PRICE et al v. FIRSTENERGY GENERATION CORPORATION
Filing
191
MEMORANDUM OPINION re 97 MOTION TO LIMIT THE TESTIMONY OF DEFENDANT'S EXPERT, JOSEPH P. PEZZE filed by JAMES BRUCE, RENEE HUNTER, ANNA MAY MOORE, JAMES CATANZARITE, JOYCE CSOMAY, ROBERT PRICE, WESLEY MAYHUE, ROBERT JONES, KATHLEEN KERN, JOSEPH CSOMAY, GARY MCCAULEY, CAROL PRICE, ROBERT KERN, MOLLY CATANZARITE, MARK MAYHUE, JESSICA BRUCE, MICHELE MORRIS-DONNER, TRACEY MCCAULEY, BRANDON HENNEN, ERNEST REED, MARGARET REED, 105 MOTION to Preclude Expert Opinions of Plaintiffs' Expert, Gary Brown, P.E. filed by FIRSTENERGY GENERATION CORPORATION, 124 MOTION to Preclude Expert Opinions of Plaintiffs' Expert, Fred P. Osman, P.E. BCEE filed by FIRSTENERGY GENERATION CORPORATION. Signed by Chief Judge Joy Flowers Conti on 3/20/2014. (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. (No. 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 located along the Ohio River in
Shippingport, Pennsylvania. Bruce Mansfield is owned and operated by defendant
FirstEnergy Generation Corporation (“FirstEnergy” or “defendant”). 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
1
“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 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 experts offering opinions
about Pennsylvania environmental statutes and regulations. Plaintiffs’ expert Gary
Brown (“Brown”) opined that Bruce Mansfield violated a number of statues and
regulations by emitting pollutants and failing to adhere to permitting and reporting
requirements. Defendant’s rebuttal expert Joseph P. Pezze (“Pezze”) opined that the
alleged conduct identified by Brown did not violate the applicable regulations and
statutes. Plaintiffs’ expert Fred P. Osman (“Osman”) submitted opinions in rebuttal
to Pezze. Each party moved to preclude the opposing party’s experts.1
1
The motions to preclude the opinions of Brown are ECF No. 128 (Hartle), ECF
No. 166 (Patrick), and ECF No. 105 (Price). Brown also offered opinions,
challenged by defendant, about sampling conducted on plaintiffs’ properties. The
court will address the sampling aspects of Brown’s report in a separate
memorandum opinion. The motions to limit the opinions of Pezze are ECF No.
118 (Hartle), ECF No. 196 (Patrick), and ECF No. 97 (Price). The motions to
preclude the opinions of Osman are ECF No. 131 (Hartle), ECF No. 177
(Patrick), and ECF No. 124 (Price). Unless otherwise noted, ECF numbers
appearing in the text of this opinion refer to the Patrick case, No. 08-1025.
2
During the hearing on these motions, the court indicated, as a preliminary
assessment, that expert testimony about the ultimate issues whether or not
defendant was negligent or violated statues or regulations would not be helpful to
the trier of fact. (Hr’g Tr. 72:11–14, Feb. 4, 2014, ECF No. 277.) The court explained,
however, that expert testimony explaining the nature of the statute or regulatory
scheme may be relevant and helpful, particularly if violation of a statute constituted
negligence per se. (Id. 72:14–22, 84:25–85:13.) The court asked the parties to submit
briefs about whether a violation of the statutes or regulations discussed by the
parties’ experts can constitute negligence per se. After reviewing the briefing, the
court finds that although the negligence per se doctrine is not applicable to these
cases, limited background testimony explaining the nature of the applicable
regulations may be helpful to the jury.
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:
(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
3
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 admissibility of the regulatory opinions
at issue turns on the fit or helpfulness prong.
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.
Courts often exclude as unhelpful expert opinions that involve legal
conclusions or “do nothing more for the jury than tell it what verdict to reach.”
CHARLES ALAN WRIGHT & VICTOR JAMES GOLD, FEDERAL PRACTICE AND
PROCEDURE § 6264 (2d ed. 1997). The Court of Appeals for the Third Circuit
explained that although a district court “has discretion to determine whether expert
testimony will help the trier of fact,” in exercising that discretion,
the District Court must ensure that an expert does not
testify as to the governing law of the case. Although Federal
Rule of Evidence 704 permits an expert witness to give
expert testimony that ‘‘embraces an ultimate issue to be
decided by the trier of fact,’’ an expert witness is prohibited
from rendering a legal opinion. Such testimony is
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).
4
prohibited because it would usurp the District Court’s
pivotal role in explaining the law to the jury.
Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195, 217 (3d Cir. 2006) (footnote
omitted) (citation omitted). Expert testimony concerning the customs and practices
of a particular industry is admissible as long as the expert does not give an opinion
as to what is required under the law or whether a party complied with the law. Id. at
218. Background information about a statute or regulation may be helpful to the
jury. United States v. Bilzerian, 926 F.2d 1285, 1294 (2d Cir. 1991) (holding that
expert testimony about the general background of federal securities regulation was
admissible as long as “carefully circumscribed to assure that the expert does not
usurp either 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”).
III.
Discussion
The testimony of Brown, Pezze, and Osman will be admitted for the limited
purpose of providing the jury with the relevant background about the statutes and
regulations governing the operation of the pollution control systems at Bruce
Mansfield.3 This background may be helpful to the jury’s understanding about
whether a statute or regulation was violated. The experts may not, however, offer
opinions that FirstEnergy did or did not violate any statute or regulation and may
not opine that FirstEnergy breached its duty of care. Such testimony would infringe
upon the court’s duty to explain the law to the jury and the jury’s duty to determine
the facts.
A. Opinions Offering Legal Conclusions
Brown submitted an expert report (“Brown Rep.”) dated August 6, 2012.
Brown opined that Bruce Mansfield violated and continues to violate provisions of
the Pennsylvania Air Pollution Control Act (“APCA”), 35 PA. STAT. §§ 4001–4106,
3
By “relevant background” the court means testimony explaining the nature of
regulations and their relationship to a statute and any scientific or technical
terms or concepts that may be unfamiliar to the jury.
5
and Solid Waste Management Act (“SWMA”), 35 PA. STAT. §§ 6018.101–.1003.
Specifically, Brown offered the following opinions:
1. The emission of white rain by Bruce Mansfield violated Pennsylvania
Department of Environmental Protection (“Pennsylvania DEP”) regulations
implementing the APCA. (Brown Rep. 67, ECF No. 169-1.)
2. Bruce Mansfield violated permit requirements by emitting white rain, which is
a “residual waste” under Pennsylvania DEP regulations implementing the
SWMA. (Id. at i.)
3. FirstEnergy failed to report white rain discharge as a “residual waste” under
Pennsylvania DEP regulations implementing the SWMA. (Id. at 67.)
4. The black rain incidents violated Pennsylvania DEP regulations implementing
the APCA. (Id. at 35.)
5. FirstEnergy failed to report, delineate, and remediate the black rain residue
despite Pennsylvania DEP requirements. (Id. at 72.)
6. FirstEnergy did not adhere to “Good Engineering Practice” as required by its
operating permit under Pennsylvania DEP regulations implementing the
APCA. (Id. at 10.)
7. FirstEnergy failed to inform the Pennsylvania DEP of changes to Bruce
Mansfield as required by regulations. (Id. at 51.)
8. White rain constitutes a nuisance and a trespass. (Id. at 71.)
9. FirstEnergy unreasonably operated Bruce Manfield’s air emissions control
systems and failed to meet the applicable standard of care. (Id.)
These statements are legal opinions and must be precluded for that reason.
Berckeley, 455 F.3d at 218; see FedEx Ground Package Sys., Inc. v. Applications Int’l
Corp., 695 F. Supp. 2d 216, 221–22 (W.D. Pa. 2010) (excluding testimony of
copyright law expert who opined about whether the parties complied with statutory
6
requirements). Pezze’s opinions rebutting Brown’s conclusions and Osman’s
opinions rebutting Pezze and agreeing with Brown similarly must be limited.
B. Opinions Explaining Relevant Regulations
Expert testimony explaining a statute or regulation may be helpful to the jury
under certain circumstances. For example, under the doctrine of negligence per se,
the violation of a statute constitutes negligence as a matter of law. For this doctrine
to apply, the statute or regulation must be intended, at least in part, to protect the
interests of a particular group, rather than the public generally. Mest v. Cabot Corp.,
449 F.3d 502, 518 (3d Cir. 2006); Wagner v. Anzon, Inc., 684 A.2d 570, 574 (Pa.
Super. Ct. 1996). Under Pennsylvania law, where the doctrine of negligence per se
does not apply to a statute, violation of the statute may in some cases still be
considered by a jury as evidence of negligence. See, e.g., Wood v. Smith, 495 A.2d
601, 607 (Pa. Super. Ct. 1985) (Wieand, J., concurring). The court will apply these
principles to the APCA and SWMA to determine whether expert testimony about
their background would be helpful to the trier of fact.4
1. APCA
The Court of Appeals for the Third Circuit found that violation of the APCA
cannot support a claim of negligence per se. Mest, 449 F.3d at 518. The court of
appeals explained:
To assert a claim for negligence per se, the plaintiffs must
demonstrate that: 1) the statute or regulation clearly applies
to the conduct of the defendant; 2) the defendant violated
the statute or regulation; 3) the violation of the statute
proximately caused the plaintiff ’s injuries; and 4) the
4
In addition to the APCA and SWMA, plaintiffs briefed the application of the
doctrine of negligence per se to the Pennsylvania Hazardous Sites Cleanup Act
(“HSCA”), 35 PA. STAT. §§ 6020.101–.1305. Neither Brown nor Osman made
any reference to the HSCA in his report. Consequently, neither will be permitted
to opine about this statute, and the court need not address the application of
these principles to it.
7
statute’s purpose is, at least in part, to protect the interest of
the plaintiff individually, as opposed to the public.
Id. Because the purpose of the APCA is to “protect[] the general public rather than
the plaintiffs in particular,” the plaintiffs’ claims for negligence per se failed. Id.
In some cases, violation of a statute or regulation that does not support a claim
of negligence per se can nevertheless be evidence of negligence.5 For example, the
Pennsylvania Supreme Court explained that violation of a municipal ordinance is
evidence of negligence, but does not constitute negligence per se. Jinks v. Currie, 188
A. 356, 358 (Pa. 1936). Pennsylvania courts have found that violation of regulations
under the Occupational Safety and Health Act of 1970 (“OSHA”), 29 U.S.C. §§ 651–
678, and violation of standards promulgated by the American National Standards
Institute are evidence of negligence. Brogley v. Chambersburg Eng’g Co., 452 A.2d
743, 746 (Pa. Super. Ct. 1982); Wood, 495 A.2d at 603; see id. at 607 (Wieand, J.,
concurring) (“A failure to comply with OSHA regulations is not negligence per se,
but it is some evidence of negligence.”).
In Rolick v. Collins Pine Co., 975 F.2d 1009 (3d Cir. 1992), the Court of Appeals
for the Third Circuit reversed a district court’s ruling precluding expert testimony
about the standard of care in OSHA regulations applicable to the logging industry.
After reviewing Pennsylvania law, the court of appeals determined that violation of
an OSHA regulation was not negligence per se, but found it was appropriate “to
‘borrow’ the OSHA regulation for use as evidence of the standard of care owed to
plaintiff.” Rolick, 975 F.2d at 1014 (citing Brogley, 452 A.2d at 476). The district
court abused its discretion by excluding this evidence. Id.
5
Pennsylvania law is not entirely clear on this topic. See 2 PA. SUGGESTED
STANDARD CIVIL JURY INSTRUCTIONS § 13.80 subcommittee note (4th ed. 2011)
(“The effect of a violation of a statutory mandate had been described by the
Pennsylvania appellate courts in a variety of ways, leaving the trial judge in an
uncertain and confused position . . . . Expressions such as ‘presumption of
negligence,’ ‘inference of negligence,’ ‘prima facie negligence,’ and ‘evidence of
negligence’ appear frequently and irregularly in opinions.”).
8
The court finds the APCA regulations that the experts propose to testify about
distinguishable from the OSHA regulation at issue in Rolick. The purpose of OSHA
is to secure safe working conditions for a particular group—“every working man
and woman.” 29 U.S.C. § 651. The specific regulation at issue in Rolick was designed
to protect workers in the logging industry.6 In contrast, the APCA is designed to
protect the general public. 35 PA. STAT. § 4002(a) (declaring that the purpose of the
act is, among other things, to protect the “public health, safety and well-being of
[Pennsylvania’s] citizens”); Mest, 502 F.3d at 518 (“We conclude that … the [APCA]
is an environmental statute governing air quality with the purpose of protecting the
general public rather than the plaintiffs in particular.”); see also Levin v. Dollar Tree
Stores, Inc., Civil No. 06-605, 2006 WL 3538964, at *3 n.2 (E.D. Pa. Dec. 6, 2006)
(finding that an alleged violation of the Americans with Disabilities Act, an
antidiscrimination rather than public health and safety statute, could not be used as
evidence of negligence and deeming Rolick inapposite ).
The court is hard pressed to understand how certain violations of the APCA
could be relevant to the standard of care required in these cases. For example, the
reporting requirements of the APCA might not implicate any duty owed to
plaintiffs. The court, however, cannot determine that no evidence of a violation of
the APCA would be relevant to the standard of care applicable to a duty owed to
plaintiffs. Should plaintiffs introduce evidence that defendant violated a relevant
requirement of the statute, expert testimony explaining the regulatory scheme will
be permitted. This expert testimony will be limited to an explanation of the
meaning and background of the regulations. The jury alone must determine, based
6
The regulation at issue in Rolick provided as follows:
Dead, broken, or rotted limbs or trees that are a hazard (widowmakers) shall be felled or otherwise removed before commencing
logging operations, building roads, trails, or landing, in their vicinity.
29 C.F.R. § 1910.266(c)(3)(ii) (1991).
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upon the facts, whether the regulation was violated and what weight to assign that
finding in determining negligence.7 The parties are directed to meet and confer
about what regulations may implicate a duty owed to plaintiffs and to file with the
court a notice listing which regulations they agree fall into that category and any
regulations they do not agree upon. Upon submission of that listing, if there are
disagreements, the court will hold a telephone conference to set a briefing schedule
about the disputes.
2. SWMA
A district court in this circuit recently held that a violation of the SWMA can
serve as the basis of a claim for negligence per se. Roth v. Cabot Oil & Gas Corp., 919
F. Supp. 2d 476, 489 (M.D. Pa. 2013). The district court in Roth relied on “the
excellent analysis and reasoning set forth in” Fallowfield Development Corp. v.
Strunk, Civil Nos. 89-8644, 90-4431, 1990 WL 52745 (E.D. Pa. Apr. 23, 1990). Roth,
919 F. Supp. 2d at 489. In Fallowfield, the court, in ruling on a motion to dismiss,
stated that the legislative policy behind the SWMA “would be furthered by allowing
violations of the SWMA … to serve as the basis for a claim of negligence per se.” In
later ruling on motions for summary judgment, the Fallowfield court clarified its
previous statement:
Further reflection reveals this statement might lead to the
erroneous inference that the standards of reasonableness
under the HSCA and SWMA have been adopted by this
Court under the negligence per se theory. This would be a
misstatement of the law. … The [SWMA] is intended to
protect the health, safety and welfare of the community and
not individuals seeking to recover pecuniary losses. The
statute specifically permits the continued use of common
7
At the Daubert hearing, defendant raised the concern that some alleged
violations occurred thirty or forty years ago. The court noted that some lookback period would be appropriate, but that forty years would be problematic.
(Hr’g Tr. 91:24–92:2, Feb. 4, 2014, ECF No. 277.) This issue, however, is not
currently before the court.
10
law claims to further that interest. Accordingly, the
negligence per se claim is dismissed.
Fallowfield Development Corp. v. Strunk, Civil Nos. 89-8644, 90-4431, 1991 WL
17793, at *8–9 (E.D. Pa. Feb. 11, 1991). The court in Roth was apparently unaware of
this subsequent holding in Fallowfield.
This court concludes that the SWMA, like the APCA, is intended to benefit
the public generally, not to protect the interest of a particular group. Accordingly, a
violation of the SWMA does not give rise to a claim for negligence per se.
Fallowfield, 1991 WL 17793, at *9 (dismissing negligence per se claim based upon
SWMA); see Mest, 449 F.3d at 518 (affirming dismissal of negligence per se claim
based upon violation of the APCA); Wagner, 684 A.2d at 575 (affirming dismissal of
negligence per se claim based upon the Philadelphia Air Management Code).
In line with the court’s findings with respect to the APCA, the jury may
consider evidence of the violation of the SWMA as evidence of negligence. The
parties’ experts may explain the statute and its regulations, but may not offer an
opinion that the statute was violated. Specifically, they may not testify that the white
or black rain is or is not residual waste. The jury will decide that issue after receiving
factual evidence, opinion evidence explaining the statute and its regulations, and
instructions from the court about the law.
C. Admissibility of Pezze’s Testimony
Defendant’s expert, Pezze, worked as an air quality regulator at the
Pennsylvania DEP for more than twenty-five years. Plaintiffs argue that Pezze’s
opinions are inadmissible because they are based on personal knowledge from his
employment with the Pennsylvania DEP and not independent expert knowledge.
(ECF No. 197, at 5–6.) Plaintiffs assert that Pezze’s opinions will confuse the jury
because he blurs the line between a fact witness and expert witness. (Id. at 8.) The
Pennsylvania DEP is not a party, and it has not authorized him to speak on its
behalf. (Id. at 6–7.)
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The concerns raised by plaintiffs are adequately addressed by limiting his
expert testimony to general background information about the statutes and
regulations at issue, and plaintiffs may elicit testimony from him that he is not
speaking on behalf of the Pennsylvania DEP. Pezze, by virtue of his background and
experience, is qualified to offer such general opinions.
IV.
Conclusion
The motions to preclude the testimony of Brown, Pezze, and Osman will be
granted in part and denied in part. As set forth above, the experts may not offer
opinions containing legal or factual conclusions. To the extent violation of a statute
or regulation is relevant to a claim in these cases, the experts may give testimony
about the general background of the statute or regulation. Appropriate orders will
be entered.
Dated: March 20, 2014
/s/ Joy Flowers Conti
Joy Flowers Conti
Chief United States District Judge
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