Wheeler et al v. Arkema France S.A. et al
Filing
316
MEMORANDUM AND ORDER granting 268 MOTION to Exclude the Expert Testimony and Reports of Dr. John Kilpatrick, denying 267 MOTION to Exclude the Expert Testimony and Reports of Dr. Richard Troast and and Charles Werntz,granting in part denyin g in part 262 MOTION to Exclude Expert Testimony and Reports of Dr. Sheng Li, denying 265 MOTION to Exclude Expert Testimony and Reports of Marc Glass, denying as moot 261 MOTION to Exclude Opinions Contained in the Expert Report of Gary Papke and Thomas Hamilton Not Prepared by Them, denying 266 MOTION to Exclude Expert Testimony and Reports of Dr. Marco Kaltofen (Signed by Judge Keith P Ellison) Parties notified.(arrivera, 4)
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United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
COREY PRANTIL, et al.,
Plaintiffs,
VS.
ARKEMA FRANCE S.A., et al.,
Defendants.
§
§
§
§
§
§
§
§
§
May 18, 2022
Nathan Ochsner, Clerk
CIVIL ACTION NO. 4:17-CV-02960
MEMORANDUM & ORDER
Pending before the Court are seven motions: (1) Plaintiffs’ Motion to Exclude the Opinions
of Mr. Gary Papke and Dr. Thomas Hamilton (ECF No. 261); (2) Plaintiffs’ Motion to Exclude
the Opinions of Dr. Sheng Li (ECF No. 262); (3) Defendant’s Motion to Exclude the Opinions of
Dr. John Kilpatrick (ECF No. 268); (4) Defendant’s Motion to Exclude the Opinions of Mr. Marc
Glass (ECF No. 265); (5) Defendant’s Motion to Exclude the Opinions of Dr. Marco Kaltofen
(ECF No. 266); (6) Defendant’s Motion to Exclude the Opinions of Drs. Richard Troast and
Charles Werntz (ECF No. 267); and (7) Plaintiffs’ Renewed Motion for Class Certification after
Remand (ECF No. 264).
The Court held five days of hearings on these motions, running from March 28 to April 1,
2022. Now, for the reasons set forth below, the Court GRANTS IN PART and DENIES IN
PART the parties’ Motions to Exclude, and GRANTS IN PART and DENIES IN PART
Plaintiffs’ Renewed Motion for Class Certification. 1
1
The parties have stipulated that this Memorandum and Order need not be filed under seal. ECF
No. 315 at 1.
1
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I.
FACTUAL BACKGROUND
The Court described the relevant factual allegations in a prior order, so it will not belabor
the point here. ECF No. 169. Still, a high-level summary is as follows. Defendants (collectively
referred to as “Arkema”) produced a liquid organic peroxide called Luperox in a facility in Crosby,
Texas. Prantil v. Arkema Inc., 986 F.3d 570, 573 (5th Cir. 2021). The facility was built in a flood
plain near the Gulf Coast. Id. In the days leading up to August 24, 2017, it became clear that
Hurricane Harvey would make landfall nearby. Id. Arkema waited to implement its hurricane
preparedness plan until August 25, 2017. Id. Apparently, the plan did not meet the moment. Harvey
stalled over Texas, leading to several days of heavy rain and flooding. Id. Arkema’s “ride-out”
team moved almost 350,000 pounds of combustible materials to elevated refrigerated trailers. Id.
The floodwaters continued to rise, however, threatening the trailers’ cooling systems. Id. The
cooling systems eventually succumbed. Id. Nine trailers burned between August 31 and September
4, ejecting clouds of smoke and ash into the sky. Id. Two of the facility’s wastewater tanks
overflowed. Id. Before long, people near the facility began to report rashes, headaches, eye
irritation, blisters, and respiratory issues. Id.
Plaintiffs seek to represent a class of all residents and real property owners within a sevenmile radius of the Crosby facility. Plaintiffs ask the Court to certify a damages class under Rule
23(b)(3) for their common-law claims of negligence, trespass, and public nuisance. Plaintiffs also
ask the Court to certify an injunctive-relief class under Rule 23(b)(2) for their claims under the
Resource Conservation and Recovery Act (“RCRA”) and the Comprehensive Environmental
Response, Compensation, and Liability Act (“CERCLA”).
2
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II.
PROCEDURAL HISTORY
This is the second iteration of motions to exclude and motions for certification in this case.
Previously, the Court granted Arkema’s Motion to Exclude Dr. Bell; denied as moot Arkema’s
Motion to Exclude Dr. Rogers; denied Arkema’s Motions to Exclude Mr. Glass, Dr. Kaltofen, and
Dr. Troast; and granted Plaintiffs’ Motion for Class Certification. ECF No. 169. Arkema appealed.
In Prantil v. Arkema Inc., the Fifth Circuit held that Daubert applies in full force at the
class certification stage. 986 F.3d 570, 575–76 (5th Cir. 2021). The Fifth Circuit determined that
the Court’s previous Daubert analysis “was not as searching in its assessment of the expert reports’
reliability as it would have been outside the certification setting.” Id. at 576. The Court of Appeals
recognized that “some of Arkema’s objections may only affect the weight of the reports without
undermining their fundamental reliability,” but still made clear that a comprehensive assessment
of the reliability of those opinions could not “be deferred.” Id. The Fifth Circuit therefore vacated
the Court’s rulings on the parties’ Motions to Exclude. Id.
On Plaintiffs’ damages class, the Fifth Circuit held that the Court’s order did not adequately
address the predominance prong of Rule 23(b)(3). Id. at 580. The Fifth Circuit determined that the
order contained insufficient details as to how the Court would conduct trial, and that the order was
“wanting in its answer to Arkema’s arguments that a trial of class claims would devolve into
individualized inquiries on causation, injury, and damages.” Id. at 578–79. As a result, the Fifth
Circuit instructed the Court to engage in more “discussion of how proof of Arkema’s conduct will
affect trial,” and noted that “[f]uture certification proceedings would here benefit from detailing
the evidence the parties may use to prove or defend against liability and its commonality to all
class members.” Id. at 580. The Court of Appeals did not hold that certification was necessarily
improper, “only that the relative balance of concededly common claim elements to contested
3
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elements of causation and injury warrants closer attention” on predominance. Id. The Fifth Circuit
therefore vacated the Court’s certification of Plaintiffs’ damages class. Id.
On Plaintiffs’ injunctive-relief class, the Fifth Circuit held that the Court’s order did not
“satisfy the requirement that injunctive relief be reasonably specific,” because it was unclear “how
the extent of the necessary property remediation can be determined, and whether a responsive
injunction can be fashioned to account for Arkema’s past remediation efforts.” Id. at 581–82. The
Fifth Circuit therefore vacated the Court’s certification of Plaintiffs’ Rule 23(b)(2) injunctive-relief
class. Id.
III.
THE PARTIES’ MOTIONS TO EXCLUDE
Post-Prantil, “the Daubert hurdle must be cleared when scientific evidence is relevant to
the decision to certify.” Id. at 575. As a result, the Court must analyze the parties’ Daubert motions
before reaching Plaintiffs’ Renewed Motion for Class Certification.
A. Legal Standard
Federal Rule of Evidence 702 provides:
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 Rule 702, the Court must act as a gatekeeper, “ensur[ing] that proffered
expert testimony is ‘not only relevant, but reliable.’ ” Brown v. Illinois Cent. R. Co., 705 F.3d 531,
535 (5th Cir. 2013) (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589
(1993)). To discharge this gatekeeping function, the Court “must make ‘a preliminary assessment
4
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of whether the reasoning or methodology underlying the testimony is . . . valid and of whether that
reasoning or methodology properly can be applied to the facts in issue.’ ” Id. (quoting Daubert,
509 U.S. at 592–93). “In assessing the ‘reliability’ of an expert’s opinion, the trial court may
consider a list of factors including: ‘whether a theory or technique . . . can be (and has been) tested,’
‘whether the theory or technique has been subjected to peer review and publication,’ ‘the known
or potential rate of error,’ ‘the existence and maintenance of standards,’ and ‘general acceptance’
of a theory in the ‘relevant scientific community.’ ” Hinson v. Dorel Juvenile Group, Inc., 2016
WL 3199353, at *1 (E.D. Tex. June 9, 2016) (quoting Daubert, 509 U.S. at 593–94). Other relevant
factors include whether the expert’s theory came from litigation or independent research, whether
there is a large analytical gap between the data and opinion such that the theory does not “fit” the
case, and whether the expert considered alternative explanations. Advisory Committee Notes to
2000 Amendment of FED. R. EVID. 702.
District courts need not “ ‘admit opinion evidence that is connected to existing data only
by the ipse dixit of the expert.’ ” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 157 (1999) (quoting
Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)). Still, Daubert “does not conscript judges into
service as the adversary system.” Earl v. Boeing Co., 2021 WL 3140545, at *2 (E.D. Tex. July 26,
2021) (citing United States v. 14.38 Acres of Land, 80 F.3d 1074, 1078 (5th Cir. 1996)). The party
offering the expert must prove “ ‘by a preponderance of the evidence that the testimony is reliable,’
not that it is correct.” Swanston v. City of Plano, Tex., 2021 WL 327588, at *2 (E.D. Tex. Feb. 1,
2021) (quoting Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998)). The trial judge’s
discretion “will not be disturbed on appeal unless manifestly erroneous.” Watkins v. Telsmith, Inc.,
121 F.3d 984, 988 (5th Cir. 1997) (cleaned up).
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Because the Prantil decision is so new, the Court takes this opportunity to clarify how
Daubert interacts with Rule 23. Prantil requires that district courts apply a full-bore Daubert
analysis at the certification stage. But Prantil does not alter the fundamental nature of the Daubert
inquiry. “Daubert ‘focuses on principles and methodology, not on the conclusions generated by
principles and methodology.’ ” In re Processed Egg Prod. Antitrust Litig., 81 F. Supp. 3d 412, 417
(E.D. Pa. 2015) (quoting In re TMI Litig., 193 F.3d 613, 670 (3d Cir. 1999)). At class certification,
meanwhile, the Court must “ ‘rule upon the conclusions generated by the principles and
methodology,’ to the extent that they are relevant to determining whether plaintiffs have satisfied
Rule 23(b).” In re Rail Freight Fuel Surcharge Antitrust Litig., 292 F. Supp. 3d 14, 43 (D.D.C.
2017) (cleaned up). An expert opinion may therefore pass muster under Daubert without sufficing
for certification. In addition, the Court is mindful of Prantil’s command that “the Daubert hurdle
must be cleared when scientific evidence is relevant to the decision to certify.” Prantil, 986 F.3d
at 575 (emphasis added). For expert evidence that is not relevant to the decision to certify, then,
the Court need not evaluate reliability prior to certification.
B. Plaintiffs’ Motion to Exclude Mr. Gary Papke and Dr. Thomas Hamilton
Plaintiffs originally moved to exclude portions of a joint report offered by Mr. Papke and
Dr. Hamilton because of confusion concerning primary authorship. ECF No. 261-1 at 1. Plaintiffs
also submitted that Mr. Papke could not testify to certain opinions because he was unqualified to
do so. ECF No. 295 at 2. However, Arkema subsequently stipulated that it would not offer Mr.
Papke “to opine on or testify about the statistical analyses that are presented in Section 2.8 (pages
30–35), Section 2.9 (pages 44–48), or Section 2.10 (pages 48–54) of his September 17, 2021,
report.” ECF No. 306 at ¶ 1. Arkema also stipulated that it would “offer Dr. Hamilton to opine on
6
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and testify about the statistical analyses that are presented in Section 2.8 (pages 30–35), Section
2.9 (pages 44–48), and Section 2.10 (pages 48–54) of his September 17, 2021, report.” Id. at ¶ 2.
In light of these stipulations, as well as the deposition of Mr. Papke that Plaintiffs took on March
28, 2022, Plaintiffs have “voluntarily withdraw[n] and forego[ne] their Motion to Exclude
Opinions Contained in the Expert Report of Gary Papke and Thomas Hamilton.” Id. at ¶ 3. The
Court therefore DENIES Plaintiffs’ Motion to Exclude Mr. Papke and Dr. Hamilton AS MOOT. 2
C. Plaintiffs’ Motion to Exclude Dr. Sheng Li
Arkema offers opinions from Dr. Li to attack Dr. Kilpatrick’s take on diminution damages.
Plaintiffs, in turn, contend that Dr. Li’s opinions should be excluded because he lacks the requisite
qualifications, uses an unreliable methodology, offers improper legal opinions, and presents
irrelevant conclusions on R-squared values. Some of these contentions do not require the Court’s
attention at this moment. For example, the Court does not rely on any of the purported legal
opinions in Section III of Dr. Li’s report for certification. As a result, it need not address the
admissibility of those opinions in this order. See Prantil, 986 F.3d at 575 (“[T]he Daubert hurdle
must be cleared when scientific evidence is relevant to the decision to certify.”). Still, because
some of Dr. Li’s opinions prove helpful in the Court’s analysis of Dr. Kilpatrick, the Court will
address Plaintiffs’ relevant critiques below.
2
Even though Plaintiffs have withdrawn their motion, the Court notes that Arkema’s failure to
delineate expert responsibility in the joint report injected unnecessary uncertainty into these
proceedings. Joint reports can pose a problem if “it isn’t clear whether both experts adhere to all
of the opinions in the report and they do not delineate which opinions belong to which expert[.]”
K. Barker Co., P.C. v. Valley Plaza, 541 F. App’x 810, 815–16 (10th Cir. 2013). Going forward,
the Court cautions parties that joint reports “should make clear what testimony each individual
witness will express, along with the basis and reasons for that testimony.” Merrill Lynch, Pierce,
Fenner & Smith, P.C. v. Greystone Servicing Corp., Inc., 2010 WL 11530924, at *4 (N.D. Tex.
Jan. 5, 2010).
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1. Dr. Li’s Qualifications
The central question presented by Plaintiffs’ Motion is whether Dr. Li’s opinions require
expertise in real estate appraisal or in statistics. See FED. R. EVID. 702 (requiring that the proffered
expert has sufficient “knowledge, skill, experience, training, or education” such that his opinion
will aid the trier of fact in understanding the evidence or resolving a factual issue). Dr. Li is not
qualified to serve as an expert on real estate appraisal. He has no training in the field, has taken no
relevant coursework, has obtained no relevant certifications or licenses, and has never worked in
the profession. ECF No. 262-3 at 23:6–27:17. Furthermore, Dr. Li did not rely on the Uniform
Standards of Professional Appraisal Practice (“USPAP”) in forming his opinions and has never
read any of the USPAP advisory opinions devoted to mass appraisal and regression. 3 Id. at 36:2123, 118:1-8. Consequently, Dr. Li is unqualified to offer opinions that require expertise in real
estate appraisal. Nevertheless, Arkema submits that Dr. Li’s opinions rest solely on his expertise
in economics and statistics. Dr. Li has a Ph.D. in economics, serves as the Associate Director for
NERA Economic Counseling, and has written select articles on economics and statistics. ECF No.
253-3 at 18–21. 4 Thus, to the degree that Dr. Li’s opinions grow out of his expertise in economics
and statistics, Plaintiffs’ challenge to his qualifications must fail.
3
“The USPAP represents the generally recognized ethical and performance standards for the
appraisal profession.” Fuentes v. Texas Appraiser Licensing & Certification Bd., 2020 WL
1313734, at *1 (Tex. App. Mar. 20, 2020) (citing Preamble, Uniform Standards of Professional
Appraisal (2014–15)). It “specifies how appraisers conduct appraisals, the contents of appraisals,
how appraisers maintain their records, and how appraisers must conduct reviews of other
appraisers’ work.” Id. (internal citations omitted).
4
Plaintiffs do not dispute Dr. Li’s qualifications in the fields of economics and statistics. See ECF
No. 262-1 (describing Dr. Li as “an economist who provides opinions primarily on antitrust
matters with no experience, training, or education in real estate appraisal”).
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Cotromano v. United Technologies Corp. provides helpful framing for this issue. 2018 WL
2047468 (S.D. Fla. May 2, 2018). In that case, a putative class of plaintiffs alleged that Pratt &
Whitney had released toxic contaminants and diminished their property values. Id. at *1. The
plaintiffs hired Dr. Kilpatrick to conduct a mass appraisal and quantify the effect of environmental
stigma on property values. Id. at *14. In Dr. Kilpatrick’s analysis, he relied in part on a contingent
valuation survey that asked for people’s willingness to pay for a house in a “cancer cluster.” Id. at
*15. The defendant hired Professor John Hauser to rebut Dr. Kilpatrick’s approach. Id. at *16.
Professor Hauser taught marketing at the Massachusetts Institute of Technology. Id. He opined
that Dr. Kilpatrick’s contingent valuation survey was unreliable. Id. The plaintiffs challenged
Professor Hauser under Daubert for his lack of expertise in real estate appraisal. Id. The district
court, however, permitted Professor Hauser’s opinions because his “lack of background in
appraisal activity [did] not necessarily defeat his qualifications to comment on the validity of Dr.
Kilpatrick’s survey methodology.” Id. at *17. Professor Hauser’s “expertise and extensive
experience in consumer decision-making and opinion research . . . [made him] well-qualified to
testify as an expert regarding the validity of the contingent valuation survey that is the lynchpin of
Dr. Kilpatrick’s diminution opinion.” Id. Professor Hauser’s “lack of real estate appraisal
credentials . . . [went] to the weight, not to the admissibility of his testimony[.]” Id.
Here, Dr. Li’s position recalls that of Professor Hauser in Cotromano. All of the opinions
offered by Dr. Li that are relevant to certification (or to the analysis of Dr. Kilpatrick’s report) rest
on Dr. Li’s expertise in economic and statistical analysis. 5 Still, the Court proceeds section-bysection for completeness.
5
The Court does not analyze Sections IV-B and IV-D of Dr. Li’s report because the opinions
offered therein are irrelevant to the Court’s decision on certification. See Prantil, 986 F.3d at 575
9
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i. Section IV-A
The first major substantive section in Dr. Li’s September 2021 report is titled: “Dr.
Kilpatrick’s Erroneous Trendline Analysis Obscures and Misrepresents Actual Trends in the
Data.” ECF No. 253-3 at 6. Here, Dr. Li attacks Dr. Kilpatrick’s trendlines because he believes
that they do not fit the underlying data. Id. This opinion has nothing to do with real estate appraisal;
Dr. Li simply takes Dr. Kilpatrick’s trendline analysis as he finds it. Dr. Li does not have to be
schooled in USPAP or real estate appraisal to evaluate the fit between a trendline and the
underlying data. That is a question of econometrics and statistics. And to the degree that Dr. Li
ignores subtleties that are necessary for appraising real estate, those failures go more to the weight
that his testimony must be afforded than to its admissibility. The Court therefore finds that Dr. Li
is qualified to offer the opinions in this section.
ii. Section IV-C
Dr. Li offers two opinions in Section IV-C: (1) Dr. Kilpatrick fails to explain why he
stopped analyzing transactions after August 2018 when he had access to data through 2021 (¶ 21);
and (2) had Dr. Kilpatrick properly incorporated subsequent sales data, he would have realized
that class members suffered no property value diminution (¶ 22). ECF No. 253-3 at 11–12.
Dr. Li’s first opinion rests solely on his background in economics and statistics. Dr. Li does
not need expertise in real estate to question Dr. Kilpatrick’s decision to limit his dataset; Dr. Li’s
expertise supports his opinion that robust statistical analysis uses as much recent data as possible.
Dr. Li is therefore qualified to offer this opinion. What’s more, the applicability of Dr. Li’s opinion
(“[T]he Daubert hurdle must be cleared when scientific evidence is relevant to the decision to
certify.”).
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to the real estate context is confirmed by the joint report from Mr. Papke and Dr. Hamilton. That
report states: “it is a serious flaw for Dr. Kilpatrick to have limited his analysis in this way,” and
opines that “ignoring the readily available market data . . . is a violation of USPAP Standards[.]”
ECF No. 253-6 at 18. Dr. Li is also qualified to offer the graph—Figure 2.B—that immediately
follows his opinion in this section. All that Dr. Li does in Figure 2.B is extend Dr. Kilpatrick’s
dataset through 2021 and calculate the compound annual growth rate (“CAGR”). Again, this
reflects a statistician’s view on an appraiser’s work. As a result, the Court finds that Dr. Li is
qualified to offer this analysis.
However, the Court must exclude Dr. Li’s second opinion that the data “shows no
indication that purported class members suffered any property value diminution.” ECF No. 253-3
at 12. Here, Dr. Li relies on price data from before Hurricane Harvey to disprove a causal link
between the Arkema Incident and subsequent diminution in property values. But the simple fact
that home prices inside the putative class area (“Inside” prices) grew more than prices outside the
area (“Outside” prices) for a four-year period around the Arkema Incident does not permit Dr. Li
reliably to conclude that class members suffered no diminution in value. Because Dr. Li
incorporates pre-Incident data into his CAGR calculation, the difference in price growth could be
traceable to pre-Incident trends. Thus, the divergence in CAGR does not actually undermine
Plaintiffs’ diminution-in-value claim. As a result, while the Court finds that Dr. Li is qualified to
offer his opinion that Dr. Kilpatrick’s dataset is unnecessarily limited (¶ 21), it excludes Dr. Li’s
opinion that expanding the dataset shows no diminution in property valuations (¶ 22).
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iii. Section V-A
Dr. Li offers two main opinions in Section V-A. First, Dr. Li opines that Dr. Kilpatrick’s
calculations of “Unimpaired” property values are improperly based on transactions in the class
area that occurred before Hurricane Harvey. ECF No. 253-3 at 14. And second, Dr. Li opines that
Dr. Kilpatrick’s efforts to calibrate his “Unimpaired” model are unreliable because “[i]f a
regression model is calibrated using allegedly impaired transactions, then any differences between
the predictions of that regression model and the actual values of class members’ properties would
correspond to prediction errors from the regression model and statistical noise, rather than actual
impairment.” Id.
Dr. Li’s opinion that Dr. Kilpatrick should not have relied on pre-Harvey property values
to determine “Unimpaired” values rests on an assumption about how Hurricane Harvey affected
prices. In offering this opinion, Dr. Li does not simply draw on his statistical expertise.
Nevertheless, it does not take a real estate expert to understand that Hurricane Harvey could have
damaged homes. And the fundamental import of this opinion is not that Hurricane Harvey affected
property values in a specific way, but that Dr. Kilpatrick’s model fails to address an important
exogenous variable. That is a concept rooted in statistical methods and analysis. What’s more, to
the degree that Dr. Li needs a real estate predicate for this opinion, that predicate appears in the
joint report from Mr. Papke and Dr. Hamilton. See ECF No 253-6 at 19 (noting that Hurricane
Harvey affected home prices and values in different ways depending on land use, neighborhood
characteristics, and other idiosyncratic factors). Consequently, the Court finds this opinion to be
rooted in Dr. Li’s statistical expertise.
Dr. Li’s second opinion also is not based on any expertise in real estate appraisal. Dr. Li
simply states that in statistics, unimpaired regressions should be calibrated without using the
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impaired transactions. This opinion has nothing to do with real estate and everything to do with
statistics. The Court therefore finds that Dr. Li is qualified to offer the opinions in Section V-A.
iv. Section V-B
Next, Dr. Li opines that Dr. Kilpatrick’s regression model is flawed because “it does not
take into account any variables that measure the effect of Hurricane Harvey or factors that, as I
understand, significantly affect property pricing.” Id. at 14. This opinion is a more detailed version
of Dr. Li’s first opinion from Section V-A. Specifically, Dr. Li opines that “Dr. Kilpatrick’s
regression does not account for property-specific factors such as each property’s proximity to
sources of chemical emissions that are unrelated to the 2017 Crosby Incident, location and
topography, construction characteristics, locations of water breach, and preventative measures
taken by owners.” Id. at 15. Dr. Li therefore concludes that Dr. Kilpatrick’s model is
“fundamentally unsuited for calculating class-wide economic damages in this case.” Id.
As with Dr. Li’s first opinion from Section V-A, this opinion mixes concepts from real
estate appraisal and statistics. Dr. Li has no relevant experience that permits him reliably to
conclude that property values turn on factors such as proximity to sources of chemical emissions,
location, topography, construction characteristics, and preventative measures taken by owners. But
Dr. Li does not draw those conclusions himself. Instead, Dr. Li relies on real estate appraisal
experts (such as Mr. Papke and Dr. Hamilton) who suggest that these factors can affect property
values. See e.g., ECF No. 253-6 at 71–75. The value-add from Dr. Li’s testimony, then, is his
opinion that failing to control for exogenous variables confounds Dr. Kilpatrick’s effort to link
changes in property values to the Arkema Incident. At its core, this is a statistical opinion. And to
the degree that Plaintiffs contend that the variables mentioned by Dr. Li are not important, that
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position goes more to the weight of Dr. Li’s opinion than to its admissibility. The Court therefore
finds that Dr. Li is qualified to offer the opinion in Section V-B.
v. Section V-C
Finally, Dr. Li opines that Dr. Kilpatrick’s “unimpaired” value estimates “suffer from poor
statistical precision,” making them “inappropriate benchmarks for assessing property value
diminution in this case.” ECF No. 253-3 at 15. This opinion is unrelated to idiosyncratic issues in
the field of real estate appraisal. Instead, this subsection focuses solely on demonstrating the
prediction errors in Dr. Kilpatrick’s regression model and explaining why these errors indicate that
his approach is unreliable. Here, Dr. Li simply uses his expertise to engage with the statistical
analysis at the core of Dr. Kilpatrick’s work. As a result, the Court finds that Dr. Li is qualified to
offer the opinions in Section V-C.
2. Dr. Li’s Methodology
Plaintiffs also move to exclude Dr. Li’s opinions because he “disclaims any use of real
estate appraisal methodology when analyzing Dr. Kilpatrick’s real estate appraisal report.” ECF
No. 261-1 at 10. Specifically, Plaintiffs argue that Dr. Li’s failure to comply with USPAP or other
professional appraisal standards renders his opinions unreliable. Id. at 11–12. Plaintiffs further
note that Dr. Li did not even review any real estate appraisal “standards, literature, or
methodologies.” Id. In large part, however, this methodological argument collapses into Plaintiffs’
position on Dr. Li’s qualifications. Plaintiffs’ central point here is that Dr. Li does not understand
real estate appraisal, so his critiques of Dr. Kilpatrick’s approach must be unsound. Again,
however, most of Dr. Li’s report simply criticizes Dr. Kilpatrick’s statistical approach and
interpretations. Dr. Li does not need to be an expert in real estate appraisal to offer those criticisms.
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Take, for example, Dr. Li’s critique of Dr. Kilpatrick’s trendlines from Section IV-A. Dr.
Li writes: “the fit of Dr. Kilpatrick’s purported trendline to the underlying data is so poor that the
direction of the trendline’s predictions is opposite to the direction of the underlying data[.]” ECF
No. 253-3 at 7. The degree of fit between a trendline and the underlying data is rooted in statistics
and econometrics, not real estate appraisal. Dr. Li testified that he has “expertise in whether [Dr.
Kilpatrick is] actually using the econometrics methods properly. . . . And for some things in
statistics and econometrics, there’s objective definitions for the concepts he’s talking about. . . .
An average is an average, whether you’re using it for a real estate application or whether you’re
using it for wages.” ECF No. 286-1 (Exhibit 2) at 29:9-19. To the extent that the real estate industry
and USPAP establish different standards for measures of goodness-of-fit, that goes to weight rather
than admissibility. Consequently, Dr. Li’s failure to deploy USPAP standards or methodologies
does not render his approach unreliable.
3. Dr. Li’s Opinion on R-Squared
The parties have also engaged in a drawn-out dispute over Dr. Li’s discussion of R-squared
values. The R-squared values in this case are irrelevant to the Court’s decision on certification.
Nevertheless, the Court addresses the parties’ arguments here to forestall additional confusion
post-certification.
The original sin that sparked this dispute was Dr. Kilpatrick’s decision to display a graph
for his Inside/After trendline that included an R-squared value of 0.3515. 6 ECF No. 231-4 at 37.
When Dr. Li reviewed Dr. Kilpatrick’s report, he determined that the R-squared for this trendline
6
As the Court describes in more detail in the section devoted to Dr. Kilpatrick, this trendline is
designed to demonstrate the post-Incident trend in prices inside the class area.
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was actually -0.369. ECF No. 253-3 at 8. Plaintiffs contend that Dr. Li’s opinion on the “true” Rsquared value should be excluded because it is not relevant. Plaintiffs note that none of the
foundational materials on mass appraisal mentions R-squared. ECF No. 278 at 9–10. Plaintiffs
therefore submit that only the Coefficient of Dispersion standards, which Dr. Kilpatrick uses to
assess his regression model, are relevant when evaluating a mass appraisal approach. Id. at 10.
Generally, R-squared “is a measure of the proportion of variation in data which is explained
by the regressor variable.” Chemical Manufacturers Association v. U.S. E.P.A., 870 F.2d 177, 215
n.139 (5th Cir. 1989), decision clarified on reh’g, 885 F.2d 253 (5th Cir. 1989). Typically, a
negative R-squared suggests that a trendline diverges substantially from the underlying data. After
reviewing the reports and statistical literature in this case, the Court concludes that Dr. Li’s
negative R-squared for Figure 6 can be traced back to Dr. Kilpatrick’s decision to manually anchor
his Inside/After trendline where his Inside/Before trendline left off. By manually selecting that
anchor, Dr. Kilpatrick forced a higher intercept on the Inside/After trendline than would otherwise
follow from the underlying data. That higher intercept, in turn, caused the Inside/After trendline
to diverge from the data and produced a negative R-squared. Importantly, however, Dr. Kilpatrick
had a reason for manually anchoring his Inside/After trendline. If he did do so, the trendline would
not incorporate the drop in property prices that occurred immediately following the Arkema
Incident. Contrary to Arkema’s protestations, then, the negative R-squared does not “reveal” the
Inside/After trendline to be a “false” trendline that “does not match the underlying data.” ECF No.
286 at 11.
Still, Plaintiffs also overstate their position on R-squared. As the Court explains in its
evaluation of Dr. Kilpatrick, his approach contains two distinct subparts: regression analysis and
trendline analysis. Dr. Kilpatrick validates his regression analysis with various statistical
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methodologies. But he provides no statistical information regarding goodness-of-fit for his
trendlines. The R-squared value, then, is the only mathematical measure that relates to Dr.
Kilpatrick’s trendline analysis. And at the very least, Arkema is correct that a negative R-squared
value suggests that the trendline diverges from the underlying datapoints. Consequently, while the
Court does not rely on R-squared for certification (or for the Motion to Exclude Dr. Kilpatrick), it
notes that Dr. Li’s opinion on negative R-squared appears sufficiently relevant to clear the Daubert
hurdle. 7 See Chemical Manufacturers Association, 870 F.2d at 216 (describing R-squared as
“informative,” even if “it cannot of itself conclusively prove or disprove the adequacy of a
particular categorization scheme”). 8
4. Summary
Writ large, the Court rejects the lion’s share of Plaintiffs’ arguments against Dr. Li. Dr.
Li’s opinions rest on his expertise in economics and statistics, not real estate appraisal. And with
one exception—Dr. Li’s second opinion in Section IV-B—his methodologies are reliable and
7
Plaintiffs further contend that Dr. Li’s opinion on R-squared should be excluded because it is not
reliable. First, Plaintiffs argue that it is not supported by proper calculations. The Court solved this
problem by permitting Dr. Li to supplement his report with manual calculations. ECF No. 274 at
1–5. Second, Plaintiffs argue that R-squared cannot be negative. When the Fifth Circuit addressed
R-squared in Chemical Manufacturers Association, it said that “[t]he range of values for [Rsquared] always falls between 0 and 1[.]” 870 F.2d at 215 n.139. Plaintiffs further note that Dr.
Kilpatrick testified that “negative coefficients of determinant [(R-squared)] are erroneous,” ECF
No. 218-1 at 168:22-24, and that Dr. Hamilton testified that it is impossible to get a negative Rsquared without using imaginary numbers, ECF No. 281-3 at 87:11-13, 88:3-5. But R-squared can
be negative in certain circumstances, including when the regression line provides “a worse fit than
the average line.” Davide Chicco, Matthijs J. Warrens, & Giuseppe Jurman, The coefficient of
determination R-squared is more informative than SMAPE, MAE, MAPE, MSE and RMSE in
regression analysis evaluation, 7 PeerJ Comput. Sci. e623, 3 (2021). Thus, the Court does not
agree with Plaintiffs that Dr. Li’s opinion is inherently unreliable.
8
The Court will not address Dr. Li’s opinions on the Microsoft Excel bug; Arkema represented at
the hearing that those opinions are unnecessary, and the Court has independently determined that
they are irrelevant. ECF No. 307 at 22:8–25.
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rooted in his expertise. The Court therefore DENIES Arkema’s Motion to Exclude Dr. Li IN
PART and GRANTS it IN PART. Absent the one opinion identified from Section IV-B, the Court
finds that Dr. Li’s opinions that prove relevant to certification are reliable.
D. Arkema’s Motion to Exclude Dr. John Kilpatrick
Dr. Kilpatrick’s expert report is the lynchpin of Plaintiffs’ damages class. Unfortunately
for Plaintiffs, however, the Court finds that Dr. Kilpatrick’s opinions are unreliable and must be
excluded.
1. Summarizing Dr. Kilpatrick’s Opinions
Before jumping into the Daubert particulars, the Court must outline the substance of Dr.
Kilpatrick’s report. Plaintiffs retained Dr. Kilpatrick to show that questions common to the
damages class predominate over individual questions. ECF No. 264-1 at 22. To accomplish this
task, Dr. Kilpatrick provided a formula for calculating class-wide damages:
Unimpaired Property Value – Impaired Property Value = Damages.
ECF No. 254-4 at ¶ 9.
The Unimpaired Property Value (“Unimpaired”) term represents the value of properties in
the class area if the Arkema Incident had never happened. Since this term predicts hypothetical
property values, it is entirely theoretical. To populate this term, Dr. Kilpatrick used the Greenfield
Automated Valuation Model (“GAVM”). He started with transaction data for five MLS areas,
“encompass[ing] all of the properties in the 7-mile ring plus additional ‘control areas’ outside of
the 7-mile area.” ECF No. 231-4 at ¶ 55. He also included data from the Chambers County
Certified Appraisal Roll, Chambers County Tax Parcels, Harris County Certified Appraisal Rolls,
Liberty County Certified Appraisal Rolls, and Google Earth imagery. Id. He limited the data to
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transactions that occurred between September 1, 2016, and August 31, 2018 (the two-year period
around the Incident). Id. Next, he calibrated this model using the data from the putative class area
for the one-year period before Hurricane Harvey. Id. at ¶ 60. The calibration indicated that four
variables were important for sales prices: Tax Assessed Value (“TAV”), Sales Date, Area 2
(denoting location in one specific MLS area), and In/Out (whether the property was inside or
outside of the class area). Id. at ¶ 61. Dr. Kilpatrick then validated the GAVM on the data from the
two-year period around the Incident. Id. at ¶ 63. According to the International Association of
Assessing Officers, tax assessment ratio studies should feature a Coefficient of Dispersion under
10% for newer single-family residential properties in homogenous areas, and under 15% for older
and more heterogenous areas. Id. at ¶ 62. Dr. Kilpatrick found that his GAVM had a Median
Absolute Deviation of 9.28%, so he concluded that his model was a good fit. Id. at ¶ 63. Dr.
Kilpatrick also noted that his GAVM had a Median Deviation of -0.72%, suggesting that it was
unbiased. Id.
The Impaired Property Value (“Impaired”) term, meanwhile, is designed to represent the
actual value of the properties in the class area after the Arkema Incident. Dr. Kilpatrick did not
rely on multiple regression to populate this term. Instead, he compared trendlines for two areas.
Id. at ¶¶ 113–16. For the “Inside” trendline, Dr. Kilpatrick used monthly per-square-foot average
sale prices for homes in the class area. For the “Outside” trendline, he used prices for homes that
were located near the class area. Using data from the year before Hurricane Harvey, Dr. Kilpatrick
calculated a trendline that indicated that prices for Inside properties were increasing by 19.5% per
year (“Inside/Before”). Id. at ¶¶ 116–19. The data for Outside properties produced a trendline that
indicated that prices were increasing by 8% per year (“Outside/Before”). Id. Next, Dr. Kilpatrick
calculated trendlines for both areas for the year after the Incident (“Inside/After” and
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“Outside/After”). Dr. Kilpatrick manually anchored the After trendlines at the price predictions
for August 2017 from his Before trendlines. Id. at ¶ 123. He then used all four trendlines to estimate
prices in August 2018. 9 Id. at ¶ 125. He found that the Inside/After trendline predicted prices to be
16.21% lower than the Inside/Before trendline, while the Outside/After trendline predicted prices
to be 4.08% lower than the Outside/Before trendline. Id. at ¶ 126. Dr. Kilpatrick then subtracted
one figure from the other to conclude that “within one year of the Arkema Explosion, actual home
prices in the 7-mile zone had decreased 12.12% more than they would have decreased without that
explosion.” Id. at ¶ 127.
Dr. Kilpatrick did not stop there. He reasoned that the 12.12% figure was “a floor for
damages, since research shows us that homes in an affected area are less likely to transact, are less
likely to fully and immediately inculcate new knowledge, and thus are not likely to be ‘at
equilibrium.’ ” Id. To support this opinion, Dr. Kilpatrick examined five case studies. Those case
studies concerned “air and soil-related contamination including industrial products,” and indicated
diminutions in property values of between 5% and 42%. Id. at ¶ 134. Extrapolating from these
case studies, Dr. Kilpatrick opined that “[c]omparable case studies would indicate a somewhat
higher equilibrium loss in value, and as such a conservative estimate of the actual decline in value
would be in the range of 20%.” Id. at ¶ 141. When Dr. Kilpatrick conducted his case study analysis,
he did not know the contaminants at issue in the Arkema Incident. ECF No. 268-2 (Exhibit B) at
61:3-5, 103:22–104:7. Finally, Dr. Kilpatrick applied the 20% diminution figure to the Unimpaired
9
Dr. Kilpatrick calls the predictions for August 2018 from his Inside/After and Outside/After
trendlines the “Aug 2018 Actual Price[s].” Id. at ¶ 126. This is misleading. The actual monthly
average per-square-foot sales price inside the class area in August 2018 was $107.80, and the
average outside was $93.43. Id. at ¶ 122. The “Aug 2018 Actual Prices” spit out by Dr. Kilpatrick’s
trendlines, meanwhile, were $97.85 (Inside) and $91.64 (Outside). Id. at ¶ 126.
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value term from his GAVM to present a final estimate for diminution in value for the class:
$366,764,884.28. ECF No. 231-4 at ¶ 145.
2. Dr. Kilpatrick’s Trendline Methodology is Unreliable
The central problem with Dr. Kilpatrick’s trendline methodology is that it is unreliable. For
Dr. Kilpatrick’s 12.12% diminution estimate to pass muster under Daubert, the Court must find
that Dr. Kilpatrick’s methodology reliably shows that the Arkema Incident caused the divergence
in price trends in the following year. Put another way, Dr. Kilpatrick must reliably demonstrate
that the divergence in price trends was not due to underlying differences between the Inside and
Outside areas. Critically, however, Dr. Kilpatrick does not show that the Outside properties
resemble the Inside properties. See ECF No. 253-6 at 37 (“The Kilpatrick Report provides no
information on the characteristics of the control area and no comparison of characteristics between
areas inside and outside of the Proposed Class Area.”). Without evidence that the two areas are
similar, it is impossible reliably to conclude that the post-Incident divergence is traceable to
stigmatic decrements from the Arkema Incident.
Dr. Kilpatrick’s failure to control for (or even address) differences between the two areas
is a serious lapse, particularly given that the data show real differences between the two areas. For
example, Dr. Kilpatrick includes MLS Area 32 in the Outside area, even though there are no
properties in Area 32 in the proposed class. ECF No. 253-6 at 38. The median household income
and median home value in Area 32 are both more than double the corresponding figures for the
Inside area. Id. These differences suggest that the post-Incident divergence may be due to intrinsic
differences between the Inside and Outside areas, rather than the stigmatic effects of the Arkema
Incident. More broadly, the Outside area features a median population age 9.5 years older than the
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Inside area, a median household income that is 61.3% higher, and median home values that are
68.3% higher. Id. Again, these differences suggest that in subtracting price trends for the Outside
area from the Inside area, Dr. Kilpatrick has isolated effects that have nothing to do with the
Arkema Incident. Dr. Kilpatrick also provides no support for his contention that the Outside and
Inside areas were impacted similarly by Hurricane Harvey. See ECF No. 231-4 at ¶ 114. Dr.
Kilpatrick claimed that the purpose of subtracting one area from the other was to control for the
effects of the storm. But he did not analyze any data or area characteristics to demonstrate that the
two areas bore the brunt of the hurricane in the same way. Moreover, the actual trendlines
themselves suggest that price differences in the two areas are not due to the Arkema Incident. In
the year before the Incident, Inside prices increased by 19.5%, while Outside prices increased by
only 8%. The fact that the two areas experienced such different trends before the Incident makes
it impossible to conclude (without additional controls) that the post-Harvey trend difference is due
to the Arkema Incident.
Dr. Kilpatrick also never evaluates any goodness-of-fit measures for his trendline analysis.
Plaintiffs, for their part, attempt to direct the Court’s attention the Median Absolute Deviation and
Median Deviation figures that Dr. Kilpatrick provides for his GAVM. Those measures of statistical
precision only concern the Unimpaired term, however. Yet it is the Impaired term that Plaintiffs
need to demonstrate that the Arkema Incident caused a diminution in property values. It is the
Impaired value term that Plaintiffs need to quantify their diminution damages. And it is the
Impaired value term that Dr. Kilpatrick fails to validate with goodness-of-fit measures. This too
undermines the reliability of Dr. Kilpatrick’s opinions.
This Court is not the first to find Dr. Kilpatrick’s sales trend analysis unreliable. In
Cotromano, the district court excluded Dr. Kilpatrick’s testimony in no small part because “[h]is
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methodology oversimplifies the complex factors that influence home pricing trends, as it makes
no accommodation for consideration of important individual variables that typically influence
home values, such as age, size, condition or property uses.” 2018 WL 2047468, at *18. In that
case, Dr. Kilpatrick could not “reliably use sales trend analysis to determine a single percentage
diminution” for a large class areas containing thousands of properties. Id. at *19. The same result
follows here. Based on the paucity of controls in Dr. Kilpatrick’s trendline analysis, it is simply
not true that “any difference in [Dr. Kilpatrick’s] trend lines could only be ascribed to [the Arkema
Incident.” ECF No. 281 at 21–22. By failing to control for (or even recognize) differences between
the class and control areas, Dr. Kilpatrick committed a fatal error. The Court therefore finds his
methodologies and opinions unreliable and grants Arkema’s Motion to Exclude on that basis. See
Cannon v. BP Prod. N. Am., Inc., 2013 WL 5514284, at *7 (S.D. Tex. Sept. 30, 2013) (Costa, J.)
(“In actuality, [the expert] does not, and cannot, know exactly what characteristic he isolated with
his regression model—it could have been sulfur dioxide emissions, exceedances, events, bad press
about the Refinery, or any other difference between the class area and control area that was not
accounted for in his model, including non-BP related variables like neighborhood crime rates or
the effects of Hurricane Ike.”); cf. Comcast Corp. v. Behrend, 569 U.S. 27, 35 (2013) (“[A] model
purporting to serve as evidence of damages in this class action must measure only those damages
attributable to that theory.”).
3. Dr. Kilpatrick’s Case Study Methodology Is Unreliable
In light of the above ruling, the Court need go no further on Dr. Kilpatrick’s opinions. Still,
for the sake of completeness, the Court also concludes that Dr. Kilpatrick’s case study approach
falls short under Daubert.
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Appraisers generally turn to case studies if there is no relevant data. See Thomas Jackson
& Randall Bell, The Analysis of Environmental Case Studies, The Appraisal J. 86, 86 (Jan. 2002)
(“[C]ase studies are utilized when there is a lack of direct market data or where analyses of direct
market data need additional support.”). Dr. Kilpatrick violated this tenet when he used case studies
to project diminution damages instead of using the available data. If Dr. Kilpatrick believed that
prices in August of 2018 did not represent “the full equilibrium value impact,” ECF No. 254-4 at
¶ 37, he should have looked at the longer dataset that he had at his fingertips. See Exxon Mobil
Corp. v. Albright, 433 Md. 303, 423 (2013) (finding Dr. Kilpatrick’s decision to use meta-analysis,
case studies, and a contingent valuation survey to speculate about prices rather than using the
available data to be “seriously concerning”). What better way to determine long-term impact then
to examine long-term data?
In addition, Dr. Kilpatrick’s case study methodology is itself unreliable. Dr. Kilpatrick
examined five case studies that he believed were “comparable to the Arkema situation.” ECF No.
231-4 at ¶ 134. But Dr. Kilpatrick did not know the contaminants at issue in the Arkema Incident,
so he had no reliable basis for determining that the case studies were comparable. 10 See ECF No.
281-1 at 61:3-5 (“Q. Okay. Do you know what contaminants were allegedly emitted from the
Arkema facility? A. Offhand, No.”). Moreover, Dr. Kilpatrick did not analyze the case studies
themselves in any detail. Rather, he simply asserted that they all “included air and soil-related
10
USPAP Advisory Opinion 9 (“AO-9”) makes clear that appraisers should consider: “whether
the contamination discharge was accidental or permitted; . . . the contamination constituents; [and]
the contamination conveyance[.]” ECF No. 268-2 (Exhibit F) at 78. AO-9 is not a USPAP
standard, but it still indicates that accounting for the contamination at issue is important. This
makes intuitive sense. Environmental stigma is tied to public perception. Unless the public
perceives all contamination similarly, appraisers should naturally consider the type of
contamination at issue.
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contamination including industrial products.” ECF No. 231-4 at ¶ 134. A closer look, however,
indicates that the case studies concerned different contaminants and resulted from activities that
“resulted from decades of industrial operations.” ECF No. 253-6 at 26–27. By contrast, the Arkema
Incident was a short-term accidental discharge that released a unique blend of contaminants. These
differences render Dr. Kilpatrick’s attempt to extrapolate from case studies more questionable still.
What’s more, when it came time to extrapolate from the case studies, Dr. Kilpatrick failed
to show his work. An expert’s opinion “must have some demonstrable and reliable basis in
underlying facts.” LeBlanc ex rel. Est. of LeBlanc v. Chevron USA, Inc., 396 F. App’x 94, 100 (5th
Cir. 2010). Here, Dr. Kilpatrick said that the case studies “would support a diminution in value of
at least 14%, the baseline finding in the Rocky Flats matter, and perhaps as high as 42%, the
assessor finding in the Asarco matter.” ECF No. 231-4 at ¶ 140. Then, Dr. Kilpatrick concluded:
“Comparable case studies would indicate a somewhat higher equilibrium loss in value, and as such
a conservative estimate of the actual decline in value would be in the range of 20%.” Id. at ¶ 141.
But Dr. Kilpatrick provided no scientific methodology for his 20% figure. He testified that he came
up with it after talking “to the appraisers who were involved in the Rocky Flats matter . . . a couple
years ago when they concluded their study.” ECF No. 281-1 at 126:25–127:3. But this superficial
methodology is neither repeatable nor reliable. There is simply no way to evaluate Dr. Kilpatrick’s
hypothesis that 20% is the appropriate figure.
As a result, the Court also grants Arkema’s Motion because it finds Dr. Kilpatrick’s case
study methodology to be unreliable.
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4. Summary
The Court finds that Dr. Kilpatrick’s opinions on diminution in value are unreliable. 11 Dr.
Kilpatrick failed to consider (and control for) differences between the Inside and Outside areas.
The Court therefore cannot conclude that his 12.12% diminution figure is reliably attributable to
the Arkema Incident. Dr. Kilpatrick also never provided statistics to validate his trendline analysis.
In addition, Dr. Kilpatrick’s case study analysis is deeply flawed. He did not know the contaminant
at issue, so he could not reliably conclude that the case studies were apt. Plus, he used case studies
instead of readily available long-term data. And his calculation of the final 20% figure was not
based on any discernible scientific methodology. For these reasons, the Court GRANTS Arkema’s
Motion and excludes Dr. Kilpatrick’s opinions under Daubert. 12
E. Arkema’s Motion to Exclude Mr. Marc Glass
Arkema’s next Motion targets Mr. Glass. Plaintiffs rely on Mr. Glass for a few different
arguments on certification. Plaintiffs use Mr. Glass to support their request for a site
characterization and remediation program. ECF No. 264-1 at 10. Plaintiffs use Mr. Glass to
establish redressability for standing purposes. ECF No. 290 at 6. And Plaintiffs use Mr. Glass to
11
The Court notes that the circularity of the Daubert inquiry here could result in some confusion.
If, for example, the Court’s decision not to exclude Dr. Li’s opinions were to be overturned on
appeal, that could raise an issue as to whether the Court’s analysis on Dr. Kilpatrick must also be
overturned. The Court therefore makes clear that it does not require Dr. Li’s opinions to exclude
Dr. Kilpatrick. Even without Dr. Li’s work, the Court would still find Dr. Kilpatrick’s attempt to
draw causal conclusions from his trendline analysis unreliable because Dr. Kilpatrick does not
show that the two areas are similar (or control for the underlying differences). This error is of
sufficient magnitude that Dr. Li’s analysis is not necessary.
12
Because the Court grants Arkema’s Motion for the reasons set out above, it does not delve into
Defendant’s critique of Dr. Kilpatrick’s GAVM. Without the Impaired value term, Dr. Kilpatrick’s
entire opinion on diminution damages crumbles.
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show that exposure can be determined on a class-wide basis such that the class is cohesive. Id. at
13. Ultimately, the Court finds that Mr. Glass’s opinions pass muster under Daubert.
1. Whether Mr. Glass’s Remediation Opinions Are Relevant and Reliable
Arkema’s primary argument against Mr. Glass is that his opinion on scalable cleanup
methodology should be excluded as irrelevant and unreliable. Arkema supports this argument with
three points. First, Arkema contends that this opinion is based on the unsupported premise that
cleanup is necessary in the class area. Second, Arkema submits that Mr. Glass lacks a specific
methodology for sampling and site characterization. Third, Arkema says that Mr. Glass lacks a
scientific basis for his conclusion that the decontamination plan is scalable. The Court finds that
none of these points warrants exclusion under Daubert.
i. Whether cleanup is necessary in the class area
Arkema’s first argument on the necessity of cleanup in the class area does not compel
exclusion. In his deposition, Mr. Glass explained that there is “information already in the record
that demonstrates that additional actions towards remedial evaluation are warranted and that there
are soil samples that indicate that, so I think we should move forward with additional action on
those properties.” ECF No. 282-2 (Exhibit B) at 83:17-23. Subsequently, Mr. Glass stated that
existing samples show “that we exceed screening level criteria or health-based criteria which are
appropriate in an early phase of investigation.” Id. at 86:19-22. Consequently, Mr. Glass concluded
that those samples “indicate that based on what we know now, remediation is needed.” Id. at 86:2324. Mr. Glass also said that “[t]hose samples where 4.8 picograms per gram is exceeded are areas
right now that would be evaluated as needing remediation.” Id. at 90:10-13. And to the degree that
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Mr. Glass equivocated in his October 2021 deposition about the need for remediation, his
uncertainty was centered around just how much remediation would be necessary:
Q. And so at this point in time, you can’t definitively say that the soil itself needs
to be cleaned up or removed, right? You need more information?
A. Well, [where] the health-based screening criteria are exceeded, that indicates
that remediation in that area is warranted. . . . [But] [y]ou need more samples to
make final remediation decisions. The operating decision at this point is going to
be . . . yes, you do have to do that, but my recommendation would be to conduct
additional sampling to try to constrain, or if necessary, expand the area requiring
remediation.
Id. at 104:7–105:2. Mr. Glass has demonstrated sufficient support for his opinion that cleanup is
necessary in the class area.
Arkema, for its part, points to a few quotations that suggest uncertainty about the need for
cleanup. Plaintiffs’ risk assessment expert Ms. Shannon Thompson stated during her deposition
that “additional sampling must be conducted to ascertain whether and to what extent any specific
property may have been actually harmed or present an actual risk due to dioxins.” ECF No. 265-2
(Exhibit B) at 63:9-19. Mr. Glass also admitted at one point that he does not have “all the
information [he] need[s] to make [the] determination” as to whether property remediation will be
necessary. ECF No. 265-2 (Exhibit D) at 146:23–147:3. Arkema therefore submits that Mr. Glass’s
opinion on scalable cleanup methodology does not “fit” the facts of this case because there is no
evidence that cleanup is necessary. But even though these quotes indicate some uncertainty,
uncertainty does not preclude the admission of Mr. Glass’s opinion. Mr. Glass based his opinion
regarding the need for a scalable cleanup methodology on samples that exceed screening levels,
the testimony of other experts, and his experience conducting similar remediation projects.
Arkema’s argument regarding the lack of evidentiary support for cleanup goes more to the merits
of Plaintiffs’ case than to Daubert. The Court therefore finds that Mr. Glass has a reliable basis for
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his opinion that remediation is necessary in the class area, and that his opinion on the existence of
a scalable cleanup methodology fits the facts of this case.
ii. Whether Mr. Glass needs to provide more details on sampling
Arkema’s second argument is also better left for the merits of Plaintiffs’ case. Arkema
takes issue with the fact that Mr. Glass “could not say how many samples would need to be taken,
or on what properties those samples would need to be taken and how the site characterization
should take place.” ECF No. 265 at 10. To Arkema, this admission means that Mr. Glass lacks a
“scalable” methodology for further sampling and site characterization. But the Court can—and
does—find Mr. Glass’s opinion relevant and reliable without these additional details. Mr. Glass
extrapolated from the samples and his experience in environmental decontamination to formulate
a multi-step plan for remediation that begins with additional sampling. Even absent exact details
regarding further sampling, Mr. Glass’s opinion is both relevant and reliable. Whether his opinion
is sufficiently specific to support Plaintiffs’ request for injunctive relief is a question that must be
answered on Plaintiffs’ Renewed Motion for Class Certification. But under Daubert, this argument
is no basis for exclusion.
iii. Whether Mr. Glass’s opinion on scaling remediation is reliable
Arkema’s third argument is that Mr. Glass’s opinion on the scalability of the cleanup
program is not based on scientific methodology. Arkema notes that Mr. Glass “fails to explain how
cleanup will be conducted on properties with different land uses, despite admitting that there are
15 different types of land uses in the proposed Class Area and that cleanup standards for each type
of land use could be different.” ECF No 265 at 13. The Court is not persuaded by Arkema’s stance.
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Mr. Glass’s remediation proposal from his July 2021 report mirrors the stepwise process
from CERCLA: (1) Preliminary Assessment; (2) Remedial Investigation/Feasibility Study (Site
characterization); (3) Remedy Decision; (4) Remedial Design/Remedial Action; (5) Construction
Completion; (6) Post Construction Completion; and (7) Site Reuse/Redevelopment. ECF No. 2652 (Exhibit C) at 21. In his report, Mr. Glass proposed cleanup goals for remediation: 4.8 pg/g for
dioxin and dioxin-like compounds in exterior soil and 20 pg/ft2 for interior spaces. Id. at 21–22.
Mr. Glass considered nine criteria—including protecting human health and the environment, shortterm effectiveness, long-term effectiveness, implementability, cost, and acceptance—to select the
best of four possible alternatives for cleanup (no action, capping in place, excavation and retrieval
with on-site storage/capping, and excavation and retrieval with off-site disposal). Id. at 22–23. Mr.
Glass chose excavation and retrieval with off-site disposal, as this method would restore impacted
properties without long-term maintenance. Id. at 23–24. This method is also more scalable than
on-site storage/capping because it does not require space in the class area for contaminated
materials. Id. As for interior remediation, Mr. Glass favored a multi-step cleaning process. Id. at
24–25. Mr. Glass contended that the process should be implemented for a given property after
sampling “a minimum of six dust wipe samples from cleaned interior surfaces, including the attic
area, with quality/assurance/quality control samples collected at a frequency of one field blank and
one duplicate per 20 samples, analyzed for the Arkema [constituents of concern].” Id.
After reviewing these details, the Court concludes that Mr. Glass’s opinion on class-wide
cleanup approaches is rooted in scientific methodology, the facts of this case, and his own
expertise. Arkema suggests that Mr. Glass does not support his opinion on the scalability of this
approach, but there is no reason to doubt the reliability of Mr. Glass’s conclusion on that front.
There is no statistical test for scalability. And even though the class area contains different land
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uses, Mr. Glass need not lay out a plan for each and every property for his opinion to satisfy the
Daubert inquiry. The test here is relevance and reliability, not complete comprehensiveness. The
remediation levels that Mr. Glass proposes are linked to Regional Screening Levels (“RSLs”),
which have a basis in the scientific and regulatory literature. See e.g., ECF No. 231-5 at 24 (noting
that the California Department of Toxic Substances Human and Ecological Risk Office
recommends targeting the EPA RSL of 4.8 pg/g for certain residential soils that have been
contaminated with dioxins). And Mr. Glass lays out a measured and considered approach for
implementing those RSLs in his report. As a result, the Court finds that Mr. Glass’s opinion on the
scalability of a class-wide cleanup methodology is reliable.
2. Whether Mr. Glass Is Qualified to Opine on Health Risks in the Class Area
Next, Arkema submits that “Mr. Glass is not qualified to offer an opinion regarding any
‘increased health risk,’ and his opinion is not based on a reliable scientific methodology.” ECF
No. 265 at 13. Specifically, Arkema takes issue with Mr. Glass’s opinion that “[i]ncreased health
risk is present in the class area from Dioxin and Dioxin-like compounds deposited by the Arkema
fires.” ECF No. 265-2 (Exhibit C) at 5.
Mr. Glass is not a toxicologist. He is an expert in environmental consulting and
management “skilled in the evaluation and remediation of environmental contamination.” Id. at
32. The Court therefore understands Arkema’s contention that Mr. Glass is unqualified to opine
about health risks. The Court also acknowledges that some of the other evidence in the record on
health risks is equivocal. For instance, in Ms. Thompson’s deposition, she testified that identifying
a contaminant as a Contaminant of Potential Concern (“COPC”) is “not a quantification of risk,”
since quantification requires a “comprehensive human health risk assessment.” ECF No. 265-2
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(Exhibit B) at 45:1–46:5. Ms. Thompson also conceded that no one in this case has conducted a
comprehensive human health risk assessment. Id. Furthermore, Ms. Thompson engaged in the
following exchange with Arkema’s counsel at her deposition:
Q. So at present, without having done a human health risk assessment, is it accurate
to say that you have no opinion as to whether any chemicals allegedly released from
the Arkema plant actually pose an imminent and substantial risk to the proposed
class area; is that correct?
A. Yeah, I would have no opinion about that until I was able to conduct that analysis
...
Q. Is it [fair] to say that in your opinion, additional sampling must be conducted to
ascertain whether and to what extent any specific property may have been actually
harmed or present[s] an actual risk due to dioxins?
A. Yeah, I would agree with that.
ECF No. 265-2 (Exhibit B) at 52:15-22, 63:9-14.
Nevertheless, samples from the class area have featured dioxin readings that exceed the
RSL and 1E-6 carcinogenic risk level (4.8 pg/g). Dioxins and dioxin-like compounds do not easily
degrade, and concentrate in the fatty tissue of humans over time. ECF No. 231-5 at 5. Dioxins
“have been identified by the [EPA] as a Group B2 probable human carcinogen and human studies
have found an association between 2,3,7,8-TCDD and lung cancer, soft-tissue sarcomas,
lymphomas, and stomach carcinomas.” Id. at 24. Dioxins have also produced non-carcinogenic
chronic health effects in animal studies. Id. Based in part on the health-risks posed by dioxins, Ms.
Thompson herself proposed a remediation goal for dioxins in residential soil of 4.8 pg/g, which
she described as a conservative risk-based screening level for residential exposure that is consistent
with a carcinogenic risk of 1E-6. Id. at 6, 13–15. 13 Ms. Thompson further stated that RSLs
“represent[] the most current [EPA] approved toxicity data and exposure factors,” and that using
13
For indoor dusts, meanwhile, Ms. Thompson concluded that the proposed remediation goal
should be 12.149 pg/ft2 based on World Trade Center Benchmarks, “adjusted for a carcinogenic
risk of 1E-6, or the best achievable reporting limit for dioxins.” Id. at 6.
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RSLs “is an industry best practice when conducting human health risk-based screening level
assessments and identifying COPCs.” Id. at 14.
Taken together, this evidence provides support for the proposition that “[i]ncreased health
risk is present in the class area from Dioxin and Dioxin-like compounds deposited by the Arkema
fires.” ECF No. 265-2 (Exhibit C) at 5. Mr. Glass’s experience in remediating environmental
contamination qualifies him to opine that the exceedance of a carcinogenic risk level indicates an
increased health risk. To wit, Mr. Glass testified at the Daubert hearing that he considers RSLs to
be “health-based” risk standards because they incorporate health issues to set a level that
“regulatory agencies can use to make decisions about whether sampling is needed or not.” ECF
No. 308 at 65:23–66:18. Even without a forward-looking risk assessment, Mr. Glass clarified that
he could opine that there is an elevated risk to human health because of the presence of a toxic
contaminant in excess of the RSL. Id.; see ECF No. 231-5 at 24 (noting that California agencies
use the RSL for some dioxin remediation efforts). The Court therefore finds that Mr. Glass’s
opinion on the risk to human health posed by dioxins from the Arkema Incident in the class area
is sufficiently reliable under Daubert, and that he is qualified to deliver it.
What’s more, even if Mr. Glass is not qualified to offer this opinion himself, he may
incorporate it into his work if it is offered by Plaintiffs’ other experts. Ms. Thompson’s work
indicates that increased health risk is present in the class area from dioxins released during the
Arkema Incident. See e.g., ECF No. 231-5 at 24 (“The rural setting of the community surrounding
the Arkema Facility is consistent with this type of scenario where farming and raising of animals
could occur, supporting the use of a remediation cleanup value of 4.8 pg/g for dioxins to ensure
the protection of human health.”). And Dr. Troast wrote that “[t]he finding of TCDD deposited in
the soils described by Dr. Kaltofen and the report of Shannon Thompson that quantified the other
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exposures to TCDD demonstrate that the carcinogenic material was released and is available for
the population to encounter.” ECF No. 267-2 (Exhibit C) at 6. Thus, even if Mr. Glass cannot offer
this opinion himself, he can rely on this opinion as a predicate for his other work because it also
appears elsewhere in the record.
3. Whether Mr. Glass Reliably Opines on the Mobilization of Contaminants
Arkema’s next critique of Mr. Glass is that his “opinions regarding possible mobilization
of dioxins ‘within and beyond the class area’ are not based on any data or analysis specific to this
putative class.” ECF No. 265 at 16. Here, Arkema takes issue with the fact that “Mr. Glass has not
opined that dioxins created from the Arkema events were in fact mobilized within the proposed
Class Area. Rather, his opinion is that dioxins may be mobilized within and beyond the proposed
Class Area[.]” Id. Arkema directs the Court to Mr. Glass’s 2021 deposition, where he stated that
he was not aware of any findings that outdoor contaminants have actually concentrated above
background levels in the class area “because we haven’t collected sampling after the deposition
occurred that would capture the time lapse between when the deposition occurred and tracking
would have occurred.” ECF No. 265-2 (Exhibit E) at 191:8-21.
The crux of Mr. Glass’s opinion on mobilization (also known as resuspension or reentrainment) is as follows:
Once on land (residential yards, agricultural soils, public spaces), natural or humanenhanced erosion and transport can cause Dioxin and Dioxin-like compounds to be
moved between the air, land, and aquatic environments. Dioxin and Dioxin-like
compounds are hydrophobic and do not dissolve[] easily in water but interact
strongly with natural organic matter in soil. The affinity for organic matter is why
Dioxin and Dioxin-like compounds tend to be transported along with soil or dust
particles to which they bind (Strandberg et al., 2011). Simply put, they stick to soils,
but soils get moved around a lot.
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Primary human exposure to soil generally occurs near the surface (upper two feet)
through activities like working or playing in the yard, gardening/farming, or by
human or pet tracking of soil into the home. Soil may also be inhaled if resuspended
in the air or tracked into building interiors. Settled dust can re-enter the air when
the home is vacuumed or swept, or people walk thorough it, and can be transferred
through ventilation systems. While not exclusive to dioxin and dioxin-like
compounds, indoor levels of particulate air pollution may be concentrated well
above outdoor levels.
...
Arkema-related particulates have been deposited onto soils and other surfaces in
the Crosby area. Particulate deposits onto impermeable (rooftops and roadways) or
semi-permeable surfaces (vegetation) will most likely have been washed to soil by
precipitation. Soil containing Arkema-related particulates may be eroded and
transported during precipitation events, providing new routes of exposure to area
residents and wildlife receptors. Bioamplification through the food chain, whereby
domestic animals (cows, chickens) and wildlife (deer, ducks, other birds) and other
wildlife ingest contaminants which become concentrated within fatty tissues. As
these animals move throughout the area and are consumed by other animals or
humans, this creates new routes of exposure that can be concentrated well above
environmental levels (Schecter, 2012).
ECF No. 231-2 at 20. The Court recognizes that some of this opinion is couched in contingent
language: “generally occurs[,] . . . may also be inhaled[,] . . . can re-enter the air[,] . . . can be
transferred[,] . . . [and] may be concentrated[.]” Id. Mr. Glass also fails to point to specific data
that demonstrates that mobilization is occurring in the class area. 14 Nevertheless, the Court finds
Mr. Glass’s opinion on mobilization to be reliable.
“In assessing the ‘reliability’ of an expert’s opinion, the trial court may consider a list of
factors including: ‘whether a theory or technique . . . can be (and has been) tested,’ ‘whether the
theory or technique has been subjected to peer review and publication,’ ‘the known or potential
rate of error,’ ‘the existence and maintenance of standards,’ and ‘general acceptance’ of a theory
in the ‘relevant scientific community.’ ” Hinson, 2016 WL 3199353, at *1 (E.D. Tex. June 9, 2016)
14
Plaintiffs contend that Mr. Glass’s opinion is supported by an indoor sample taken from a
vacuum bag, but Mr. Glass himself never referred to this sample in his work.
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(quoting Daubert, 509 U.S. at 593–94). It is also relevant whether the expert’s theory came from
litigation or independent research. Advisory Committee Notes to 2000 Amendment of FED. R. EVID.
702. Here, as detailed by Mr. Glass, Dr. Kaltofen, and Ms. Thompson, the theory of mobilization
has been subjected to peer review and publication and appears generally accepted within the
relevant scientific community. See ECF No. 231-2 at 20 (citing published studies from several
authors on dioxins’ proclivity for mobilization and resuspension); see Patricia V. Cline,
Understanding Dioxin-Like Compounds in Indoor Dust, 82 (U.S. E.P.A. Final Technical Report,
2014) (“If a home was thoroughly cleaned without first remediating the soil, house dust
concentrations would increase again over time from tracking in of contaminated soil.”). This
theory also exists separate and apart from the present litigation. The Court will not require
Plaintiffs to present sampling data over time to prove the existence of resuspension and
mobilization in the class area. As a result, the Court finds Mr. Glass’s opinion on mobilization of
contamination to be reliable.
4. Whether Mr. Glass’s Underlying Data is Reliable
Finally, Arkema argues that “Mr. Glass’s opinions should be excluded as unreliable
because the data upon which he bases those opinions is unreliable.” ECF No. 265 at 18. Arkema
supports this argument with two specific contentions. First, Plaintiffs’ data has not been validated.
Second, Mr. Glass failed to account for laboratory qualifiers. Ultimately, however, the Court finds
that Mr. Glass’s approach to the data suffices under Daubert.
i. Issues with Data Validation
Arkema first complains that Mr. Glass did not adequately validate his data. Data validation
is a process for examining the quality of a dataset. See ECF No. 282-2 at 262:21–263:1 (“There
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[are] different levels of data validation, but it’s basically an assurance process to have confidence
that the laboratory results are representative.”). Ms. Dana Hebert, Arkema’s expert in data
validation and quality, noted that a proper validation confirms the quality of the data and should
be performed by an independent entity not associated with sample collection or analysis. ECF No.
265-2 (Exhibit L) at 4–5. Mr. Glass, who participated in sample collection, testified that he
performed either a “level 1 or level 2” data validation by considering the quality of the data. ECF
No. 282-2 at 266:3. 15
As the Sixth Circuit has recognized, most arguments regarding the inaccuracy of an
underlying dataset are “unpersuasive” because they “fundamentally confuse[] the credibility and
accuracy of [the expert’s] opinion with its reliability.” In re Scrap Metal Antitrust Litig., 527 F.3d
517, 529 (6th Cir. 2008) (emphasis in original). “The task for the district court in deciding whether
an expert’s opinion is reliable is not to determine whether it is correct, but rather to determine
whether it rests upon a reliable foundation, as opposed to, say, unsupported speculation.” Id. at
529–30. And this is not a case where, for example, Mr. Glass pulled the data “out of thin air[.]”
Navarro v. Procter & Gamble Co., 2021 WL 868586, at *6 (S.D. Ohio Mar. 8, 2021). Here, the
Court does not find that the dispute over data validation warrants exclusion.
Arkema’s cited caselaw to the contrary does not control. While the Second Circuit did say
in Forte that “[a] failure to validate data by itself can constitute grounds for excluding an expert
report,” this case is distinguishable. Forte v. Liquidnet Holdings, Inc., 675 F. App’x 21, 24 (2d
Cir. 2017). In Forte, the expert relied on a dataset without conducting any form of independent
15
Arkema contends that there is no such thing as a level 1 data validation. But at the Daubert
hearing, Mr. Glass clarified that he performed such a validation when he compared the materials
submitted to the laboratory, the chain of custody records, and the requested analyses with the data
that the lab returned. ECF No. 308 at 51:17-25.
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verification. Id. at 24–25. By contrast, Mr. Glass helped collect the data here and did conduct some
level of data verification. Arkema’s other key case, Jacked Up, LLC v. Sara Lee Corp., is also
inapposite. 291 F. Supp. 3d 795 (N.D. Tex. 2018). There, the district court focused on the fact that
the data was “unverified.” Id. at 806. Again, however, here there is no question that Mr. Glass
performed a data verification. ECF No. 265 at 19, 19 n.9. The Court therefore concludes that Mr.
Glass’s data validation efforts (or lack thereof) go to the weight of his testimony and are not proper
grounds for exclusion.
ii. Issues with Laboratory Qualifiers
Arkema also submits that Mr. Glass’s failure to deal with lab qualifiers is a fatal flaw.
Twenty-two of the twenty-nine samples that Mr. Glass relied upon to produce parts of his expert
report contained lab qualifiers. According to Ms. Hebert, using data that has been flagged with
qualifiers without assessing those qualifiers “renders the opinions that rely upon [such data]
scientifically unreliable.” ECF No. 265-2 (Exhibit J) at 5. Plaintiffs’ experts agree that certain
qualifiers (like R-qualifiers) undermine the value of data pertaining to that constituent. ECF No.
265-2 (Exhibit B) at 93:22-25. Originally, however, Mr. Glass did not see, much less consider,
qualifiers for seven of his samples. ECF No. 265 at 23. When confronted with this situation, Mr.
Glass said that he was “quite sure that [the qualifiers] are in [his] database,” and that he would
“look at each individual one of those to see if there is any impact on the analysis.” ECF No. 2652 (Exhibit E) at 279:6–280:15.
At the Daubert hearing, Mr. Glass stated that he had since reviewed the missing qualifiers.
ECF No. 308 at 61:24–63:21. And he confirmed that after further review, the missing qualifiers
did not change his opinions. Id. This position aligns with Plaintiffs’ other evidence on qualifiers.
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During Ms. Thompson’s deposition, she analyzed the missing qualifiers associated with one of the
seven samples. ECF No. 265-2 (Exhibit B) at 103:5-7. Ms. Thompson reevaluated the TEQ
concentration for that sample based on the most extreme assumption possible: that it was necessary
to reject the data from all constituents with R-qualifiers. 16 Id. at 107:16-22. That reevaluation
changed the TEQ value of the sample from 118 to 114, which was still “well above the risk-based
residential screening value provided with the RSL tables of 4.8.” Id. Taken together, Mr. Glass’s
assurances and Ms. Thompson’s analysis of the R-qualifiers confirm that this issue does not
warrant the exclusion of Mr. Glass’s opinions.
5. Summary
The Court rejects Arkema’s arguments for excluding Mr. Glass’s opinions. In addition to
the above analysis, the Court notes that it was impressed by Mr. Glass’s competence and reliability
during his appearance at the Daubert hearing. His testimony before the Court confirmed that his
approach passes muster. The Court therefore finds that Mr. Glass’s opinions are relevant and
reliable; Arkema’s Motion to Exclude the Opinions of Mr. Glass is DENIED.
F. Arkema’s Motion to Exclude Dr. Marco Kaltofen
Plaintiffs make clear the high-level conclusion that they wish to draw from Dr. Kaltofen’s
report: “Dr. Kaltofen’s conclusion can be summarized in one sentence: ‘Arkema’s releases
increased the concentrations of chemical contaminants in the class area.’ ” ECF No. 287 at 5 (citing
ECF No. 109-3). Arkema, for its part, contends that Dr. Kaltofen’s opinions are unreliable because
16
Toxic equivalency (TEQ) values “are a weighted quantity measure based on the toxicity of each
member of the dioxin and dioxin-like compounds category relative to the most toxic members of
the category.” Dioxin and Dioxin-like Compounds; Toxic Equivalency Information; Community
Right-To-Know Toxic Chemical Release Reporting, 72 Fed. Reg. 26544 (May 10, 2007).
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he fails to properly attribute dioxins in the putative class area to Arkema, fails to properly account
for alternative sources of dioxins, fails to reliably opine about the resuspension of dioxins, and
fails to properly opine on non-dioxin constituents. Nevertheless, the Court finds Dr. Kaltofen’s
opinions sufficiently relevant and reliable under Daubert.
1. Whether Dr. Kaltofen’s Opinions Attributing Dioxins to Arkema Are Unscientific
Arkema’s most vigorous critique is that Dr. Kaltofen, “without any scientific basis, equates
the mere detection of dioxins in the proposed Class Area to a causal link with the Arkema events—
a purported linkage that is critical to Plaintiffs’ class certification efforts.” ECF No. 266 at 9.
Dioxins are sufficiently prevalent in the environment that samples taken from the class area might
naturally contain them even if the Arkema Incident had never happened. See ECF No. 287-5 at
137:2-6 (“Q. . . . [R]egardless of how [the class area is] defined, you would expect the area
surrounding the Arkema facility to have some detections of dioxins and furans even if the Arkema
events never occurred? A. That’s correct.”). To opine that the Arkema Incident exposed class
members to dioxins, then, Dr. Kaltofen must be able to reliably distinguish between emissions
from the Incident and background levels of dioxins.
Arkema contends that the Court should exclude Dr. Kaltofen’s opinion on the causal link
between the Arkema Incident and dioxins for two reasons. First, Arkema argues that Dr. Kaltofen
has no objective data that points to the source of dioxins in the class area. Second, Arkema argues
that Dr. Kaltofen failed to rule out alternative sources that could have produced the dioxins. The
Court determines that these issues go more to the weight of Dr. Kaltofen’s opinions than to their
reliability.
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i. Inferring causation between the Arkema Incident and dioxin levels
Dr. Kaltofen uses several techniques to causally link dioxins in the class area to the Arkema
Incident. The Court’s prior order recognized that Dr. Kaltofen
compared the chemicals found off-site to the list of chemicals known to have been
present at the Arkema facility before the explosions. [ECF No. 125-6 at 4-5, 8.] He
then linked each of the chemicals of concern to either those chemicals reported to
be at the facility or to byproducts of the explosion of those chemicals. [ECF No.
125-6 at 8, 13-15, 18.] He also conducted an instrumental analysis of certain
samples from the Arkema facility and off-site and found very similar elemental
profiles. [ECF No. 125-6 at 11.] He compared physically the large chunks of ash
that were found on the sampled properties. [ECF No. 125-6 at 11.] He also
compared the chemicals found in the samples to the models created by Defendant’s
expert, Trinity Consultants, which show the likely paths of contaminants released
by the wastewater overflow and explosions. [ECF No. 125-6 at 4.]
ECF No. 169 at 12. For these reasons, the Court originally determined that “[w]hile it certainly
would have been better for Dr. Kaltofen additionally to include the background levels, it was not
necessary under Daubert at the class certification stage.” Id.
Post-Prantil, Dr. Kaltofen considered background levels of dioxins from published studies.
The EPA has recognized that “[i]n some cases, published background levels may exist that can be
applied to a specific site.” U.S. E.P.A. OFFICE
OF
EMERGENCY
AND
REMEDIAL RESPONSE,
ESTABLISHING BACKGROUND LEVELS (1995) (stating that published data sources like nearby
investigations, local surveys, university studies, and tables or databases with concentration ranges
from local or regional soils may be consulted when analyzing Superfund sites). Here, Dr. Kaltofen
reviewed: (1) a study on San Jacinto that found a (World Health Organization (“WHO”)) TEQ of
1.849 parts per trillion (PPT or ng/kg toxic equivalency using WHO 2006 toxic equivalent factors);
(2) a Texas Commission on Environmental Quality (“TCEQ”) 1997 rural soil survey that found a
(WHO) TEQ of 0.8 to 22.6 ng/kg (and a mean of 7.1 ng/kg); (3) a TCEQ 1997 urban soil survey
that found a (WHO) TEQ of 6.2 to 7.2 ng/kg (and a mean of 6.7 ng/kg); and (4) a 2014 study that
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found that “[b]ackground [d]ioxin concentrations in soils range from 0.1 to 186 [PPT] for urban
soils versus 0.1 to 22.9 PPT for rural soils.” ECF No. 231-3 at 7–8. Dr. Kaltofen compared samples
from the class area—which had readings of “not detected” to 977—to the mean values from the
four external studies. Id. at 8. Due in part to the fact that several of Plaintiffs’ samples had dioxin
levels that exceeded the means from the external studies, Dr. Kaltofen opined that “[p]eople are
exposed to higher dioxin concentrations within the class than they would be if they were exposed
to background concentrations of dioxins.” Id. Dr. Kaltofen also compared the levels of
octachlorodibenzodioxin (“OCDD”) in Plaintiffs’ samples to background levels specified by the
Agency for Toxic Substances and Disease Registry (“ATDSR”). That comparison revealed that
several of Plaintiffs’ samples featured OCDD levels orders of magnitude above the maximum
levels set out by the ATSDR. ECF No. 254-3 at 5–6.
Dr. Kaltofen’s extrapolation from published background levels appears sufficiently reliable
to pass muster under Daubert. In addition, Dr. Kaltofen did more than simply compare Plaintiffs’
samples to background readings. He also analyzed the composition of the samples in light of
chemicals that were present at the Crosby facility, considered the distance of the samples to the
facility, and studied chunks of physical material on nearby properties. Furthermore, Dr. Kaltofen
noted the existence of volatile contaminants in several of Plaintiffs’ samples, which suggests that
the properties in question were within reach of the discharge from the Arkema fires. ECF No. 823 at 7–9. And while Arkema disputes that Plaintiffs’ samples support Dr. Kaltofen’s conclusion—
only one sample checks in above the maximum value from the 2014 study, ECF No. 266 at 20,
just eight samples were above the rural range from the 1997 TCEQ study, id. at 21, and the mean
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of Plaintiffs’ samples is lower than the means from the external studies, ECF No. 266-2 (Exhibit
A) at 143:10-16—that critique speaks more to accuracy than reliability. 17
The party offering the expert need prove only “ ‘by a preponderance of the evidence that
the testimony is reliable,’ not that it is correct.” Swanston, 2021 WL 327588, at *2 (quoting Moore,
151 F.3d at 276). The Court finds that Dr. Kaltofen’s efforts to infer causation between the Arkema
Incident and dioxins in the class area meet the Daubert moment. Lost in Arkema’s statistical
critique is the physical evidence that Arkema belched smoke and ash and black “goo” onto
properties in the class area. Dr. Kaltofen’s analytical findings must be viewed through the prism
of the fires at the Crosby facility. Dr. Kaltofen found what he expected to find. And he verified
that finding with reliable analysis. The Court therefore rejects Arkema’s first argument for
exclusion.
ii. Ruling out alternative sources
Next, Arkema contends that Dr. Kaltofen cannot reliably link the Arkema Incident to
dioxins in Plaintiffs’ samples because he failed to account for alternative sources. See Advisory
Committee Notes to 2000 Amendment of FED. R. EVID. 702 (noting that courts should consider
“[w]hether the expert has adequately accounted for obvious alternative explanations”); see ECF
17
Arkema also asserts that Dr. Kaltofen should have conducted a percentage sourcing analysis,
chemical fingerprinting analysis, or spatial analysis, but that argument is grist for the trier of fact.
Indeed, while Dr. Kaltofen may not have conducted a standard spatial analysis, ECF No. 266-2
(Exhibit A) at 166:23–167:2, he did “look[] at on-site samples which presumably have a much
smaller distance, samples that are more or less what appears to be the class area less than seven
miles, and then samples that are more distant than that versus a wider-ranging background.” Id. at
166:18-22. Arkema’s experts did not find a relationship between dioxin levels and distance from
the Crosby facility, but those experts only considered samples that exceeded the maximum level
of the background range from the external studies. ECF No. 266-2 (Exhibit L) at 5, 29. Dr. Kaltofen
compared samples to mean values from those studies; the experts did not compare like-for-like.
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No. 266-2 (Exhibit A) at 182:17-19 (noting the importance of “alternative or confounding sources
when determining the source of a constituent”). The Court disagrees with Arkema.
Dr. Kaltofen’s post-Prantil report addresses alternative sources like “[o]il and gas
operations, railroad traffic, roadway traffic, other accidents and fires, and other industrial
emitters[.]” ECF No. 231-3 at 11. Dr. Kaltofen ruled out other industrial emitters because of the
three nearby facilities with prior releases, “only KMCO has a release history for any chemical
compounds on the PAH or Dioxins/furans category[,] [and] KMCO’s release history includes only
one PAH compound, namely naphthalene.” Id. Dr. Kaltofen concluded that oil and gas operations
were not confounding because “[m]any of the compounds in potential oil & gas-related releases
follow different environmental transport pathways, such as site-specific releases of hydrocarbons
to the surrounding soils rather than air releases of contaminated soot, ash, vapors and particulate
matter as was associated with the Arkema releases.” Id. at 13. Dr. Kaltofen reasoned that since
those operations “[l]ack[] the energy of the Arkema explosions and fires,” they have no
“mechanism for spreading communitywide.” Id. As for the myriad other potential sources of
dioxins (like trash burning), Dr. Kaltofen opined that they “are part of the background experienced
similarly by the proposed class members, and that Arkema’s release was the primary source of
increases in pollutant concentrations above background in the proposed class area[.]” Id.
Dr. Kaltofen’s effort to rule out confounding sources sits on the razor’s edge of reliability.
Dr. Kaltofen’s explanation for industrial emitters is solid; the lack of dioxin-based releases from
those plants suggest that they did not contribute to the heightened sample readings. But his
explanation for oil and gas operations is somewhat shaky. Individual oil and gas operations might
not have spread dioxins communitywide, but such operations could have produced the sample
readings in aggregate if they were spread around the class area. Dr. Kaltofen’s explanation for
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other confounding sources also appears somewhat circular. He opined that other sources did not
increase levels above background because the background levels account for them. But he did not
analyze the external studies to see what sources contributed to the background readings there, nor
did he analyze the types of activities conducted in the class area in this case.
Nevertheless, after reviewing the reports, depositions, and hearing testimony, the Court
permits Dr. Kaltofen’s opinions. See Chery v. C.R. Bard, Inc., 2017 WL 7726741, at *1 (S.D. Fla.
Apr. 18, 2017) (“A review of the case law after Daubert shows that the rejection of expert
testimony is the exception rather than the rule.”). Arkema has fair criticisms of Dr. Kaltofen’s
efforts to rule out alternative sources, but those criticisms speak more to the accuracy of his
conclusions than the reliability of his approach. Even if Dr. Kaltofen’s opinions may be imperfect,
he considered and dismissed potentially confounding sources in the class area for rational reasons.
Indeed, Arkema’s own expert (Dr. Allen Uhler) acknowledged that background levels account for
natural and man-generated sources. ECF No. 287-8 at 14:11–15:4. Dr. Uhler recognized that
background levels generally account for confounding sources like backyard trash burning and
vehicle emissions. Id. at 37:11–38:14, 53:11–54:1. And Dr. Uhler added that “Texas dioxin levels
are no different than dioxin levels anywhere else in the country.” ECF No. 48:25–49:2. What’s
more, Arkema’s focus on dioxins ignores the fact that Plaintiffs found other compounds at the
sampled sites. See ECF No. 254-3 at 5–6. That finding increases the likelihood that the dioxins
came from Arkema. And again, Dr. Kaltofen’s opinions do not exist in a vacuum. Dr. Kaltofen is
not working backward from unknown samples to show that the Arkema Incident occurred. Dr.
Kaltofen is working forward from massive fires at the Crosby facility to show that the Incident
released harmful contamination. See e.g., ECF No. 264-6 at 63 (depicting a massive column of
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smoke from two refrigeration trailers at the Crosby facility). The Court therefore finds that Dr.
Kaltofen’s efforts to rule out alternative sources are sufficiently reliable under Daubert.
2. Whether Dr. Kaltofen’s Opinions on Resuspension are Reliable
Arkema also disputes the reliability of Dr. Kaltofen’s opinions on resuspension.
Specifically, Arkema takes issue with Dr. Kaltofen’s assertions that “[c]ontamination in the area
comes both from the original releases and from the redistribution of environmental materials[,] . . .
[so people] in the class area also experience exposure from multiple locations as they move about
in the area. Likewise, individual locations can become contaminated or re-contaminated by wind,
stormwater runoff, and other environmental transformations.” ECF No. 254-3 at 3. Arkema further
disagrees with Dr. Kaltofen’s conclusion that since “human activity [tends] to track outdoor
contaminants into homes[,] . . . [and] [h]omes can trap, hold and concentrate airborne contaminants
via roof vents and other mechanisms . . . [o]ver time indoor air concentrations of persistent
contaminants from the Arkema releases would be expected to exceed outdoor concentrations.”
ECF No. 231-3 at 3.
Arkema asserts that Dr. Kaltofen’s opinions on resuspension are unreliable because when
asked in his deposition to “identify specific facts or data regarding members in the class area or
the properties within the class that would demonstrate that this principle of resuspension or
recontamination . . . actually happened here,” he responded: “I don’t have any reason to believe
that the normal scientific principles will fail to apply in the class. But, no, I haven’t tried to
reconstitute the kind of data that EPA put together to show that resuspension and human movement
that causes exposure at multiple locations is somehow not happening at Crosby.” ECF No. 266-2
(Exhibit A) at 316:11–317:1. Arkema submits that these comments are consistent with the fact that
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no specific data supports resuspension in this case. Arkema also argues that Dr. Kaltofen’s failure
to conduct a resuspension analysis is of particular concern because resuspension differs based on
whether a contaminant is persistent or non-persistent, and only some of the contaminants released
in the Incident were persistent.
Plaintiffs, for their part, contend that resuspension is a widely accepted scientific principle,
and that attacking Dr. Kaltofen on this point is akin to attacking an expert for failing to prove that
gravity exists. The Court will not equate resuspension with gravity, but it does find that
resuspension is acknowledged in the scientific literature and by Plaintiffs’ other experts. See ECF
No. 231-3 at 15–17 (citing several studies for the proposition that outdoor soils can be resuspended
and carry contaminants to different areas, including the home). What’s more, Dr. Kaltofen testified
about the relationship between persistence and resuspension, stating that he ignored volatile
organic compounds that evaporate quickly and are not likely to persist in favor of more persistent
contaminants like dioxins and furans. ECF No. 287-6 at 54:2–55:7; see ECF No. 231-3 at 15 (“This
persistence in the dioxin/furan group of chemical contaminants increases their lifetime in the
environment, and as a result provides a greater opportunity for soil-bound dioxins and furans to
resuspend, remobilize, and redistribute within the proposed Class Area.”). As with Mr. Glass, then,
the Court finds that the concept of resuspension is well-founded in the scientific literature. Dr.
Kaltofen’s opinion is also rooted in his understanding of the persistence of dioxins and dioxin-like
compounds. Accordingly, the Court holds that Dr. Kaltofen’s opinion on this issue is sufficiently
reliable to be admitted.
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3. Whether Dr. Kaltofen’s Opinions on Non-Dioxin Constituents Are Relevant
Finally, Arkema argues that the Court should exclude Dr. Kaltofen’s opinions on
constituents other than dioxins and dioxin-like compounds. In particular, Arkema contends that
Dr. Kaltofen’s opinions on semivolatile organic compounds (“SVOCs”)—such as polycyclic
aromatic hydrocarbons (“PAHs”)—and inorganic compounds—such as cyanide—are irrelevant
because Plaintiffs’ experts on risk assessment and remediation based their opinions solely on
dioxins and dioxin-like compounds. See ECF No. 266-2 (Exhibit D) at 40:10-24, 45:1-22 (stating
that dioxins are the only Constituent of Potential Concern (“COPC”), and that the other constituent
subcategories like SVOCs and inorganic compounds require no further sampling or testing).
Furthermore, Arkema takes issue with the fact that Dr. Kaltofen does not offer opinions regarding
synergistic effects between dioxins and any other compounds. ECF No. 287-6 at 67:7-14. Arkema
therefore contends that Dr. Kaltofen’s opinions on non-dioxin contaminants are irrelevant.
Plaintiffs, for their part, say that Dr. Kaltofen’s opinions on other constituents are relevant for two
reasons: (1) to demonstrate potential synergistic health effects between contaminants; and (2) to
define the area of impact of the releases from the Arkema Incident.
Plaintiffs have the better argument. First, non-dioxin compounds form the basis for
Plaintiffs’ toxicological conclusions regarding synergistic health effects. Dr. Troast (Plaintiffs’
toxicology expert) opines that “the additive and synergistic effects of chemicals can greatly exceed
the potential health hazard of a single constituent alone.” ECF No. 287 at 18. Facing a similar
argument from Arkema the last go-round on Tentatively Identified Compounds (“TICs”), the
Court permitted Dr. Kaltofen’s opinion on TICs because “unknown hazards result from combining
effects of chemicals, and that these unidentified chemicals increase the risk of a more severe
cumulative effect.” ECF No. 169 at 15. The same is true for Dr. Kaltofen’s opinion on SVOCs and
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inorganic compounds. The fact that Dr. Kaltofen himself does not specify the synergistic health
effects is immaterial. On the second issue, the spread of non-dioxin compounds is useful for
evaluating the size of the class area and the reach of the contaminants. While dioxins may not have
traveled everywhere that PAHs traveled, the dispersion of PAHs makes it more likely that dioxins
were deposited in a similar fashion. Dr. Kaltofen’s opinion therefore helps explain a fact in issue:
how broadly the Arkema Incident spread dioxins around the class area. See Bocanegra v. Vicmar
Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003) (“The expert testimony must be relevant, not simply
in the sense that all testimony must be relevant, . . . but also in the sense that the expert’s proposed
opinion would assist the trier of fact to understand or determine a fact in issue.”). Consequently,
the Court finds that Dr. Kaltofen’s opinions on non-dioxin contaminants are reliable and relevant
under Daubert.
4. Summary
Some of Dr. Kaltofen’s opinions sit on the precipice of reliability. Nevertheless, the Court
ultimately finds that Plaintiffs have demonstrated that his opinions are sufficiently relevant and
reliable under Daubert. The Court therefore DENIES Arkema’s Motion to Exclude the Opinions
of Dr. Kaltofen.
G. Arkema’s Motion to Exclude Drs. Richard Troast and Charles Werntz
Finally, Arkema lodges joint objections against the opinions offered by Drs. Troast and
Werntz. Because these two experts did not file a joint report, the Court first describes how their
opinions fit together before jumping into the Daubert issues.
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1. The Opinions at Issue
Plaintiffs offer Dr. Troast (a toxicologist) to “link the chemicals found on Plaintiffs’
properties with negative health outcomes.” ECF No. 169 at 16. Plaintiffs cite Dr. Troast for the
proposition that “even if the compounds did not reach a toxic level alone, there would be additive
or synergistic effects from combined exposures.” ECF No. 264-1 at 7. Plaintiffs use Dr. Troast’s
reports to contend that “exposure to the identified chemicals of concern individually include cancer
and many other potential impacts, including damage to the central nervous system, renal and
immunological systems, as well as hepatic and respiratory systems.” ECF No. 290 at 17. Plaintiffs
therefore conclude that class members “face a common risk of continuing potential for health risks
due to their exposure to Arkema’s toxicants.” Id. at 18. Plaintiffs also rely on Dr. Troast to support
the idea that “there is no requirement of direct causation linkage with medical surveillance like
there is with medical monitoring,” such that surveillance is appropriate “[w]hen a community has
been exposed but the negative impacts are not yet identified.” Id. at 20.
Plaintiffs offer Dr. Werntz (a doctor of osteopathic medicine) to provide the details of their
proposed medical surveillance program. Dr. Werntz recommends that medical surveillance take
the following form: engage an experienced epidemiologist to design a survey, collect data via that
survey, analyze whether condition rates exceed background levels, provide information to the
community, conduct pulmonary and blood serum testing, and develop an educational program to
inform the community about contaminant risks. ECF No. 264-1 at 13–14. Plaintiffs also use Dr.
Werntz to particularize the health problems that should be subject to medical surveillance,
including pulmonary issues, cancers (including those accepted as related to Agent Orange), and
health conditions such as “AL amyloidosis, chloracne, Type 2 diabetes, hypothyroidism, ischemic
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heart disease, Parkinson’s disease, early onset peripheral neuropathy, among others[.]” Id. (quoting
ECF No. 264-7 at 5).
2. Whether the Opinions Are Relevant to Plaintiffs’ Medical Surveillance Claim
Arkema first contends that the reports from Drs. Troast and Werntz are irrelevant because
the experts “admit they do not know whether anyone in the putative class is or may be at an
imminent and substantial risk of endangerment.” ECF No. 267 at 7. The Court finds that this
argument goes more to the merits of Plaintiffs’ case than to the issue of relevance under Daubert.
Arkema bases its argument on the requirements of the Resource Conservation and
Recovery Act (“RCRA”). “RCRA is a comprehensive environmental statute that governs the
treatment, storage, and disposal of solid and hazardous waste.” Meghrig v. KFC Western, Inc., 516
U.S. 479, 483 (1996). The primary purpose of the statute “is to reduce the generation of hazardous
waste and to ensure the proper treatment, storage, and disposal of that waste which is nonetheless
generated, ‘so as to minimize the present and future threat to human health and the environment.’ ”
Id. (quoting 42 U.S.C. § 6902(b)). Plaintiffs rely on RCRA in part to support their requests for
injunctive relief. Under RCRA’s citizen suit provision, a person may bring a civil action “against
any person . . . who has contributed or who is contributing to the past or present handling, storage,
treatment, transportation, or disposal of any solid or hazardous waste which may present an
imminent and substantial endangerment to health or the environment[.]” 42 U.S.C.
§ 6972(a)(1)(B). A qualifying endangerment is one that creates “a threat which is present now,
although the impact of the threat may not be felt until later.” Meghrig, 516 U.S. at 486 (quoting
Price v. U.S. Navy, 39 F.3d 1011, 1019 (9th Cir. 1994)). “The operative word in the statute is the
word ‘may.’ ” Parker v. Scrap Metal Processors, Inc., 386 F.3d 993, 1015 (11th Cir. 2004). This
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is “ ‘expansive language’ that confers ‘upon the courts the authority to grant affirmative equitable
relief to the extent necessary to eliminate any risk posed by toxic wastes.’ ” Id. (quoting United
States v. Price, 688 F.2d 204, 213–14 (3d Cir. 1982)) (emphasis in original). Still, “there is a limit
to how far the tentativeness of the word may can carry a plaintiff.” Crandall v. City & Cty. of
Denver, Co., 594 F.3d 1231, 1238 (10th Cir. 2010) (emphasis in original).
Extrapolating from RCRA, Arkema contends that Drs. Troast and Werntz “have no
evidence that there may be a risk to the putative class that could fairly be characterized as imminent
and substantial.” ECF No. 267 at 8. Arkema notes that Drs. Troast and Werntz do not know the
long-term health effects of the contaminants released in the Arkema Incident, ECF No. 267-2
(Exhibit B) at 46:12-19, do not know whether class members were exposed to contaminants above
a no-observable-adverse-effect level, id. at 27:6-22, have not seen any risk-based calculations that
quantify the actual risk to class members, id. at 237:4-18, and have neither conducted nor seen an
exposure pathway analysis, ECF No. 267-2 (Exhibit A) at 249:4-13. Arkema says that “relevance
under the RCRA requires that there ‘be some basis on which to assess the magnitude of the possible
risk,’ Schmucker v. Johnson Controls, Inc., 477 F. Supp. 3d 791, 808 (N.D. Ind. 2020), aff’d sub
nom., 9 F.4th 560 (7th Cir. 2021) (internals omitted)[.]” ECF No. 293 at 5. 18 Arkema therefore
submits that the opinions from these experts “fail ‘to provide a ‘relevant’ link with the facts at
issue’ ” and must be excluded. ECF No. 267 at 12 (quoting Knight v. Kirby Inland Marine, Inc.,
482 F.3d 347, 355 (5th Cir. 2007)).
Expert testimony is relevant so long as it “would assist the trier of fact to understand or
determine a fact in issue.” Bocanegra, 320 F.3d at 584. And here, the opinions of Drs. Troast and
18
Arkema’s quote here is from an opinion following a bench trial; it says nothing about the
relevance of expert testimony.
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Werntz are relevant according to that standard. Dr. Troast wrote that “[t]he finding of TCDD
deposited in the soils described by Dr. Kaltofen and the report of Shannon Thompson that
quantified the other exposures to TCDD demonstrate that the carcinogenic material was released
and is available for the population to encounter.” ECF No. 267-2 (Exhibit C) at 6. He
acknowledged that “[w]hile the actual mechanisms of toxicity for TCDD and HxCDD remain
undefined both ATSDR and EPA have suggested that pleiotropic effects from exposure to [both]
of these chemicals are likely.” Id. He recognized that many studies have shown “the likelihood of
Dioxins and Dioxin-like compounds producing cancer in test animals and humans,” and he
specifically noted that “[t]here is adequate data in the scientific reports of the USEPA cited in the
EPA Integrated Risk Information System (IRIS) reporting system demonstrating the relationship
of exposure to TCDD and cancers.” Id. at 8. He cited Dr. Werntz’s report for the proposition that
individuals who were acutely exposed during the release event have experienced significant
ongoing pulmonary symptoms and are at risk of long-term respiratory problems. Id. And he
confirmed that there is “enough sampling data to recommend medical surveillance.” ECF No. 2844 at 33:2-6. Based on these constituent parts, the Court concludes that Dr. Troast’s opinions on the
toxicological dangers posed by the Arkema Incident and the need for medical surveillance will
help determine whether the contamination here “may present an imminent and substantial
endangerment to health or the environment.”
The same holds true for Dr. Werntz’s opinions. Dr. Werntz wrote that the Arkema Incident
presents a “novel exposure scenario and potential for health effects that are not currently
understood.” ECF No. 231-7 at 3. Dr. Werntz recognized that many of the chemicals released in
this report implicate long-term health risks and highlighted the presence of dioxins and dioxin-like
compounds in soil and household dust samples. Id. at 4. He opined that his proposed surveillance
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program would benefit class members by providing population health data, identifying individual
abnormalities, and educating people on how to reduce further exposure to contaminants. Id. In
addition, he restricted the scope of his program based on the contaminants at issue, writing that the
program must specifically address pulmonary incidents, certain cancers, and select additional
health conditions (including those related to Agent Orange). Id. at 5. Thus, Dr. Werntz also based
his opinions on considerations relevant to relief under RCRA.
Arkema puts the cart before the horse in attempting to address Plaintiffs’ RCRA claim
under Daubert. On Arkema’s Motion to Exclude, the Court need not address whether Plaintiffs’
proof falls “short of RCRA’s requirement that a ‘health endangerment’ must exist that is both
‘imminent’ and ‘substantial’ before any injunctive relief is awarded.” ECF No. 267 at 12 (quoting
42 U.S.C. § 6972(a)(1)(B)). The only question is whether the opinions of Drs. Troast and Werntz
are sufficiently relevant and reliable. The Court answers that question in the affirmative.
3. Whether the Opinions of Drs. Troast and Werntz Rest on a Reliable Methodology
Arkema also contends that the opinions of Drs. Troast and Werntz “should be excluded
because [the experts] selected an inapplicable methodology, then failed to apply it, and provided
opinions that are pure ipse dixit.” ECF No. 267 at 12. Arkema raises three critiques here: (1) the
experts improperly relied on a 1995 publication from the ATSDR; (2) the experts failed to properly
apply ATSDR guidance; and (3) the experts were motivated by ipse dixit moral authority. The
Court disagrees on all three counts.
i. The 1995 ATSDR publication
Arkema’s first critique is that Drs. Troast and Werntz improperly extrapolated from a
single sentence in a 1995 ATSDR publication. The section at issue reads:
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In any case in which an association has not been established between an exposure
and a specific adverse health outcome, several research and health education
activities may be considered. Those activities could include health outcome studies,
an exposure assessment at the site, epidemiologic studies, or professional
education. . . . In cases in which there is no known association between the exposure
and specific adverse health outcomes (which could include health outcomes,
illnesses, or markers of effect), medical monitoring is not an appropriate public
health activity. In cases in which there is limited information on a specific
health effect’s relationship to an exposure, then options such as epidemiologic
surveillance, a disease and symptom prevalence study, or an epidemiologic
study are more appropriate. When adequate information exists that links
exposure to a chemical with a specific adverse health effect, further consideration
will be given to the appropriateness of medical monitoring in that population.
ECF No. 284-10 at 1 (emphasis added). Arkema is correct that Drs. Troast and Werntz relied on
this authority for the proposition that medical surveillance is warranted. See e.g., ECF No. 284-4
at 52:2–53:12 (“Q. . . . [W]here is the document that I would follow to . . . look up how you went
through your thought process to say we ought to do medical surveillance here? . . . A. . . . Let’s go
back to page 38840 in the Federal Register notice), ECF No. 284-6 at 34:3-13 (“Q. I want to know
what document you’re relying on that tells us that triggers the need for medical surveillance. A.
Certainly. So I’m using . . . the Federal Register, Volume 60, No. 145, on Page [38840]. Q. That’s
the 1995 ASTDR? A. Yes, it is.”). Nevertheless, Drs. Troast and Werntz did not rest their opinions
solely on this document. Dr. Troast also drew on his experience dealing with toxic releases in other
communities. See ECF No. 284-4 at 75:4-9 (“ . . . going to go back to Libby where we did
surveillance and monitoring.”). He referred to a 2018 document that updated the ATSDR’s
approach to environmental contamination. Id. at 136:6–138:25; see ECF No. 267-2 (Exhibit C) at
2–3 (addressing the 2018 ATSDR process report). And both experts extrapolated from the samples
collected in this case. ECF No. 267-2 (Exhibit C) at 3–5. Consequently, Drs. Troast and Werntz
did not base their opinions on a single sentence from a 1995 document. In addition, while the 1995
ATSDR publication was designed to advise agencies how to proceed under CERCLA—not to
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advise private plaintiffs how to proceed under RCRA—it is not inherently unreliable to use it to
support an opinion on medical surveillance. The document addresses the circumstances in which
medical surveillance might benefit a community. That is a logical jumping-off point from which
to offer an opinion on the need for medical surveillance. As a result, the Court finds that Arkema
overstates the experts’ reliance on the 1995 ATSDR publication. This argument is no basis for
exclusion.
ii. Following ATSDR guidance
Next, Arkema contends that the opinions of Drs. Troast and Werntz should be excluded
because the experts failed to properly apply ATSDR guidance. In 2005, the ATSDR emphasized
the importance of exposure classification and comparison “to determine where site-specific doses
lie in relation to the observed effects levels reported in the studies of interest and whether
differences between study data and the exposure scenario being evaluated make health effects
more or less likely.” ECF No. 267-2 (Exhibit F) at 8-6. Arkema complains that Drs. Troast and
Werntz failed to compare actual doses (rather than exposure) to observed-effects levels in a manner
that would allow them to conclude that the Arkema Incident endangered human health. See e.g.,
ECF No 284-4 at 217:8-13 (“Q. At the levels that were found in the samples, can you point me to
a single toxicological study where the concentration found in the samples was above a no adver[se]
effect level? A. No I can’t.”). 19
19
Relying on exposure alone to suggest that health risks will follow is a risky game. In
Bombardiere, for example, the district court excluded Dr. Werntz’s opinion on medical monitoring
because the plaintiff could not point to evidence indicating “that he was exposed to silica dust and
other fracking materials at levels and at durations known in the medical literature to be associated
with” certain health conditions. Bombardiere v. Schlumberger Tech. Corp., 934 F. Supp. 2d 843,
852 (N.D.W.Va. 2013).
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The problem with Arkema’s argument here is that it suffers from a myopic focus on
dioxins. Some of the uncertainty in this case comes from the potential for synergistic effects
between dioxins and other contaminants. There are no studies in the literature that describe how
the contamination from the Arkema Incident affects human health; no entity has polluted the
environment in the same way that Arkema did. Still, Dr. Troast opined that, “[b]ased on available
reports, it is more likely than not that the similar compounds do interact and stress a biologic
system in at least a measure similar to the total dose of a single compound[,] [so] I would expect
to see synergistic effects between Dioxin and Dioxin-like compounds demonstrated.” ECF No.
267-2 (Exhibit C) at 11; see ECF No. 267-2 (Exhibit A) at 167:13-25 (describing the potential for
synergistic effects when contaminants attack a target organ in the same manner). Even without
concrete comparisons between doses and no-adverse-effect levels, Drs. Troast and Werntz
identified problematic contaminants in the Arkema Incident, found evidence of elevated levels of
contaminants in samples that exceeded RSLs, recognized acute symptoms from people exposed
immediately after the explosions, and extrapolated synergistic effects from the fact that several
contaminants in this case target the same organ systems. Plaintiffs need prove only “ ‘by a
preponderance of the evidence that the testimony is reliable,’ not that it is correct.” Swanston, 2021
WL 327588, at *2 (quoting Moore, 151 F.3d at 276). Here, the Court finds that the opinions from
Drs. Troast and Werntz are relevant and reliable even without any dose-specific analysis.
iii. Ipse dixit moral authority
Third, Arkema submits that Drs. Troast and Werntz improperly based their
recommendations on “subjective, moral conviction.” ECF No. 267 at 20. Arkema pulls quotes
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from the depositions of both experts to support this point. For Dr. Troast, Arkema directs the Court
to the following exchange:
Q. Dr. Troast, let me ask you this: Why should Arkema pay for the surveillance and
site characterization if we do not have data to support cleanup or diagnostic
monitoring?
A. I don't think there’s any question that their release of the chemicals have caused
the concerns of the population. And if you can’t show that they should do it through
a legal mechanism, a good saint and a Good Samaritan would be to go out and
do some more sampling to say hey, you don’t have a problem.
ECF No. 284-4 at 277:18–278:3 (emphasis added). Arkema suggests that the bolded statement
“demonstrates that [Dr. Troast’s opinion is] not based on an accepted protocol . . . in light of the
evidence of actual exposure to hazardous chemicals, or an expert risk assessment . . . [but] is an
ipse dixit belief based on [his] subjective belief[] of what is “saintly[.]” ECF No. 267 at 20. But
Arkema ignores the context of this exchange. In his deposition, Dr. Troast explained why he
thought medical surveillance was appropriate in this case. He testified about the sampling in this
case, the 1995 ATSDR, his experience in Libby, and the reports of Plaintiffs’ other experts, among
other reasons. Dr. Troast’s opinion therefore does not rest on ipse dixit moral authority.
Arkema repeats this attack against Dr. Werntz. Arkema pulls the bolded portion from the
below exchange:
Q. Okay. I’ll allow that. Big event at an industrial site. Sentence from the 1995
ATSDR. Reports of acute reactions. Some long-term complaints from people who
actually breathed the smoke. And a desire to reassure the community. Where do I
go that somebody has said that’s the kind – that’s the very kind of thing that we
ought to do medical surveillance for, that it’s not only appropriate there, but you
ought to be able to require someone to fund it?
A. Other than all the things you’ve just mentioned, I don’t know of an actual source
that will say this is exactly what we’re talking about, but I know that from a
perspective taking care of the population in the community, it’s the right thing
to do.
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ECF No. 284-6 at 103:02-23 (emphasis added). As with Dr. Troast, Arkema asserts that the bolded
testimony indicates that Dr. Werntz’s opinion is based on ipse dixit moral authority. But Arkema
leaves out that Dr. Werntz included the caveat: “Other than all the things you’ve just mentioned.”
That phrase indicates that Dr. Werntz had other sources for his opinion beyond his belief that
medical surveillance in this case is “the right thing to do.” The Court therefore rejects Arkema’s
argument to exclude these expert opinions based on the comments pulled from their depositions.
The experts relied on more than simple moral authority in this case.
4. Summary
For the foregoing reasons, the Court finds that the opinions of Drs. Troast and Werntz are
sufficiently relevant and reliable to clear the Daubert hurdle. The Court therefore DENIES
Arkema’s Motion to Exclude the Opinions of Drs. Troast and Werntz.
IV.
PLAINTIFFS’ RENEWED MOTION FOR CLASS CERTIFICATION
With these Daubert rulings in hand, the Court can turn to Plaintiffs’ Renewed Motion for
Class Certification. Ultimately, the Court DENIES Plaintiffs’ Motion to Certify a Rule 23(b)(3)
class but GRANTS Plaintiffs’ Motion to Certify a Rule 23(b)(2) class.
A. Legal Standard
A class action is “an exception to the usual rule that litigation is conducted by and on behalf
of the individual named parties only.” Califano v. Yamasaki, 442 U.S. 682, 700–701 (1979). To
ensure that this exception is only deployed in appropriate cases, Rule 23 provides a series of
requirements. For certification, Plaintiffs must satisfy the four threshold requirements of Rule
23(a), as well as the requirements of Rule 23(b)(1), (2), or (3). Maldonado v. Ochsner Clinic
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Foundation, 493 F.3d 521, 523 (5th Cir. 2007). Rule 23(a) requires that Plaintiffs demonstrate
numerosity, commonality, typicality, and adequacy of representation. 20 FED. R. CIV. P. 23(a).
Here, Plaintiffs seek certification under Rule 23(b)(3) for damages and Rule 23(b)(2) for injunctive
relief. Rule 23(b)(3) permits certification if “the court finds that the questions of law or fact
common to class members predominate over any questions affecting only individual members,
and that a class action is superior to other available methods for fairly and efficiently adjudicating
the controversy.” FED. R. CIV. P. 23(b)(3). Rule 23(b)(2) permits certification if “the party
opposing the class has acted or refused to act on grounds that apply generally to the class, so that
final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a
whole.” FED. R. CIV. P. 23(b)(2). “The party seeking class certification bears the burden of
establishing that Rule 23 is appropriate.” Maldonado, 493 F.3d at 523.
B. The Scope of Review on Remand
The parties take different approaches to the scope of the Court’s current review. Arkema’s
position is that every possible issue regarding certification can and should be litigated on remand.
Plaintiffs argue that Arkema’s stance “is an affront to the letter and spirit of the Fifth Circuit’s
opinion remanding these proceedings,” and that the Court should address only those issues raised
in Prantil. ECF No. 290 at 1. The proper approach lies somewhere in between.
Two key doctrines determine the issues that are presently available for adjudication: the
law-of-the-case doctrine and the waiver doctrine. “The law-of-the-case doctrine ‘posits that when
a court decides upon a rule of law, that decision should continue to govern the same issue in
20
Arkema does not (and cannot) contest that the Rule 23(a) requirements have been met here. In
line with the Court’s prior order, then, the Court finds that those requirements have been met. ECF
No. 169 at 18–27.
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subsequent stages in the same case.’ ” United States v. Castillo, 179 F.3d 321, 326 (5th Cir. 1999)
(quoting Arizona v. California, 460 U.S. 605, 618 (1983)). Under this doctrine, issues decided in
Prantil may not be reexamined by this Court. United States v. Lee, 358 F.3d 315, 320 (5th Cir.
2004). Still, “an issue that is not expressly or implicitly decided on appeal does not become part
of the law of the case.” Med. Ctr. Pharmacy v. Holder, 634 F.3d 830, 834 (5th Cir. 2011); see
Alpha/Omega Ins. Servs., Inc. v. Prudential Ins. Co. of Am., 272 F.3d 276, 279 (5th Cir. 2001)
(“[U]nlike res judicata, the law of the case doctrine applies only to issues that were actually
decided, rather than all questions in the case that might have been decided, but were not.”)
The waiver doctrine, meanwhile, imposes additional limits on the issues that are available
for adjudication. The waiver doctrine “holds that an issue that could have been but was not raised
on appeal is forfeited and may not be revisited by the district court on remand.” Med. Ctr.
Pharmacy, 634 F.3d at 834; see Lee, 358 F.3d at 323 (“[I]ssues not arising out of [the] ruling [from
the appeals court] and not raised in the appeals court, which could have been brought in the original
appeal, are not proper for reconsideration by the district court below.”). The waiver doctrine
“ ‘serves judicial economy by forcing parties to raise issues whose resolution might spare the court
and parties later rounds of remands and appeals.’ ” Med. Ctr. Pharmacy, 634 F.3d at 834 (quoting
Castillo, 179 F.3d at 325). The waiver doctrine “ ‘differs from the law-of-the-case doctrine in that
it arises as a consequence of a party’s inaction, not as a consequence of a decision on [the] part [of
the Court of Appeals].” Id. (quoting Castillo, 179 F.3d at 325). 21
21
The parties do not address these doctrines. Arkema says little about the narrower scope of issues
on remand. And while Plaintiffs complain about the breadth of Arkema’s arguments, they rely on
the doctrine of judicial estoppel. Judicial estoppel “prevents a party from asserting a position in a
legal proceeding that is contrary to a position previously taken in the same or some earlier
proceeding.” Ergo Science, Inc. v. Martin, 73 F.3d 595, 600 (5th Cir. 1996). Unlike the law-ofthe-case and waiver doctrines, judicial estoppel is primarily concerned with conflicts between a
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Plaintiffs contend that Arkema improperly seeks to reopen three issues on remand:
(1) superiority; (2) the scope and boundary of the class (ascertainability); (3) and standing. In
Prantil, the Fifth Circuit stated: “Arkema does not dispute that the proposed class meets Rule
23(a)’s threshold requirements or that a class action is the superior litigation vehicle.” 986 F.3d at
576. Under the waiver doctrine, then, Arkema is barred from raising issues related to Rule 23(a)
and superiority at this time.
Arkema did not waive its argument on standing, however. On appeal, Arkema challenged
the Court’s finding that Plaintiffs had standing to seek injunctive relief. See Brief for Appellant at
46, Prantil v. Arkema Inc., 986 F.3d 570 (5th Cir. 2021) (No. 19-20723) (“In addition to
improperly assuming classwide exposure and equating exposure with injury, the court erred in
basing standing on past injury because standing to seek injunctive relief requires a real or imminent
threat of future harm - not past harm.”). What’s more, arguments concerning Article III standing
cannot be waived. See Doe v. Tangipahoa Par. Sch. Bd., 494 F.3d 494, 501 (5th Cir. 2007)
(Barksdale, J., dissenting) (“[I]t is quite fundamental that parties cannot concede, or waive,
standing as an issue of law.”); see also June Med. Servs. L. L. C. v. Russo, 140 S. Ct. 2103, 2117
(2020) (differentiating between arguments on prudential standing, which can be forfeited or
waived, and arguments on the “case-or-controversy requirement”).
Still, the law-of-the-case doctrine also “applies to those issues decided by ‘necessary
implication.’ ” Alpha/Omega, 272 F.3d at 279 (quoting In re Felt, 255 F.3d 220, 225 (5th Cir.
2001)). “[E]ven when issues have not been expressly addressed in a prior decision, if those matters
were ‘fully briefed to the appellate court and . . . necessary predicates to the [court’s] ability to
party’s arguments. Here, Plaintiffs’ position is better addressed through the law-of-the-case and
waiver doctrines.
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address the issue or issues specifically discussed, [they] are deemed to have been decided tacitly
or implicitly, and their disposition is law of the case.’ ” Id. (quoting In re Felt, 255 F.3d at 225).
And standing is the quintessential example of a necessary predicate to a court’s ability to address
other issues. “The Constitution gives federal courts the power to adjudicate only genuine ‘Cases’
and ‘Controversies[,]’ . . . [which] includes the requirement that litigants have standing.”
California v. Texas, 141 S. Ct. 2104, 2113 (2021) (internal citations omitted). If a litigant has no
standing, a court can “proceed no further.” Id.; see Schlesinger v. Reservists Comm. to Stop the
War, 418 U.S. 208, 215 (1974) (noting that “the absence of standing . . . suffices to prevent the
power of the federal judiciary from being invoked by the complaining party”). To that end, the
Fifth Circuit has stated that while Rule 23(f) “allows a party to appeal only the issue of class
certification, ‘[s]tanding is an inherent prerequisite to the class certification inquiry.’ ” Rivera v.
Wyeth-Ayerst Laboratories, 283 F.3d 315, 319 (5th Cir. 2002) (quoting Bertulli v. Indep. Ass’n of
Cont’l Pilots, 242 F.3d 290, 294 (5th Cir. 2001)). Consequently, “standing may—indeed must—
be addressed even under the limits of a rule 23(f) appeal.” Id.
In Prantil, the Fifth Circuit paid no heed to Arkema’s argument on standing. As a result,
because standing “must” be addressed on a Rule 23(f) appeal, the Fifth Circuit “must” have
implicitly decided that Plaintiffs had standing. That decision is now the law of the case.
Nevertheless, for the avoidance of all doubt, the Court will also address Arkema’s standing
arguments in the section on injunctive relief below.
C. Plaintiffs’ Motion to Certify a Rule 23(b)(3) Damages Class
Plaintiffs seek to certify a damages class under Rule 23(b)(3) “for diminution of value
determined by common formula and supported by expert evidence.” ECF No. 264-1 at 23. Because
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Arkema waived its arguments on Rule 23(a) and superiority, the key issue here is whether Plaintiffs
can demonstrate “that the questions of law or fact common to class members predominate over
any questions affecting only individual members, and that a class action is superior to other
available methods for fairly and efficiently adjudicating the controversy.” FED. R. CIV. P. 23(b)(3).
“The predominance requirement ‘tests whether proposed classes are sufficiently cohesive to
warrant adjudication by representation.’ ” Prantil, 986 F.3d at 576 (quoting Torres v. S.G.E.
Mgmt., L.L.C., 838 F.3d 629, 636 (5th Cir. 2016) (en banc) (quoting Amchem Prods., Inc. v.
Windsor, 521 U.S. 591, 623 (1997))). The Court must “consider predominance on a claim-byclaim basis[.]” Id. at 577.
Plaintiffs seek to certify a class under Rule 23(b)(3) for claims of negligence, trespass, and
public nuisance. See ECF No. 304 at 80:7-10 (“THE COURT: Do you -- am I correct that you’re
asking for a (b)(2) class on CERCLA and RCRA and the (b)(3) class on Texas common law
remedies? MR. BUNCH: Yes, your Honor.”). For the reasons set out below, the Court finds that
Plaintiffs have failed to clear the predominance hurdle on these common law claims.
1. Negligence
The elements of a negligence action are (1) duty, (2) breach, (3) causation, and (4)
damages. Allen v. Walmart Stores, L.L.C., 907 F.3d 170, 178 (5th Cir. 2018) (quoting Greater
Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990)). The Court finds that duty and
breach present common questions, but causation and damages require individualized inquiries that
ultimately predominate.
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i. Duty and breach
Plaintiffs can present common evidence to show that Arkema owed a duty to all class
members to undertake certain precautions, and that Arkema breached that duty by failing to take
those precautions. ECF No. 264-1 at 25. Plaintiffs can use common evidence to demonstrate that
Arkema should have prevented the Incident through proper emergency planning that accounted
for the location of the Crosby facility and the dangerous nature of organic peroxide production. Id.
Plaintiffs can use common evidence to prove that Arkema knew that its power supplies for the low
temperature warehouses were insufficiently elevated, such that even flooding at the 100-year level
would pose a serious risk. Id. at 24. Plaintiffs can use common evidence show that the property
had been flooded in the past, that Arkema failed to properly plan for a storm like Hurricane Harvey,
and that Arkema breached industry standards by failing to recognize that flooding could cause a
loss of power that might trigger fires and explosions. Id. at 25. Plaintiffs can also counter Arkema’s
“Act of God” affirmative defense with common evidence that the flooding was predictable,
foreseeable, and reasonably avoidable. Furthermore, Plaintiffs can use common evidence to piece
together Arkema’s actions as the floodwaters began to rise. Id. at 24. This common evidence is not
insubstantial. It would take hours of trial time for Plaintiffs to adduce the necessary proof to
demonstrate that Arkema’s approach to Hurricane Harvey violated the relevant standards of care.
Duty and breach, then, appear susceptible to common forms of proof.
ii. Causation
Causation, meanwhile, requires a great deal of individualized proof. Plaintiffs contend that
they will demonstrate causation with common evidence because they “will prove through expert
testimony from Dr. Kaltofen that the chemicals found at harmful levels on properties in the Class
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Area can be specifically linked to the Arkema facility.” ECF No. 264-1 at 25. But in reality,
Plaintiffs cannot use common evidence to show that Arkema caused their damages.
Plaintiffs seek monetary damages due to property value diminution from environmental
stigma. See ECF No. 264-1 at 28 (“Dr. Kilpatrick was able to assign ‘impaired’ property values
based on relevant literature, empirical studies, and a sizeable body of work that supports the finding
that proximity to environmental contamination and spread of information about the contamination
diminish property value.”). This theory does not require that Plaintiffs show that all properties in
the class area were contaminated: “Nowhere have Plaintiffs alleged that stigma depends on the
degree of actual concentration or measurements of chemicals that were deposited or remain on any
given property . . . [because] stigma loss is about public perception that property value is negatively
affected despite contamination clean-up.” ECF No. 290 at 33 (emphasis in original). But this
theory does require Plaintiffs to show that the Arkema Incident caused their stigmatic damages.
As a result, Plaintiffs cannot simply point to Dr. Kaltofen’s opinion that the Arkema Incident
increased dioxins in the class area. The critical causation question is not whether the Incident
spread dioxins, but whether the Incident diminished Plaintiffs’ property values. See 5 Conte &
Newberg, Newberg on Class Actions § 17:28, at 413–14 (4th ed. 2002) (distinguishing between
“threshold general questions” of causation relating to the defendant’s actions and the critical
question relevant to certification of whether such conduct proximately caused the specific injuries
suffered, which must be proved separately by class members).
Unfortunately for Plaintiffs, the only common evidence that demonstrates that the Incident
caused their damages comes from Dr. Kilpatrick. In his report, Dr. Kilpatrick describes the
mechanism for stigmatic diminution and uses trendline analysis to show that the Incident caused
a class-wide diminution in property values. But as detailed in the section on Daubert, Dr.
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Kilpatrick’s opinions on diminution are unreliable and must be excluded. Without Dr. Kilpatrick’s
opinions, Plaintiffs must resort to individualized methods of proof to show that the Incident
diminished property values. The only way to show a causal link in the absence of Dr. Kilpatrick’s
report is for Plaintiffs to go property by property. Perhaps recognizing the inherently
individualized nature of this inquiry, Plaintiffs do not argue in their papers that they can prove
causation on a class-wide basis without Dr. Kilpatrick. Given the extreme levels of individualized
proof attendant to showing causation for thousands of properties, this prong weighs heavily against
predominance. 22 See Robertson v. Monsanto, 287 F. App’x 354, 362 (5th Cir. 2008) (holding that
individualized issues on causation and damages barred certification because even though a single
incident caused plaintiffs injuries, “each plaintiff still must show that [the defendant’s] negligence
in causing the gas leak was proximately connected to the specific injuries complained of”).
iii. Damages
Plaintiffs must also present substantial individualized evidence to prove their damages.
Without Dr. Kilpatrick, whom Plaintiffs retained to “perform[] a mass appraisal on sales price data
22
Arkema contends that causation also requires individualized inquiries into “the fate and transport
of any particulate matter containing dioxins (which are already ubiquitous in the Crosby
environment), whether anyone was actually exposed to airborne or deposited dioxin from the
Crosby fires, whether dioxin is present on any property in a concentration sufficient to cause
cognizable harm, and whether that dioxin is attributable to the releases at issue rather than some
other source.” ECF No. 285 at 20. Most of these inquiries are not necessary for Plaintiffs’ theory
of liability. For example, Plaintiffs need not prove that individual class members were exposed to
dioxins in harmful quantities to show that the Incident diminished property values. Similarly, the
alleged failure of Plaintiffs’ experts to say with certainty that class members are at risk of
developing health problems does not concern the stigmatic injury at the core of Plaintiffs’ claims
for damages. Thus, while the Court finds that causation requires undue amounts of individualized
proof, several of the arguments Arkema puts forth to that end are inapposite
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from the Class Area so that class-wide damages might be mechanically calculated by formula,”
Plaintiffs have no mechanism for calculating damages on a class-wide basis. ECF No. 264-1 at 22.
Two cases illustrate how the absence of Dr. Kilpatrick’s opinions affects the predominance
inquiry. The first is Cannon v. BP Products North America, Inc., 2013 WL 5514284 (S.D. Tex.
Sept. 30, 2013) (Costa, J.). There, a group of would-be class action plaintiffs hired Dr. Simons, a
real estate economist, to show that BP’s emissions permanently diminished property values in a
certain area. Id. at *1. However, the court excluded Dr. Simons’ opinions as unreliable because he
failed to isolate the effects of BP’s activity from other confounding variables. See id. at *7 (“In
actuality, Simons does not, and cannot, know exactly what characteristic he isolated with his
regression model—it could have been sulfur dioxide emissions, exceedances, events, bad press
about the Refinery, or any other difference between the class area and control area that was not
accounted for in his model[.]”). And because the plaintiffs “rel[ied] on Dr. Simons to (a) prove on
a classwide basis that BP’s wrongful conduct (through theories of negligence, nuisance, or
trespass) caused a diminution in property value; and (b) calculate damages formulaically,” the
plaintiffs were “unable to show that ‘the questions of law or fact common to class members
predominate over any questions affecting only individual members.’ ” Id. at *16 (quoting FED. R.
CIV. P. 23(b)(3)). The plaintiffs “provide[d] no alternative to Simon’s methodologies to prove
causation or damages, and the [c]ourt [could not] envision how a class action trial would operate
without his testimony.” Id. Absent Dr. Simons, “each of the roughly 14,300 putative Plaintiffs
would have to prove damages by presenting appraisal figures before and after December 22, 2008
and would have to prove causation by presenting evidence the BP’s wrongful conduct, and not
some other source, caused the diminution in their property value.” Id. Consequently, the court in
Cannon held that individualized questions predominated such that certification was inappropriate.
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The second case is Cotromano v. United Technologies Corp., 2018 WL 2047468 (S.D. Fla.
May 2, 2018). There, a group of plaintiffs “tender[ed] [Dr.] Kilpatrick in [an] effort to demonstrate
that damages in th[e] putative class action, encompassing approximately 18,000 property owners,
[were] susceptible to calculation on a class-wide, uniform basis throughout the proposed class area
by application of ‘mass appraisal’ methodology.” Id. at *8. After reviewing Dr. Kilpatrick’s
opinions, however, the district court held that he could not “reliably use sales trend analysis to
determine a single percentage diminution for the entire proposed class area.” Id. at *19. The district
court also determined that Dr. Kilpatrick’s efforts to use surveys to estimate diminution damages
were unavailing. The court therefore excluded Dr. Kilpatrick’s opinions. Id. And because the
district court determined that Dr. Kilpatrick’s opinions were “critical to the elements of
commonality and predominance,” the court recognized that the plaintiffs were “unable to satisfy
the predominance element of Rule 23(b)” without him. Id. at *8, *19.
This case mirrors Cannon and Cotromano. The Court has recognized that “where
individual damages cannot be determined by reference to a mathematical formula[] or calculation,
the damages issue may predominate over any common issues shared by the class.” Regmund v.
Talisman Energy USA, Inc., 2019 WL 2863926, at *7 (S.D. Tex. July 2, 2019) (Ellison, J.) (quoting
Steering Committee v. Exxon Mobil Corp., 461 F.3d 598, 602 (5th Cir. 2006)). The Fifth Circuit
has also recently acknowledged that predominance is likely lacking where complicated questions
of individual damages are at issue. Earl v. Boeing Co., --- F.4th ---, 2021 WL 6061767, at *2 (5th
Cir. Dec. 22, 2021). Without Dr. Kilpatrick’s formulas, Plaintiffs must prove the amount by which
each class member’s property diminished in value. That demands a close look into the
characteristics of each individual property, as well as the interplay between those characteristics
and stigmatic decrements. Plaintiffs have not demonstrated a mechanism for review other than
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going property by property. Given the highly individualized nature of that inquiry, the Court
cannot find that common questions predominate. 23
Contrary to Plaintiffs’ assertions, their proposed Trial Plan does not mitigate the highly
individualized nature of their negligence claim. Plaintiffs’ proposed Trial Plan would proceed as
follows. Phase One would address: (1) whether Arkema is at fault for the Incident; (2) whether
Arkema’s Act of God defense excuses it from liability; (3) the total quantity of contaminants
released beyond the boundaries of the Crosby facility; (4) the composition of the contaminants
released beyond the facility; (5) the nature and extent of injunctive relief in the form of site
investigation, assessment, characterization, and remediation necessary to restore class members’
properties to their pre-Incident condition; (6) the nature and extent of injunctive relief in the form
of medical surveillance necessary to address class members’ exposure to contaminants from the
Incident; (7) the “appropriate, uniform methodology for assessing diminution in real property
values” in the class area from the Incident; and (8) “[t]he amount of class-wide compensatory
damages that may be awarded to the [c]lass by application of an approved formula.” ECF No. 264-
23
Another individualized inquiry stems from Plaintiffs’ decision to seek certification for a class
without temporal limitations. Plaintiffs ask the Court to certify a class that includes “all residents
and real property owners located within a seven-mile radius of the Crosby, Texas, Arkema
Chemical Plant.” ECF No. 264 at 1. Because this class is not time-bound, it includes individuals
who bought property in the class area years after the Arkema Incident. That raises additional issues,
since a post-Incident purchaser might have had a “stigma discount” built into the price they paid.
For that individual, diminution damages would result in an unearned windfall. See also Exxon
Mobil Corp. v. Albright, 433 Md. 303, 423–24 (2013) (reasoning that “[a]llowing the plaintiffs to
recover damages for a hypothetical and speculative diminution in market value that may never
materialize is to permit them a potential double recovery,” since some plaintiffs could sell their
homes immediately after recovering and receive a windfall for the as-yet unrealized diminution);
see also Palmisano v. Olin Corp., 2005 WL 6777561, at *5 (N.D. Cal. July 5, 2005) (noting
“serious concerns with the degree of speculation Dr. Kilpatrick’s theory entails” because “[i]f
plaintiffs could recover for a decline in value that had not yet been reflected in prices, they could
sell their homes immediately and receive a windfall”). The temporal issue that inheres in Plaintiffs’
proposed class therefore presents another individualized issue.
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7 at 2. Phase Two would then address “any remaining amounts of individual items of property
damages for class members,” and would “take place only if the jury finds Arkema liable in whole
or in part in Phase One.” Id. at 3. In Phase Two, Plaintiffs contemplate that “a Special Master
conducting streamlined mini-trials” or “stipulated binding procedures” would resolve “any
remaining claims for individual property damages.” Id. Plaintiffs propose that in the alternative,
the Court might order individual items of property damage to be split off and pursued “through
existing Texas small claims processes with the benefit of the liability finding as to Arkema in
Phase One as res judicata.” Id. at 4.
Plaintiffs’ Trial Plan does not feature a typical bifurcation of class proceedings. Normally,
bifurcated proceedings separate damages from liability. See e.g., Sterling v. Velsicol Chem. Corp.,
855 F.2d 1188, 1197 (6th Cir. 1988) (reasoning that the plaintiffs could prove liability as a class
and then submit individualized evidence of damages later). But Plaintiffs call for diminution
damages to be addressed alongside standard issues of liability during Phase One. Plaintiffs’ plan,
then, commingles individualized evidence of causation and damages with common evidence of
duty and breach. As a result, this plan does not defer the highly individualized inquiries to a
separate phase. Because the Court has given Plaintiffs a “full opportunity to present . . . proposals
for their preferred form of class treatment,” it need not consider “other variations not proposed[.]”
Steering Committee, 461 F.3d at 603–04.
In addition, even if Plaintiffs had proposed a true bifurcation, that structure would not
manufacture predominance. The Fifth Circuit has made clear that “even though trial courts have
flexibility in crafting bifurcated proceedings once a case is certified, the predominance inquiry . . .
requires assessing all the issues in a case—including damages—and deciding whether the common
ones will be more central than the individual ones.” Crutchfield v. Sewerage & Water Bd. of New
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Orleans, 829 F.3d 370, 378 (5th Cir. 2016). As a result, simply delaying the quantification of
damages does not solve Plaintiffs’ problems; Plaintiffs still present no common methodology for
damages. In addition, Prantil requires the Court to discuss how a phased trial would actually
proceed. 986 F.3d at 580. Plaintiffs, however, do not provide sufficient details regarding how such
a trial would go. See Espenscheid v. DirectSat USA, LLC, 705 F.3d 770, 774 (7th Cir. 2013)
(rejecting the plaintiffs’ request for a collective action where the plaintiffs tried to mitigate
individualized inquiries by presenting testimony from 42 “representative” members of the class
without explaining how the representatives would be chosen). Plaintiffs’ Trial Plan, then, is no
panacea.
iv. Negligence Summary
Overall, Plaintiffs have failed to show that “questions of law or fact common to class
members predominate over any questions affecting only individual members[.]” FED. R. CIV. P.
23(b)(3). Without Dr. Kilpatrick, Plaintiffs have no way of proving causation and damages absent
individualized inquiries into thousands of properties. See Cotromano, 2018 WL 2047468, at *20
(“Plaintiffs do not need to prove actual contamination of individual properties to sustain their
claims—but this does not eliminate individual assessments on damages. It only transports them to
individualized inquiries, with all the same variables contributing to a determination on the extent
of actual damages.”).
In Prantil, the Fifth Circuit held that the Court’s prior order was “wanting in its answer to
Arkema’s arguments that a trial of class claims would devolve into individualized inquiries[.]”
Plaintiff 986 F.3d at 579. Plaintiffs were on notice that they needed to answer Arkema’s arguments
on predominance. But Plaintiffs put all their eggs in Dr. Kilpatrick’s basket. Without his opinion
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on diminution damages, Plaintiffs have not discharged their burden of demonstrating
predominance under Rule 23(b)(3). The Court therefore DENIES certification of a Rule 23(b)(3)
class on Plaintiffs’ negligence claim.
2. Trespass to Real Property
The above analysis on negligence compels a similar result on Plaintiffs’ trespass claim.
The elements of a trespass claim are “(1) the plaintiff owns or has a right to lawful[ly] possess real
property; (2) the defendant entered the plaintiff’s [property] and the entry was physical, intentional,
and voluntary; and (3) the defendant’s trespass caused injury to the plaintiff.” Wilen v. Falkenstein,
191 S.W.3d 791, 798 (Tex. Ct. App.–Ft. Worth 2006). On the last set of motions, the Court said
that the “inquiry into entry on Plaintiffs’ properties revolves around a single incident—[Arkema’s]
actions or lack thereof during Hurricane Harvey and the resulting explosions. Because all injuries
resulted from this single course of conduct, the focus will be on Defendant’s actions, and common
questions will predominate.” ECF No. 169 at 32. Following the Fifth Circuit’s command to engage
Arkema’s counterarguments, however, the Court now finds that common questions do not
predominate.
Even if Plaintiffs use common evidence to prove that they have a right to lawfully possess
real property, they cannot use common evidence to show that Arkema physically, intentionally,
and voluntarily entered each of their properties in a manner that injured them. Plaintiffs have not
conducted representative sampling of the class area, and the sampling that they have done indicates
that contamination is highly varied. See ECF No. 231-2 at 16 (describing how Plaintiffs collected
127 surface soil samples from the class area, submitted 97 of them for testing, and discovered that
17 (17.5%) exceeded the proposed remediation goal of 4.8 pg/g for dioxins); see ECF No. 304 at.
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61:5-9 (MR. THOMPSON: . . . “[T]here’s no doubt that there are many properties that are
contaminated well above the standards. There’s also no doubt that there are -- there are properties
that will not have been in the particular fallout zone.”). This variance can be seen in Figure 2 from
the expert report created by Dr. Glenn Millner:
ECF No. 253-4 at 8. Plaintiffs’ trespass claim would therefore require “individual inquiries” that
would “overwhelm questions common to the class.” Halvorson v. Auto-Owners Ins. Co., 718 F.3d
773, 779 (8th Cir. 2013).
What’s more, as with Plaintiffs’ negligence claim, Plaintiffs must go property-by-property
to show that Arkema’s trespass caused injury and to quantify that injury. See Corley v. Entergy
Corp., 220 F.R.D. 478, 486 (E.D. Tex. 2004) (rejecting certification of a damages class on a
trespass claim because “each landowner is entitled to damages based on the specific characteristics
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of his or her land and the extent of the Defendants’ trespass on his or her land” such that damages
cannot be calculated on a class-wide basis). As with Plaintiffs’ negligence claim, then,
individualized inquiries into causation and damages overwhelm common inquiries into Arkema’s
conduct on Plaintiffs’ trespass claim. 24
Plaintiffs, for their part, suggest that the Court should follow in the footsteps of Turner v.
Murphy Oil USA, Inc., 234 F.R.D. 597 (E.D. La. 2006). In that case, the district court certified a
class seeking damages from an oil spill. Id. at 601–02. The Turner court reasoned that “[t]he
primary elements of proof for trespass are whether there was a physical invasion of the plaintiff’s
property by a defendant, and whether that invasion was unlawful.” Id. at 609. The court then
determined that the plaintiffs could satisfy the predominance prong because those “elements will
24
The Court is also concerned that Plaintiffs’ trespass claim is at odds with their damages model.
In Comcast, the Supreme Court made clear that “a model purporting to serve as evidence of
damages in [a] class action must measure only those damages attributable to that theory.” 569 U.S.
at 35. This Court has subsequently recognized that a class-wide damages approach must “track
Plaintiffs’ theories of liability,” and that the district court must “rigorously examine[] proposed
damages methodologies in putative class action cases for disconnects between damages and
liability.” In re BP p.l.c. Sec. Litig., 2013 WL 6388408, at *17 (S.D. Tex. Dec. 6, 2013). Trespass
requires a physical entry onto property. Plaintiffs’ theory of damages, meanwhile, is predicated on
stigmatic diminution that concerns “public perception.” ECF No. 290 at 33. Indeed, Plaintiffs
specifically state: “Nowhere have Plaintiffs alleged that stigma depends on the degree of actual
concentration or measurements of chemicals that were deposited or remain on any given property.”
Id. Thus, there is a gap between Plaintiffs’ trespass theory—which requires physical intrusion—
and their damages theory—which does not. This disconnect is thrown into sharp relief in Plaintiffs’
Trial Plan, which proposes that “each Class member will participate in the class-wide damages
award regardless of whether it is ultimately found to be necessary, in the site characterization and
remediation process, to perform work to restore that Class member’s property to its pre-existing
condition.” ECF No. 264-7 at 3. Plaintiffs’ only retort is that Arkema’s Comcast argument “is
mistakenly predicated on the notion that Dr. Kilpatrick ‘opined that property values decreased
more as one moves farther away from the Crosby facility.’ ” ECF No. 290 at 33 (quoting ECF No.
285 at 57). But that does not actually address the core of this issue. After criticizing Dr. Kilpatrick’s
opinion on the correlation between distance and property value, Arkema wrote: “More
fundamentally, Dr. Kilpatrick’s model does not measure damages allegedly attributable to any
physical contamination.” ECF No. 285 at 58. Plaintiffs do not respond to this charge, even though
it forms the basis of the Comcast issue.
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not require the [c]ourt to inquire extensively into individual cases for proof of liability.” Id. But
Turner does not control. That case was decided before more recent restrictions on class actions. In
addition, the Turner court used the plaintiffs’ sampling data to certify a smaller class area than was
originally requested. See id. at 614 (“The Court agrees that Mr. Kaltofen’s low sampling rate,
together with the questions raised about the sampling technique and analysis, cannot support a
finding at this juncture that Murphy crude oil likely could have traveled as far as Plaintiffs have
alleged.”). The smaller class area, in turn, helped the Turner court manufacture predominance. In
this case, however, Plaintiffs have not presented sufficient data to permit the Court to sua sponte
shrink the borders of the putative class area and preserve predominance.
The Court therefore DENIES Plaintiffs’ request to certify a damages class for trespass due
to a lack of predominance under Rule 23(b)(3).
3. Public Nuisance
The elements of a public nuisance claim are “an unreasonable interference with a right
common to the general public” and “a special injury . . . distinct from the injury to the public at
large.” Peiqing Cong. v. ConocoPhillips Co., 250 F. Supp. 3d 229, 233 (S.D. Tex. 2016). As with
Plaintiffs’ negligence and trespass claims, here too individualized issues related to causation and
damages predominate. Even if Plaintiffs use common evidence to show that Arkema interfered
with common rights of property ownership, they must also show that Arkema injured them in a
manner distinct from any injury wreaked upon the public. As Plaintiffs make clear, however, the
only class-wide damages they seek are “for diminution of value determined by common formula
and supported by expert evidence.” ECF No. 264-1 at 23. Without Dr. Kilpatrick, Plaintiffs lack
their promised “opinion that regression analysis can account for property damage attributable to
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the Arkema explosions and serve as an underpinning for an award of class-wide damages in the
Rule 23(b)(3) class action.” Id. at 29. Individualized inquiries into causation and damages will
therefore predominate on Plaintiffs’ public nuisance claim as well. See also In re Rail Freight Fuel
Surcharge Antitrust Litig., 934 F.3d 619, 623–24 (D.C. Cir. 2019) (affirming the district court’s
holding that “the need for ‘individualized inquiries to determine which of at least 2,037 (and
possibly more) class members were actually injured by the alleged conspiracy,’ . . . precluded a
finding of predominance”). As a result, the Court DENIES certification of a Rule 23(b)(3) class
on Plaintiffs’ public nuisance claim.
4. Summary
Plaintiffs have moved to certify a Rule 23(b)(3) damages class on common law claims of
negligence, trespass, and public nuisance. 25 Excluding Dr. Kilpatrick’s opinion on diminution
damages, however, pulls the rug out from under Plaintiffs’ case. Without Dr. Kilpatrick’s opinions,
the Court cannot find that common issues predominate over complex individualized issues
25
Plaintiffs clarified at the hearing that they do not seek a Rule 23(b)(3) class for their RCRA or
CERCLA claims. See ECF No. 304 at 80:7-9 (“THE COURT: Do you -- am I correct that you’re
asking for a (b)(2) class on CERCLA and RCRA and the (b)(3) class on Texas common law
remedies? MR BUNCH: Yes, your Honor.”). That makes sense, since “[f]ederal courts addressing
the issue have universally held that RCRA citizen suits provide no damages remedy.” Tyco
Thermal Controls LLC v. Redwood Indus., 2010 WL 3211926, at *18 (N.D. Cal. Aug. 12, 2010)
(quoting Express Car Wash Corp. v. Irinaga Bros., 967 F. Supp. 1188, 1193 (D. Or. 1997)); see
325-343 E. 56th St. Corp. v. Mobil Oil Corp., 906 F. Supp. 669, 684 (D.D.C. 1995) (“Courts
confronting this issue have almost unanimously concluded that RCRA’s citizen suit provisions,
42 U.S.C. § 6972(a)(1)(A) and (a)(1)(B), allow for abatement and injunctive measures, but not for
money damages.”); Miller, 2018 WL 4762261, at *9 (“It is precisely because the RCRA is
addressed to an imminent or ongoing risk of harm from the presence of hazardous waste that the
remedy that the statute provides is limited to injunctive relief.”). The same goes for Plaintiffs’
CERCLA claim. See Polcha v. AT & T Nassau Metals Corp., 837 F. Supp. 94, 96 (M.D. Pa. 1993)
(“[T]here is no private cause of action under either CERCLA or RCRA to recover damages for
personal injuries suffered as a result of violations of those statutes.”).
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regarding causation and damages. The Court therefore DENIES Plaintiffs’ request for certification
under Rule 23(b)(3). 26
D. Plaintiffs’ Motion to Certify a Rule 23(b)(2) Injunctive-Relief Class
To certify a Rule 23(b)(2) injunctive class, meanwhile, Plaintiffs must demonstrate that
“the party opposing the class has acted or refused to act on grounds that apply generally to the
class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the
class as a whole.” FED. R. CIV. P. 23(b)(2). In the Fifth Circuit, plaintiffs seeking Rule 23(b)(2)
certification must meet three requirements: (1) “class members must have been harmed in
essentially the same way”; (2) “injunctive relief must predominate over monetary damage claims”;
and (3) “the injunctive relief sought must be specific.” Maldonado, 493 F.3d at 524. The class
must also be cohesive. Id. Here, Plaintiffs seek to certify a Rule 23(b)(2) class for two types of
injunctive relief: property remediation and medical surveillance. For the reasons set out below, the
Court grants this aspect of Plaintiffs’ Motion and certifies a Rule 23(b)(2) class.
1. Standing
As detailed above, while Rule 23(f) “allows a party to appeal only the issue of class
certification, ‘[s]tanding is an inherent prerequisite to the class certification inquiry.’ ” Rivera, 283
F.3d at 319 (quoting Bertulli, 242 F.3d at 294). Consequently, “standing may—indeed must—be
addressed even under the limits of a rule 23(f) appeal.” Id. In light of this principle, the Fifth Circuit
26
The Court does not reach the issue of standing for the proposed Rule 23(b)(3) class because “the
Supreme Court has repeatedly instructed that we should first decide whether a proposed class
satisfies Rule 23, before deciding whether it satisfies Article III—and . . . there is no need to answer
the latter question if the class fails under the former.” Flecha v. Medicredit, Inc., 946 F.3d 762,
768–69 (5th Cir. 2020) (citing Amchem, 521 U.S. at 612).
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“must” have addressed standing in Prantil when it ignored Arkema’s arguments on this issue and
remanded the case. Nevertheless, because the Court can “proceed no further” if Plaintiffs lack
standing, the Court briefly addresses Arkema’s arguments. California v. Texas, 141 S. Ct. at 2113.
The “irreducible constitutional minimum of standing” requires a plaintiff to prove “(i) that
he suffered an injury in fact that is concrete, particularized, and actual or imminent; (ii) that the
injury was likely caused by the defendant; and (iii) that the injury would likely be redressed by
judicial relief.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021) (citing Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). “[S]tanding is not dispensed in gross; rather,
plaintiffs must demonstrate standing for each claim that they press and for each form of relief that
they seek[.]” Id. at 2208. For purposes of forward-looking injunctive relief, the risk of future harm
must be “material” and “sufficiently imminent and substantial.” Id. at 2210 (citing Clapper v.
Amnesty Int’l USA, 568 U.S. 398, 414 n.5 (2013)). “Article III does not give federal courts the
power to order relief to any uninjured plaintiff, class action or not.” Id. at 2208 (quoting Tyson
Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 466 (2016) (ROBERTS, C. J., concurring)).
Previously, the Court found that Plaintiffs have suffered a concrete, particularized, and
actual or imminent injury-in-fact through “chemical exposure[,] . . . which allegedly creates severe
health risks. This injury cannot be speculative, because it has already occurred.” ECF No. 169 at
29 (internal citations omitted). That finding remains true today. Named plaintiffs Larry and Tanya
Anderson found ash “scattered” all over their property. ECF No. 125-23. The ash had a “metallic
feel” and was “real [sic] easy to crumble.” Id. Beverly Flannel breathed acrid air that burned her
eyes and smelled “like mixtures of different kinds of chemicals” for four days after the fires at the
Crosby facility. Id. Roland Flannel’s car was covered with soot, his garage roof was “black” from
fallout, and he found “mushy black” sludge in his flower beds. Id. Corey Prantil discovered ash
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throughout his yard and pastures, and the contaminated air gave him an instant headache and made
his nose and eyes burn. Id. Betty Whatley saw “large amounts” of flaky ash entering her yard, and
her husband Ronald’s hay was “covered up with some kind of chemical.” Id. In conjunction with
expert opinions regarding the harmful nature of the chemicals released during the Arkema
Incident, these facts satisfy the injury requirement of standing. 27 The named plaintiffs have been
exposed to harmful contaminants that beget harmful health effects.
The Court also stands by its ruling that Plaintiffs have demonstrated sufficient causation
for standing purposes. As the Court stated in its previous order:
Dr. Kaltofen conducted extensive comparisons between ash and particulates found
on-site at the Arkema facility and off-site throughout the class area. [ECF No. 1256 at 8, 11, 13-15, 18.] He traced all the identified chemicals to either the organic
peroxides, the refrigerated trailers, or chemicals produced by the decomposition of
other chemicals known to be at the facility at the time of the explosions. [ECF No.
125-6 at 4-5, 8, 13-15, 18.] The instrumental analysis indicated that the same
elements were present in ash samples collected both at the facility and off-site
throughout the class area, suggesting that they derived from the same source. [ECF
No. 125-6 at 10-11.]
ECF No. 169 at 29. This work, in conjunction with Dr. Kaltofen’s additional efforts to compare
Plaintiffs’ samples to relevant background studies, supports the Court’s finding that Arkema
caused the injury here.
As for redressability, both of Plaintiffs’ requested injunctions pass muster. Plaintiffs’
proposed property remediation program will clean up properties in the class area, reducing
exposure to harmful contamination for all class members. Plaintiffs’ proposed medical
surveillance program, meanwhile, will inform class members about heightened health risks,
27
Importantly, as discussed in more detail below, the injury is not just the physical deposition of
contamination on Plaintiffs’ properties; it is the exposure to contamination that they suffered as a
result of that deposition, as well as the exposure that results from the deposition on other properties
in the class area.
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allowing them to take preventative action and seek early diagnosis and treatment. Both programs,
then, will mitigate the risks imposed by exposure to the contamination from the Arkema Incident.
The Court therefore finds that Plaintiffs have standing to request property remediation and medical
surveillance injunctions.
Before moving on, the Court also addresses Arkema’s position on “absent” class members.
Arkema argues that “the available evidence demonstrates that the proposed class contains far, far
more than a de minimis number of unharmed members who lack Article III standing.” ECF No.
285 at 16. But “ ‘standing doctrine is primarily concerned with ensuring that a real case or
controversy exists.’ ” Earl v. Boeing Co., 339 F.R.D. 391, 412 (E.D. Tex. 2021) (quoting 1 William
B. Rubenstein, Newberg on Class Actions § 2:3 (5th ed.)). Rule 23, meanwhile, “is ‘designed
precisely to address concerns about the relationship between the class representative and the class,’
making [it] the ‘more appropriate tool’ to assess standing issues related to absent class members
at class certification.” Id. (quoting 1 William B. Rubenstein, Newberg on Class Actions § 2:3 (5th
ed.)). Here, Arkema improperly attempts to “collapse the standing inquiry into the class
certification inquiry.” Fort Worth Emps.’ Ret. Fund v. J.P. Morgan Chase & Co., 862 F. Supp. 2d
322, 333 (S.D.N.Y. 2012). “[T]he standing of the named plaintiffs, and not that of the absent class
members, is implicated at class certification.” Earl, 339 F.R.D. at 414; see Hossfeld v. Allstate Ins.
Co., 2021 WL 4819498, at *3 (N.D. Ill. Oct. 15, 2021) (recognizing that TransUnion did not decide
whether every class member must demonstrate standing before certification). 28 Writ large, then,
the Court finds that Plaintiffs have demonstrated standing for both of their requested injunctions.
28
In the alternative, the Court also finds that Plaintiffs have demonstrated sufficient harm to
unnamed class members to satisfy Arkema’s proposed inquiry. As discussed in the coming
sections, the combination of Plaintiffs’ sampling efforts, Dr. Auberle’s dispersion model, Dr.
Kaltofen’s opinions on dioxins in the class area, and the numerous expert opinions on mobilization
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2. Plaintiffs’ Proposed Property Remediation Injunction
Plaintiffs first seek an injunction to establish “a site characterization and remediation
program.” ECF No. 264-1 at 10. Plaintiffs request “uniform testing of the Class Area . . . to restore
appropriate properties [and] ensure that recontamination through migration does not occur.” Id.
Plaintiffs state that “[t]he proposed cleanup goals are to remediate to a carcinogenic risk of one in
a million or 1E-6 and a noncarcinogenic hazard quotient of 1, consistent with USEPA guidance
for CERCLA.” Id. Plaintiffs suggest that this can be achieved for soil “by aligning the cleanup
goal with the USEPA [RSL] for Dioxin and Dioxin-like compounds of 4.8 pg/g.” Id. at 10–11.
Plaintiffs originally proposed a target of “12.149 pg/ft2 for wipe samples” for interior spaces,
which was based on World Trade Center benchmarks. Id. at 11. However, in light of expert
testimony indicating that such a low level is not practically attainable, Plaintiffs now propose using
20 pg/ft2 for interiors. See ECF No. 231-2 at 21; see ECF No. 303 at 34:9-17. Plaintiffs suggest
that after every property is tested, only those properties with contamination in excess of these
levels will be physically remediated. Id. For soil, Plaintiffs request “topsoil replacement and home
dust removal techniques” with off-site disposal to facilitate complete removal of the Arkema
contaminants. Id. at 11–12. Fill material will be used to restore any excavated areas. Id. at 12.
Interior cleaning techniques will use specialized equipment and include “attic insulation
replacement, attic cleaning, intensive cleaning of living spaces and floors, carpet cleaning,
furniture cleaning and HVAC duct cleaning.” Id. Plaintiffs request that occupants and pets be
relocated while this work is occurring. Id.
and resuspension indicate that the lion’s share of class members in this case have suffered an injury
traceable to Arkema.
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i. Prior rulings
Previously, the Court certified Plaintiffs’ proposed Rule 23(b)(2) class to pursue a property
remediation injunction. ECF No. 169 at 27–28. The Court stated that “Plaintiffs’ allegations stem
from a single course of conduct by [Arkema] that Plaintiffs argue negligently allowed the chemical
exposure to occur.” Id. at 27. The Court wrote that “remediation is better suited to class-wide
resolution than to individual trials,” as “[i]ndividual clean-up attempts would be ineffectual,
because landowners could still be exposed as they move throughout the class area.” Id. The Court
therefore reasoned that “a remediation program can be applied class-wide—perhaps one that
orders testing of Plaintiffs’ properties and cleanup of contaminants, as described in [Mr.] Glass’s
expert report.” Id.
The Fifth Circuit took issue with the Court’s analysis because it did “not satisfy the
requirement that injunctive relief be reasonably specific.” Prantil, 986 F.3d at 581. “[M]ore is
needed than a common failure by the defendant and the prospect that all class members could
realize some benefit if the defendant is compelled to act or desist.” Id. “ ‘Rule 23(b)(2) does not
require that every jot and tittle of injunctive relief be spelled out at the class certification stage,’
but some ‘reasonable detail’ as to the ‘acts required’ is necessary.” Id. (quoting Yates v. Collier,
868 F.3d 354, 368 (5th Cir. 2017)) (cleaned up). Still, the Fifth Circuit recognized that “[t]he
current record does not compel the conclusion that Plaintiffs’ medical and property injuries are
incapable of being addressed by classwide injunctions. For instance, it is not necessarily fatal to a
uniform scheme of property remediation that certain properties may contain higher concentrations
of contaminants than others, provided Plaintiffs can identify a common method of remediation and
some reasonable standard by which remediation might be assessed.” Id. at 582. The Fifth Circuit
therefore asked the Court to “evaluat[e] the particulars of each injunction on remand . . . [and]
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arrive at a nuanced assessment of whether Plaintiffs’ claims for relief can be effectively addressed
in a class action.” Id.
ii. Whether class members have been harmed in essentially the same way
Certification under Rule 23(b)(2) “centers on the defendants’ alleged unlawful conduct,
not on individual injury.” In re Rodriguez, 695 F.3d 360, 365 (5th Cir. 2012) (citing In re
Monumental Life Ins. Co., 365 F.3d 408, 415 (5th Cir. 2004)); see Adamson v. Bowen, 855 F.2d
668, 676 (10th Cir. 1988) (emphasizing that although “the claims of individual class members may
differ factually,” Rule 23(b)(2) is a proper vehicle for challenging “a common policy”). Thus, Rule
23(b)(2) does not demand that the defendant’s conduct “uniformly affect[]—and injur[e]—each
[class member].” M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832, 847 (5th Cir. 2012). To that end,
the Fifth Circuit has cited with approval the Advisory Committee’s position that “[a]ction or
inaction is directed to a class within the meaning of [Rule 23(b)(2)] even if it has taken effect or is
threatened only as to one or a few members of the class, provided it is based on grounds which
have general application to the class.” Id. at 848 (quoting FED. R. CIV. P. 23(b)(2) 1966
Amendment Advisory Committee Note); see 7A Charles Alan Wright, Arthur R. Miller & Mary
Kay Kane, Federal Practice & Procedure § 1775 (2d ed. 1986) (“All the class members need not
be aggrieved by or desire to challenge the defendant’s conduct in order for some of them to seek
relief under Rule 23(b)(2).”).
The Court previously wrote that “Plaintiffs’ allegations stem from a single course of
conduct by [Arkema] that Plaintiffs argue negligently allowed the chemical exposure to occur.”
ECF No. 169 at 27. That has not changed. Plaintiffs’ allegations center on Arkema’s approach to
Hurricane Harvey and the ramifications of that conduct. Because Arkema’s behavior in the leadup
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to Hurricane Harvey is common to all class members, Arkema has acted on grounds that apply to
the entire class. See Prantil, 986 F.3d at 582 (“[T]here is stronger evidence [here, as compared to
Stukenberg,] that through its response to a specific event, Hurricane Harvey, Arkema ‘acted or
refused to act on grounds that apply generally to the class.’ ”); see also Guenther v. BP Ret.
Accumulation Plan, 2021 WL 1216377, at *9 (S.D. Tex. Mar. 12, 2021), report and
recommendation adopted, 2021 WL 1215851 (S.D. Tex. Mar. 31, 2021) (certifying a class where
the alleged harm “flow[ed] from company-wide representations made to Sohio heritage plan
participants”). These facts militate in favor of granting Rule 23(b)(2) certification.
Still, the Court cannot certify a 23(b)(2) class if “only a negligible proportion of proposed
class members [are] properly seeking injunctive relief[.]” Monumental Life, 365 F.3d at 416 (citing
Bolin v. Sears Roebuck & Co., 231 F.3d 970 (5th Cir. 2000)). The Fifth Circuit has determined
that “forty percent of the class benefiting from an injunction is not sufficient to certify under
(b)(2).” Casa Orlando Apartments, Ltd. v. Fed. Nat. Mortg. Ass’n, 624 F.3d 185, 200 (5th Cir.
2010). “Rule 23(b)(2) certification is also inappropriate when the majority of the class does not
face future harm.” Maldonado, 493 F.3d at 525. Here, Arkema contests that all class members
have not been exposed to the same contaminants in the same amounts, nor have all class members
been put at risk of harm absent mitigation. 29
29
A hypothetical throws this concern into sharp relief. Imagine if Arkema’s emissions had been
confined to a ball of ash that fell onto a single property. If the ball of ash remained confined to that
property, the Court could not conclude that Arkema’s conduct harmed people across a 154-mile
area in essentially the same way. Logically, then, Plaintiffs must present some class-wide evidence
of contamination to show that members were harmed in the same way. See Monumental Life, 365
F.3d at 416 (certifying an injunctive class when “between one million and 4.5 million of 5.6 million
issued policies remain in-force” because “the proportion is sufficient, absent contrary evidence
from defendants, that the class as a whole is deemed properly to be seeking injunctive relief”).
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Arkema does have some solid evidence to support its position. Plaintiffs’ sampling
program covered just 0.23% of the class area. See ECF No. 285-3 (Exhibit 25) at 23 (“[T]here is
no evidence that can properly be extrapolated to the proposed class area since plaintiffs only
sampled properties accounting for 0.23% of the total class area.”). Some of Plaintiffs’ samples
exceeded the mean dioxin levels from Dr. Kaltofen’s background studies, but few exceeded the
maximum levels from those studies. The mean of Plaintiffs’ samples also falls below the means
from the background studies, leading Arkema’s experts to conclude that there is no evidence of
elevated dioxins from the Arkema Incident. See ECF No. 285-3 (Exhibit 23) at 13 (reasoning that
“[t]he available data provides no evidence for any area wide dioxin impact from the Arkema
events” because “soils within the proposed Class Area were not measurably impacted by dioxins
from the Arkema events”). Thus, Plaintiffs’ samples do not conclusively indicate that the Arkema
Incident exposed most class members to heightened levels of dioxins immediately following the
explosions.
Still, properly conceptualizing the harm here permits the Court to find that class members
were harmed in essentially the same way. Plaintiffs write that “all Class members benefit from
(1) site characterization performed on a class-wide basis; (2) having remedial measures available
if needed; and (3) having harmful toxicants cleaned up around the neighborhood where they live,
work and travel every day.” ECF No. 290 at 23. This understanding of the benefits of remediation
indicates that even those class members whose properties do not require physical decontamination
have still been harmed by the Incident. As class members move through the class area, and as
contaminants from the Incident mobilize and resuspend, those individuals are exposed to
contaminants that were not originally deposited on their properties. The alleged harm here is not
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the immediate physical contamination of a select number of properties; it is exposure to
contamination across the class area for all class members.
Plaintiffs also present evidence to support this conceptualization of harm. For example, Dr.
Kaltofen opines that class members as a group have been subjected to excessive amounts of dioxins
based on Plaintiffs’ samples, a comparison of chemicals at the Crosby facility with the
contaminants found off-site, a physical analysis of the chunks of ash and debris found on properties
after the Incident, and models of distribution from Trinity Consultants. ECF No. 125-6 at 4–18,
ECF No. 231-3 at 7–13. Dr. Kaltofen provides a scientific basis for his position that wind and
water are moving contamination around the class area. ECF No. 261-1 at 33. Furthermore, there
is evidence in the record to demonstrate that class members move through the area. 30 See e.g., ECF
No. 125-24 at 138:10–139:19. Additionally, Dr. Kaltofen extrapolates from interior samples to
conclude that dioxins have already begun to concentrate in certain homes. 31 ECF No. 254-3 at 5.
Plus, the record indicates that contaminants from the Incident are toxic and can catalyze health
effects. See ECF No. 267-2 (Exhibit C) at 6 (noting that “[t]he finding of TCDD deposited in the
soils described by Dr. Kaltofen and the report of Shannon Thompson that quantified the other
exposures to TCDD demonstrate that the carcinogenic material was released and is available for
the population to encounter”); see id. at 8 (recognizing that many studies have shown “the
30
Arkema’s Reply directs the Court to the Fifth Circuit’s holding in Prantil that “[a]n assumption
about the movement of persons throughout the class area” is insufficient; “scientific evidence
supporting the conclusion that the movements of class members could result in exposure sufficient
to cause cognizable harm” is required. 986 F.3d at 579 (emphasis added). Here, the Court finds
that contamination on one property poses a risk to other class members based on evidence
concerning class member movement and scientific evidence about the resuspension and
concentration of persistent contaminants like dioxins.
31
A vacuum bag sample taken in the immediate aftermath of the fires, though heavily disputed by
Arkema, further indicates that contamination from outside areas has been tracked into indoor areas
where it can concentrate over time. ECF No. 282-4 (Thompson Deposition) at 108:22–109:3.
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likelihood of Dioxins and Dioxin-like compounds producing cancer in test animals and humans,”
and highlighting “[t]here is adequate data in the scientific reports of the USEPA cited in the EPA
Integrated Risk Information System (IRIS) reporting system demonstrating the relationship of
exposure to TCDD and cancers”). In addition, Plaintiffs’ air modeling expert found that the plume
from the Incident covered a large portion of the class area, and that “[a] seven-mile . . . radius from
the Arkema facility includes a reasonable area for defining the persons and properties most
impacted by particulate matter from the three principal Arkema events.” ECF No. 231-1 at ¶ 5.6.
Based on this collection of evidence, the Court finds that Plaintiffs have demonstrated that
sufficient class members have been harmed by the Arkema Incident in essentially the same way.
Plaintiffs have shown that Arkema acted on grounds that apply to the entire class, and that
far more than a “negligible proportion of proposed class members [are] properly seeking injunctive
relief[.]” Monumental Life, 365 F.3d at 416. Here, properly conceptualizing the harm to class
members as health-based exposure rather than property-based contamination permits the
conclusion that Plaintiffs have demonstrated that class members have been harmed in essentially
the same way.
iii. Cohesion
Class cohesion is closely related to the idea that class members were harmed in essentially
the same way. Cohesion requires that an injunctive class be so homogenous that few “conflicting
interests” exist between class members. Allison, 151 F.3d at 413. Cohesion is necessary so that the
injunctive remedy might be “indivisible,” as the defendant’s conduct “can be enjoined or declared
unlawful only as to all of the class members or as to none of them.” Dukes, 564 U.S. at 360.
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Arkema spills a great deal of ink contending that individualized issues relating to exposure, injury,
and causation destroy cohesion in this case.
On exposure, Arkema notes that Plaintiffs have not conducted representative sampling of
the class area. ECF No. 285 at 22. Of this, there can be no doubt. Plaintiffs took 75% of their
samples within two miles of the Crosby facility, 7% of their samples from between four and seven
miles of the facility, and nearly all their samples south and west of the facility. Id. The air models
in this case do not fully cure this issue. Mr. Auberle’s model suggests that 48% of the class area
was initially affected by particulate matter. Id. at 23. The ambient air model from Trinity
Consultants, meanwhile, does not address where particulates were ultimately deposited. Id. at 24.
In Arkema’s eyes, then, Plaintiffs cannot offer “a shred of evidence . . . to determine on a classwide basis whether members of the proposed class or their properties were exposed to dioxins.”
Id. at 25–26. Arkema views this as strike one against cohesion, arguing that it is difficult to
determine that class members have been similarly exposed.
On injury, Arkema contends that Plaintiffs “fail[] to put forward common evidence that
could be used to prove injury or substantial risk of future injury on a class-wide basis.” ECF No.
285 at 26. Arkema says that Plaintiffs’ experts agree that “additional sampling and the performance
of a robust human-health risk assessment would be required to determine whether and to what
extent any harm or risk of harm exists for any property or individual in the putative class.” Id. at 3
(citing ECF No. 285-1 (Exhibit 4) at 45:23–46:5). Arkema also argues that Plaintiffs’ sampling
provides “no evidence of harm that could support a class-wide determination of injury.” Id. at 27.
In addition, Arkema takes issue with Plaintiffs’ conservative remediation levels. Id. at 28–29. And
Arkema suggests that the very nature of Plaintiffs’ injunctive relief—namely, site characterization
followed by physical remediation where necessary—indicates that there is no way to tell on a
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class-wide basis which properties were affected by the Incident. Arkema views this as strike two
against cohesion, arguing that it is difficult to determine that class members have been similarly
injured.
On causation, Arkema contends that Plaintiffs cannot substantiate the proposition that
individuals throughout the class area were injured by dioxins because Dr. Kaltofen’s opinions are
unreliable. Arkema also notes that because dioxins are released from many different sources and
activities in the class area—i.e., exhaust from vehicles and locomotives, urban emissions, structure
fires, trash burning, and barbeque restaurants—Plaintiffs cannot link elevated levels of dioxins to
the Arkema Incident. Arkema views this as strike three against cohesion, arguing that it is difficult
to determine that the Arkema Incident is the root cause of the class members’ injuries.
Generally, however, Arkema is barking up the wrong tree on the issue of cohesion. The
critical predicate of an injunctive class is common behavior by the defendant toward the class, not
common effects on the class. See Yates, 868 F.3d at 366 (“It is well-established that ‘[i]nstead of
requiring common issues, [Rule] 23(b)(2) requires common behavior by the defendant toward the
class.’ ”); see 2 William Rubenstein, et al., Newberg on Class Actions § 4:28 (5th ed.) (“While the
Rule looks for grounds that ‘apply generally’ to the class, it is well-settled that the defendant’s
conduct described in the complaint need not be directed or damaging to every member of the
class.”). Nonetheless, Arkema’s arguments here are primarily directed toward individual
differences in the class. Indeed, Arkema puts forth these arguments to attack cohesiveness under
Rule 23(b)(2) and predominance under Rule 23(b)(3). Such a “dogged focus on the factual
differences among the class members appears to demonstrate a fundamental misunderstanding of
[Rule 23(b)(2)].” Walters v. Reno, 145 F.3d 1032, 1047 (9th Cir. 1998). This is not a case where
each individual class member requires a different injunction. The fact that physical remediation
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might differ depending on the results of site characterization does not turn a single injunction into
a series of individualized ones. All class members seek unified relief in the form of reduced
contamination in the class area. That Arkema might have to go property by property to facilitate
that relief does not change the fact that the relief is directed toward alleviating class-wide exposure.
See also ECF No. 284-4 40:22–41:7 (“This is an area of concern because people may be going
through this working, living and they will pick up the exposure through injection, inhalation,
depending on particle size. It can get on food, be in the dust, breathe it in. They may actually get
into the water supply if it’s surface water supply and they’re using it for something. That is
exposure. That is a toxicological concern.”). The Court therefore concludes that the individualized
issues identified by Arkema do not defeat cohesion here.
Arkema’s citations to caselaw are also unavailing. Arkema directs the Court to M.D. ex.
Rel. Stukenberg v. Perry, 675 F.3d 832 (5th Cir. 2012). In that case, the plaintiffs sought
certification to address injuries resulting from systemic deficiencies in Texas’s administration of
the Permanent Managing Conservatorship. Id. at 835. The district court certified the class and
approved the plaintiffs’ request for a formation of “special expert panel[s]” to review individual
cases and “implement appropriate remedial steps.” Id. at 847. The Fifth Circuit, however, took
issue with this tack. The Fifth Circuit held that this relief improperly entitled individual class
members to different injunctions. Id. Consequently, the Fifth Circuit determined “that the
requested individual relief implicitly establishes that at least some of the proposed class’s
underlying claims allege individual injuries that are not uniform across the class; thus, as currently
pleaded, the proposed class lacks cohesiveness to proceed as a 23(b)(2) class.” Id. In Prantil,
however, the Fifth Circuit stated: “We do not agree with Arkema that our decision in [Stukenberg]
necessarily precludes all forms of injunctive relief for the proposed class.” 986 F.3d at 581. After
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all, in this case “there is stronger evidence that through its response to a specific event, Hurricane
Harvey, Arkema ‘acted or refused to act on grounds that apply generally to the class.’ ” Id. at 582.
The Court agrees. The evidence of Arkema’s response to Hurricane Harvey indicates that it “acted
or refused to act on grounds that apply generally to the class.” FED. R. CIV. P. 23(b)(2). And unlike
in Stukenberg, Plaintiffs’ requested relief does not require individually tailored injunctions; the
class-wide injunction will ultimately limit class-wide exposure to contamination. 32 The cut and
thrust of the evidence on mobilization, resuspension, concentration, and class member movement
in the record is that without remediation efforts, all class members will remain at risk. Stukenberg
therefore does not compel a result for Arkema.
On appeal, the Fifth Circuit implied that the record in this case could support a finding that
the class was cohesive. See Prantil, 986 F.3d at 582 (“The current record does not compel the
conclusion that Plaintiffs’ medical and property injuries are incapable of being addressed by
32
Arkema also points the Court to Ebert v. General Mills, Inc., 823 F.3d 472 (8th Cir. 2016).
There, the Eighth Circuit reversed a district court’s grant of class certification in an environmental
contamination lawsuit. Id. at 475. The plaintiffs owned residential properties in a neighborhood
that was allegedly contaminated by General Mills. Id. The Eighth Circuit ultimately held that the
plaintiffs could not show cohesion under Rule 23(b)(2) because myriad individualized
considerations affected the determination of liability. Id. at 481. The Eighth Circuit also concluded
that remediation efforts would have to be unique for each class member, which was “most easily
exemplified by the fact that some class members (and all of the named plaintiffs) have received
customized VMS systems and some have not, [and] some tested properties evidenced the existence
of TCE soil vapors at widely varying levels and some did not.” Id. But Ebert is distinguishable.
Here, while there are varying levels of contamination in the class, the Fifth Circuit stated in Prantil
that “it is not necessarily fatal to a uniform scheme of property remediation that certain properties
may contain higher concentrations of contaminants than others, provided Plaintiffs can identify a
common method of remediation and some reasonable standard by which remediation might be
assessed.” 986 F.3d at 582. Plaintiffs have identified common methods of remediation for exterior
and interior spaces, as well as common standards for remediation. Plaintiffs’ remediation proposal
calls for the same kind of cleanup—excavation and off-site disposal for exteriors, and a multi-step
cleaning process for interiors—for properties with contamination that exceeds certain levels.
Unlike in Ebert, then, different injunctions are not required for every class member.
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classwide injunctions.”). On remand, the Court finds that the putative class is sufficiently cohesive
such that members’ injuries can be addressed by a class-wide injunction. By focusing on Arkema’s
conduct, conceptualizing their harm as one of class-wide exposure, and presenting evidence to
support that conceptualization, Plaintiffs have shown that the class is sufficiently cohesive.
iv. Whether injunctive relief predominates over monetary demands
Arkema also argues that Plaintiffs’ bid for certification comes up short here because
injunctive relief does not predominate over monetary demands. The Court disagrees.
“[I]ndividualized monetary claims belong in Rule 23(b)(3),” not in Rule 23(b)(2). Dukes,
564 U.S. at 362. Thus, “a remedy requiring Defendants to do nothing more than write a check”
cannot “properly be viewed as an injunction.” Barraza v. C. R. Bard Inc., 322 F.R.D. 369, 387 (D.
Ariz. 2017). Some courts have determined that “an injunction that requires a defendant to remedy
the [alleged] harm that the defendant’s past actions have [allegedly] caused is an injunction in
name only—i.e., it is the functional equivalent of ordering compensatory damages, which means
that such an ‘injunction’ is not properly viewed as injunctive relief at all.” Miller v. D.C. Water &
Sewer Auth., 2018 WL 4762261, at *10 (D.D.C. Oct. 2, 2018) (Jackson, J.). Notwithstanding
Miller, however, the Supreme Court stated in Meghrig that, “[u]nder a plain reading of [RCRA’s]
remedial scheme, a private citizen suing under § 6972(a)(1)(B) could seek a mandatory injunction,
i.e., one that orders a responsible party to ‘take action’ by attending to the cleanup and proper
disposal of toxic waste, or a prohibitory injunction, i.e., one that ‘restrains’ a responsible party
from further violating RCRA.” 516 U.S. at 484.
Here, Plaintiffs’ requested injunction would order Arkema to take action by attending to
the cleanup and proper disposal of its toxic waste products. That fits squarely within the confines
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of the injunctive relief contemplated in Meghrig. In addition, other courts have determined that a
clean-up order is injunctive if contamination presents an imminent and ongoing threat. See LAJIM,
LLC v. Gen. Elec. Co., 2016 WL 5792677, at *3 (N.D. Ill. Oct. 4, 2016) (holding that under RCRA,
“once a court finds that the plaintiff has met the requirements of a citizen suit and the suit is not
barred, a court has the power to stop further contamination as well as to remediate past
contamination”). 33 The evidence in the record shows that the contamination in the class area is
sufficiently persistent and harmful such that it poses a substantial and ongoing threat to human
health. As a result, contaminants from the Arkema Incident pose a risk to all putative class
members, not just those whose properties are presently contaminated. Compensating individual
property owners for the cost of physical remediation would not remedy the class-wide harm.
Individual property owners might be made whole, but the class would not be brought back to
baseline. As a result, the Court finds that injunctive relief predominates in Plaintiffs’ remediation
injunction. Plaintiffs’ requested relief cannot be replicated with a check.
33
See e.g., Mavigliano v. McDowell, 1995 WL 704391, at *5–6 (N.D. Ill. Nov. 28, 1995) (holding
that the plaintiff’s request for an order to force the defendants to remediate the site was a prayer
for injunctive relief), Express Car Wash Corp. v. Irinaga Bros., 967 F. Supp. 1188, 1192 (D. Or.
1997) (noting that “a plaintiff facing an imminent threat from hazardous waste, when no
remediation has yet taken place, clearly can sue under RCRA for an injunction to force appropriate
parties to clean up the contamination”), Furrer v. Brown, 62 F.3d 1092, 1097 (8th Cir. 1995)
(reasoning that RCRA “authorizes injunctive relief, whether prohibitory (to stop generating
hazardous waste) or mandatory (to comply with permits or regulations or to clean up hazardous
waste)”), Potomac Riverkeeper, Inc. v. Nat’l Cap. Skeet & Trap Club, Inc., 388 F. Supp. 2d 582,
589 (D. Md. 2005) (concluding that a claim based on the existing “presence of lead shot that may
be currently creating an imminent and substantial endangerment” that requests remediation “is
prospective”), Connecticut Coastal Fishermen’s Association v. Remington Arms Co., 989 F.2d
1305, 1312 (2nd Cir. 1993) (determining that under RCRA, “the endangerment must be ongoing,
but the conduct that created the endangerment need not be”), Comm. to Save Mokelumne River v.
East Bay Mun. Util. Dist., 13 F.3d 305, 309 (9th Cir. 1993) (holding that an order requiring
remediation to remove and dispose of previously deposited sediment is prospective).
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v.
Whether the injunctive relief sought is reasonably specific
Finally, Arkema contends that Plaintiffs’ remediation injunction is insufficiently specific.
On appeal, the Fifth Circuit held that the Court’s prior order “leaves us uncertain as to how the
extent of necessary property remediation can be determined, and whether a responsive injunction
can be fashioned to account for Arkema’s past remediation efforts.” Prantil, 986 F.3d at 582. The
Fifth Circuit also noted that while “it is not necessarily fatal to a uniform scheme of property
remediation that certain properties may contain higher concentrations of contaminants than
others,” Plaintiffs needed to “identify a common method of remediation and some reasonable
standard by which remediation might be assessed.” Id. Plaintiffs have solved these issues on
remand.
Mr. Glass fills in the blanks identified by the Fifth Circuit. Mr. Glass suggests that the
injunction should mirror a typical CERCLA remediation proceeding, running from (1) Preliminary
Assessment, to (2) Remedial Investigation/Feasibility Study (Site characterization), to (3) Remedy
Decision, to (4) Remedial Design/Remedial Action, to (5) Construction Completion, to (6) Post
Construction Completion, and finally to (7) Site Reuse/Redevelopment. ECF No. 265-2 (Exhibit
C) at 21. Mr. Glass proposes cleanup goals for remediation: 4.8 pg/g for dioxin and dioxin-like
compounds in exterior soil and 20 pg/ft2 for interior spaces. Id. at 21–25. He also proposes the
form for remediation: excavation and retrieval with off-site disposal for soils, and a multi-step
cleaning process focused on attic insulation replacement, attic cleaning, intensive cleaning of
living spaces and floors, carpet cleaning, furniture cleaning and HVAC duct cleaning. Id.; ECF
No. 264-1 at 12.
These details meet the specificity requirement of Rule 23(b)(2). “ ‘Rule 23(b)(2) does not
require that every jot and tittle of injunctive relief be spelled out at the class certification stage,’
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but some ‘reasonable detail’ as to the ‘acts required’ is necessary.” Prantil, 986 F.3d at 581
(quoting Yates, 868 F.3d at 368) (cleaned up). Through Mr. Glass, Plaintiffs provide reasonable
detail as to the acts required of Arkema. At this stage, Plaintiffs need not set out which sample
they are going to take on which day. What’s more, while Arkema might disagree with Plaintiffs’
proposed remediation levels, Plaintiffs have specified reasonable standards by which remediation
might be assessed. Those standards are rooted in carcinogenic risk factors. See ECF No. 264-1 at
10–11. Other states have used those standards as remediation goals. See ECF No. 231-5 at 24
(noting that the California Department of Toxic Substances Human and Ecological Risk Office
uses the RSL of 4.8 pg/g for remediating certain residential soils that have been contaminated with
dioxins). And these standards can evolve over time. Plaintiffs are not locked into the standards that
they suggest today. In Yates, the Fifth Circuit affirmed this Court’s certification order even though
it “did not specify the precise temperature” that needed to be reached to alleviate the harm to the
plaintiffs. 868 F.3d at 368. That requested injunction contained sufficient “meaningful content”
and “guidance.” Id. So too here. Plaintiffs have “ ‘give[n] content’ to the injunctive relief they seek
‘so that final injunctive relief may be crafted to describe in reasonable detail the acts required.’ ”
Yates, 868 F.3d at 367 (quoting Perry, 675 F.3d at 848 (cleaned up)). 34
34
Arkema does not devote much space to arguing that Plaintiffs’ proposal fails to account for
Arkema’s past remediation efforts. ECF No. 285 at 50–51. With good reason. Arkema has
remediated just nine properties out of more than 10,000 in the class area. ECF No 264-1 at 16–17.
Arkema can hardly preclude certification with such de minimis efforts. What’s more, the letter
attached to Arkema’s Response indicates that its efforts were directed toward contamination from
the wastewater spills. ECF No. 285-3 (Exhibit 36) at 1–2. There is no mention of contamination
from smoke and ash. There is no mention of dioxins. And there is no mention of the contamination
levels that Arkema targeted. As such, Plaintiffs’ failure to explicitly exclude the small number of
properties that Arkema “remediated” does not preclude their request for an injunction.
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vi.
Summary
Overall, the Court finds that, with respect to the property remediation injunction, Plaintiffs
have shown: (1) class members were harmed in essentially the same way (and the class is
sufficiently cohesive); (2) injunctive relief predominates over monetary damage claims; and (3)
the injunctive relief sought is specific. In deciding whether to certify a class, the Court cannot shy
away from delving into the merits of the ultimate case. But Rule 23 is fundamentally procedural
in nature. It does not demand that the Court try the case or undertake a summary judgment style
review. Arkema will have the opportunity to contest Plaintiffs’ case on the merits. But the Court
will not transform certification into trial. Based on the evidence currently in the record, the Court
finds that certification of Plaintiffs’ requested Rule 23(b)(2) injunctive-relief class for property
remediation is warranted. The Court therefore CERTIFIES a class defined as “all residents and
real property owners located within a 7-mile radius of the Crosby, Texas, Arkema Chemical Plant”
under Rule 23(b)(2) to pursue the property remediation relief outlined in Plaintiffs’ papers.
3. Plaintiffs’ Proposed Medical Surveillance Injunction
Plaintiffs also request certification of an injunctive-relief class for medical surveillance.
Plaintiffs imagine that surveillance “will consist of a flexible, court-administered program that will
study and assess the likely associated risks to human health posed by the Arkema release.” ECF
No. 264-1 at 13. Plaintiffs say that the program “will develop a recurring health survey to look for
disease development” by engaging “an experienced epidemiologist.” Id. Plaintiffs do not provide
details as to the precise contents of the survey, but suggest that it should:
look at pulmonary events that developed or worsened at the time of or subsequent
to the event; study cancers with analysis focused on those developed subsequent to
the event, including cancers accepted by the National Science Foundation and
Veterans’ Administration as related to Agent Orange, a similar substance to dioxins
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released here; [and] study health conditions associated with dioxin and dioxin-like
chemical exposures, such as AL amyloidosis, chloracne, Type 2 diabetes,
hypothyroidism, ischemic heart disease, Parkinson’s disease, [and] early onset
peripheral neuropathy, among others[.]
Id. (citing ECF No. 264-21 at 5). Plaintiffs also argue that the study “should conduct pulmonary
testing and test[] blood for elevated dioxin and dioxin-like substance levels.” Id. at 14. Plaintiffs
add that the program should “develop an educational component which will distribute information
to the impacted community to aid Class members.” Id. Plaintiffs assert that this information should
“include the nature of the historic and current exposure, the risk of disease from these exposures,
and signs and symptoms that may suggest the onset of one of the diseases associated with
chemicals known to have been released.” Id. Plaintiffs request that the program “advise the
community on not only understanding the risk but also in providing specific information on how
to decrease exposure, and activities that may increase their risk.” Id.
i. Prior rulings
Previously, the Court certified Plaintiffs’ requested class seeking an injunction for medical
monitoring. ECF No. 169 at 27–28. The Court determined that Plaintiffs’ allegations stemmed
from a single course of conduct by Arkema. Id. at 27. The Court also reasoned that “[a]lthough
experts could not predict the cumulative effects of exposure to the different chemicals identified
by Plaintiffs, it is certain that the health risks are severe.” Id. After all, if Plaintiffs’ allegations are
true, they “need to be repeatedly tested for health effects so that cancer or other diseases may be
caught early and treated.” Id. The Court recognized that “early detection and treatment will benefit
the class as a whole, as a more complete understanding of the potential consequences of exposure
is attained and treatment plans are put into place.” Id. at 27–28. The Court also rejected Arkema’s
position that “different chemicals and levels of exposure would require separate, specifically
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tailored injunctions,” as “[r]egardless of individual differences in the concentrations and types of
chemicals found on their properties, Plaintiffs all face exposure and the concomitant health risks,
the effects of which can be mitigated by a medical surveillance program.” Id. at 28. Finally, the
Court acknowledged that “people often leave their homes, and if the putative class members do so
here, they are potentially exposed to additional chemicals beyond just those found on their
properties.” Id.
As with the Court’s order on property remediation, the Fifth Circuit took issue with this
discussion of the injunction in “broad strokes,” because it did not “satisfy the requirement that
injunctive relief be reasonably specific. Prantil, 986 F.3d at 581. The Fifth Circuit noted that there
“is some uncertainty as to what symptoms or conditions will be medically monitored for all class
members,” and “whether individual health considerations need to be addressed for relief to be
adequate.” Id. at 582. Still, the Fifth Circuit said that “[t]he current record does not compel the
conclusion that Plaintiffs’ medical . . . injuries are incapable of being addressed by classwide
injunctions.” Id. Thus, the Fifth Circuit concluded that the Court must “evaluat[e] the particulars
of each injunction on remand . . . [to] arrive at a nuanced assessment of whether Plaintiffs’ claims
for relief can be effective addressed in a class action.” Id.
ii. Whether class members have been harmed in essentially the same way
Arkema contends that Plaintiffs’ request for medical surveillance fails because class
members have not been harmed in essentially the same way. 35 Many of the arguments here mirror
35
Arkema also submits that medical surveillance is unavailable under RCRA. But RCRA provides
an expansive grant of authority: “The district court shall have jurisdiction . . . to restrain any person
who has contributed to or who is contributing to the past or present handling, storage, treatment,
transportation, or disposal of any solid or hazardous waste . . . to order such person to take such
other action as may be necessary, or both[.]” 42 U.S.C. § 6972(a)(2) (emphasis added). And
contrary to Arkema’s assertions, other courts have found medical monitoring a theoretically
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those addressed above in the section on the property remediation injunction. And as with the
property remediation injunction, Plaintiffs have submitted enough evidence to show that they have
been harmed in essentially the same way here.
Plaintiffs present several pieces of evidence to demonstrate that they have been harmed in
essentially the same manner. Dr. Kaltofen opined that the Arkema Incident subjected class
members to levels of dioxins that exceed background levels. ECF No. 231-3 at 7–8. This opinion
is rooted in Plaintiffs’ samples, a comparison of chemicals at the Crosby facility with the
contaminants found off-site, a physical analysis of the chunks of ash and debris found on properties
after the Incident, and models of contaminant distribution. Id. at 7–13; ECF No. 125-6 at 4–18.
Plaintiffs also rely on Dr. Kaltofen’s opinion that the contaminants in the class area are undergoing
resuspension, mobilization, and concentration such that members are exposed to persistent dioxins
notwithstanding the original distribution of emissions. ECF No. 261-1 at 33. Plaintiffs also direct
the Court to the reports of Drs. Troast and Werntz, which describe the toxic nature of the
contaminants from the Incident and note that some individuals have already experienced effects.
ECF No. 267-2 (Exhibit C) at 6–8. Furthermore, the record contains evidence on the danger that
dioxins pose to human health, as well as the potential for synergistic effects with other substances
that Arkema released. ECF No. 264-10 at 17; ECF No. 264-19 at 11. Taken together, these pieces
of evidence permit the Court to find that class members have been harmed in essentially the same
way—namely, via past, present, and future exposure to toxic contamination from the Arkema
appropriate equitable remedy under RCRA. See e.g., Easler v. Hoechst Celanese Corp., 2014 WL
3868022, at *7 (D.S.C. Aug. 5, 2014) (finding that the plaintiff’s claim for medical monitoring
under RCRA “is not subject to summary dismissal,” but offering no opinion “as to whether it will
withstand future scrutiny or prove an appropriate remedy on the facts presented in the case of
RCRA liability”). In light of RCRA’s expansive grant of equitable authority, the Court rejects
Arkema’s argument on the unavailability of a surveillance remedy at this stage.
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Incident. See Adamson, 855 F.2d at 676 (emphasizing that although “the claims of individual class
members may differ factually,” certification under Rule 23(b)(2) is a proper vehicle for
challenging “a common policy”). Thus, the analysis here largely mirrors that in Part IV-B-2-(ii)
and (iii): Plaintiffs have demonstrated that the class is sufficiently cohesive and that they were
harmed in essentially the same way. 36
iii. Whether injunctive relief predominates over monetary demands
Next, Arkema submits that Plaintiffs’ surveillance injunction is a request for monetary
relief couched in injunctive language. Arkema directs the Court to cases like Talarico Brothers
Building Corp. v. Union Carbide Corp., where the district court held that, under RCRA,
“[p]laintiffs do not have a right to recover compensatory or punitive damages or recover from
future costs of long-term medical monitoring” because those forms of relief are not equitable in
nature. 2021 WL 1610200, at *15 (W.D.N.Y. Apr. 26, 2021). But Plaintiffs do not request that
Arkema simply write a check to fund future treatments. Instead, Plaintiffs propose a long-term
epidemiological survey to inform class members about health issues in the class area, pulmonary
and serum testing to help members understand their exposure risks, and educational programs to
tell members about risks in the class area. This programming is a far cry from a fund that merely
disburses funds for future medical testing.
Gibbs v. E.I. DuPont De Nemours & Co. illuminates the difference between Plaintiffs’
requested injunction and monetary damages. 876 F. Supp. 475 (W.D.N.Y. 1995). In Gibbs, the
36
The analysis presented above on cohesiveness applies here as well. By virtue of Plaintiffs’
samples, evidence of class member movement, evidence of resuspension and concentration, and
evidence of the problematic nature of the contamination from the Arkema Incident, the Court
concludes that the medical surveillance class is also sufficiently cohesive.
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defendant argued that a monitoring fund designed to help “gather and disseminate information
relating to the diagnosis and treatment of diseases resulting from exposure to benzene and other
toxic heavy metals” was monetary relief dressed up in equitable clothing. Id. at 481. The court
noted, however, that a “court-administered fund which goes beyond payment of the costs of
monitoring an individual plaintiff’s health to establish pooled resources for the early detection and
advances in treatment of the disease is injunctive in nature rather than ‘predominantly money
damages’ and therefore is properly certified under Rule 23(b)(2).” Id. Here, Plaintiffs’ request
“goes beyond the payment of the costs of monitoring.” Plaintiffs do not request reimbursement for
individual procedures. Instead, their proposed injunction is a predictive program to help class
members understand and react to novel exposure conditions. See Werlein v. United States, 746 F.
Supp. 887, 895 (D. Minn. 1990), vacated in part on other grounds, 793 F. Supp. 898 (D. Minn.
1992) (“In a case where a number of persons are exposed to a toxin about which little is known,
and it is necessary to gather and share information regarding diagnosis and treatment through
screening, the Court would consider framing a medical monitoring and information sharing
program as injunctive relief.”). The Court declines to take Arkema up on its invitation to
circumscribe the injunctive relief that plaintiffs can pursue in mass environmental tort cases at this
stage; Plaintiffs’ requested surveillance relief is predominantly injunctive in nature.
iv. Whether the injunctive relief sought is reasonably specific
Arkema also takes aim at the specificity (or lack thereof) of Plaintiffs’ proposal for medical
surveillance. In Prantil, the Fifth Circuit held that the Court’s prior order left “some uncertainty
as to what symptoms or conditions will be medically monitored for all class members, [and]
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whether individual health considerations need to be addressed for relief to be adequate.” On
remand, however, Dr. Werntz fleshes out the details of the proposed injunction in sufficient detail.
Again, while “ ‘Rule 23(b)(2) does not require that every jot and tittle of injunctive relief
be spelled out at the class certification stage,’ . . . some ‘reasonable detail’ as to the ‘acts required’
is necessary.” Prantil, 986 F.3d at 581 (quoting Yates, 868 F.3d at 368) (cleaned up). Arkema
believes that Plaintiffs have not provided sufficient detail because they have neither retained an
epidemiologist nor designed the survey they intend to circulate. Arkema also takes issue with the
fact that the as-yet-unretained epidemiologist may be empowered to change the details of the
program. Arkema therefore argues that “Plaintiffs’ medical-surveillance proposal boils down to
this: make Arkema fund and be beholden to an as-yet-unknown epidemiologist to conduct as-yetnot-designed medical surveillance.” ECF No. 285 at 45. Furthermore, Arkema submits that
Plaintiffs failed to answer the Fifth Circuit’s question as to how an injunction would deal with
individual health considerations.
The Court finds that Plaintiffs’ request for medical surveillance contains sufficient detail.
Relying on Dr. Werntz’s report, Plaintiffs ask for “the type of surveillance program that will
address longer term concerns about the manifestation of acute effects, since many of the dioxins
and other chemicals released and which linger in the community are known respiratory, skin and
mucous membrane irritants, and symptoms related to these types of conditions will likely be an
issue until the properties are cleaned up.” ECF No. 264-1 at 18. Plaintiffs note that “[s]ince this is
a novel mixture with no specific expected outcome, the very basis of the proposed surveillance
program is to track unusual health effects arising in this specific population.” Id. Plaintiffs add that
in addition to a survey designed to track unusual health effects, class members should receive
pulmonary function testing to examine the incidence of pulmonary disease and blood testing for
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dioxins and dioxin-like substances. Id. at 19. Plaintiffs also specify that the symptoms and
conditions to be tracked include pulmonary impacts like shortness of breath and asthma, skinrelated impacts, cancers associated with Agent Orange (including bladder cancer, chronic B-cell
leukemia, Hodgkin’s disease, multiple myeloma, prostate cancer, respiratory cancers, and some
soft tissue sarcomas), and conditions associated with dioxin exposures (including AL amyloidosis,
chloracne, Type 2 diabetes, hypothyroidism, ischemic heart disease, Parkinsonism, Parkinson’s
disease, early onset peripheral neuropathy, and porphyria cutanea tarda). Id. at 19–20.
This is enough detail for certification. Plaintiffs need not describe the exact questions that
will be included in the epidemiological survey at this procedural stage. Requiring that level of
specificity moves from “reasonable details” to “jots and tittles.” The list of eligible conditions and
concerns in Dr. Werntz’s report indicates that there is an outer bound on the scope of the survey.
Plaintiffs’ response to Arkema’s critique regarding individual health considerations is also
sufficient. Plaintiffs do not need to address those considerations for surveillance (as opposed to
medical monitoring) because the benefits from surveillance accrue from providing information to
the population regarding changes in the community, rather than from individualized treatment.
Medical surveillance consists of forward-looking searches and surveys to see if individuals “[a]re
showing signs of toxicity from exposure.” ECF No. 284-4 at 30:14-18. Surveillance is less
extensive than medical monitoring, and is therefore more appropriate “in cases in which there is
limited information on specific health [effects’] relationship to exposure[.]” Id. at 53:5-12. Thus,
because Plaintiffs are not seeking “an intervention for individual members of the community,”
concerns about individualized health considerations fade into the background. ECF No. 290 at 7.
Overall, then, the Court finds that Plaintiffs’ requested surveillance injunction is sufficiently
specific.
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v. Summary
In sum, the Court finds that there is enough evidence in the record on Plaintiffs’ request
for medical surveillance to determine that (1) class members were harmed in essentially the same
way; (2) injunctive relief predominates over monetary damage claims; and (3) the injunctive relief
sought is reasonably specific. Maldonado, 493 F.3d at 524. The Court therefore CERTIFIES a
class defined as “all residents and real property owners located within a 7-mile radius of the
Crosby, Texas, Arkema Chemical Plant” under Rule 23(b)(2) to pursue the medical surveillance
relief outlined in Plaintiffs’ papers.
C. Rules Enabling Act and Due Process Arguments
Finally, Arkema raises concerns related to the Rules Enabling Act and Due Process Clause.
The Rules Enabling Act forbids an interpretation of Rule 23 that “abridge[s], enlarge[s] or
modif[ies] any substantive right.” 28 U.S.C. § 2072(b). As a result, “a class cannot be certified on
the premise that [a defendant] will not be entitled to litigate its statutory defenses to individual
claims.” Dukes, 564 U.S. at 367. Similarly, a class cannot be certified on the premise that a
defendant will not be entitled to bring a “challenge to a plaintiff’s ability to prove an element of
liability.” In re Asacol Antitrust Litig., 907 F.3d 42, 53 (1st Cir. 2018). Here, Arkema contends
that both of Plaintiffs’ proposed injunctions “seek to require Arkema to fund an investigation into
whether any individual property or person was harmed,” which represents a “remedy-first, prooflater approach” that “deprive[s] Arkema of its right to challenge each plaintiff’s ability to prove
liability.” ECF No. 285 at 49–50. The Court disagrees: Plaintiffs’ proposed injunctions do not run
afoul of the Rules Enabling Act or the Due Process Clause.
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1. The Property Remediation Injunction
Arkema believes that Plaintiffs’ remediation injunction violates the Supreme Court’s
admonition that “a class cannot be certified on the premise that [a defendant] will not be entitled
to litigate its statutory defenses to individual claims.” Dukes, 564 U.S. at 367. Arkema notes that
“[i]f this were a single-plaintiff case, . . . the plaintiff would have to demonstrate, and Arkema
would be entitled to challenge at trial prior to any judgment, (1) his exposure to the alleged
contaminants of concern (here, dioxins); (2) resulting injury or substantial risk of future injury;
and (3) that the exposure and resulting injury were due to the Arkema releases rather than another
source.” ECF No. 285 at 49. Under Plaintiffs’ proposed remediation injunction, however, Arkema
struggles to imagine how it could raise issues with individual exceedances. Consider a member of
the class who burns trash in the backyard. Under Plaintiffs’ proposed remediation injunction, that
individual’s property might be tested, exceed the threshold level of dioxins, and receive physical
remediation, without Arkema having the chance to show that it did not cause the exceedance on
that property.
In Plaintiffs’ Reply, they argue that Arkema’s position would render “remediation
remedies in class litigation that seek to implement any investigation component . . . invalid as a
matter of law.” ECF No. 290 at 26. Plaintiffs contend that this cannot be the case, since other
courts have certified classes seeking remediation with an investigative component under Rule
23(b)(2). Bentley v. Honeywell Int’l Inc., 223 F.R.D. 471, 486 (S.D. Ohio 2004); Mejdreck v.
Lockformer Co., 2002 WL 1838141, at *2 (N.D. Ill. Aug. 12, 2002). 37 Plaintiffs further argue that
37
The Court does note, however, that these cases were decided before Dukes. In addition, those
cases featured industrial solvents, so there may have been less reason to attribute a positive test
result to an alternative source.
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“Arkema’s arguments only have merit if, in the wake of a man-made disaster and chemical fallout
from a defendant’s toxic release, the law requires the impacted community to sort out all of the
particular details about each parcel impacted by harmful particulate matter, in advance of filing
suit, and at considerable cost.” ECF No. 290 at 26.
The Court concludes that Arkema’s argument on this issue is unavailing, as it rests on a
misapprehension as to how liability will be determined in this case. 38 Arkema suggests that it
should be able to contest the results of site characterization after an injunction has issued. But if
site characterization is occurring, the Court will have already found Arkema liable. Proof of
liability and any defenses thereto can, will, and must be presented by the parties before site
characterization takes place. Thus, if Arkema wishes to present evidence that properties in the class
area are contaminated with dioxins from alternate sources, it is free to do so when the issue of
liability is being adjudicated. At its core, Arkema’s position essentially amounts to an argument
that class action treatment is impossible because it released contamination that already existed to
some degree in the environment. That will not do.
In addition, an appropriate remediation goal will alleviate Arkema’s concerns. In Prantil,
the Fifth Circuit stated: “it is not necessarily fatal to a uniform scheme of property remediation
that certain properties may contain higher concentrations of contaminants than others, provided
Plaintiffs can identify a common method of remediation and some reasonable standard by which
remediation might be assessed.” 986 F.3d at 582. Setting the remediation goal where Arkema is
38
The Court also notes that Arkema pressed its arguments about the Rules Enabling Act and the
Due Process Clause on appeal, but the Fifth Circuit ignored those arguments in their entirety.
Compare Brief for Appellant at 55–61, Prantil v. Arkema Inc., 986 F.3d 570 (5th Cir. 2021) (No.
19-20723), and Reply Brief for Appellant at 26, Prantil v. Arkema Inc., 986 F.3d 570 (5th Cir.
2021) (No. 19-20723), with Prantil, 986 F.3d 570 (5th Cir. 2021).
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required to remediate only contamination that it caused will answer Arkema’s “remedy-first,
proof-second” protestations. Arkema will be able to present individualized defenses going to
alternate sources of contamination; those defenses will inform the existence and contours of any
subsequent injunctive relief. Say, for example, that Arkema gathers evidence that the hypothetical
class member who burns trash in the yard lives on a property that features dioxin levels of 5.5 pg/g.
Arkema can use that evidence before the injunction issues to argue that Plaintiffs’ remediation
goal would force it to clean up contamination that is not attributable to the Incident. Thus, Arkema
will be able to present its defenses during the liability phase that will precede the issuance of any
injunction. What Arkema cannot do, however, is imagine the existence of a hypothetical trash
burner and say that certification is inappropriate because he might exist. Arkema cannot defeat
certification with such conjecture.
It is true that “a court has an obligation before certifying a class to ‘determin[e] that Rule
23 is satisfied, even when that requires inquiry into the merits.” Goldman Sachs Grp., Inc. v. Ark.
Teacher Ret. Sys., 141 S. Ct. 1951, 1960–61 (2021) (quoting Comcast, 569 U.S. at 35). But there
is a difference between considering the merits and requiring a group of would-be class action
plaintiffs to prove their case at this procedural stage. Now is not the time for trial. Following
certification, Plaintiffs will have the opportunity to collect additional evidence to sustain their
claims. The exact goal for remediation will be determined at the merits stage of this proceeding. 39
39
The Court recognizes that Plaintiffs’ proposed remediation goals may not end up proving
appropriate. But Plaintiffs need not specify the precise goal at this stage, so long as the evidence
indicates that they will ultimately be able to provide a reasonable goal. In Yates, the plaintiffs
“identified air-conditioning as a remedy that would provide relief to each member of the class”
and identified “maintaining a heat index of 88 degrees or lower” as the applicable standard. 868
F.3d at 368. This Court’s certification order, however, “did not specify the precise temperature”
that needed to be reached. Id. Nevertheless, the Fifth Circuit upheld the Court’s decision to certify
the class. Similarly, while Prantil specified that Plaintiffs needed to provide “some reasonable
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It would render the class action mechanism a dead letter if Arkema could defeat certification by
conjecturing that the aggregation of claims automatically defeats its right to contest individual
elements of liability. The Court rejects Arkema’s arguments against Plaintiffs’ proposed property
remediation injunction on the basis of the Rules Enabling Act and Due Process Clause.
2. The Medical Surveillance Injunction
Arkema also contends that Plaintiffs’ proposed medical surveillance injunction violates its
right to mount a full defense. Arkema argues that Plaintiffs’ relief would preclude it from
“contest[ing], among other things, whether a particular plaintiff needs the proposed surveillance
in the first place; whether the surveillance would be duplicative of or inconsistent with that
plaintiff’s already-existing care plan; or whether any of the conditions or symptoms being
surveilled were pre-existing or otherwise not attributable to the Arkema releases.” ECF No. 285 at
50. Arkema adds that such defenses “are not hypothetical,” as some of the named plaintiffs
themselves have recovered for pulmonary injuries in other cases and have stated that they need to
check with their doctors to make sure that surveillance is right for them. Id
Arkema’s arguments here do not hold water. Whether a particular plaintiff needs the
proposed surveillance can be adjudicated in the class-wide proceeding. If the facts indicate that
individuals across the class would benefit from a surveillance injunction because they were
exposed to heightened levels of contaminants, a suitable injunction will issue. The fact that a class
member might have preexisting conditions or have been exposed to other contamination does not
standard by which remediation might be assessed,” it did not require that the standard identified at
this stage be the final standard that is incorporated into the injunction. 986 F.3d at 582. Here,
Plaintiffs’ proposed goals are sufficiently reasonable at this stage because they are rooted in
science and toxicological research. To succeed on the merits, however, Plaintiffs may very well
need to present more scientific evidence and more testing.
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prevent them from benefitting from surveillance. Under RCRA, at least, the standard is whether
Arkema’s actions “may present an imminent and substantial endangerment to health or the
environment[.]” 42 U.S.C. § 6972(a)(1)(B) (emphasis added). What’s more, if surveillance is
duplicative or inconsistent with a given class member’s pre-existing care plan, that is an issue for
the class member to sort out, not Arkema. Finally, whether the conditions or symptoms being
surveilled are attributable to the Arkema releases can be adjudicated on a class-wide basis, without
any need for individualized defenses. Consequently, the Court sees no Rules Enabling Act or Due
Process Clause problems with Plaintiffs’ proposed medical surveillance injunction.
V.
CONCLUSION
For the reasons set out above, the Court takes the following steps.
The Court DENIES Plaintiffs’ Motion to Exclude the Opinions of Mr. Gary Papke and Dr.
Thomas Hamilton AS MOOT (ECF No. 261).
The Court GRANTS IN PART and DENIES IN PART Plaintiffs’ Motion to Exclude the
Opinions of Dr. Sheng Li (ECF No. 262).
The Court GRANTS Arkema’s Motion to Exclude the Opinions of Dr. John Kilpatrick
(ECF No. 268).
The Court DENIES Arkema’s Motion to Exclude the Opinions of Mr. Marc Glass (ECF
No. 265).
The Court DENIES Arkema’s Motion to Exclude the Opinions of Dr. Marco Kaltofen
(ECF No. 266).
The Court DENIES Arkema’s Motion to Exclude the Opinions of Drs. Richard Troast and
Charles Werntz (ECF No. 267).
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The Court DENIES Plaintiffs’ Renewed Motion for Class Certification under Rule
23(b)(3) (ECF No. 264).
The Court GRANTS Plaintiffs’ Renewed Motion for Class Certification under Rule
23(b)(2) (ECF No. 264). The class is defined as follows: “All residents and real property owners
located within a 7-mile radius of the Crosby, Texas, Arkema Chemical Plant.” The Court
APPOINTS Corey Prantil, Betty Whatley, Beverly Flannel, Roland Flannel, Larry Anderson, and
Tanya Anderson as class representatives.
The Court GRANTS Plaintiffs’ request to appoint class counsel (ECF No. 264-2). 40 The
Court APPOINTS Michael G. Stag and Ashley Liuzza and the law firm of Stag Liuzza, LLC; Van
Bunch and the law firm of Bonnett Fairbourn Friedman & Balint, P.C.; Mark F. Underwood and
the law firm of Underwood Law Offices; and Kevin W. Thompson and the law firm of Thompson
Barney as Co-Lead Class Counsel.
IT IS SO ORDERED.
SIGNED at Houston, Texas, on this 18th day of May, 2022.
____________________________________
KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE
40
The Court finds that Plaintiffs’ counsel has proven competent thus far. The Court therefore finds
Plaintiffs’ counsel adequate.
111
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