PRICE et al v. FIRSTENERGY GENERATION CORPORATION

Filing 186

MEMORANDUM OPINION re 114 MOTION to Preclude Expert Opinions of Plaintiffs’ Expert, James R. Millette, Ph.D. filed by FIRSTENERGY GENERATION CORPORATION, 121 MOTION to Preclude the Expert Opinions of Plaintiffs’ Expert, Wayne C. Isphording, Ph.D. filed by FIRSTENERGY GENERATION CORPORATION. Signed by Chief Judge Joy Flowers Conti on 3/13/2014. (blr)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
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 filed by defendant FirstEnergy

Generation Corporation (“FirstEnergy” or “defendant”) in two cases consolidated for
discovery, Patrick v. FirstEnergy Generation Corp. (No. 08-1025) and Price v.
FirstEnergy Generation Corp. (No. 08-1030).1 These cases involve FirstEnergy’s Bruce
Mansfield Power Plant (“Bruce Mansfield”), which is located along the Ohio River in
Shippingport, Pennsylvania. The plaintiffs in each case 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 dark-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

1

A third case consolidated for discovery purposes, Hartle v. FirstEnergy Generation
Corp. (No. 08-1019), is not at issue in the present opinion.

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property damage and adverse health effects. 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 the plaintiffs’
challenged geology and sampling experts—Wayne C. Isphording, PhD (“Isphording”)
and James R. Millette, PhD (“Millette”).2 The motions to exclude these experts are
fully briefed, and the court heard testimony and argument on January 13 and January
14, 2014. Because, as explained below, the court finds that the expert testimony of
Isphording and Millette would not be helpful to the trier of fact, the court will grant
the motions to exclude their testimony.

II.

Standard of Review
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:
(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;

2

The testimony of Isphording and Millette are at issue in the Patrick and Price cases
only. The motions to exclude Isphording are ECF No. 192 (Patrick) and ECF No.
121 (Price). The motions to exclude Millette are ECF No. 160 (Patrick) and ECF
No. 114 (Price). Unless otherwise noted, ECF numbers appearing in the text of this
opinion refer to the Patrick case, No. 08-1025.

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(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
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“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
qualifications are determined with respect to each matter addressed in the proposed
3

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

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 (Paoli II), 35 F.3d 717, 742 n.8 (3d Cir. 1994). 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).
Under these factors, experts are not permitted to engage in a “haphazard,
intuitive inquiry,” but must explain the research and methodology they employed in
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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 “will 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 Isphording
Isphording is an emeritus professor of geology and a licensed professional

geologist. Isphording produced an expert report (“Isphording Rep.”), dated August 3,
2012, and a rebuttal report, dated November 30, 2012. He concluded in his expert
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report that particulate emissions from Bruce Mansfield have been deposited on
plaintiffs’ properties. FirstEnergy challenges the reliability of Isphording’s
methodology and analysis and the “fit” of his conclusion. FirstEnergy also challenges
Isphording’s qualification to the extent his report contains opinions about the health
effects of emissions, air dispersion, or pollution controls.

1. Isphording’s Methodology and Conclusions
In April and May, 2012, Isphording visited twenty-six locations (designated S-1
through S-26) for the purpose of taking material samples. Most of the locations were
south, southeast, and northeast of Bruce Mansfield and within five miles of the plant.
Three locations (S-3, S-4, and S-5) were north and more than ten miles away. At each
location, Isphording obtained a soil sample and wet and dry wipe samples from a
hard surface, such as patio furniture or the hood of an automobile. Each sample was
analyzed to determine its chemical composition and structure.
Isphording determined that material collected from plaintiffs’ properties was fly
ash that originated from a coal-fired power plant.4 (Isphording Rep. 15, ECF No. 1944.) This conclusion was supported by the structure of the material, which indicated
that it was formed under high temperature, and by the presence of gypsum, which is
used as part of a coal-fired power plant’s pollution control systems. (Id.) Isphording
concluded that the “chemical signature” of the samples taken on plaintiffs’ properties
indicated that the material was from Bruce Mansfield rather than from the Beaver
Valley Power Plant, a coal-fired power plant located approximately four miles to the
northeast of Bruce Mansfield. (Id. at 15–16.)

4

“Fly ash” is a noncombustible powdery residue generated by burning coal. It is
carried out of the furnace by the gas stream and collected by pollution control
equipment or ejected out the stack. See 40 C.F.R. § 423.11(e).

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2. “Fit” of Isphording’s Opinions
Defendant challenges several aspects of Isphording’s methodology, the “fit” of
his opinion, and his qualification with respect to statements about health effects, air
pollution control systems, and air dispersion modeling. The court does not reach the
challenges to Isphording’s methodology and qualification because, assuming that
Isphording’s conclusions are reliable and accurate, they would not help the finder of
fact to determine a fact in issue in these cases.
The claims in these cases are limited to pollution from Bruce Mansfield which
resulted from two distinct and short-lived black rain episodes and from the allegedly
ongoing and chronic white rain. The white rain is alleged to have been an issue since
the 1970s. (Hr’g Tr. 243:4–245:9, Oct. 16, 2013, ECF No. 260.) Defendant, while
disputing the extent and frequency of the white rain, admits that it has occurred.5 The
parties have not briefed the statute of limitations applicable to the claims in this case,
and the court does not decide that issue now, but pollution occurring in the 1970s
generally cannot be the subject of a claim in these cases.
Isphording cannot determine when the particles from Bruce Mansfield were
deposited on plaintiffs’ properties. (Hr’g Tr. 34:9–12, Jan. 13, 2014, ECF No. 275.)
Isphording testified that fly ash particles may persist for decades in the environment,
depending on the composition of the soil. (Id. at 45:15–18.) The Bruce Mansfield fly
ash particles identified by Isphording could be from white rain that occurred well
before the actionable period in these cases. Additionally, Isphording is unable to
determine whether the fly ash particles were deposited in a white or black rain
episode or by another mechanism not at issue in these cases. (Hr’g Tr. 114:22–116:19,
Jan. 14, 2014, ECF No. 276.)

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As articulated by counsel, defendant’s position is “that over various periods of
time … going back to 1974 there has been white rain episodic, intermittent, that
falls on plant property and falls right outside of plant property in Shippingport.”
(Hr’g Tr. 169:2–6, Jan. 13, 2014, ECF No. 275.)

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Plaintiffs argue that Isphording need not testify about “when” or “how” the
particles arrive on plaintiffs’ properties because other experts, particularly the air
dispersion modeler, address those issues. (ECF No. 236, at 15.) They argue that
Isphording’s opinions will assist the trier of fact in determining “whether” Bruce
Mansfield emitted particles that deposited on plaintiffs’ properties. (Id.)
In Daubert, the Supreme Court explained that the fit prong of Rule 702 “goes
primarily to relevance.” Daubert, 509 U.S. at 591. On remand from the Supreme
Court, the Court of Appeals for the Ninth Circuit explained that the Supreme Court
“obviously did not intend the second prong of Rule 702 to be merely a reiteration of
the general relevancy requirement of Rule 402.” Daubert v. Merrell Dow Pharm., Inc.,
43 F.3d 1311, 1321 n.17 (9th Cir. 1995) (“Daubert II”). Because expert testimony can
mislead a jury, “[f]ederal judges must … exclude proffered scientific evidence under
Rules 702 and 403 unless they are convinced that it speaks clearly and directly to an
issue in dispute in the case, and that it will not mislead the jury.” Id. The Court of
Appeals for the Third Circuit, while not adopting the “apparent presumption of
exclusion,” agreed with the “spirit” of the Ninth Circuit’s analysis and instructed
district courts to “tread carefully” when evaluating this prong of Daubert. United
States v. Ford, 481 F.3d 215, 221 n.6 (3d Cir. 2007).
Whether fly ash particles from Bruce Mansfield invaded plaintiffs’ properties is
not an issue in dispute in these cases. The issue in dispute is whether particles from
Bruce Mansfield were deposited in a white or black rain event during the relevant
period. On remand in Daubert, the Ninth Circuit excluded as unhelpful experts who
testified that Bendectin is capable of causing birth defects in humans: “what plaintiffs
must prove is not that Bendectin causes some birth defects, but that it caused their
birth defects.” Daubert II, 43 F.3d at 1322. Isphording’s testimony presents a similar
problem. His conclusions support the contention that some pollution from Bruce
Mansfield reached plaintiffs’ properties, but they offer no support for the contention
8

that white rain or black rain landed on plaintiffs’ properties during the applicable
period. That other expert or lay witnesses will testify that white rain reached
plaintiffs’ properties does not cure this defect in the testimony. Because Isphording
cannot testify when or how the particles he identified came to be on plaintiffs’
properties, his testimony would not help the trier of fact determine causation, and the
court will grant the motions to exclude his testimony.6

B. Defendant’s Motions to Preclude the Testimony of Millette
Millette is an environmental scientist and microscopist. He prepared an expert
report (“Millette Rep.”) dated August 6, 2012, and a rebuttal report dated December 3,
2012. Millette opined that material found on plaintiffs’ properties matched material
collected from Bruce Mansfield. Defendant challenges the reliability of Millette’s
methodology and the “fit” of his opinions. Because Millette, like Isphording, cannot
identify when or how particles from Bruce Mansfield reached plaintiffs’ properties,
the court will exclude his testimony.
Millette received soil and surface samples collected by RT Environmental
Services, another of plaintiffs’ experts. These samples were taken from plaintiffs’
properties and from control areas far from Bruce Mansfield. Millette also received
samples collected inside Bruce Mansfield’s flues. Millette examined these samples
with optical and electron microscopes and performed spectroscopic analysis to
identify the composition of the samples. Millette identified fly ash particles and
gypsum in the samples from plaintiffs’ properties. Millette opined that coal ash and
gypsum particles found in samples collected from plaintiffs’ properties “were a

6

The motions will be granted without prejudice to plaintiffs to seek to present
Isphording should defendant introduce evidence or argue that no fly ash particles
from Bruce Mansfield reached plaintiffs’ properties. In such an event, the court
would need to consider defendant’s remaining objections to Isphording’s
testimony under the methodology and qualification prongs.

9

positive match” for the coal ash and gypsum found in samples taken from Bruce
Mansfield. (Millette Rep. ¶ 16, ECF No. 164-4.)
Millette admitted that he cannot determine how or when the fly ash particles he
identified were deposited on plaintiffs’ properties. (Millette Dep. 26:5–27:9, Feb. 25,
2013, ECF No. 164-7.) The court will exclude Millette’s testimony for the same
reasons the court excluded the testimony of Isphording. Assuming that Millette’s
methodology is reliable and his conclusions are accurate, his opinions would not be
helpful to the trier of fact. Whether particles from Bruce Mansfield invaded plaintiffs’
property is not a fact in issue in this case.7

IV.

Conclusion
For the reasons set forth above, the court will grant defendant’s motions to

exclude Isphording (Patrick ECF No. 192; Price ECF No. 121) and Millette (Patrick
ECF No. 160; Price ECF No. 114). An appropriate order will follow.

Dated: March 13, 2014

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/s/ Joy Flowers Conti
Joy Flowers Conti
Chief United States District Judge

As with the motions to exclude Isphording, the motions to exclude Millette will be
granted without prejudice to plaintiffs to seek to present Millette should defendant
introduce evidence or argue that no fly ash particles from Bruce Mansfield reached
plaintiffs’ properties.

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