Blanchard et al v. Tennessee Valley Authority

Filing 408

ORDER finding that TVA's Motion to Exclude the Proposed Expert Testimony of Barry Sulkin and to Conduct a Daubert Hearing, Motion to Exclude the Proposed Expert Testimony of J. Fred Heitman and to Conduct a Daubert Hearing, Mot ion to Exclude the Proposed Expert Testimony of Stephen King, Ph.D., M.P.H. and to Conduct a Daubert Hearing, Motion to Exclude the Proposed Expert Testimony of James Millette and Steve Hays and to Conduct a Daubert Hearing, Motion to Exclude the Pro posed Expert Testimony of Mark Quarles and to Conduct a Daubert Hearing, and Motion to Exclude the Proposed Expert Testimony of Dr. Nicholas Cheremisinoff and to Conduct a Daubert Hearing are not well-taken, and they are DENIED. Signed by Magistrate Judge H Bruce Guyton on August 11, 2011. (AYB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
GEORGE CHESNEY, et al.,
v.
TENNESSEE VALLEY AUTHORITY,

)
)
)

No. 3:09-CV-09
(VARLAN/GUYTON)

JOT RAYMOND, et al.,
v.
TENNESSEE VALLEY AUTHORITY,

)
)
)

No. 3:09-CV-48
(VARLAN/GUYTON)

ANITA AUCHARD, et al.,
v.
TENNESSEE VALLEY AUTHORITY,

)
)
)

No. 3:09-CV-54
(VARLAN/GUYTON)

LEE SCOFIELD, et al.,
v.
TENNESSEE VALLEY AUTHORITY,

)
)
)

No. 3:09-CV-64
(VARLAN/GUYTON)

JAMES CAMPBELL, et al.,
v.
TENNESSEE VALLEY AUTHORITY,

)
)
)

No. 3:09-CV-517
(VARLAN/GUYTON)

MEMORANDUM AND ORDER
These civil actions are before the Court pursuant to 28 U.S.C. § 636, the Rules of this Court,
and by the referral of the Honorable Thomas A. Varlan, United States District Judge, for disposition
of matters relating to discovery. Now before the Court are the Tennessee Valley Authority’s Motion
to Exclude the Proposed Expert Testimony of Barry Sulkin and to Conduct a Daubert Hearing,
Motion to Exclude the Proposed Expert Testimony of J. Fred Heitman and to Conduct a Daubert
Hearing, Motion to Exclude the Proposed Expert Testimony of Stephen King, Ph.D., M.P.H. and to
Conduct a Daubert Hearing, Motion to Exclude the Proposed Expert Testimony of James Millette

and Steve Hays and to Conduct a Daubert Hearing, Motion to Exclude the Proposed Expert
Testimony of Mark Quarles and to Conduct a Daubert Hearing, and Motion to Exclude the Proposed
Expert Testimony of Dr. Nicholas Cheremisinoff and to Conduct a Daubert Hearing.
The Tennessee Valley Authority (“TVA”) has responded in opposition to each of these
motions, and on July 14, 2011, the Court held a hearing to address these motions. Attorneys Gary
Davis, Jeff Friedman, and David Byrne were present representing the Plaintiffs. Attorneys Mark
Anstoetter, Edwin Small, and Brent Marquand were present representing TVA. Following the
hearing, the Court took this matter under advisement, and the Court finds that the matter is now ripe
for adjudication. For the reasons stated below, the Court finds that TVA’s motions are not welltaken, and they will be DENIED.

II.

BACKGROUND
The facts underlying the instant litigation are familiar to the parties and the Court, having

been stated in detail throughout these cases. In summary, TVA operates power production facilities
throughout the country, including the Kingston Fossil Plant located in Roane County, Tennessee.
The coal ash waste produced at the Kingston Fossil Plant is stored in wet containment facilities at
nearby Swan Pond. On December 22, 2008, one of the coal ash containment dikes at the Swan Pond
facilities failed. As a result of the dike failure, approximately 5.4 million cubic yards of coal ash
sludge spilled from the 84-acre containment area of the Swan Pond facilities to an adjacent area of
about 300 acres, consisting of primarily the Watts Bar Reservoir, the Clinch and Emory Rivers, and
government and privately owned shoreline properties. See Mays v. TVA, 699 F. Supp. 2d 991, 9951000 (E.D. Tenn. 2010) (providing a more detailed recitation of the events leading up to and
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following the ash spill).
On March 26, 2011, District Judge Thomas A. Varlan granted in part and denied in part
TVA’s Motion to Dismiss or for Summary Judgment and Motions to Dismiss All Claims for
Punitive Damages Against TVA and to Strike All Jury Demands Against TVA. Judge Varlan
granted TVA’s Motions to Dismiss All Claims for Punitive Damages Against TVA and to Strike All
Jury Demands Against TVA and struck the Plaintiffs’ requests for jury trials in these cases. In the
Summer of 2010, Judge Varlan entered a scheduling Order setting these cases for bench trials
commencing on September 13, 2011 and November 1, 2011.1

III.

POSITIONS OF THE PARTIES
In the motions that are now before the Court, TVA challenges the admissibility of seven

experts that the Plaintiffs’ expect to call at the trials of these cases. Generally, TVA challenges the
relevancy of the proffered testimony and the reliability of the methods the expert used in formulating
their testimony. TVA maintains that these experts and their proffered testimony do not satisfy the
requirements of Rule 702 of the Federal Rules of Evidence or Daubert v. Merrell Dow
Pharmeceuticals, Inc., 509 U.S. 579 (1993), or both.
The Plaintiffs respond that their experts’ opinions and testimony are relevant and reliable and
meet the requirements of Rule 702 of the Federal Rules of Evidence and Daubert, 509 U.S. 579. The
Plaintiffs contend that TVA’s challenges to the relevance of the testimony simply reiterate its
summary judgment arguments, and they maintain that each expert offers reliable testimony based

1

The Chesney, Raymond, Auchard, and Scofield cases are set for a bench trial on
September 13, 2011. The Campbell case is set for a bench trial in November 1, 2011.
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upon sound and acceptable methodology applied to relevant facts and data.

IV.

ANALYSIS
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the United States

Supreme Court confirmed that a trial court should serve as a gatekeeper in regards to proposed expert
testimony, and should prevent a jury from being overwhelmed by unsupportable speculation cloaked
as expertise. 509 U.S. at 595-96. In response to Daubert and subsequent decisions, Rule 702 of the
Federal Rules of Evidence has been amended and now provides:
If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion or
otherwise if (1) the testimony is based upon sufficient facts or data,
(2) the testimony is the product of reliable principles and methods,
and (3) the witness has applied the principles and methods reliably to
the facts of the case.
Fed. R. Evid. 702. The Daubert “gatekeeping” obligation applies not only to “scientific” testimony,
but to all expert testimony. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 151-52 (1999).
Under Daubert, “[a] minor flaw in an expert’s reasoning or a slight modification of an
otherwise reliable method will not render an expert’s opinion per se inadmissible.” Amorgianos v.
Nat’l R.R. Passenger Corp., 303 F.3d 256, 267 (2d Cir. 2002). Instead, “the rejection of expert
testimony is the exception rather than the rule,” Fed. R. Evid. 702 advisory committee’s note,
because the “adversary system provides the necessary tools for challenging reliable, albeit debatable,
expert testimony.” Amorgianos, 303 F.3d at 267.

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In applying Rule 702 and the Daubert standard, a trial judge is afforded broad discretion.
United States v. Demjanjuk, 367 F.3d 623, 633 (6th Cir. 2004). “This discretion is particularly
broad in a bench trial.” Id. at 634. As the Court of Appeals for the Sixth Circuit has previously
explained, “In a bench trial the judge, unlike the jury in a jury trial, hears the testimony whether it
is admitted or not. The presumption, of course, is that the trial judge has the ability to disregard the
testimony if it is found to be inadmissible.” Can-Am Eng’g Co. v. Henderson Glass, Inc., 814 F.2d
253, 255 (6th Cir. 1987)
With these standards in mind, the Court turns to the expert testimony proffered in this case
and the challenges posed to this testimony. The expected expert testimony and the challenges
lodged by TVA can be summarized as follows:
1.

Barry Sulkin is a water compliance expert, who is expected to testify regarding the spill’s
impact on water quality and alleged violations of state and federal clean water statutes. TVA
argues that Sulkin’s opinions relate to the reservoir’s water quality. TVA contends that this
testimony is irrelevant because TVA is riparian owner of the body of water. TVA argues
that Mr. Sulkin’s findings that “floating ash could be expected to be found almost anywhere
in Watts Bar Lake” and that “on any given day floating coal ash could be found in front of
anyone’s property along this stretch of the rivers” are unreliable supposition.

2.

J. Fred Heitman is an environmental consultant with “30 years experience in a variety of
pollution investigations,” who is expected to testify regarding water quality, violations of
applicable statutes, a decline in water-related activities, and damage to the fish population.
TVA again argues that it owns that reservoir, and therefore, the testimony is not relevant.
TVA maintains that Mr. Heitman’s testimony is unreliable because of inadequate sampling.
TVA also argues that Mr. Heitman’s opinions regarding the effect of fish contamination on
property values is extrapolation, but the Plaintiffs have conceded that Mr. Heitman will not
offer these opinions at trial.

3.

Stephen King, Ph.D., M.P.H., is a toxicologist and epidemiologist, who has a Ph.D. in
environmental sciences. He is expected to testify regarding coal ash and particulate matter’s
“deleterious effects on humans, the environment, and ecosystems.” TVA argues that Dr.
King’s testimony about potential harm from these materials is irrelevant because the
Plaintiffs’ claims are now limited to property damages. TVA alternatively argues that Dr.
King has failed to establish actual exposure to coal ash through a scientifically valid channel
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for transmission. TVA does not challenge the reliability of Dr. King’s testimony.
4.

Steve Hays is an industrial hygienist. Mr. Hays is expected to testify that coal ash from the
spill has been transported by air currents to “subject properties” and has settled onto “various
surfaces at subject properties.” He notes that this “transport has continued over time as the
spill damage has been remediated.” TVA argues that Mr. Hays linked the ash to clean-up
efforts, which the Plaintiffs cannot use as a basis for recovery. Mr. Hays also offers
testimony about health risks, which TVA maintains is irrelevant. Finally, TVA contends Mr.
Hays engaged in selective sampling and reporting.

5.

James Millette, Ph.D., is an environmental scientist and microscopist. Dr. Millette’s
proposed testimony focuses on reporting sampling data and offers the opinion that “the
levels of ash particles at the residences sampled on September 30, 2010 are, with one
exception, higher than the levels of ash particles at the comparison locations sampled on
November 10, 2010.” TVA argues that Dr. Millette’s sampling locations were not chosen
according to a scientifically valid plan and that results were selectively reported by choosing
favorable results. TVA maintains that opinions that ash particles came from the ash spill
rather than normal plant operation are not the products of any scientific methodology.

6.

Mark Quarles is an environmental consultant with “approximately 25 years of experience
in the field of investigating spills and releases of pollutants into the environment.” He is
expected to testify regarding environmental impact of the spill and the presence of
contaminants following the spill. TVA maintains that Mr. Quarles’s testimony that “private
residential property” has been contaminated is irrelevant because he has not demonstrated
that the property is owned by the Plaintiffs or that the contaminants come from the spill.
TVA argues that Mr. Quarles’s opinions are unreliable and speculative. TVA especially
takes issue with Mr. Quarles’s opinions that: water levels in the area have been above the
contour elevation at 745; coal ash has likely been deposited on private property; and arsenic
level in the soil in the area was zero prior to the spill.

7.

Nicholas Cheremisinoff, Ph.D., is a chemical engineer, who has worked for Exxon and
consulted for the European Union and World Bank. He is expected to testify that:
particulate matter was released in the spill; federal air quality standards were exceeded; and
excavation and dredging activities following the spill released particulate matter into the air.
TVA argues that Dr. Cheremisinoff’s testimony is irrelevant because he does not properly
correlate his findings to the spill itself, rather than clean-up efforts. TVA also argues that
Dr. Cheremisinoff’s testimony regarding the aggregated particulate matter releases in the
region are unreliable and untested.

6

The Court has reviewed the expected testimony of each of the experts above and has
carefully considered the arguments presented by TVA. At this juncture, the Court finds that these
witnesses are qualified by knowledge, skill, experience, training, or education. The testimony to be
offered by these witnesses appears to be based upon sufficient facts or data and to be the product of
reliable principles and methods applied to the facts of this case in a reliable manner.
The Court finds that these witnesses should be allowed to testify at the trial of this matter,
and to the extent the District Judge finds that the testimony presented does not comply with Rule
702 or the Daubert standards, he may decline to consider the evidence. The testimony to be
presented appears to be scientifically sound, though susceptible to contradiction through the
presentation of conflicting evidence and through vigorous cross-examination. There is little danger
of the District Judge being confused or distracted by this evidence, and the District Judge has broad
discretion to decline to consider or hear any testimony that he may find is irrelevant to the issues
before him or that he may find is unreliable.

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V.

CONCLUSION
Accordingly, the Court finds that TVA’s Motion to Exclude the Proposed Expert Testimony

of Barry Sulkin and to Conduct a Daubert Hearing, Motion to Exclude the Proposed Expert
Testimony of J. Fred Heitman and to Conduct a Daubert Hearing, Motion to Exclude the Proposed
Expert Testimony of Stephen King, Ph.D., M.P.H. and to Conduct a Daubert Hearing, Motion to
Exclude the Proposed Expert Testimony of James Millette and Steve Hays and to Conduct a Daubert
Hearing, Motion to Exclude the Proposed Expert Testimony of Mark Quarles and to Conduct a
Daubert Hearing, and Motion to Exclude the Proposed Expert Testimony of Dr. Nicholas
Cheremisinoff and to Conduct a Daubert Hearing are not well-taken, and they are DENIED.
IT IS SO ORDERED.
ENTER:

s/ H. Bruce Guyton
United States Magistrate Judge

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