PRICE et al v. FIRSTENERGY GENERATION CORPORATION
Filing
222
MEMORANDUM OPINION re plaintiff’s motion for reconsideration (ECF No. 205 ) regarding experts Brown, Pezze, and Osman. Signed by Chief Judge Joy Flowers Conti on 10/9/2014. (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 motions for reconsideration filed by plaintiffs in 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).1 Plaintiffs
seek reconsideration of the court’s opinions and orders limiting plaintiffs’ expert
witnesses Gary Brown (“Brown”) and Fred P. Osman (“Osman”) (ECF Nos. 283,
284).
1
These three cases are consolidated for discovery purposes. The motions for
reconsideration are ECF No. 192 (Hartle), ECF No. 298 (Patrick), and ECF No.
205 (Price). Unless otherwise specified, ECF numbers appearing in the text of the
opinion refer to the Patrick case.
1
The court issued a series of opinions about expert testimony in its “gatekeeping
role” under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993),
and its progeny. In all, the court issued eight opinions considering nineteen experts
and ruling on forty-four Daubert motions. The opinion plaintiffs wish the court to
reconsider is part of this series.
These cases involve allegations of air pollution emitted by the Bruce Mansfield
Power Plant (“Bruce Mansfield”), a coal-fired electric generation facility operated by
defendant FirstEnergy Generation Corporation (“defendant” or “FirstEnergy”).
Plaintiffs are individuals and a putative class who reside in the area surrounding
Bruce Mansfield. Plaintiffs allege pollution from Bruce Mansfield caused personal
injury and property damage. Plaintiffs seek equitable relief and monetary damages
under theories of nuisance, trespass, and negligence.
Brown opined that Bruce Mansfield violated the Pennsylvania Air Pollution
Control Act (“APCA”), 35 PA. STAT. §§ 4001–4106, and Solid Waste Management
Act (“SWMA”), 35 PA. STAT. §§ 6018.101–.1003, and regulations implementing
those statutes.2 The court found that these opinions were inadmissible because they
2
The court identified the following opinions offered by Brown:
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.)
2
constituted testimony about “‘the governing law of the case’” and “‘[s]uch testimony
is prohibited because it would usurp the District Court’s pivotal role in explaining
the law to the jury.’” (Mem. Op. 4–5, ECF No. 283 (quoting Berckeley Inv. Grp. Ltd.
v. Colkitt, 455 F.3d 195, 217 (3d Cir. 2006)).) The court similarly limited the
opinions of defendant’s expert Joseph P. Pezze (“Pezze”), submitted in rebuttal to
Brown, and the opinions of Osman, submitted in rebuttal to Pezze.
The court considered whether expert testimony explaining the statutes and
regulations would be admissible. The court found that a violation of the APCA does
not constitute negligence per se. (Id. at 7.) The court noted, however, that the
violation of a statute or regulation may constitute evidence of negligence even when
the violation is not negligence per se. (Id. at 8.) While “hard pressed to understand
how certain violations of the APCA could be relevant to the standard of case
required in these cases,” the court nevertheless determined that expert testimony
explaining the APCA or regulations would be admissible if plaintiffs introduced
evidence that defendant violated a relevant requirement of the statute. (Id. at 9.)
The court concluded that violation of the SWMA does not constitute
negligence per se. (Id. at 11.) As with the APCA, the court will permit expert
testimony explaining the SWMA and its regulations, should violation of the statute
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.)
(Mem. Op. 6, ECF No. 283.)
3
or regulations be relevant evidence of negligence,3 but the experts may not offer an
opinion about whether FirstEnergy violated the statute or regulations. (Id.)
Plaintiffs assert that the court’s decision to permit explanatory opinion
testimony, but to exclude opinions whether or not a statute or regulation was
violated, is erroneous. (ECF No. 298, ¶ 5.) Specifically, plaintiffs argue that the court
wrongly interpreted Rolick v. Collins Pine Co., 975 F.2d 1009 (3d Cir. 1992). (Id.
¶ 10.) Plaintiffs point to the decisions of other courts permitting expert testimony
about compliance with regulations. (Id. ¶¶ 13–15.) Additionally, plaintiffs argue
that Pennsylvania law requires expert testimony to establish the standard of care
and breach of the standard of care, unless the matter is within the ken of the average
jury. (Id. ¶ 16.)
The motion to reconsider will be granted in part, denied in part, and clarified
as set forth below.
II.
Standard of Review
The court may grant a motion for reconsideration if the party seeking
reconsideration establishes one of the following grounds: “(1) an intervening change
in the controlling law; (2) the availability of new evidence that was not available
when the court granted the motion for summary judgment; or (3) the need to
correct a clear error of law or fact or to prevent manifest injustice.” Max’s Seafood
Cafe v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). In this case, plaintiffs seek
reconsideration based upon the need to correct clear error and prevent manifest
injustice. (ECF No. 298, ¶ 5.) A finding of clear error is appropriate when the record
3
The parties were directed to meet and confer about which regulations or
statutory provisions implicated a duty owed by defendant to plaintiffs and to
submit a notice listing such statutes. On June 18, 2014, the parties submitted a
list of thirteen statutory and regulatory provisions plaintiffs believe are relevant
to the standard of care or duty owed to plaintiffs by defendant (ECF No. 303).
Defendant does not believe any of these provisions are applicable. The court will
set a briefing schedule to resolve this dispute.
4
supports “‘the definite and firm conviction that a mistake has been committed.’”
Johnson v. SmithKline Beecham Corp., 724 F.3d 337, 345 (3d Cir. 2013) (quoting
Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 855 (1982)).
Because of the interest in finality, district courts grant motions for reconsideration sparingly—the parties are not free to relitigate issues the court has already
decided. Rottmund v. Cont’l Assurance Co., 813 F. Supp. 1104, 1107 (E.D. Pa. 1992);
see Williams v. City of Pittsburgh, 32 F. Supp. 2d 236, 238 (W.D. Pa. 1998) (“[A]
motion for reconsideration is not properly grounded in a request for a district court
to rethink a decision it has already made, rightly or wrongly.”).
III.
Discussion
A. Interpretation of Rolick v. Collins Pine Co.
Plaintiffs assert that the court misinterpreted Rolick v. Collins Pine Co., 975
F.2d 1009 (3d Cir. 1992), with respect to the applicability of regulations as evidence
of a standard of care. (ECF No. 298, ¶ 10.)
Plaintiffs respectfully assert that this Honorable Court’s
ruling is at odds with the Third Circuit’s ruling in Rolick. It
would not follow that an OSHA regulation which strictly
excluded applicability to an independent contractor can be
used as relevant evidence of the standard of care owed to
that independent contractor, but that APCA and SWMA,
which were intended to be broad and protect every citizen,
would not be relevant evidence of the applicable standard of
care owed to Plaintiffs. Accordingly, APCA (and SWMA,
upon which the Court ruled similarly) should, at very least,
have been deemed evidence of the applicable standard of
care with regard to Plant practices, operations, discharge of
pollutants and regulatory compliance—all health, safety and
welfare issues.
(Id.) Plaintiffs appear to misunderstand the court’s opinion. While the court
expressed skepticism about the applicability of certain provisions of the APCA and
SWMA to the standard of care owed in this case, the court did not determine that
the APCA and SWMA would be irrelevant to the standard of care. (Mem. Op. 9,
5
ECF No. 283.) The court reserved ruling on the applicability of the APCA and
SWMA to the standard of care until the parties had met and conferred, and if
necessary, submitted additional briefing on this issue.4 (Id. at 10.) Since the court
made no final determination on this issue, there is no clear error to be corrected or
manifest injustice to be avoided.5
B. Exclusion of Testimony that Defendant Violated Regulations
To the extent that evidence about the statutes and regulations is relevant to the
standard of care, the court limited expert testimony to “background” about the
relevant statutes and regulations, including “the nature of regulations and their
relationship to a statute and any scientific or technical terms.” (Mem. Op. 5 n.3, ECF
No. 283.) Plaintiffs argue that the court’s exclusion of Brown’s opinions that
FirstEnergy violated the APCA, SWMA, “Good Engineering Practice,” and the
applicable standard of care for air emissions control systems was clearly erroneous.
(ECF No. 298, ¶¶ 11, 12.) Plaintiffs suggest that this ruling is inconsistent with
Bartoli v. Novartis Pharmaceutical Corp., No. 13-724, 2014 WL 151870, at *6–7
(M.D. Pa. Apr. 17, 2014). Baroli is a pharmaceutical products liability action. The
4
Neither Brown nor Osman directly discussed the Pennsylvania Hazardous Sites
Cleanup Act (“HSCA”), 35 PA. STAT. §§ 6020.101–.1305, in his report. The court
indicated that neither would be permitted to opine about this statute. (ECF No.
283, at 7 n.4.) Brown opined in his report that Bruce Mansfield took “no
appropriate action” to report and remediate releases of arsenic above
“Residential Statewide Health Standard.” (Brown Rep. 72, ECF No. 244-1.)
Plaintiffs argue that the health standard remediation requirements to which
Brown refers in the report are contained in the HSCA. (ECF No. 298, ¶ 24.) If
plaintiffs contend that the HSCA implicates a duty owed to plaintiffs by
defendant, plaintiffs may brief this issue along with the other statutes and
regulations identified by the parties at ECF No. 303.
5
Plaintiffs also claim that the court “ruled that reporting requirements to the DEP
would not be admissible evidence of a duty of care owed to Plaintiffs.” (ECF No.
298, at 5 n.1.) The court, as an example, said that the reporting requirements
“might not implicate any duty owed to plaintiffs.” (Mem. Op. 9, ECF No. 283.)
This example was not intended as a final ruling on the issue, and plaintiffs may
address it in their brief about the applicability of statutory and regulatory
provisions to the duty of care or standard of care in these cases.
6
district court admitted expert opinion about compliance with FDA regulations,
finding that the witness’s “expertise in the complicated field of pharmaceutical
regulation can surely be of use to a jury.” Id. at *6. The court permitted the expert to
testify about the “reasonableness” of the pharmaceutical company’s “conduct in
interactions with the FDA and compliance with FDA regulations.” Id. at *7.
This court made a different decision, permitting general background
testimony about the statutes and regulations, should any of the statutes or
regulations be deemed relevant with respect to the standard of care, but not
permitting opinions about whether the statutes were violated. This choice is
supported by the decisional law of the Third Circuit Court of Appeals. In Berckeley
Investment Group, Ltd. v. Colkitt, Berckeley Investment Group sought to introduce
expert testimony about whether it complied with federal securities law. The court of
appeals found the
background testimony [of the expert witness, Van Sant,]
could be helpful to the jury. She is an experienced former
counsel for the SEC with expertise in offshore securities
transactions. The customs and business practices in the
securities industry at the time the parties entered into the
Agreement provides an important context which will aid
the jury in determining whether Berckeley had the requisite
scienter at the time to evade the registration requirements.
… Van Sant cannot testify as to whether Berckeley complied
with legal duties that arose under the federal securities laws.
Thus, Van Sant’s testimony that Berckeley’s sales of [the
stock at issue] were exempt from registration requirements,
and any testimony as to the legal effect of the various SEC
pronouncements regarding Rule 144 and Regulation S, are
inadmissible as improper legal opinions.
Berckeley, 455 F.3d at 218. The court of appeals found the district court did not
abuse its discretion, however, in admitting Van Sant’s testimony about securities
industry custom. Id. The court of appeals reached a similar result in United States v.
Leo, 941 F.2d 181, 197 (3d Cir. 1991) (holding that the district court did not abuse
7
its discretion in admitting expert testimony about customs and practices in the field
of government defense contracting because the “district court took care to limit [the
expert’s] testimony so that he was not giving his opinion as to what the law
required”).
Plaintiffs argue United States v. Tonwanda Coke Corp., Crim. No. 10-219, 2013
WL 672280 (W.D.N.Y. Feb. 22, 2013), supports their contention that, in the
environmental context, an expert witness “may properly testify from personal
knowledge about what the Defendant’s permits require and whether the conditions
required by the permits were observed by the company.” (ECF No. 298, at 6.) The
decision by the court in Tonwanda Coke, however, is similar to the decision of this
court. That court stated that “no witness will be permitted to testify about what the
law is or what disputed provisions of laws or regulations mean, since that is the
province of the court.” Tonwanda Coke, 2013 WL 672280, at *9. “[T]estimony
concerning the regulatory process, how permitting works, the tangential
environmental laws and regulations, and other related concepts will be permitted
from both sides to educate, orient, and provide context for the jury.” Id. This is
exactly the type of “relevant background” testimony that will be permitted in this
case. (See Mem. Op. 5 & n.3, ECF No. 283.) The government’s experts in Tonwanda
Coke were not permitted to offer an opinion about whether the defendants were
guilty. Tonwanda Coke, 2013 WL 672280, at *9. Likewise, this court will not permit
expert testimony about whether “FirstEnergy did or did not violate any statute or
regulation.” (Mem. Op. 5, ECF No. 283.)6
6
In Tonwanda Coke, the court stated that “the government’s witnesses may
properly testify from their personal knowledge about what Defendants’ permits
required and whether the conditions required by the permits were observed at
[defendant’s plant]. Those are factual observations, not conclusions of law.”
Tonwanda Coke, 2013 WL 672280, at *9. To the extent Brown, Pezze, or Osman
has personal knowledge of the observed conditions at Bruce Mansfield, he may
testify about those conditions—that would not be opinion testimony.
8
This court “has discretion to determine whether expert testimony will help the
trier of fact.” Berckeley, 455 F.3d at 217. Exercising this discretion to exclude opinion
testimony that a party did or did not violate a statute or regulation is supported by
precedent and does not constitute clear error. Should the court, after briefing by the
parties, determine that particular statutes or regulations are relevant to the standard
of care or duty owed to plaintiffs by defendant, the court will permit expert
testimony explaining those statutes or regulations.
C. Expert Testimony Defining Standard of Care
The court held the Brown’s opinion that “FirstEnergy unreasonably operated
Bruce Mansfield’s air emissions control systems and failed to meet the applicable
standard of care” should be precluded as an inadmissible legal opinion. (ECF No.
283, at 6.) Plaintiffs argue they are required, under Pennsylvania law, “to produce
expert testimony defining the standard of care and that the defendant breached the
standard of care for that profession or industry, unless the matter is simple and the
lack of ordinary care is obvious and within the range of comprehension of the
average jury.” (ECF No. 298, at 7.) This is a correct statement of Pennsylvania law.
See, e.g., Smith v. Yohe, 194 A.2d 167, 170 (Pa. 1963) (“[I]n malpractice cases which
involve an appraisal of the care and skill of a physician a lay jury presumably lacks
the necessary knowledge and experience to render an intelligent decision without
expert testimony and must be guided by such expert testimony.”); Powell v. Risser,
99 A.2d 454, 456 (Pa. 1953) (“[E]xpert testimony is necessary to establish negligent
practice in any profession.”); Brandon v. Ryder Truck Rental, Inc., 34 A.3d 104, 110
(Pa. Super. Ct. 2011) (holding that expert testimony was required to prove
negligence involving a defective vehicle).
Opinion testimony about the customs and practices of an industry is not
necessarily an inadmissible legal conclusion. The distinction “between admissible
and inadmissible expert testimony as to the customs and practices of a particular
industry often becomes blurred when the testimony concerns a party’s compliance
9
with customs and practices that implicate legal duties.” Berckeley, 455 F.3d at 218. To
the extent an expert proffered in this case offers an opinion about the standard of
care based upon customs and practices in the power-generation industry, and not a
statute or regulation that must be interpreted by the court, that testimony would be
permissible. See id.; Leo, 941 F.2d at 197. The court therefore revises its opinion and
order (ECF Nos. 283, 284) dated March 20, 2014. Brown will not be precluded from
opining about the standard of care applicable to Bruce Mansfield, as long as this
opinion is based upon his knowledge of customs and practices in the electric
generation industry and not his interpretation of statutes or regulations. Pezze and
Osman, whose testimony the court similarly limited, (ECF No. 283, at 7), may offer
rebuttal opinions based upon their knowledge of customs and practices in the
electric-generation industry.
IV.
Conclusion
Plaintiffs’ motion to reconsider will be granted in part. Brown, Osman, and
Pezze may offer their opinions about the applicable standard of care to the extent
such opinion is based upon industry custom and practice. As set forth in the court’s
opinion and order (ECF Nos. 283, 284) dated March 20, 2014, and further clarified
in this opinion, to the extent the court determines that a statute or regulation is
relevant to the standard of care in this case, Brown, Osman, and Pezze may offer
testimony explaining the statute or regulation. The motion to reconsider is denied
in all other respects.
Dated: October 9, 2014
/s/ Joy Flowers Conti
Joy Flowers Conti
Chief United States District Judge
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