HARTLE et al v. FIRSTENERGY GENERATION CORPORATION
Filing
173
MEMORANDUM OPINION re 98 MOTION Defendant's Motion to Preclude Expert Opinions of Plaintiff's Expert, Charles H. Norris filed by FIRSTENERGY GENERATION CORPORATION. Signed by Chief Judge Joy Flowers Conti on 3/7/2014. (blr)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Hartle et al.,
Plaintiffs,
v.
Civil Action No. 08-1019
FirstEnergy Generation Corp.,
Defendant.
Patrick et al.,
Plaintiffs,
v.
Civil Action No. 08-1025
FirstEnergy Generation Corp.,
Defendant.
Price et al.,
Plaintiffs,
v.
Civil Action No. 08-1030
FirstEnergy Generation Corp.,
Defendant.
MEMORANDUM OPINION
CONTI, Chief District Judge
I.
Introduction
Before the court are expert challenges in three cases consolidated for discovery,
Hartle v. FirstEnergy Generation Corp. (08-1019), Patrick v. FirstEnergy Generation
Corp. (No. 08-1025), and Price v. FirstEnergy Generation Corp. (No. 08-1030). These
cases involve the Bruce Mansfield Power Plant (“Bruce Mansfield”), a coal-fired
electric generating facility owned and operated by defendant FirstEnergy Generation
Corporation (“FirstEnergy” or “defendant”). Bruce Mansfield is located along the
Ohio River in Shippingport, Pennsylvania. The plaintiffs allege harm from air
pollution discharged by Bruce Mansfield. The alleged pollution came in the form of
“white rain,” a chronically discharged corrosive material, and “black rain,” a dark1
colored sooty residue discharged on two occasions in 2006 and 2007. The white rain
and black rain were deposited on the area surrounding Bruce Mansfield, allegedly
causing property damage and adverse health effects. The plaintiffs in Hartle are two
parents seeking damages for adverse health effects sustained by their minor daughter.
The named plaintiffs in Patrick are four couples who make class-action claims for
damages due to diminution of property value and seek to enjoin the plant from
operating until it can prevent the white rain emissions. In Price, nineteen plaintiffs
seek monetary damages for adverse health effects and property damage and seek
injunctive relief.
The parties conducted extensive fact and expert discovery in these cases.
Defendant filed motions to limit or preclude the testimony of twelve of plaintiffs’
experts. Plaintiffs filed motions to limit or preclude the testimony of seven of
defendant’s experts. This memorandum opinion addresses two of plaintiffs’
challenged geology, chemistry, and sampling experts—Carol A. Erikson (“Erikson”)
and Charles H. Norris (“Norris”).1 The motions to exclude these experts are fully
briefed. As set forth below, the motions to preclude Erikson and Norris will be
granted in part and denied in part.
II.
Legal Standards
Federal Rule of Evidence 702 governs the admissibility of expert testimony and
states:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if:
1
The motions to preclude the opinions of Erikson are ECF No. 168 (Patrick) and
ECF No. 111 (Price). The motions to preclude the opinions of Norris are ECF No.
98 (Hartle), ECF No. 157 (Patrick), and ECF No. 84 (Price). Unless otherwise
noted, ECF numbers appearing in the text of this opinion refer to the Patrick case,
No. 08-1025.
2
(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 the principles and
methods to the facts of the case.
FED. R. EVID. 702. Under the seminal case of Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), district courts must act as gatekeepers to
2
“ensure that any and all scientific testimony or evidence admitted is … reliable.” Id. at
589. The United States Court of Appeals for the Third Circuit explained that Rule 702
“embodies a trilogy of restrictions” that expert testimony must meet for admissibility:
qualification, reliability and fit. Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d
396, 404 (3d Cir. 2003). The party offering the expert testimony has the burden of
establishing each of these requirements by a preponderance of the evidence. In re
TMI Litig., 193 F.3d 613, 663 (3d Cir. 1999).
A. Qualification
An expert witness’s qualification stems from his or her “knowledge, skill,
experience, training, or education.” FED. R. EVID. 702. The witness therefore must
have “specialized expertise.” Schneider, 320 F.3d at 405. The court of appeals
interprets the qualification requirement “‘liberally,’ holding that ‘a broad range of
knowledge, skills, and training qualify an expert as such.’” Calhoun v. Yamaha Motor
Corp., U.S.A., 350 F.3d 316, 321 (3d Cir. 2003) (quoting In re Paoli R.R. Yard PCB
Litig., 35 F.3d 717, 741 (3d Cir. 1994)). When evaluating an expert’s qualifications,
district courts should not insist on a certain kind of degree or background. Robinson
v. Hartzell Propeller Inc., 326 F. Supp. 2d 631, 667 (E.D. Pa. 2004). An expert’s
2
While Daubert applied exclusively to scientific testimony, see Daubert, 509 U.S. at
590 n.8, the Supreme Court subsequently extended the district court’s gatekeeper
function to all expert testimony. Kuhmo Tire Co. v. Carmichael, 526 U.S. 137, 147
(1999).
3
qualifications are determined with respect to each matter addressed in the proposed
testimony. Calhoun, 350 F.3d at 322 (“An expert may be generally qualified but may
lack qualifications to testify outside his area of expertise.”). “While the background,
education, and training may provide an expert with general knowledge to testify
about general matters, more specific knowledge is required to support more specific
opinions.” Id.
B. Reliability
In Daubert, the Supreme Court stated that the district court’s gatekeeper role
requires “a preliminary assessment of whether the reasoning or methodology
underlying the testimony is … valid and of whether the reasoning or methodology
properly can be applied to the facts in issue.” Daubert, 509 U.S. at 592–93. While the
Court noted in Daubert that district courts were permitted to undertake a flexible
inquiry into the admissibility of expert testimony under Rule 702, the court of
appeals has enumerated the following eight factors that a district court may examine:
1. whether a method consists of a testable hypothesis;
2. whether the method has been subjected to peer review;
3. the known or potential rate of error;
4. the existence and maintenance of standards controlling the technique’s
operation;
5. whether the method is generally accepted;
6. the relationship of the technique to methods which have been
established to be reliable;
7. the qualifications of the expert witness testifying based on the
methodology; and
8. the non-judicial uses to which the method has been put.
In re Paoli R.R Yard PCB Litigation , 35 F.3d 717, 742 n.8 (3d Cir. 1994) (“Paoli II”).
This list of factors is a “convenient starting point,” but is “neither exhaustive nor
applicable in every case.” Kannankeril v. Terminix Int’l, Inc., 128 F.3d 802, 806–07 (3d
Cir. 1997).
4
Under these factors, experts are not permitted to engage in a “haphazard,
intuitive inquiry,” but must explain the research and methodology they employed in
sufficient detail in order to allow the other party’s expert to test that hypothesis. Oddi
v. Ford Motor Co., 234 F.3d 136, 156 (3d Cir. 2000). Where an expert fails to use
standards to control his or her analysis, “no ‘gatekeeper’ can assess the relationship of
[the expert’s] method to other methods known to be reliable and the non-judicial
uses to which it has been put.” Id. at 158.
“The evidentiary requirement of reliability is lower than the merits standard of
correctness.” Paoli II, 35 F.3d at 744. “As long as an expert’s scientific testimony rests
upon ‘good grounds, based on what is known,’ it should be tested by the adversary
process—competing expert testimony and active cross-examination—rather than
excluded from jurors’ scrutiny for fear that they will not grasp its complexities or
satisfactorily weigh its inadequacies.” United States v. Mitchell, 365 F.3d 215, 244 (3d
Cir. 2004) (quoting Ruiz-Troche v. Pepsi Cola of P.R. Bottling Co., 161 F.3d 77, 85 (1st
Cir. 1998)).
C. Fit
The Rule 702 requirement that testimony “help the trier of fact to understand
the evidence or to determine a fact in issue” is called the “fit” requirement. Fit
requires that there be a “connection between the scientific research or test result to be
presented and particular disputed factual issues in the case.” Paoli II, 35 F.3d at 743.
“‘Fit is not always obvious, and scientific validity for one purpose is not necessarily
scientific validity for other, unrelated purposes.’” Id. (quoting Daubert, 509 U.S. at
591). The standard for fit is “not that high,” although it is “higher than bare
relevance.” Id. at 745.
III.
Discussion
A. Defendant’s Motions to Preclude the Testimony of Erikson
Erikson is a chemist and quality assessment manager for Trillium, Inc., an
environment consulting firm. Erikson prepared an expert report (“Erikson Rep.”)
5
dated July 23, 2012, in which she evaluated the ratios of arsenic, cadmium, lead, and
zinc in samples taken from four locations at Bruce Mansfield. Samples were collected
from three locations inside the plant: the scrubbers in 2009, the stack drains in 2012,
and the flues in 2007. Samples were taken from a guard shack on plant grounds in
2010. After analyzing these samples, Erikson opined that the ratio of the metals
showed a similar pattern. (Erikson Rep. 1, ECF No. 171-1.) She concluded that “[t]he
consistency of this pattern of metals in samples taken at widely different times, from
three different locations within the stacks, and likely when coal from different sources
was being burned is remarkable, and suggests that it is a reasonable marker for the
airborne material released by the plant.” (Id.) On August 27, 2013, Erikson submitted
an addendum (“Erickson Add.”) revising the analysis of the scrubber samples.
(Erickson Add. 1, ECF No. 238-3.) Erikson’s conclusion remained unchanged after
the revision. (Id.)
Defendant moved to exclude Erikson’s opinions because the data reveal no
consistent pattern among the samples. (ECF No. 170, at 2.) Plaintiffs argue that there
is a consistent pattern and that the addendum makes the pattern even more apparent.
(ECF No. 238, at 2–3.) Plaintiffs state that Erikson did not review “data for any
samples collected off BMP property.”3 (Id. at 4.)
After reviewing Erikson’s report and addendum, the court is unable to discern
any consistent pattern in the samples. For each of the samples, Erikson prepared a
3
As directed by the court, plaintiffs filed a summary of all expert opinions in these
cases. (ECF No. 267.) The summary states that,
[h]aving evaluated samples collected, Ms. Erickson [sic] determined that
the pattern of metals in samples taken from Plaintiffs’ properties
demonstrates that it is a reasonable marker for the airborne material
released by [Bruce Mansfield]. Thus, it is scientifically reasonable to
conclude that stack rain from [Bruce Mansfield] has impacted Plaintiffs’
properties.
(Id. at 7.) The court assumes that plaintiffs’ brief in opposition controls and that
the summary is in error. Erikson’s report and addendum offer no basis for the
opinions described in the summary, and Erikson will not be permitted to so testify.
6
graph showing the amounts of arsenic, cadmium, and lead relative to zinc. The
graphs are summarized in the following chart.
Location of samples
Scrubbers*
Stack drains†
Flues‡
Guard shack**
*
†
‡
**
Arsenic
Cadmium
Lead
(approximate percentage relative to zinc)
170
<5
20
60–70
2
5
160–300
<5
25
0–10
0
5
Erikson Add. fig.1, ECF No. 238-3.
Erikson Rep. fig.2, ECF No. 171-1.
Erikson Rep. fig.3, ECF No. 171-1.
Erikson Rep. fig.4, ECF No. 171-1.
Erikson testified that her basis for concluding that there is a pattern is “the fact
that zinc and arsenic are strong components of those solids that were measured with
smaller amounts of lead and cadmium detected in most or all cases, that that pattern
of four metals seemed to be fairly consistent over time and from different locations
from the plant.” (Erikson Dep. 105:3–11, Apr. 17, 2013, ECF No. 171-2.) Erikson
admitted, however, that arsenic was not a strong component of the three samples
taken from the guard shack. (Id. at 105:25–106:4.) Erikson also testified that the
scrubber, flue, and stack drain samples had different ratios of arsenic to zinc. (Id. at
102:11–103:8.)
While admissibility determinations must focus on an expert’s methodology
rather than conclusions, “a district court must examine the expert’s conclusions in
order to determine whether they could reliably follow from the facts known to the
expert and the methodology used.” Heller v. Shaw Indus., Inc., 167 F.3d 146, 153 (3d
Cir. 1999.) Although the samples from each location are fairly consistent with each
other, the data and Erikson’s testimony show that there are marked differences among
the locations. The opinion that there is a remarkably consistent pattern among the
different locations does not reliably follow from the data, and Erikson’s report and
7
testimony do not demonstrate any other good grounds for this opinion. Erikson will
not be permitted to opine that there is a consistent pattern among the sampling
locations. To the extent the graphs she prepared of the testing data are relevant to
understanding the metals contained in the samples, she may testify about the graphs
and how they were prepared.
B. Defendant’s Motions to Preclude the Testimony of Norris
Norris, a geologist and hydrologist, submitted an expert report (“Norris Rep.”)
dated December 2, 2008, concerning samples taken after the black rain event of July
22, 2006, FirstEnergy’s cleanup efforts, and the persistence of metals organic
compounds in the soil. Defendant argues that Norris’s opinions about each of these
three issues are unreliable and unhelpful and should be precluded.
1. Analysis of Sample Test Results
After the black rain event of July 22, 2006, several residents in the area affected
by the incident collected samples of the black rain residue. These samples were tested
by TestAmerica. Norris offered several opinions about the testing procedures and
results. With respect to the testing procedures, Norris opined that (1) it is common
and appropriate for a laboratory to test composite samples; (2) due to the delay in
collecting and testing the samples and lack of temperature controls, the volatile and
semivolatile organic compounds in the residue likely decayed, and the concentrations
found by the testing were likely lower than the concentrations when the residue was
deposited; and (3) the metals in the sample would likely be less affected by delay and
lack of temperature control. (Norris Rep. 2, ECF No. 159-1.) Defendant points out
that Norris testified he had no knowledge of how TestAmerica composited the
material. (ECF No. 158, at 2; Norris Dep. 116:6–9, Mar. 28, 2013, ECF No. 159-3.)
Norris’s lack of knowledge about how TestAmerica composited the samples does not
affect his ability to give an opinion that compositing is a common and appropriate
practice in the testing industry. Defendant does not challenge Norris’s opinions about
8
the effect of delay on organic compounds and metals. These three opinions are
admissible.
With respect to analyzing the test results, Norris opined that (1) various
metals—thallium, arsenic, mercury, selenium, boron, beryllium, cadmium,
chromium, nickel, lead, antimony, and zinc—“exceeded one or more Pennsylvania
criteria for soils” at the time of the event and (2) various organic and semivolatile
compounds also exceeded one or more Pennsylvania criteria for soils. (Norris Rep. 3,
ECF No. 159-1.) Defendant argues that Norris’s analysis is unreliable due to
“numerous irregularities” concerning the collection of the samples. (ECF No. 158, at
1.) The “irregularities” include the collection of samples by a resident without
scientific training and that the samples were submitted to TestAmerica without an
appropriate chain of custody. Defendant offers no authority for the argument that a
lack of an appropriate chain of custody or the collection of samples by a layperson
renders opinions about testing data categorically inadmissible. The court concludes
that these arguments bear on weight rather than admissibility.
Defendant challenges Norris’s opinion with respect to the organic and
semivolatile compounds on the ground that the testing results for the semivolatile
compounds were below the method detection limit.4 (Id. at 2–3.) TestAmerica
reported these results as “ND,” meaning “nondetect.” (TestAmerica Analytical Report
3, ECF No. 159-5.) With respect to the compounds reported as nondectect, Norris
4
The method detection limit is the level below which the presence of a substance
cannot accurately be determined:
In most circumstances involving possible contamination of environmental media, the analysis of some (and sometimes many) of the samples will
fail to find the contaminant. The analytical chemist will often report
“ND” (for nondetect) for such samples. But an ND should never be
considered evidence that the concentration of the contaminant is zero. …
Every analytical method has a nonzero detection limit; the method is not
sensitive to and cannot measure concentrations below that limit.
Joseph V. Rodricks, Reference Guide on Exposure Science, in REFERENCE MANUAL
ON SCIENTIFIC EVIDENCE 503, 530 (3d ed. 2011).
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opined that “nine semi-volatile compounds, including all seven carcinogens on the
list, had detection limits that were so high the results cannot preclude concentrations
that exceed one or more of the Pennsylvania limits.” (Norris Rep. 3, ECF No. 159-1.)
This statement invites rank speculation and would not be helpful to the jury.5 See In re
TMI Litig., 193 F.3d at 670 (“[I]n order for expert testimony to be reliable, and
therefore admissible, it must be based on the methods and procedures of science
rather than subjective belief or speculation.”). Norris may explain that a result of
“nondetect” does not mean the compound is absent from the sample. Norris may not
speculate about whether the concentration of compounds reported as nondetect
could exceed health standards.
Norris opined that five organic compounds “exceeded one or more of their
respective concentration limits.” (Norris Rep. 3, ECF No. 159-1.) According to the test
results, these compounds were detected in amounts below the limit of quantification,6
meaning that the reported concentrations are estimated values. (Norris Dep. 130:5–
12, ECF No. 159-3.) A substance may be harmful at concentrations below the limit of
quantification, but reported values below the limit of quantification are too uncertain
to be scientifically reliable. See Am. Iron & Steel Inst. v. EPA, 115 F.3d 979, 994 (D.C.
Cir. 1997) (noting that while the “EPA considers the discharge of certain toxic
pollutants to be unacceptable even at levels” below the limit of quantification, the
EPA does not consider measurements below the limit of quantification to be
5
The court finds Attachment II to Norris’s expert report to be potentially
misleading to the jury, and it should not be introduced. The same red color is used
to denote concentrations that exceed health standards and concentrations that
“may” exceed health standards because the health standard for the compound is
less than method detection limit.
6
“The limit of quantification … is the concentration at which the true concentration can reliably be measured. In many ways, [the limit of detection and limit of
quantification] are simply points along a continuum that describes the relationship between true concentration and uncertainty.” ROBERT D. GIBBONS & DAVID
E. COLEMAN, STATISTICAL METHODS FOR DECTECTION AND QUANTIFICATION OF
ENVIRONMENTAL CONTAMINATION 2 (2001).
10
accurate). With respect to the organic compounds found at levels below the limit of
quantification, Norris may testify that these compounds were detected, but he must
state that their concentrations cannot accurately be quantified and cannot opine that
they exceed regulatory limits.
2. Opinion About Results of FirstEnergy’s Black Rain Cleanup
Norris opined that FirstEnergy’s efforts to clean up the black rain residue were
likely ineffective and the metals and organic compounds in the residue remained on
plaintiffs’ properties after the cleanup. (Norris Rep. 3, ECF No. 159-1.) This opinion
was expressed in highly equivocal language. For example, Norris stated that
“[d]isposal of dusting cloths … may or may not have been appropriate for their
composition.”7 (Id.) Norris admitted his knowledge of the cleanup efforts was limited
to a general description. (Norris Dep. 114:4–115:1, ECF No. 159-3.) Norris may not
speculate as to the effect of the cleaning on plaintiffs’ properties, and he will be
precluded from offering an opinion about what actually happened on plaintiffs’
properties. Norris may opine, from his experience and training as a hydrologist,
about the general effect of power washing contaminated surfaces.
7
The full opinion with respect to the cleanup is as follows:
Clean-up efforts by FirstEnergy would have had three potential results.
For discharge emissions that were swept or wiped up, the organic and
metal contaminants may have been removed from the property. Disposal
of dusting cloths with and/or [sic] sweepings of the emissions may or
may not have been appropriate for their composition. Emissions that
were washed from surfaces and objects may have been transferred from
the original surface to the ground or other surface on the same property
or may have been washed or flushed along curbs or down drains for
removal into surface water conveyance systems. Emissions that were
knocked or brushed from objects and surfaces would have remained on
the property where originally rained. Except for removal from the
property where it rained by dusting or wiping cloths, sweepings that were
collected and removed, or flushing down storm and surface water
conveyances, the metals and organics that fell on people’s property
remained there following “clean-up” activities.
(Norris Rep. 3, ECF No. 159-1.)
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3. Persistence of Organic Compounds and Metals in Soil
Norris opined that organic compounds in the soil will attenuate and that the
“attenuation may be very quick or may take decades,” depending on the compound.
(Norris Rep. 3–4, ECF No. 159-1.) The organic compounds may volatilize,
biodegrade, or inorganically degrade. (Id. at 3.) He opined that metals “such as
thallium and arsenic, largely are forever at the residences where they fell.” (Id. at 4.)
These metals generally stay “bound in the soil until eaten, absorbed through the skin,
or taken up by vegetation, including gardens, berry bushes, and fruit trees, or
animals, including lets and livestock.” (Id.)
Defendant argues that these opinions consist of “hypothetical list[s] of
possibilities” and have no basis in the facts and that Norris is not qualified to opine
about health effects or possible exposure pathways. (ECF No. 158, at 4–5.) Plaintiffs
argue that the opinions provide “useful context” to Norris’s opinions about the test
results. (ECF No. 237, at 8.) To the extent it would be relevant, Norris may offer a
general opinion about the persistence of organic compounds and metals in soil. Since
Norris is not a toxicologist or medical professional, his comments about the possible
ingestion or dermal absorption of metals will be stricken from his report and he may
not opine about those matters.
IV.
Conclusion
As set forth above, the motions to preclude the expert testimony of Erikson will
be granted in part and denied in part. Erikson may not opine that there is a consistent
pattern in the ratios of arsenic, cadmium, lead, and zinc among the sampling
locations. She may testify about the graphs of the ratios if the graphs are relevant to
understanding a fact at issue. The motions to preclude the expert testimony of Norris
will be granted in part and denied in part. His testimony will be limited in accordance
with this opinion. An appropriate order will be entered.
Dated: March 7, 2014
/s/ Joy Flowers Conti
Joy Flowers Conti
Chief United States District Judge
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