risk," which "have cost impacts" that, according to Schlette, "need
to be taken into account in any reasonable cost estimate." According to GE, the "[i]nclusion
of a contingency in the Stillwater estimate is necessary precisely to take account of the fact
that one comparator (Stillwater) carries a distinctive economic burden, namely uncertainty,
that the other comparator (Moreau [having been already constructed]) does not." GE claims
that Schlette's point still stands regardless of whether or not these additional costs actually
materialize precisely because of this risk.
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After careful consideration, each of the challenges to Schlette's opinions outlined
above are rejected. Of course, where an appraisal or other valuation "rests on inadequate
factual foundations, problematic assumptions, or a misleadingly partial selection of relevant
facts," exclusion is warranted under Rule 702. Davis, 937 F. Supp. 2d at 418.
But Schlette considered a laundry list of documents relevant to the issues under
consideration here before applying his economic expertise to reach the conclusions in his
report. U.S. Bank Nat'l Ass'n v. PHL Variable Life Ins. Co., 112 F. Supp. 3d 122, 134
(S.D.N.Y. 2015) ("As a general rule, the factual basis of an expert opinion goes to the
credibility of the testimony, not the admissibility, and it is up to the opposing party to examine
the factual basis for the opinion in cross-examination." (citation omitted)).
Equally important, it is far from apparent on the record that his conclusions som ehow
rest on "problematic" assumptions; rather, Schlette's expert report, while admittedly terse,
clearly explains the reasoning underlying the application of each challenged assumption.
As GE repeatedly asserts in its opposition paperwork, Saratoga's arguments are less
about Schlette's methodology and more about a belief that his conclusions are
incorrect. However, there is no indication that Schlette's planned testim ony is so speculative
or conjectural, or his assumptions so unrealistic or contradictory, "as to suggest bad faith or
to be in essence an apples and oranges comparison." Zerega Ave. Realty Corp., 571 F.3d
at 214 (citation and internal quotation marks omitted). Rather, Saratoga's challenges to
Schlette's opinions may be properly made on cross-examination.
4. Neil S. Shifrin
GE intends to call Shifrin as an expert on PCBs, including the issue of whether those
compounds are petroleum-based. GE also intends to introduce Shifrin's testimony to explain
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the particular environmental issues posed by the different forms of PCBs present in the
Hudson River system.
Currently the Director of Berkeley Research Group, LLC, a consulting firm, Shifrin's
credentials include a B.S. in Chemical Engineering from the University of Pennsylvania as
well as a Ph.D. in Environmental Engineering from the Massachusetts Institute of
Technology. In his current role, Shifrin performs technical consulting on environmental
elements of economic projects, such as cost allocation, insurance claims, and toxic torts.
In sum, Shifrin claims over forty years of experience as an environmental engineer
specializing in "contaminant fate [and] transport, [potentially responsible party] cost
allocations, cost recovery, waste management standards of care, hazardous waste site
remedy/renegotiation, cleanup levels, [ ] environmental due diligence,
monitoring/investigation program design, and water quality."
Here, Shifrin has exercised his extensive professional experience with environmental
contaminants to generate a voluminous expert report on behalf of GE, which includes a
detailed recitation of the history of GE's use of PCBs at the Ford Edward and Hudson Falls
capacitor plants as well as a historical narrative regarding GE's evolving efforts to remediate
PCB contamination as scientific knowledge indicating their dangerousness began to
Shifrin also opines that GE's handling of PCBs was "consistent with good industrial
practices during the time PCBs were in use" at the Hudson River-area plants and that GE's
responses to the PCB environmental issue "were reasonable and consistent with evolving
scientific knowledge." Finally, it is Shifrin's opinion that:
[A]ny continuing releases [of PCBs] during GE's responses did not
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have any substantial impact on the scope (breadth or depth) of the
dredging remedy selected by [the EPA] in 2002, or on the length of
time and the manner in which the dredging could potentially impact
the communities whose drinking water comes from or is associated
with the Hudson River.
Both Halfmoon and Saratoga seek to exclude the portions of Shifrin's report that
purport to engage in a historical analysis of GE's treatment of PCBs at the Hudson River
plants as well as his opinions as to GE's compliance with certain industry standards of care.
To be sure, it is "inappropriate for experts to become a vehicle for a factual narrative
that simply accumulates and puts together pieces of a factual story." Travelers Indem. Co. v.
Northrop Grumman Corp., 2014 WL 464769, at *3 (S.D.N.Y. Jan. 28, 2014); see also
Highland Capital Mgmt., L.P. v. Schneider, 551 F. Supp. 2d 173, 187 (S.D.N.Y. 2008) ("[A]n
expert's factual narrative is unnecessary . . . "). This is so because "[a]cting simply as a
narrator of the facts does not convey opinions that are based on an expert's knowledge and
expertise; nor is such a narration traceable to a reliable m ethodology." Id. Equally
problematically, "narration of facts of the case may easily invade the province of the jury,
providing a separate basis for exclusion." Id. Rather, "[s]uch material, to the extent it is
admissible is properly presented through percipient witnesses and documentary
evidence." In re Rezulin Prods. Liability Litig., 309 F. Supp. 2d at 551.
However, as GE notes, both Saratoga and Halfmoon acknowledge that Shifrin, as an
experienced environmental engineer, can appropriately opine on the possible significance of
certain technical documents and scientific materials. Indeed, a review of the historical
narrative recounted by Shifrin is largely intertwined with his attempt to opine on the so-called
"reasonableness" of GE's history of actions, so it makes sense that a historical account of
those actions would be necessary in order to makes sense of any attendant comparison to
- 49 -
the contemporaneous conduct of similar actors in an industry-wide setting.
But it bears noting that the remaining claims in this lawsuit involve issues of strict
liability. See Price Trucking Corp. v. Norampac Indus., Inc., 748 F.3d 75, 82 (2d Cir. 2014)
(noting CERCLA "adopts a strict liability regime"); N.Y. Nav. Law § 181(1)("Any person who
has discharged petroleum shall be strictly liable . . . ."). Therefore, the vast majority of
Shifrin's expert opinions, which deal at length with the alleged "reasonableness" of GE's
handling of PCBs and its evolving responses to the realities of contamination, will be
inadmissible because they are irrelevant to the issues still at play.
In fact, GE's expert notice indicates that Shifrin's testimony will now be limited to his
technical expertise regarding the chemical composition of the PCB contamination present in
the Hudson River system as the result of GE's manufacturing activities, opinions which
neither plaintiff appear to have challenged. Accordingly, Shifrin's testimony is admissible
subject to both the limitations described above as well as any other appropriate objections
made at trial.
D. GE's Supplemental Notice
1. John Connolly
GE's supplemental notice indicates that it may call John Connolly to rebut certain
opinions offered by Michaels and/or Brown, two of plaintiffs' experts, at the liability phase of
the trial. As discussed above, the universe of issues that may be permissibly raised at this
juncture will be limited to those relevant to liability. However, plaintiffs have challenged
certain aspects of Connolly's expert report. Therefore, out of an abundance of caution and in
light of the possibility his testimony may prove necessary during the liability phase of trial,
those challenges will be decided now.
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Specifically, Saratoga joins in Halfmoon's attempt to exclude Connolly's second, third,
fourth, seventh, eighth, and ninth opinions:
Opinion No. 2: There are no significant pools of PCB DNAPL in or
beneath the sediments in the area of the river subject to the
Opinion No. 3: The dredging is removing nearly all the PCBs in the
targeted areas. In general, the PCB concentrations left behind are
low and the residual coring indicates sediments that have less than
1 mg/kg Total PCBs exist below the residual sediments.
Opinion No. 4: Although redeposition of dredged sediments does
occur, data indicate that it does not have a long-term impact on the
Upper Hudson River.
Opinion No. 7: There is no mass of PCB-contaminated bedload
sediment or a DNAPL plume/pool moving along the river bottom,
escaping monitoring yet affecting water intakes.
Opinion No. 8: PCB levels in the river decline rapidly in response to
the dredging program.
Opinion No. 9: We can project with a reasonable degree of
scientific certainty that the water column and PCB levels postdredging will not be greater than they were pre-dredging.
Before addressing plaintiffs' arguments, a quick review of Connolly's expert credentials
are in order. Like many of the experts in this case, Connolly's resume reflects extensive
experience in the study of environmental contaminants—beginning with his receipt of
undergraduate and graduate degrees from Manhattan College in the 1970s in Civil and
Environmental Engineering and later with his attainment of a Ph.D. in Environmental Health
Engineering from The University of Texas at Austin in 1980.
Of relevance here, Connolly has spent the past thirty-five years studying "the fate and
bioaccumulation of contaminants in sediments" and touts his status as a "nationally
recognized expert on contaminated sediments and eutrophication [the process by which a
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body of water acquires high concentrations of nutrients, such as phosphates and
nitrates]." During this time, his research and publishing efforts have focused on "methods to
determine the sources of contaminants found in sediments, and to evaluate the long-term
fate of such contaminants."
Currently, Connolly is the Senior Technical Advisor and Principal Engineer for Anchor
QEA, LLC, a consulting organization. However, it bears noting that Connolly has studied the
PCB contamination of the Hudson River since 1990. In fact, since the EPA issued its 2002
ROD calling for removal of PCB-contaminated sediments, Connolly has been engaged in
supporting the design of the remedy and monitoring its performance.
Plaintiffs do not mount a direct challenge to Connolly's fitness to opine on the issues in
this case, and an independent evaluation reveals no basis on which such a challenge might
be warranted. Therefore, what remains is for an examination of the substance of plaintiffs'
individual challenges to Connolly's opinions.
i. Opinion No. 2
According to Connolly, the incredible sampling density (approximately eight locations
per acre in the Thompson Island Pool area) undertaken during the dredging process
"provide[s] a comprehensive understanding of the mass of PCBs stored in the river
sediments." In Connolly's opinion, "[i]f a significant pool of PCB DNAPL was present within
the sediments, it would have been found."
Plaintiffs contend that Connolly's insertion of the ill-defined qualifier "significant" into
this statement renders it misleading because GE, and Connolly for that matter, both admit
that some quantity of PCB DNAPL exists in the sediments of the river. GE readily
acknowledges that Connolly recognizes the "phenomenon" at issue, but argues that nothing
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in Rule 702 constrains an expert to simply offering a "yes" or "no" answer "to the question of
whether PCB fluids or PCB NAPL are present in the River." Rather, it is precisely the
function of an expert to analyze the data and reach a conclusion; here, that PCB DNAPL " is
not a significant contributor to observed or future conditions in the River."
GE has the better of this argument. Connolly, an expert in the "fate and
bioaccumulation" of contaminants in sediment, has generated a detailed expert opinion
based on an exhaustive, data-driven analysis of the information generated from the
continued sampling of the river. To be sure, Connolly's expert conclusion appears directly at
odds with Brown's conclusion that a substantial, unknowable mass of PCBs continues to
threaten those who would draw water from the river. That conflict is best resolved at trial,
where any shortcomings in Connolly's explanation of his chosen qualifier can be highlighted
for the fact finder.
ii. Opinion No. 3
According to Connolly, the dredging activities have succeeded in removing
approximately ninety-seven percent of the PCB mass in the targeted areas. In Connolly's
opinion, the extensive post-dredging sampling of the river "provides an understanding of the
PCB concentrations that remain after dredging activities are completed."
Plaintiffs argue that this opinion "misleadingly suggests that sediment PCB
measurements within the dredge footprint serve as surrogates for water column
measurements, and that redeposition of dredged sediments outside the dredge footprint has
no impact on water PCB levels."
GE responds that this opinion is not about resuspension or redeposition, but is rather
a straightforward opinion about the efficacy of the dredging remedy. GE explains that this
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opinion serves to substantiate Connolly's later conclusions (for example, Opinion No. 4) that
the reduced PCB levels on the surface of the river bottom has also reduced the likely
significance of natural resuspension in the future.
Again, GE has the better of this argument. It is Connolly's opinion, based on his
comparison of the pre- and post-dredging sampling data, that from a statistical perspective
the vast majority of PCBs within the Thompson Island Pool have been removed. With the
exception of the final line of this opinion, which notes that the PCBs remaining after dredging
have become isolated from the river by being buried under backfill and cap material, nothing
in this opinion even hints at any discussion of whether or not PCBs might become
resuspended or redistributed.
There is nothing objectionable about Connolly opining that, in his expert opinion, a
comparison of data reveals that PCB concentrations are significantly decreasing. And while
there is little doubt that this particular opinion might cause the fact finder to take a certain
view of the effect of resuspension, a thorough cross-examination will surely reveal any limits
on the significance of this particular opinion.
iii. Opinion No. 4
Connolly readily acknowledges that dredging activities cause the resuspension of
sediment, which will either redeposit elsewhere in the river or remain in suspension
depending on particle size, the local characteristics of the river channel, and the flow
conditions present at the time. Connolly also acknowledges that data collected from
sediment traps and core samples immediately downstream of dredging revealed elevated
However, according to Connolly, these elevated results were only representative of
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localized redeposition and were of no use in determining whether there would be any
long-term, widespread impact from sediment redeposition on PCB concentrations elsewhere
in the river. In Connolly's opinion, additional data collected during Downstream Deposition
Studies ("DDS") conducted in 2011, 2012, and 2013 indicate that dredg ing actually did not
cause an increase in PCB concentrations in downstream surface sediments.
Relatedly, Connolly believes that redeposition has not interfered with the desired
reductions in water column PCB levels that were hoped for as a result of the dredging. For
example, areas that were downstream of locations where dredging have already been
completed, but upstream of active dredging activity, "have low PCB water column
concentrations that show no increase at high flows." Based on this and other data, Connolly
opines that redeposited sediment is not a long-term significant source of PCBs in the water
Plaintiffs argue that this opinion flatly contradicts Connolly's prior position on
redeposition. In support of that claim, plaintiffs point out that in a May 2010 presentation to
the Peer Review Panel involved in evaluating the effectiveness of the dredging project
We also found that we have spread contamination on the river
bottom, what we are calling redeposition, and that that has had a
longer term impact, an impact that has lasted beyond the end of the
dredging project. We know from Phase 1 that we send [sic] a
considerable amount of PCB to the Lower Hudson as we
(all emphases in original). Plaintiffs further claim that the DDS sampling between 2011 and
2013, which they seem to concede provides the basis for Connolly's more recent position
and which conflicts with the above quoted one, is based on a faulty process, as explained by
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Millspaugh's expert report. Finally, plaintiffs assert that Connolly's reliance on data from
"high flow events" actually conflict with, rather than support, his conclusion that PCB levels
measured during these events demonstrate the absence of widespread redeposition.
Of course, GE willingly concedes that Connolly's 2010 comments to the Peer Review
Panel reflected his belief that redeposition of resuspended sediment caused by dredging was
having a significant impact on the river and could continue to do so. But GE correctly points
out that this argument ignores that the DDS sampling conducted between 2011 and 2013
provides a legitimate basis on which Connolly could alter his opinion on this subject—such is
simply the nature of honest scientific inquiry.
Plaintiffs related attack on the allegedly faulty design of the DDS studies,
substantiated by Millspaugh's expert opinions, is likewise best left for trial. Despite plaintiffs'
urging, a review of Connolly's analysis of the DDS data does not expose the kind of
significant "analytical gap" that would warrant exclusion at this juncture.
The conclusions drawn by Connolly from the "high flow" data also pass muster
here. Since high flow events cause the resuspension of PCB-contaminated sediment, they
also cause a measurable increase in the PCB concentrations found in the water column.
According to Connolly, measurements taken during high flow events in areas where dredging
has already been completed no longer lead to the same increase in water column
measurements that was observed at other times.
In Connolly's opinion, that change in observed data lends support to the theory that
the amount of contaminated surface sediment available to be resuspended has been greatly
reduced. There is nothing so clearly objectionable about that conclusion that exclusion is
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iv. Opinion No. 7
Connolly's seventh opinion expresses disagreement with the opinions of Brown and
Michaels, two of plaintiffs' experts discussed above. In particular, both Brown and Michaels
express concerns regarding the ability of the water monitoring programs to provide a fully
accurate representation, on a continuous basis, of the PCB concentrations in the river.
According to Connolly, these concerns are unfounded—the monitoring program
reflects consistent patterns and relationships between the various monitoring stations. If
PCBs were being transported in significant quantities in a form that evaded detection at
some of these stations (such as in DNAPL form or in bedload), these PCBs would be
captured "at least occasionally" by monitoring at some stations, "resulting in variability and
inconsistency" among the stations.
Plaintiffs argue that "significant evidence exists" to support the idea that heterogenous
patterns of PCB contamination exist within the river, a fact that would undermine Connolly's
opinion on this issue. Plaintiffs point out that Connolly's views on the possibility of PCB
contamination moving down river "have shifted during the pendency of this case." But as GE
responds, Connolly's position is simply that PCBs "generally" do not move down river via
bedload or DNAPL, not that it could never occur (or that it has never occurred). Mere
disagreement with how an expert in a particular matter chose to resolve conflicting data in
reaching an opinion is not a basis for exclusion.
v. Opinion No. 8
Connolly's eighth opinion is another rebuttal, this time to Brown's claim that "the time
required to return the PCB concentrations in the river to levels before the start of dredging
could take decades, if not longer." According to Connolly, this statement is contradicted by
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the available data. Specifically, Connolly has compared data from pre- and post-dredging
floating buoy surveys under similar flow conditions. In his opinion, this data shows that
post-dredging average PCB concentrations were "less variable, significantly lower, and often
below the MDL."
Plaintiffs argue Connolly was only able to reach these conclusions by artificially
excluding data from certain high flow events, since data from those events continue to show
that the river "experiences significant spikes in PCB values." According to plaintiff,
Connolly's methodology improperly excludes data from these important events and therefore
must be excluded. GE responds that nothing in Connolly's opinion purports to exclude data
on high flow events. Rather, Connolly's opinion is that the elevated PCB levels detected
during high flow events do not represent any long-term change in the level of PCBs in the
As GE notes, Connolly does not deny the existence of high flow events or their
possible relevance on these issues. Rather, he draws a conclusion that is at odds with
plaintiffs' expert's view of the matter. Disagreement does not warrant exclusion. Cf.
Argonaut Ins. Co., 929 F. Supp. 2d at 170 (noting the fact that an expert allegedly failed to
consider some "essential" data point goes to the weight, and not admissibility, of the
vi. Opinion No. 9
Connolly's ninth opinion concerns the future of the Upper Hudson River. In his
opinion, the uncertainties that do exist do not preclude the use of reliable modeling, along
with general knowledge of the river system, to make predictions about what will happen in
the future. According to Connolly, an application of those principles shows that water column
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PCB concentrations will decline and that the dredging program will accelerate that decline.
Plaintiffs argue that this sweeping conclusion is not only unsupported by data or
evidence, but also requires Connolly to dismiss "numerous lines of evidence" suggesting
otherwise. GE responds, in essence, that plaintiffs' personal view of the evidence in this
matter is not a basis for exclusion of Connolly's opinions.
Importantly, plaintiffs are incorrect to state that Connolly's opinion is based only on his
belief in the "use of models in general." As GE points out, plaintiff's excerpt improperly
truncates Connolly's statement, reproduced in full below:
Q. When you refer to the model here, could you describe to use
what the model is that you're using?
A. I'm not referring to one model per se. I'm referring to the use of
models in general, and, with regard to predictions for the Hudson,
predictions were made by a model developed by EPA and
separately a model developed by us on behalf of General Electric.
And both of those models rely on the same principles, the
same scientific principles with regard to how water moves, how
sediment is transported and the fate of PCBs in the river.
Upon further questioning, Connolly launched into detail about the three subm odels
that comprise the modeling system to which he had just referred. In other words, this opinion
is based on conclusions drawn from a detailed methodology and therefore will not be
2. Brent Kerger
GE's supplemental notice indicates it may call Kerger to testify as to his first and fifth
opinions, which rebut certain aspects of Carpenter's testimony regarding PCB health risks.
Because the issue of Carpenter's admissibility has partially been decided, plaintiffs'
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challenges to Kerger's first and fifth opinions will also be resolved.11
Kerger holds a B.S. in Chemistry from Florida State University as well as a Ph.D. in
Toxicology from the University of Arkansas for Medical Sciences. Since completing his
schooling in 1988, Kerger has been engaged as an environmental chemist and toxicologist,
utilizing his expertise to research and consult on issues of environmental chemistry,
toxicology, and human health risk assessment related to chemical exposures. Among other
things, Kerger's experience is focused on human health and ecological risk assessments
involving complex, indirect exposure pathways.
Saratoga challenges Kerger's first opinion, which is reproduced in summary form:
Question 1: Was the Upper Hudson River water monitoring
program during PCB dredging designed and implemented in a
manner that would reasonably assure the protection of raw river
water used to make drinking water?
Summary Answer 1:
Yes. From my perspective as an
environmental chemist, toxicologist, and risk assessor, the water
monitoring program was designed with rigorous technical input from
[the EPA], [GE], other independent technical resources (e.g., the
Peer Review Committee), and local community stakeholders. The
program includes an extensive network of [PCB] sampling locations
and use of timed sampling and analysis together with protective
'engineering performance standards' and other operating procedures
designed to be protective of downstream water purveyors. And the
program was implemented in a manner that reasonably assured that
dredging activities would not appreciably increase PCB exposures
and associated risks from drinking water use of Hudson River water.
The data sets generated from this monitoring program were
available to the public in a timely manner and were closely watched
by those implementing the dredging activities, helping to 'fine tune'
both the monitoring system and the dredging methods to minimize
PCB releases. This monitoring system provides a competent and
coherent means for assuring water source protection throughout the
Saratoga has moved to exclude Kerger's first and third opinions; Halfmoon has moved to exclude
Kerger's testimony in its entirety.
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course of dredging until the agreed objectives of the cleanup project
under the 2002 [ROD] have been accomplished.
Saratoga argues that this opinion is irrelevant, because the question of whether the
EPA's monitoring program is reasonable has absolutely no impact on plaintiffs' CERCLA and
Navigation Law claims. According to Saratoga, the EPA's risk monitoring program "does not
alter defendant's admissions that releases occurred and were threatening to occur during the
relevant time period, including before, during, and after dredging."
GE responds that "the mere fact that releases occurred is not the end of the inquiry"
into those claims. Rather, the evidence, burnished by Kerger's independent assessment of
the program, "shows that the magnitude of the releases has been accurately measured and
that they do not present any real risk." In other words, Kerger's analysis supports GE's
contention that the response costs incurred by Saratoga were not "necessary" and are
therefore unrecoverable under CERCLA.
A lengthy analysis of this particular opinion is unnecessary, since it is admissible for
substantially the same reasons as Carpenter's contrary opinion regarding the ongoing, and
serious, risk of PCB exposure. To be sure, there is substantial merit to Saratoga's objection,
which is that Kerger's post hoc analysis of the robustness of the EPA's monitoring program is
of little value because it was unavailable to Saratoga decision-makers at the time the threat
to the drinking water presented itself and allegedly forced the siting decision at Moreau.
But as GE points out, Kerger's expert opinion serves to substantiate GE's claim that
the EPA's monitoring program was, and is, a perfectly adequate means of protecting the
water supply on an ongoing basis; consequently, the complete absence of danger from
dredging rendered Saratoga's decision to site its facility at Moreau unnecessary or
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unreasonable. Halfmoon I, 105 F. Supp. 3d at 211 ("Response costs are deemed
'necessary' when an actual and real threat to human health or the environment exist[s]."
GE's supplemental notice also indicates it may call Kerger to testify as to his fifth
opinion, which also serves to rebut certain aspects of Carpenter's testimony:
Question 5: How does risk assessment help to address claims by
plaintiffs' expert Dr. David Carpenter that there is "no known safe
dose of PCBs" and that "these substances cause subcellular and
cellular damage at any concentration, not only increasing the risk of
cancer but also disturbing biological functions that lead to a variety
of other diseases"?
Summary Answer 5: Dr. Carpenter is apparently basing these
claims predominantly on poorly supported assertions that the
uncertainties involved in science are great, and thus in his view it is
not possible to identify an absolutely "safe" or risk-free does of PCBs
(or any other potential carcinogen). These claims represent a very
pessimistic view of scientific evidence and its utility; such claims are
counter-productive to making viable public health decisions and
ignore dose-response considerations, a key underlying tenet of
toxicology and risk assessment. The EPA risk assessment
methodology was designed to logically address data variability and
uncertainties, and to integrate dose-response considerations in a
protective manner. Moreover, decision-making with respect to
chemical exposures and public health hazards could never be
effectively implemented if most scientists adopted Dr. Carpenter's
presumption that "subcellular and cellular damage" occurs at "any
concentration." Dr. Carpenter's viewpoints are not generally
accepted nor well supported in the scientific community; numerous
studies of PCB toxicology have identified no effect levels for a wide
variety of endpoints in a wide variety of species and exposure
settings. Furthermore, many cellular/subcellular changes that may
be purported as "damage" by Dr. Carpenter may be more
appropriately described as normal adaptive responses that are fully
Saratoga's passing challenge to Kerger's reliance on "far-field" testing sites fares no better. As GE
persuasively responds, Saratoga has failed to support this contention with any "treatise, journal article,
professional standard, testimony from its own or other experts, or any other authority in the field." In the
absence of such authority, Kerger's decision to rely on certain data points, rather than others, provides no
basis for exclusion.
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reversible and occur with a wide variety of natural and synthetic
chemicals. It is EPA's protective process of identifying the sensitive
species and endpoint to rely on for their published toxicity criteria
that allows risk assessment to reasonably address the uncertainties
that Dr. Carpenter is inferring cannot be addressed without reducing
PCB exposures to zero (which he recognizes is not possible in this
region or throughout the United States). Thus EPA's risk
assessment methodology can be used to identify consensus values
for reasonably certain safe doses of PCBs that are not associated
with adverse health effects in humans.
Saratoga's preclusion motion does not actually challenge this opinion. And although
Halfmoon purports to seek exclusion of all of Kerger's opinions, a review of its submissions
reveals that Halfmoon has not articulated a particular argument in support of a challenge to
this portion of Kerger's report.
In any event, this kind of expert rebuttal statement seems appropriate in this
case. See, e.g., Luitpold Pharm., Inc. v. Ed. Geistlich Sohne A.G. Fur Chemische Industrie,
2015 WL 5459662, at *12 (S.D.N.Y. Sept. 16, 2015) ("A rebuttal expert, by nature, criticizes
the methodology and/or opinions of another . . . . his opinions may properly concern
criticizing that presented by another party."). Kerger's attempt to point out the alleged errors,
shortcomings, or inconsistencies in the scientific methodology Carpenter has relied on to
reach his conclusions about PCB exposure is the kind of core function a rebuttal expert is
expected to perform. Absent some concrete, clearly articulated challenge to this opinion by
either plaintiff, it is admissible.
Therefore, it is
1. Saratoga's motion to preclude certain experts (ECF No. 203) is DENIED;
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2. Halfmoon's motion to preclude certain experts (ECF No. 205) is DENIED;
3. GE's motion to preclude certain of Millspaugh's opinions (ECF No. 209) is DENIED;
4. GE's motion to preclude certain of Brown's opinions (ECF No. 210) is DENIED;
5. GE's motion to preclude certain of Michaels's opinions (ECF No. 211) is DENIED;
6. GE's motion to preclude certain of Carpenter's opinions (ECF No. 212) is DENIED;
7. GE's motion to preclude certain of Whitelaw's opinions (ECF No. 213) is DENIED
without prejudice to renew; and
8. GE's motion to preclude Halfmoon's claim for replacement cost damages (ECF No.
245) is DENIED without prejudice to renew prior to the damages phase, if any, of trial.
IT IS SO ORDERED.
Dated: March 3, 2016
Utica, New York.
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