City of Seattle v. Monsanto Company et al

Filing 784

ORDER: Defendants' (dkt. # 634 ) Motion to Exclude Expert Testimony of Lisa Rodenburg is DENIED. The City's (dkt. # 621 ) Motion to Exclude Proposed Expert Testimony by John Woodyard is GRANTED in part and DENIED in part. Signed by Hon. Michelle L. Peterson. (SS)

Case 2:16-cv-00107-RAJ-MLP Document 784 Filed 09/13/23 Page 1 of 36

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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CITY OF SEATTLE,
Plaintiff,

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Case No. C16-107-RAJ-MLP
ORDER

v.
MONSANTO COMPANY, et al.,
Defendants.

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I.

INTRODUCTION

This matter is before the Court on: (1) Defendants Monsanto Company, Solutia Inc., and

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Pharmacia LLC’s (“Defendants” or “Monsanto”) “Daubert Motion to Exclude the Expert

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Testimony of Lisa Rodenburg” (Defs.’ Mot. (dkt. # 634)); and (2) Plaintiff City of Seattle’s

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(“City”) “Motion to Exclude Proposed Expert Testimony by John Woodyard” (Pl.’s Mot. (dkt.

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# 621)). The parties have filed responses (Pl.’s Resp. (dkt. # 666); Defs.’ Resp. (dkt. # 737)),

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replies (Defs.’ Reply (dkt. # 724); Pl.’s Reply (dkt. # 700), and a surreply (Pl.’s Surreply (dkt.

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# 731)) on the respective motions. The Court heard oral argument from the parties on August 21,

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2023. (Dkt. # 773.)

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ORDER - 1

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Having considered the parties’ submissions, oral argument, the balance of the record, and

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the governing law: (1) Defendants’ Motion (dkt. # 634) is DENIED; and (2) the City’s Motion

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(dkt. # 621) is GRANTED in part and DENIED in part, as further explained below.
II.

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BACKGROUND

This case arises out of Defendants’ manufacture and sale of polychlorinated biphenyls

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(“PCBs”). Through this lawsuit, the City seeks to hold Defendants liable for PCBs that have

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escaped from their use in industrial and commercial applications into the Lower Duwamish

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Waterway (“LDW”) and the City’s stormwater and drainage systems. (See Second Am. Compl.

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(dkt. # 267) at ¶¶ 5-15.) The City’s sole remaining cause of action alleges Defendants

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intentionally manufactured, distributed, marketed, and promoted PCBs in a manner that created a

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public nuisance harmful to the health and free use of the LDW and the City’s stormwater and

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drainage systems. (Id. at ¶¶ 91-108.) Defendant Pharmacia LLC (a/k/a “Old Monsanto”) was the

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sole producer of PCBs in the United States from the 1930s until they were banned by Congress

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in 1977. (Id. at ¶ 38.)

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The City’s complaint alleges Old Monsanto knew its PCBs would get into the

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environment and waterbodies, such as the LDW, through their ordinary use, and that Old

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Monsanto’s knowledge was based in part on its sales of PCBs to businesses near the LDW and

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its own use of PCBs at its vanillin plant that operated adjacent to the LDW. (Second Am. Compl.

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at ¶¶ 61-79.) The City alleges it has incurred past costs, and will incur future costs, for

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investigation and remediation of the LDW, its source control efforts in the LDW, and for the

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design and construction of a stormwater treatment plant to reduce PCBs from one drainage basin

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adjacent to the LDW. (Id. at ¶¶ 8, 10, 15, 104-05.)

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ORDER - 2

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Based on these allegations, the following experts have been set forth by the parties to
testify regarding PCB identification and byproduct PCBs:

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A.

Dr. Rodenburg

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Dr. Rodenburg is the City’s expert on PCB identification. (See DeBord Decl., Ex. A (dkt.

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# 636-1) at 1-2.) Dr. Rodenburg is a Professor of Environmental Science at Rutgers and has a

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Bachelor of Arts in chemistry from Wittenberg University and a Ph.D. in Environmental

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Engineering from Johns Hopkins University. (Id.) Dr. Rodenburg has studied PCBs since 1998

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and has substantial experience in measuring PCBs in environmental samples and in interpreting

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PCB data. (Id.)

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Dr. Rodenburg’s scholarship “pioneered the use of factor analysis” to determine sources

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of PCBs in ecosystems that may have multiple sources of PCB contamination and/or display

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weathering processes. (DeBord Decl., Ex. A at 1.) Per her analysis, Dr. Rodenburg utilizes

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Positive Matrix Factorization (“PMF”) with data sets in which all 209 PCB congeners have been

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measured to determine PCB sources as well as the processes that affect PCBs once out in the

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environment. 1 (Id.) Her collected work has been cited over 1000 times and includes specific

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studies on the Delaware River, the New York/New Jersey harbor, the Portland Harbor, the

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Spokane River, and the Green-Duwamish River. (Id. at 1-2.)

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In this case, Dr. Rodenburg issued an expert report in November 2021 titled

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“Fingerprinting of PCB congener patterns in samples from the [LDW].” (See DeBord Decl., Ex.

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A.) In her report, Dr. Rodenburg used PMF and Multiple Linear Regression (“MLR”) to

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Per Dr. Rodenburg’s report, PMF is a tool developed in the early 1990s that was originally applied to air
quality data. (DeBord Decl., Ex. A at 1.) She notes in the last 30 years, it has been used more widely to
examine all types of pollutants. (Id.) The EPA has developed its own versions of PMF (EPA PMF 3.0 and
5.0). (Id.) PMF2 software by Paatero and Tapper was used by Dr. Rodenburg for her report. (Id. at 10.)

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determine whether environmental sampling data taken from the LDW was more similar to an

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Aroclor produced by Monsanto versus a byproduct PCB source. 2 (Id. at 10, 23.)

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As part of her PMF analysis, Dr. Rodenburg loaded sampling data from different

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environmental compartments (air, sediment, surface water, tissue, storm drain solids/stormwater,

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otter scat, and groundwater) into a PMF program that generates PCB “factors” or “fingerprints,”

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which represent PCB patterns within the sampled data. (DeBord Decl., Exs. A at 5, 10-11, B

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(Rodenburg Seattle Dep. (dkt. # 636-2) at 82:9-21); C (Rodenburg Spokane Dep. (dkt. # 636-3)

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at 127:24-128:12).) To identify a PCB source, Dr. Rodenburg compared the PMF fingerprints to

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Aroclor and byproduct PCB patterns both visually and using MLR. (DeBord Decl., Exs. A at

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11-14, 23-25, B (Rodenburg Seattle Dep. at 83:8-25, 87:5-88:20, 307:11-22).) The MLR analysis

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measures the strength of the match between the sampling fingerprint and known Aroclor or

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byproduct PCB patterns, resulting in a “R2” value. (Id.)

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Based on the given R2 value, Dr. Rodenburg interpreted the likelihood that the data

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sample was an Aroclor, or a byproduct PCB, given specific R2 cutoff values. (DeBord Decl., Exs.

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A at 12-14, 23-25, B (Rodenburg Seattle Dep. at 85:25-86:7).) For her report, Dr. Rodenburg

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employed R2 cutoff values of: (1) approximately 0.8 to represent an unweathered single Aroclor;

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and (2) between approximately 0.4 and 0.8 as representing a weathered Aroclor. (Id., Ex. A at

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13.) In addition to calculating an R2 value, Dr. Rodenburg visually examined fingerprints to

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determine whether they contained congeners characteristic of Aroclor or non-Aroclor sources.

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(Id.)

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“Byproduct PCBs” are PCBs inadvertently created through different manufacturing processes, including
the synthesis of organic or inorganic pigments, certain processes involving heat, carbon, and chlorine, or
by combustion/incineration. (See DeBord Decl., Ex. A at 14-15; see also id., Exs. C (Rodenburg Spokane
Dep. at 43:6-14, 51:4-6, 57:12-58:25, 61:4-63:25), D (Rodenburg San Diego Dep. (dkt. # 636-4)
at18:21-25:5).)

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Per her report, Dr. Rodenburg opines that Aroclors produced by Monsanto, and not

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byproduct PCBs, are the dominant source of PCBs to all seven of the environmental

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compartments of the LDW that she examined. (DeBord Decl., Ex. A at 3, 16-25.) She opines that

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greater than 95% of the total PCB contamination present in the LDW can be sourced to

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Monsanto’s Aroclors. (Id. at 3.) Specifically, Dr. Rodenburg concluded Aroclors encompass: (1)

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over 99% of PCBs in LDW sediment, LDW surface water, groundwater that drains into the

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LDW, and organism tissue from the LDW; (2) 99% of PCBs in otter scat gathered on the banks

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of the LDW; (3) over 95% of PCBs in storm drain solids and storm water samples from

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stormwater drainage pipes connected to the LDW; and (4) at least 87% of PCBs in samples of air

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deposition from near the LDW. (Id. at 4, 16-25.)

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B.

Mr. Woodyard

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Mr. Woodyard is a registered Professional Engineer specializing in environmental

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cleanup consulting. (Goutman Decl., Ex. A (dkt. # 738-1) at 2, 105-113.) He holds a master’s

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degree in mechanical engineering from the University of Illinois and has over 40 years of

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experience as a consulting engineer and remedial contractor specializing in PCB regulation,

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management, disposal, and cleanup. (See id.)

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Based on Mr. Woodyard’s professional experience, and his review of City documents,

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reports addressing PCB use, the investigation, disposal, and cleanup of the LDW, PCB

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regulations, and site visits (Goutman Decl., Ex. A at 81-104), Mr. Woodyard’s expert report

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opines in sum that:

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1. [The U.S. Environmental Protection Agency (“EPA”)] and other regulatory
bodies have controlled every aspect of manufacture, sale, use, safe handling,
cleanup, and disposal of PCBs since 1979.
2. EPA and other regulatory bodies have established PCB levels they deem safe for
products in use, in food, and in the environment.

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3. Since at least 1977 the City of Seattle has been engaged with EPA and other
regulatory bodies over PCBs and has received and solicited advice regarding PCBs
from professional associations since 1978.
4. EPA and other regulatory bodies have overseen and continue to oversee the
cleanup of PCBs at sites along the LDW watershed to levels they deem safe.
5. The PCBs that reached the LDW include by-product PCBs, an important current
and future PCB source to the LDW that were not manufactured by Monsanto and
are continually being discharged by numerous sources, including the City of
Seattle.
6. There is no evidence that PCBs in building products are a significant source of
PCBs in the environment or the LDW.
(Id. at 2-3.)
Mr. Woodyard was also retained by Defendants as a rebuttal expert to review and rebut

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Dr. Rodenburg’s opinions. (Goutman Decl., Ex. Q (dkt. # 738-17) at 1.) In sum, Mr. Woodyard’s

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rebuttal report provides that: (1) “By-product PCBs are present in the LDW”; (2) “The presence

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of by-product PCBs in the LDW is grossly underestimated by Dr. Rodenburg”; and (3)

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“Numerous statements made in in support of Dr. Rodenburg’s opinions and analysis are either

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uncited or disputed by the facts.” (See id.)
III.

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DISCUSSION

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A.

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Federal Rule of Evidence 702 provides in relevant part:

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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.

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ORDER - 6

Legal Standards

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Fed. R. Evid. 702. For expert testimony to be admissible under Rule 702, it must satisfy three

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requirements: (1) the expert witness must be qualified; (2) the testimony must be reliable; and (3)

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the testimony must be relevant. See Daubert v. Merrell Dow Pharms., Inc. (“Daubert I”), 509

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U.S. 579, 589-91 (1993). The proponent of expert testimony has the burden of establishing that

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the admissibility requirements are met by a preponderance of the evidence. Id. at 592 n.10; see

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also Lust v. Merrell Dow Pharms., Inc., 89 F.3d 594, 598 (9th Cir. 1996).

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Before admitting expert testimony into evidence, the Court acts as a “gatekeeper” in

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determining its admissibility under Rule 702 by ensuring the testimony is both “relevant” and

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“reliable.” United States v. Ruvalcaba-Garcia, 923 F.3d 1183, 1188 (9th Cir. 2019) (citing

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Daubert I, 509 U.S. at 597). Expert testimony is relevant where “the evidence logically

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advance[s] a material aspect of the party’s case.” Estate of Barabin v. AstenJohnson, Inc., 740

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F.3d 457, 463 (9th Cir. 2014) (internal quotations and citation omitted), overruled on other

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grounds by United States v. Bacon, 979 F.3d 766 (9th Cir. 2020) (en banc). Testimony is reliable

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where it has “a reliable basis in the knowledge and experience of the relevant discipline.” Id.

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(quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 149 (1999)).

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The Supreme Court has noted the reliability inquiry is a “flexible one,” and while the

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Supreme Court has suggested several factors helpful in determining reliability, trial courts are

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generally given “broad latitude in determining the appropriate form of the inquiry.” 3 United

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States v. Wells, 879 F.3d 900, 934 (9th Cir. 2018) (quoting Kumho Tire, 526 U.S. at 150); see

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also Messick v. Novartis Pharm. Corp., 747 F.3d 1193, 1196 (9th Cir. 2014) (finding Rule 702

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In relevant part, Daubert I suggested several reliability factors a trial court may examine to determine
the reliability of expert testimony, including: (1) whether a theory or technique can be tested; (2) whether
it has been subjected to peer review and publication; (3) the known or potential error rate of the theory or
technique; (4) the existence and maintenance of standards and controls; and (5) whether the theory or
technique enjoys general acceptance within the relevant scientific community. Daubert I, 509 U.S. at
592-94; see also Mukhtar v. California State Univ., Hayward, 299 F.3d 1053, 1064 (9th Cir. 2002).

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should be applied with a “liberal thrust” favoring admission) (quoting Daubert I, 509 U.S. at

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588); United States v. Hankey, 203 F.3d 1160 (9th Cir. 2000) (Rule 702 is “construed liberally”

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in considering admissibility of testimony based on specialized knowledge).

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Furthermore, the reliability inquiry favors admission of testimony as “[s]haky but

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admissible evidence is to be attacked by cross examination, contrary evidence, and attention to

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the burden of proof, not exclusion.” Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010) (citing

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Daubert I, 509 U.S. at 596). The reliability inquiry test does not seek to measure “the correctness

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of the expert’s conclusions but the soundness of [his or her] methodology,” and therefore, when

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an expert meets the standards established by Rule 702, “the expert may testify[,] and the fact

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finder decides how much weight to give that testimony.” Pyramid Techs., Inc. v. Hartford Cas.

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Ins. Co., 752 F.3d 807, 814 (9th Cir. 2014) (quoting Primiano, 598 F.3d at 564-65).

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B.

Dr. Rodenburg

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Defendants move to exclude Dr. Rodenburg because she “employed various statistical

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sleights of hand which rigged her analyses to ensure environmental sampling data would

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resemble Aroclor rather than byproduct PCB sources.” (See Defs.’ Mot. at 2.) Defendants

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specifically contend the data underlying Dr. Rodenburg’s opinions is unreliable and that her

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methodology inaccurately describes the LDW’s condition. (Id. at 4-8.) Defendants further argue

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Dr. Rodenburg’s R2 cutoff values provided by her methodology are unreliable. 4 (Id. at 8-10.)

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The Court will examine Defendants’ contentions in turn:

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If not entirely excluded, Defendants request Dr. Rodenburg’s opinions be limited to those derived: (1)
only from data obtained within the LDW; (2) through a comparison of sampling data with mixtures of
both Aroclor and all relevant byproduct PCB sources and congeners; and (3) interpreted using R2 cutoff
values subjected to peer review or otherwise generally accepted within the scientific community. (Defs.’
Mot. at 10.)

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i.

Motion to Strike

As an initial matter, the City on surreply moves to strike certain exhibits provided in a

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declaration by Defendants with Defendants’ reply in support of its motion to exclude Dr.

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Rodenburg as improper new evidence. (See Pl.’s Surreply.) On reply, Defendants filed a

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declaration containing two PowerPoint presentations by Dr. Rodenburg as well as a transcription

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of a September 25, 2017 PCB webinar by Dr. Rodenburg. (See Second DeBord Decl. (dkt.

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# 725), Exs. A-C.) These materials were submitted by Defendants based on their contention that

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Dr. Rodenburg’s report contradicts opinions offered in non-litigation contexts: that the presence

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and ubiquity of byproduct PCBs are the “main problem” facing municipalities like the City. (See

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Defs.’ Mot. at 1-2; Defs.’ Reply at 1, 4.)

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The City argues that both PowerPoint presentations and the webinar introduce new

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evidence Defendants have had in their possession for years and should have otherwise submitted

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with its motion had they intended to rely on it. (Pl.’s Surreply at 2.) The City argues it is

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otherwise deprived of an opportunity to respond given Defendants’ “sandbag” with new

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evidence. (Id.)

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“‘It is not acceptable legal practice to present new evidence or new argument in a reply

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brief.’” United Specialty Ins. Co. v. Shot Shakers, Inc., 2019 WL 199645, at *6 (W.D. Wash. Jan.

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15, 2019), aff’d, 831 F. App’x. 346 (9th Cir. 2020) (quoting Roth v. BASF Corp., 2008 WL

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2148803, at *3 (W.D. Wash. May 21, 2008)). Given the Court’s examination of Defendants’

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submitted exhibits on reply, it appears the PowerPoint presentations and webinar submitted by

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Defendants were previously provided as exhibits to a deposition of Dr. Rodenburg that took

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place on February 7, 2018, in a separate and unrelated matter involving Defendants. (See Second

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DeBord Decl. at ¶¶ 2-4.) Given these materials have been in Defendants’ possession for some

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time, Defendants should have submitted such exhibits with their motion if intending to rely upon

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them as a basis for excluding Dr. Rodenburg’s expert testimony.

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Nevertheless, though the City argues it has been deprived of an opportunity to respond,

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the City’s surreply provides a substantive rebuttal to Defendants’ submission of these materials.

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(See Pl.’s Surreply at 2-3.) Specifically, the City argues that even if the Court considered

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Defendants’ new evidence, none of the documents undermine her opinions offered in this case

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nor demonstrate any improper discrepancy with positions she has offered in non-litigation

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contexts. (Id.)

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The Court agrees. Defendants’ cited portion from Dr. Rodenburg’s webinar specifically

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concerned the City of Spokane and its own issues with byproduct PCBs. (Second DeBord Decl.,

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Ex. C (Rodenburg Tr. at 52:13-53:10) (“[T]hey can go after Aroclor-type sources . . . But that’s

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not [the City of Spokane’s] main problem. Their main problem is PCB-11 [from] pigments.”).)

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Immediately after Dr. Rodenburg’s comments about the City of Spokane, she identified the

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LDW as being primarily polluted by Aroclors. (Id. at 53:20-54:1 (“[S]ome of these places, like,

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especially, like the Green-Duwamish River, you see that you’ve got the green, the blue, and the

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purple bars. Those are all Aroclors. So the Green-Duwamish River is totally contaminated by

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Aroclors.”).) Moreover, Dr. Rodenburg’s remarks in academic presentations that byproduct PCB

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congeners have been found in several locations across the United States, and that they can

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contribute to water pollution, does not necessarily undermine her opinion in this case that

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Aroclors remain the primary source of PCB contamination in the LDW. (See Second DeBord

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Decl., Exs. A at 17-40, B at 10-11, 23.)

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Because the City’s surreply responds to Defendants’ submission of materials on reply,
the City’s motion to strike Defendants’ attached exhibits is denied. 5

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ii.

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Representative PCB Data

Defendants argue that Dr. Rodenburg relied extensively on environmental sampling data

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taken from outside of the LDW, and therefore, her selected data is not representative of

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conditions within the LDW. (Defs.’ Mot. at 4-5.) Defendants argue Dr. Rodenburg also failed to

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identify any analysis undertaken to determine whether the data she employed from outside the

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subject area of the LDW was representative of conditions within the LDW. (Id. at 4.) Defendants

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request Dr. Rodenburg’s opinions at least be confined to those concerning data obtained from

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within the relevant LDW area. (Id. at 5.)

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The City responds the data underlying Dr. Rodenburg’s analyses is reliable because most

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of the data was collected and vetted in connection with a study by the Washington Department of

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Ecology (“Ecology”) that took place before this litigation. (Pl.’s Resp. at 4.) The City further

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responds that though some of the data is taken from outside of the LDW, the data employed by

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Dr. Rodenburg remains relevant to her opinions due to the tidal nature of the LDW. 6 (Id. at 9.)

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Pursuant to Rule 702(b), the requirement that expert testimony be based on “sufficient

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facts or data” only requires the Court to engage in “an analysis of the sufficiency of underlying

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Based on the Court’s review of Defendants’ attached exhibits, the Court also agrees with the City that
Dr. Rodenburg has not provided an opinion in this case that is inconsistent with her noted remarks in
non-litigation contexts.

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On reply, Defendants respond that: (1) the tidal qualities of the LDW would have no impact on certain
sampling data (e.g., atmospheric deposition); (2) Dr. Rodenburg did not know whether any tidal qualities
would impact storm drain or stormwater data at issue; and (3) a tidal system would have no logical impact
on otter scat or organism tissue. (Defs.’ Reply at 3 n.1.) As such, Defendants argue five of the seven
environmental compartments examined by Dr. Rodenburg would not be impacted by the City’s tidal
rationale. (Id.)

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facts or data that is quantitative rather than qualitative.” United States v. W.R. Grace, 455 F.

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Supp. 2d 1148, 1152 (D. Mont. 2006); see also Fed. R. Evid. 702 Advisory Committee’s Note to

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2000 Amendments. The requirement “is not intended to authorize a trial court to exclude an

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expert’s testimony on the ground that the court believes one version of the facts and not the

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other.” W.R. Grace, 455 F. Supp. 2d at 1152.

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Dr. Rodenburg’s opinions pertain to the LDW, which consists of river miles (“RM”) 0.0

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to 5.0 of the Duwamish River. (DeBord Decl., Ex. B (Rodenburg Seattle Dep. at 91:19-92:19,

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96:2-10).) Per her report, the data Dr. Rodenburg relied upon included several environmental

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samples taken from areas outside of RM 0.0 to 5.0. (See, e.g., DeBord Decl., Ex. A at 18 (noting

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only 6 out of 146 sediment samples were taken between RM 0.7 and 5 within the LDW, with an

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additional 18 from the Harbor Island Area), 19 (noting that out of 201 surface water samples, “60

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were from the Harbor Island area and 10 were from RM 3.3, within the LDW”).) Conversely,

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many of the environmental compartments analyzed by Dr. Rodenburg also comprised data solely

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from the relevant area of the LDW. 7 (See, e.g., DeBord Decl., Ex. A at 20 (“[O]f the 128 [tissue]

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samples included in the PMF input, all were obtained from the LDW.”), 21 (All 74 storm drain

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solid and storm water samples included in the PMF input “are considered to be in the LDW.”),

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22 (“Of the 44 samples included in the PMF input, all were collected in areas that drain into the

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LDW.”).)

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Most of the data Dr. Rodenburg relied upon came from a previous study by Ecology

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regarding the Green-Duwamish River watershed, which Dr. Rodenburg participated in before

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being retained in this case. (DeBord Decl., Ex. A at 3.) The data relied upon by Dr. Rodenburg

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was described in that study:

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At oral argument, the City represented that when considered in total, 59 percent of Dr. Rodenburg’s
considered data samples was comprised of data from within the LDW. (Dkt. # 776 at 45:3-48:9.)

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Ecology has, therefore, funded a PCB Congener Study in two phases. Phase 1
provided an introduction to PCBs. During Phase 1, Leidos compiled a database of
available PCB congener data in the Green-Duwamish River watershed (Leidos
2016). These data included approximately 1,400 samples analyzed for a subset or
full suite of PCB congeners in various media, including sediment, tissue, surface
water, storm drain solids, stormwater, and air deposition samples.

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The objective of Phase 2 was to conduct PCB source evaluation using multi-variate
statistical analysis (“fingerprinting”) for the purpose of recommending one or more
PCB congeners, suites of congeners, homologs, or Aroclor(s) to be included in the
[pollutant loading assessment] modeling efforts, and to provide information on
potential PCB sources to LDW sediments and surface water. Positive matrix
factorization (PMF) was selected as the statistical technique used for this study. An
initial data assessment was conducted (Leidos and Rodenburg 2017), which refined
the data sets to be used in the PMF model and determined that at least some
available data from all five environmental compartments (air, surface water,
sediment, storm drains, and biological tissues) were suitable for use[.]

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(Mueller Decl., Ex. A (dkt. # 667-1) at 1.) Dr. Rodenburg also employed additional water

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and sediment data that became available after she completed her analysis for Ecology.

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(DeBord Decl., Ex. A at 3-4, 23-25.) Per her report, Dr. Rodenburg noted the data she

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employed for her report:

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20
21
22
23

[W]ent through careful quality assurance procedures, not only during the initial
collection of the data, but also during the storage, management, and transmission
of the data. In addition, we conducted a careful analysis of the uncertainty in the
results and concluded that the results were reliable for most media, including
sediment, tissue, atmospheric deposition, and stormwater/storm solids. The one
medium for which the results were not reliable was water, due to a limited amount
of data. This is no longer a concern [for this report] because additional water
samples were analyzed for this report.
(Id. at 3-4.)
Dr. Rodenburg’s alleged failure to sample data exclusively from the relevant area of the
LDW is not a basis to exclude her opinion. Defendants do not claim the data Dr. Rodenburg used
for her report was inaccurate, erroneous, or otherwise corrupted, but that it is instead not the best
data to have employed for an accurate analysis of the relevant LDW area. (See Defs.’ Resp. at
4-5.) As noted above, the data relied upon by Dr. Rodenburg was largely sourced from studies

ORDER - 13

Case 2:16-cv-00107-RAJ-MLP Document 784 Filed 09/13/23 Page 14 of 36

1

Dr. Rodenburg participated in prior to this litigation of the Green-Duwamish River (see Mueller

2

Decl., Ex. A at 1), and she acknowledges in her report that further reliability analysis was

3

undertaken of the different environmental compartments utilized in her report (see DeBord Decl.,

4

Ex. A at 3-4). Dr. Rodenburg testified she performed an analysis to determine whether the results

5

of the data within the LDW were consistent with the broader sampled data by comparing the

6

PMF model’s output to samples taken within the LDW. (Mueller Decl., Ex. B (Rodenburg

7

Seattle Dep. (dkt. # 667-2) at 306:14-307:6) (“I looked at the PMF results very carefully, and I

8

looked at the R2 value . . . to ensure that the samples that were specifically taken from within the

9

LDW had good R2 values, meaning a good match between the model and the data. And

10

consistently across all the compartments, that was true. The R2 values were very high, usually in

11

excess of 0.9.”).) For instance, Dr. Rodenburg’s report provides that the newer water and

12

sediment data samples from the LDW provided similar R2 results to that of the broader sampled

13

data. (See DeBord Decl., Ex. A at 23 (finding congener patterns were similar between broader

14

sampled data and newer LDW surface water data sets (R2 values ranging from 0.911 to 0.997),

15

which “suggests that there has been no substantial change in the types of PCB sources to the

16

Duwamish River surface water between the original Green-Duwamish project and 2018”), 25.)

17

Defendants note that publications concerning the prior studies relied upon by Dr.

18

Rodenburg note a limitation of use as the authors “relied on verbal and written information

19

provided by secondary sources” and “made no independent investigations concerning the

20

accuracy or completeness of the information relied upon.” (Defs.’ Mot. at 4 (citing DeBord

21

Decl., Ex. E (dkt. # 636-5) at 2).) But Defendants’ cited study later provides a much more

22

extensive and detailed discussion of the studies’ data acquisition, collection, and management

23

process outside of this initial limitation of use advisory. (See DeBord Decl., Ex. E at 87-125.)

ORDER - 14

Case 2:16-cv-00107-RAJ-MLP Document 784 Filed 09/13/23 Page 15 of 36

1

All in all, Defendants’ countervailing considerations regarding whether the data relied on

2

for Dr. Rodenburg’s opinions provides an accurate depiction of the LDW and its conditions is

3

not a basis for exclusion. See City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1053 (9th

4

Cir. 2014) (“Facts casting doubt on the credibility of an expert witness and contested facts

5

regarding the strength of a particular scientific method are questions reserved for the fact

6

finder.”). Dr. Rodenburg’s sampling of data from areas outside the relevant RM of the LDW, any

7

impacts of the “tidal nature” of the LDW on the sampled data, and any noted limitations on the

8

accuracy or completeness of the data relied on from the prior studies go to the weight of her

9

opinions. Defendants can address such issues with Dr. Rodenburg during cross-examination. See

10

Bluetooth SIG, Inc. v. FCA US LLC, 468 F. Supp. 3d 1342, 1349 (W.D. Wash. 2020) (“[T]he

11

factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility,

12

and it is up to the opposing party to examine the factual basis for the opinion in

13

cross-examination.” (internal quotations and citation omitted)).

14
15

The Court therefore declines to exclude Dr. Rodenburg’s opinion as not being founded on
sufficient facts or data.

16
17

iii.

Methodology and Data Exclusion

Next, Defendants argue Dr. Rodenburg failed to consider the full mass of byproduct PCB

18

sources to the LDW, ignoring data contrary to her opinions, and thus, her opinions are not the

19

product of a reliable methodology. (Defs.’ Mot. at 5-8.) Defendants request Dr. Rodenburg’s

20

opinions be limited to those based on a comparison of sampling data to a mixture of Aroclor and

21

all relevant byproduct PCB sources and congeners found within the LDW. (Id.)

22

Specifically, Defendants argue Dr. Rodenburg compared PCB “fingerprints” to sets of

23

data and conditions that do not reflect real-world conditions to reinforce her opinions. (Defs.’

ORDER - 15

Case 2:16-cv-00107-RAJ-MLP Document 784 Filed 09/13/23 Page 16 of 36

1

Mot. at 5-6.) Defendants note the Aroclor and byproduct PCB patterns Dr. Rodenburg selected

2

assumed that sampling data was comprised entirely of Aroclors, or a mixture of Aroclors, or

3

byproduct PCBs from either silicone or pigments; but excluded sampling data comprised of a

4

mixture of Aroclors and byproduct PCB sources. (Id. at 5-6.) By failing to consider whether

5

sampling data is comprised of a mixture of Aroclor and byproduct PCB sources, Defendants

6

argue Dr. Rodenburg’s methodology excludes significant byproduct PCB mass within the

7

sampling data while still attributing certain analyzed data sample solely to an Aroclor source. 8

8

(Id. at 6-7.)

9

Defendants additionally note Dr. Rodenburg excluded additional byproduct PCB mass as

10

a “data validation” step before running her PMF program, further undercounting byproduct PCB

11

mass and overstating Aroclor contributions to the LDW. (Defs.’ Mot. at 7.) Last, Defendants

12

argue Dr. Rodenburg undercounts byproduct PCB contributions to the LDW by considering only

13

four congeners—PCBs 11, 206, 208 and 209—from only two sources —silicon and pigment. (Id.

14

at 7-8.) Defendants note more than 130 other individual byproduct PCB congeners have been

15

identified that Dr. Rodenburg omits from her analysis. (Id.)

16

The City counters that Defendants’ criticism of Dr. Rodenburg’s data exclusion is

17

mistaken because such data exclusion is in fact required by the PMF analysis for reliable results.

18

(Pl.’s Resp. at 8, 10-11.) The City contends Defendants’ suggestion that Dr. Rodenburg

19

intentionally excluded byproduct PCB mass is wrong because “it is not possible to determine

20

whether the source of excluded PCB mass was [Aroclor] or byproduct” in nature as “most of the

21
22
23

On this issue, Defendants argue that Dr. Rodenburg excluded 40% of aggregate PCB mass from surface
water data, 24% from groundwater data, 55% from otter scat data, 12% from air deposition data, 8% from
storm drain data, 6% from sediment data and 4% from tissue data. (See DeBord Decl., Ex. B (Rodenburg
Seattle Dep. at 198:18-22, 199:5-200:15, 201:9-13, 205:25-206:5).)

8

ORDER - 16

Case 2:16-cv-00107-RAJ-MLP Document 784 Filed 09/13/23 Page 17 of 36

1

PCB congeners that have been identified as potentially associated with byproduct PCBs are also

2

contained in Monsanto’s Aroclors.” (Id. at 8.) The City further argues that significant quantities

3

of byproduct PCB sources “have been found in vanishingly few locations” and have been found

4

to be “a significant source of PCBs to the environment in a very small number of cases.” (Id. at

5

12.)

6

As detailed in background above, Dr. Rodenburg employed a two-step methodology to

7

determine the source of PCBs to the various analyzed environmental compartments and whether

8

the PCBs present in the data samples were produced by Monsanto or were inadvertent/byproduct

9

PCBs created as the result of other manufacturing processes. (See DeBord Decl., Ex. A at 10-14.)

10

To do so, Dr. Rodenburg performed a factor analysis using PMF to generate PCB “fingerprints”

11

detected in the data samples before interpreting the “fingerprints” using MLR or visual

12

inspection. (Id.) On this subject, her report notes:

13
14
15
16
17
18
19
20
21
22
23

The PMF approach looks for patterns that exist in the data. It does not ‘look’ for
Monsanto’s Aroclors. The PMF approach can quantify the fraction of a given
congener that comes from different sources, for example from Monsanto’s Aroclors
versus non-Aroclor sources, and it does not make the assumption that no weathering
of the PCB fingerprints has taken place. Instead it produces fingerprints of
congeners that co-vary and have been found to be present in most of the samples.
The user can then compare these fingerprints to the congener patterns of
Monsanto’s Aroclors to determine whether they are similar.
(Id. at 10.)
As later discussed in her report, Dr. Rodenburg notes “in order for the PMF program to
reliably identify sources, it needs to have an adequate quantity of data and the data needs to be of
sufficient quality.” (DeBord Decl., Ex. A at 11.) Because the PMF program requires a sufficient
quantity and quality of data, Dr. Rodenburg recognizes the PMF program requires data with “a
relatively low proportion of non-detects to yield reliable results” (id.), which therefore requires
excluding data samples with a high number of non-detects (see e.g., id. at 19 (“[T]he number of

ORDER - 17

Case 2:16-cv-00107-RAJ-MLP Document 784 Filed 09/13/23 Page 18 of 36

1

non-detects in the surface water samples made it necessary to limit the data set to a relatively low

2

number of peaks, and inadvertent PCBs were excluded from the PMF input for this reason.”).

3

Dr. Rodenburg’s exclusion of certain data to limit the number of non-detects to allow the

4

PMF analysis to identify PCB sources did not intentionally exclude byproduct PCBs nor render

5

her methodology unreliable. As acknowledged in both her report and testimony, excluding some

6

portion of PCB mass is necessary for the validity of Dr. Rodenburg’s PMF analysis. Dr.

7

Rodenburg’s report provides a detailed account of why certain PCB mass was excluded as well

8

as the efforts she employs to identify non-Aroclor PCB sources where Aroclors and non-Aroclor

9

PCB sources “are moving together in the environment” by comparing the R2 values as well as

10

examining the fingerprints visually. (See DeBord Decl., Ex. A at 10-14.) Dr. Rodenburg testified

11

it is also not possible to determine whether the source of any of the excluded PCB mass was

12

Monsanto’s PCBs or byproduct PCBs. (Mueller Decl., Ex. B (Rodenburg Seattle Dep. at

13

206:24-207:2 (“[W]hether those congeners are inadvertent or Monsanto’s Aroclors, I cannot tell

14

you”), 208:14-23 (“In the case of samples or congeners that [] have been discarded, you can

15

assume that the discarded mass reflects the same mixture of Aroclor and non-Aroclor sources as

16

the mass that was kept in the model.”)).) In addition, Dr. Rodenburg testified the data exclusion

17

required by her methodology is employed by other scientists in this area to identify PCB sources

18

in the environment. (Id. (Rodenburg Seattle Dep. at 304:16-305:3).) In short, absent the

19

exclusion of certain PCB mass, Dr. Rodenburg’s method would provide inconclusive and

20

unreliable results.

21

Moreover, though Defendants suggest Dr. Rodenburg undercounts byproduct PCB

22

contributions to the LDW by considering only four byproduct PCB congeners from pigments and

23

silicone (PCB 11, 206, 208, 209), Dr. Rodenburg explained in her report why she only

ORDER - 18

Case 2:16-cv-00107-RAJ-MLP Document 784 Filed 09/13/23 Page 19 of 36

1

considered those byproduct PCB congeners given her research and experience that they are the

2

only congeners that meaningfully contribute to PCB contamination in the environment. Dr.

3

Rodenburg’s report acknowledges the impact of byproduct PCBs as a significant source of PCB

4

contamination in the environment in only two cases: (1) a case involving yellow pigment from

5

diarylide yellow (PCB 11) found in the New York/New Jersey Harbor in 2002; and (2) another

6

case from the production of titanium dioxide/white pigment (PCBs 206, 208, 209) in the

7

Delaware River in 2007. (See DeBord Decl., Ex. A at 11, 14-15.) Since 2007, Dr. Rodenburg

8

notes she has identified silicone-derived PCBs (PCB 68) as the only other relevant source of

9

byproduct PCBs to environmental contamination, but caveats her recent work suggests such

10

PCBs are introduced in data sampling merely due to the silicone products used in collection of

11

the samples. (Id.)

12

Defendants point to Dr. Rodenburg’s testimony that she agreed that, by considering only

13

4 out of 130 potential byproduct congeners, her methodology could result in an “underestimation

14

of byproduct sources” within the LDW. (See DeBord Decl., Ex. B (Rodenburg Seattle Dep. at

15

264:15-265:4).) However, Dr. Rodenburg immediately testified any potential underestimation of

16

byproduct PCB congeners was lessened because she “looked at the PMF results.” (See id. at

17

265:3-4; see also DeBord Decl., Ex. A at 13 (“In the same way that I calculate an R2 value to

18

evaluate the similarity of a PMF-generated factor to Monsanto’s Aroclors, I also calculated R2

19

values for the comparison of PMF-generated factors to non-Aroclor sources.”).) She also

20

examined such fingerprints visually. (See DeBord Decl., Ex. A at 12 (“I have always visually

21

examined fingerprints to determine whether they contain congeners that are characteristic of

22

Monsanto’s Aroclors or, alternatively, non-Aroclor sources.”), 13). Dr. Rodenburg’s report

23

sufficiently provides why she considered byproduct PCB contributions from the only four

ORDER - 19

Case 2:16-cv-00107-RAJ-MLP Document 784 Filed 09/13/23 Page 20 of 36

1

congeners she has determined to be significant to PCB environmental contamination and how

2

she identified such byproduct PCBs based on her review of PMF results and visual examination

3

of non-Aroclor sources. In any case, such undercounting of other PCB congeners can be

4

“challenged in some objective sense” by Defendants on cross-examination. City of Pomona, 750

5

F.3d at 1047 (quoting Fed. R. Evid. 702 Advisory Committee’s Note to 2000 Amendments).

6

Ultimately, Defendants’ challenges to Dr. Rodenburg’s methodology for how she arrived

7

at her conclusions based on how she conducts data sampling, go to the weight, and not the

8

admissibility, of her testimony. See Primiano, 598 F.3d at 564 (citing Daubert I, 509 U.S. at

9

596). As noted by the City, Defendants’ claims are highly similar to the critiques leveled at the

10

government’s environmental chemistry expert in United States v. Sanft, 2021 WL 5278766

11

(W.D. Wash. Nov. 13, 2021). In that case, the government’s expert analyzed pH measurements

12

in sewers and concluded the results were consistent with chemical profiles expected from

13

drum-reconditioning facilities. Id. at *1. Defendants argued the chemical profiles were too

14

similar to profiles from other industries to draw such conclusions, specifically faulting the

15

expert’s report for “failing to exclude other sources of high pH liquid” because the wastewater

16

profile for the drum reconditioning industry is “so generic that it could easily apply to

17

wastewater from other types of industrial facilities.” Id.

18

The Honorable Richard A. Jones determined the government expert’s report was

19

ultimately reliable because the expert had relied on collected samples based in part on EPA

20

reports “grounded in scientific principles” to determine the expected chemical profiles. Sanft,

21

2021 WL 5278766 at *2 (citing Wendell v. GlaxoSmithKline LLC, 858 F.3d 1227, 1232 (9th Cir.

22

2017)). In pertinent part, the Court noted that while “[d]efendants may disagree with Dr.

23

ORDER - 20

Case 2:16-cv-00107-RAJ-MLP Document 784 Filed 09/13/23 Page 21 of 36

1

Lowry’s opinions and challenge the accuracy of the evidence supporting his conclusions, [] their

2

challenge goes to the weight of his testimony, not its admissibility.” Id.

3

Likewise, because the Court finds Dr. Rodenburg’s methodology and its data exclusion

4

sufficiently “grounded in the methods of science” for the opinions she offers in this case, see

5

Wendell, 858 F.3d at 1232, the Court declines to exclude her opinion on the basis that it

6

arbitrarily excludes byproduct PCB mass or consideration of other specific byproduct PCB

7

congeners. See Kennedy v. Collagen Corp., 161 F.3d 1226, 1230-31 (9th Cir. 1998) (citation

8

omitted) (“Disputes as to the strength of [an expert’s] credentials, faults in his use of [a

9

particular] methodology, or lack of textual authority for his opinion, go to the weight, not the

10

admissibility, of [his] testimony”).

11

iv.

12

R2 Cutoff Values

Last, Defendants challenge Dr. Rodenburg’s MLR determinations regarding the strength

13

of R2 comparison between the PCB fingerprints and known patterns of Aroclor and byproduct

14

PCB sources. (Defs.’ Mot. at 8-10.) Defendants state Dr. Rodenburg employed R2 cutoff values

15

of her own creation which are arbitrary, not subjected to peer-review, and contradicted by

16

authoritative literature Dr. Rodenburg cites favorably outside this lawsuit. (Id. at 8-9.)

17

Alternatively, Defendants request Dr. Rodenburg’s opinions be confined to those based on R2

18

values generally accepted within the scientific community.9 (Id. at 10.) The City counters the R2

19

cutoff values relied upon for Dr. Rodenburg’s opinions are peer-reviewed, approved, and not a

20

basis to find her opinion inadmissible. (Pl.’s Resp. at 12.)

21
22
23

Defendants provide that had Dr. Rodenburg used a R2 cutoff of 0.9 to determine the presence of Aroclor
PCBs, only 21.4% of the environmental compartments considered would have been deemed Aroclors.
(Defs.’ Mot. at 9 (citing DeBord Decl., Ex. G (dkt. # 636-7).)

9

ORDER - 21

Case 2:16-cv-00107-RAJ-MLP Document 784 Filed 09/13/23 Page 22 of 36

1

As noted above, per Dr. Rodenburg: (1) an R2 value of 0 to 0.4 indicates sampling data

2

contained a highly weathered Aroclor or a non-Aroclor source; (2) 0.4 to 0.8 indicates a

3

weathered Aroclor; and (3) 0.8 to 1.0 indicates an unweathered Aroclor. (DeBord Decl., Exs. A

4

at 12-14, B (Rodenburg Seattle Dep. at 88:21-91:9).) In a published study from 2020, Dr.

5

Rodenburg used the same R2 cutoff values. (See id., Ex. A at 12; see also Mueller Decl., Ex. C

6

(dkt. # 667-3) at 3 (“In an investigation of PCB fingerprints in the Duwamish River, the State of

7

Washington used a scale in which an R2 of 0.8 or greater indicated an ‘unweathered’ Aroclor and

8

an R2 between 0.4 and 0.8 indicated a weathered Aroclor.”).) However, Defendants note in

9

another published study from 1987 that Dr. Rodenburg cites to in her report, an R2 value of 0.9 or

10

greater was found to be necessary to determine whether a sample contained PCBs, and that study

11

rejected an R2 value of 0.725 as insufficient. (Id., Ex. A at 24; see also Ex. B (Rodenburg Seattle

12

Dep. at 140:2-142:2).)

13

Dr. Rodenburg’s R2 values have been circulated in the relevant scientific community and

14

are sufficiently reliable. As cited to in her report, Dr. Rodenburg employed the same R2 values in

15

published and peer-reviewed work from 2020. (See Mueller Decl., Ex. C at 3.) In any case, the

16

appropriate R2 values to be used can also be “challenged in some objective sense” by Defendants

17

on cross-examination. City of Pomona, 750 F.3d at 1047 (quoting Fed. R. Evid. 702 Advisory

18

Committee’s Note to 2000 Amendments). Defendants’ challenge therefore goes to the weight of

19

her testimony, and not its admissibility. See Sanft, 2021 WL 5278766 at *2 (“Defendants may

20

disagree with [an expert’s] opinions and challenge the accuracy of the evidence supporting his

21

conclusions, [but] their challenge goes to the weight of his testimony, not its admissibility.”).

22

\\

23

\\

ORDER - 22

Case 2:16-cv-00107-RAJ-MLP Document 784 Filed 09/13/23 Page 23 of 36

1

C.

Mr. Woodyard

2

Next, the City seeks to exclude all of Mr. Woodyard’s expert and rebuttal opinions. (See

3

Pl.’s Mot.) The City argues that: (1) Mr. Woodyard’s first and second opinions summarize

4

irrelevant evidence; (2) Mr. Woodyard’s third and fourth opinions should be excluded as not

5

relevant to the City’s public nuisance claim or Defendants’ defenses, and (3) Mr. Woodyard’s

6

fourth opinion “is based on fiction.” (Id. at 4-7.) The City additionally contends Mr. Woodyard’s

7

fifth and sixth opinions on the source of byproduct PCBs are not based on sufficient facts or data,

8

nor the product of reliable principles and methods, and that he is unqualified to submit a rebuttal

9

report to Dr. Rodenburg. (Id. at 7-11.)

10

The Court will examine the City’s contentions in turn:

11

i.

Opinions One and Two

12

The City first argues that Mr. Woodyard’s opinions summarize irrelevant governmental

13

regulations from EPA and other regulatory agencies, with which he lacks expertise, and that the

14

general regulation of PCBs is not relevant to the City’s public nuisance claim. (Pl.’s Mot. at 4-5.)

15

The City further contends that, at most, Mr. Woodyard’s first and second opinions offer

16

improper legal conclusions. (Id. at 5.)

17

Defendants counter Mr. Woodyard’s first and second opinions are relevant because he

18

can aid the jury’s understanding of regulatory documents based on his 40 years of experience

19

applying EPA regulations and coordinating with the EPA on its interpretation and application of

20

those regulations. (Defs.’ Resp. at 2-4.) Defendants further argue his first and second opinions

21

are relevant to the City’s public nuisance claim because they consider whether Defendants’

22
23

ORDER - 23

Case 2:16-cv-00107-RAJ-MLP Document 784 Filed 09/13/23 Page 24 of 36

1

conduct in manufacturing and selling PCBs can be considered a nuisance under Washington law

2

and the City’s conduct in terms of what it knew about PCBs.10 (Id. at 4.)

3

As noted above, expert testimony is relevant if it “logically advance[s] a material aspect

4

of the party’s case.” Estate of Barabin, 740 F.3d at 463; see also Daubert v. Merrell Dow

5

Pharms., Inc. (“Daubert II”), 43 F.3d 1311, 1315 (9th Cir. 1995). Expert testimony is not

6

excluded for relevancy where “it speaks clearly and directly to an issue in dispute in the case,

7

and . . . it will not mislead the jury.” Daubert II, 43 F.3d at 1321 n.17. For a public nuisance

8

claim, the City must establish conduct constituting a nuisance. See Miotke v. City of Spokane,

9

101 Wn.2d 307, 309, 331 (Wash. 1984), abrogated on other grounds by Blue Sky Advocs. v.

10

State, 107 Wn.2d 112 (Wash. 1986). As such, the City bears the burden of proving the

11

unreasonableness of Monsanto’s conduct. See Lakey v. Puget Sound Energy, Inc., 176 Wn.2d

12

909, 923 (Wash. 2013) (citations omitted) (noting that the reasonableness of a defendant’s

13

conduct in a nuisance action is determined by “weighing the harm to the aggrieved party against

14

the social utility of the activity”); see also Wash. Civil Pattern Jury Instruction 380.03.

15

Mr. Woodyard’s summary of EPA and other regulatory agencies rules and procedures is

16

not relevant nor helpful to the jury to assess the City’s public nuisance claim in this case. (See

17

Goutman Decl., Ex. A at 7 (“EPA and other regulatory bodies have controlled every aspect of

18

the manufacture, sale, use, safe handling, cleanup, and disposal of [PCBs] since 1979.”), 14

19

(“EPA and other regulatory bodies have established safe PCB levels for products in use, in food,

20
21
22
23

Defendants additionally argue several of the City’s experts invoked the 2014 EPA Record of Decision
in their respective reports, and that Mr. Woodyard should be permitted to explain the regulatory processes
underpinning that Record of Decision. (Defs.’ Resp. at 4.) However, Mr. Woodyard’s first and second
opinions do not substantively discuss the 2014 Record of Decision or its processes. (See Goutman Decl.,
Ex. A at 7-30.) Mr. Woodyard also repeatedly testified he did not rely upon the 2014 Record of Decision
for his opinions. (Woerner Decl., Ex. A (Woodyard Dep. (dkt. # 622-1) at 40:4-6, 41:15-24, 42:9-12,
44:3-11).)
10

ORDER - 24

Case 2:16-cv-00107-RAJ-MLP Document 784 Filed 09/13/23 Page 25 of 36

1

and in the environment.”).) Mr. Woodyard has not worked for the EPA nor as a government

2

regulator. (See Woerner Decl., Ex. A (Woodyard Dep. (dkt. # 622-1) at 10:9-18).) In instances

3

like this, courts have excluded experts where the expert presented a historical summation with no

4

specialized expertise or experience in evaluating such documents. See e.g., Pooshs v. Phillip

5

Morris USA, Inc., 287 F.R.D. 543, 550 (N.D. Cal. 2012) (excluding expert who summarized

6

archival tobacco industry documents because she was “not qualified as an expert in researching

7

document archives”).

8
9

Even if the regulatory documents referenced by Mr. Woodyard were within his area of
expertise, Mr. Woodyard does not clearly express any opinion in these portions utilizing his

10

expertise. Instead, it appears Mr. Woodyard provides a general recitation of surrounding

11

regulations and facts about PCBs but fails to offer resulting opinions as to the EPA’s and other

12

regulatory bodies’ historical roles in managing PCBs. (See Goutman Decl., Ex. A at 7-30.) As

13

such, Mr. Woodyard’s first and second opinions do not apply his stated expertise “beyond the

14

common knowledge of the average layperson” to summarize regulatory documents. See Moses v.

15

Payne, 555 F.3d 742, 756 (9th Cir. 2009).

16

Furthermore, to the extent Mr. Woodyard’s first and second opinions do offer opinions,

17

he offers only legal conclusions. (See e.g., Goutman Decl., Ex. A at 9 (“The Toxic Substances

18

Control Act of 1976 authorizes EPA to regulate the manufacture, sale, use, safe handling,

19

cleanup, and disposal of PCBs.”), 23 (“Monsanto’s PCB land disposal recommendations and

20

warnings to customers were consistent with industry practice at the time.”), 29 (“Monsanto’s

21

decision not to install PCB solids incineration capability in 1977 was reasonable based on the

22

lack of proven technology.”). “It is well established that experts may not give opinions as to legal

23

conclusions.” Cypress Ins. Co. v. SK Hynix Am., Inc., 2019 WL 634684, at *2 (W.D. Wash. Feb.

ORDER - 25

Case 2:16-cv-00107-RAJ-MLP Document 784 Filed 09/13/23 Page 26 of 36

1

14, 2019) (citing Crow Tribe of Indians v. Racicot, 87 F.3d 1039, 1045 (9th Cir. 1996) (“Expert

2

testimony is not proper for issues of law.”)). Consequently, any opinion Mr. Woodyard would

3

offer regarding whether Monsanto’s conduct was authorized by applicable governmental

4

regulations would constitute an improper legal conclusion. This issue is also before the

5

Honorable Richard A. Jones as an issue of law in Defendants’ pending motion for summary

6

judgment. (See dkt. # 326 at 48-58; dkt. # 442 at 65-71.)

7

Mr. Woodyard’s first and second opinions are therefore excluded.

8

ii.

Opinions Three and Four

9

Next, the City contends that Mr. Woodyard’s third and fourth opinions are irrelevant to

10

the City’s public nuisance claim or Defendants’ defenses. (Pl.’s Mot. at 6.) Defendants respond

11

these opinions go to the “City’s knowledge and conduct regarding PCBs” and that the EPA’s

12

oversight is relevant to whether the City “has and continues to suffer due to costs of investigating

13

and cleanup of alleged PCB contamination in the LDW.” (Defs.’ Resp. at 5.)

14

Opinions 3 and 4 speak to: (1) the City’s relationship with the EPA; (2) the EPA’s and

15

others’, including the Occupational Safety and Health Administration, Ecology, and electric

16

utility professional organizations, advice regarding PCB; and (3) regulatory oversight of the

17

cleanup of the LDW. (See Goutman Decl., Ex. A at 32-63.) Mr. Woodyard’s third and fourth

18

opinions generally provide that EPA has controlled, regulated, and provided the City information

19

on the hazards and proper disposal of PCBs, and that the City has received and solicited advice

20

from several outside organizations regarding PCBs since 1978. (See id.) These opinions therefore

21

address aspects of the City’s own conduct, the City’s knowledge regarding the risks of PCBs,

22

and matters of causation that remain at issue in this case. Estate of Barabin, 740 F.3d at 463;

23

Daubert II, 43 F.3d at 1321 n.17.

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1

As such, Mr. Woodyard’s third and fourth opinions are relevant to addressing whether

2

Defendants’ conduct constituted a public nuisance and how liability should be apportioned. See

3

Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 709 F.3d 872, 883 (9th Cir. 2013) (“The

4

district court is not tasked with deciding whether the expert is right or wrong, just whether his

5

testimony has substance such that it would be helpful to a jury.”). At a minimum, Mr.

6

Woodyard’s third and fourth opinions remain relevant to Defendants’ affirmative defenses, i.e.,

7

causation, comparative fault, allocation of liability, and/or apportionment of damages. (See

8

Answer (dkt. # 270) at 28-49; see also Order (dkt. # 581) at 5.)

9

iii.

10

Slip 4

The City contends that part of Mr. Woodyard’s fourth opinion opining the City is

11

responsible for PCB discharges to the “Slip 4” area of the LDW is “based in fiction” given his

12

reliance on only a portion of produced sales records and should thus be excluded. (Pl.’s Mot. at

13

6-7.) Defendants respond that the totality of sales records do not establish that the PCBs shipped

14

to Boeing by Monsanto “would have been used or discharged in the [Slip 4] area.” (Defs.’ Resp.

15

at 5-6.)

16

As part of his fourth opinion, Mr. Woodyard suggests the City is responsible for PCB

17

discharges to the “Slip 4” area of the LDW because Boeing did not purchase the sort of PCBs

18

that were located there. (See Goutman Decl., Ex. A at 53-56.) To form this opinion, Mr.

19

Woodyard testified he examined two years of Boeing’s PCB purchase sales data from 1959 and

20

1960, which revealed sales of Aroclor 1254 (Woerner Decl., Ex. A (Woodyard Dep. at

21

106:23-107:4)), but not Aroclor 1242, which was found at the North Boeing Field site. (Goutman

22

Decl., Ex. P (Woodyard Dep. at 160:15-162:4).) 11 However, the City avers, and Defendants do

23

Mr. Woodyard’s report appears to omit any specific citation to the examined sales records. (See
Goutman Decl., Ex. A at 54-56 n.359-375.)
11

ORDER - 27

Case 2:16-cv-00107-RAJ-MLP Document 784 Filed 09/13/23 Page 28 of 36

1

not dispute, that sales records produced to Defendants from several other years demonstrate

2

Boeing in fact purchased Pydraul containing Aroclor 1242. (See Woerner Decl., Exs. C (dkt.

3

# 622-3), D (dkt. # 622-4).)

4

Mr. Woodyard’s fourth opinion is not supported by the available data. Though Mr.

5

Woodyard’s fourth opinion acknowledges Boeing’s PCB contributions to the Slip 4

6

contamination (see Goutman Decl., Ex. A at 53-56), Mr. Woodyard failed to account for the

7

totality of sales records in leveling his inference that remaining PCB contamination at Slip 4,

8

despite Boeing’s remediation efforts, came as a result of the City. See Whisnant v. United States,

9

2006 WL 2861112, at *2 (W.D. Wash. Oct. 5, 2006) (“[C]ourts have also found the following

10

factors relevant in assessing the reliability of expert testimony . . . whether the expert has

11

adequately accounted for obvious alternative explanations.”). Despite Defendants’ contention

12

that the existence of such sales records does not definitively establish that those PCBs were

13

discharged by Boeing in the Slip 4 area (see Defs.’ Resp. at 6), Defendants’ position improperly

14

shifts the admissibility burden of this portion of Mr. Woodyard’s opinion to the City. See Lust,

15

89 F.3d at 598. The “Slip 4” portion of Mr. Woodyard’s fourth opinion is therefore excluded.

16
17

iv.

Opinions Five and Six

The City argues Mr. Woodyard’s fifth and sixth opinions on the source of byproduct

18

PCBs are not based “on sufficient facts or data” and are not “the product of reliable principles

19

and methods.” (Pl.’s Mot. at 7-9.)

20

Testimony may be excluded under Rule 702(d) where there is “too great an analytical gap

21

between the data and the opinion proffered” to support inclusion of the testimony. Gen. Elec. Co.

22

v. Joiner, 522 U.S. 136, 146 (1997); Fed. R. Evid. 702 Advisory Committee’s Note to 2000

23

Amendments (noting relevant factors include “[w]hether the expert has unjustifiably extrapolated

ORDER - 28

Case 2:16-cv-00107-RAJ-MLP Document 784 Filed 09/13/23 Page 29 of 36

1

from an accepted premise to an unfounded conclusion”). An expert must therefore bridge the

2

analytic gap with more than bald assertions. City of Pomona, 750 F.3d at 1049; see also

3

Provident Life & Accident Ins. Co. v. Fleischer, 18 F. App’x 554, 556 (9th Cir. 2001) (excluding

4

expert’s testimony where report “did little more than baldly state” a conclusion, “offer[ed]

5

absolutely no foundation for the conclusion,” and did “not explain what, if any, scientific studies

6

or principles support[ed] that conclusion.”).

7
8
9

1.

Opinion Five

The City first contends Mr. Woodyard’s fifth opinion is not based on sufficient data
because he did not analyze samples of PCBs in the LDW and determine they were byproduct

10

PCBs, but instead, provides that because byproduct PCBs exist and are becoming more common,

11

they are becoming the predominant PCB found in the LDW. (Pl.’s Mot. at 8.) The City argues he

12

should not be permitted to testify that the City is “continually” discharging byproduct PCBs into

13

the LDW where his evidence fails to back that proposition. (Id.) Defendants argue Dr.

14

Rodenburg herself agrees byproduct PCBs have been found in the LDW and note Mr. Woodyard

15

provided several pieces of evidence of their general presence in consumer and commercial

16

products and in wastewater and stormwater discharges. (See Defs.’ Resp. at 6-7 (citing Goutman

17

Decl., Ex. O (dkt. # 738-15)).)

18

Mr. Woodyard provides in his fifth opinion that many consumer and commercial

19

products contain byproduct PCBs and that most of these products are available to consumers in

20

the LDW. (See Goutman Decl., Ex. A at 65-66.) As noted by Defendants, outside of citing to Dr.

21

Rodenburg’s own studies of byproduct PCBs and her prior deposition testimony, Mr. Woodyard

22

cites to Ecology’s publication on “Polychlorinated Biphenyls in General Consumer Products,”

23

for the proposition that, “the EPA has identified 200 chemical processes with a potential for

ORDER - 29

Case 2:16-cv-00107-RAJ-MLP Document 784 Filed 09/13/23 Page 30 of 36

1

generating byproduct PCBs . . . .” (Goutman Decl., Ex. A at 66 n.463; see also id., Ex. G (dkt.

2

# 738-7) at 3.) He also identifies a study by the City of Spokane, which found byproduct PCBs

3

present in numerous products used by municipalities. (Goutman Decl., Ex. A at 66 n.465; see

4

also id., Ex. H (dkt. # 738-8) at 33.)

5

After identifying these sources of byproduct PCBs, Mr. Woodyard opines that “common

6

consumer and municipal products containing by-product PCBs are still being used in the LDW

7

watershed.” (Goutman Decl., Ex. A at 69.) For this proposition, Mr. Woodyard cites Ecology’s

8

findings in studies in 2016 and 2014 investigating the presence of byproduct PCBs in consumer

9

products and notes the studies found most of the products tested contained detectable levels of

10

byproduct PCBs. (Id. at 69-70 (citing id., Ex. G).) He further notes, based on the City of Spokane

11

study, that byproduct PCBs were detected in a variety of products purchased by the City of

12

Spokane, “including paints, deicers, firefighting foam, vehicle wash soap, pesticides/herbicides,

13

motor oil, dust suppressants, and asphalt products.” (Id. at 70 (citing Goutman Decl., Ex. H).)

14

Based on the City’s Rule 30(b)(6) deposition testimony in this case that similar products were

15

purchased and used by the City, Mr. Woodyard avers byproduct PCBs are entering the LDW in

16

part due to the City’s actions. (See id. at 70.)

17

Here, Mr. Woodyard offers sufficient factual support for the general prevalence of

18

byproduct PCBs and his fifth opinion’s conclusion. Though the City takes issue with the fact that

19

Mr. Woodyard did not analyze data samples of PCBs in the LDW to determine they were

20

byproduct PCBs, he need not conduct his own independent investigation or analysis to infer their

21

presence in the LDW based on their prevalence in consumer and commercial uses. See Daubert

22

I, 509 U.S. at 592 (“An expert is permitted wide latitude to offer opinions, including those that

23

are not based on firsthand knowledge or observation.”).

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1

Mr. Woodyard’s fifth opinion also does not present “too great of an analytical gap”

2

between the data offered (i.e., that byproduct PCBs are being produced and found in numerous

3

consumer products), and his opinions proffered (i.e., byproduct PCBs are now becoming the

4

predominant PCB found in the environment; byproduct PCBs are “continually being discharged

5

by numerous sources” into the LDW because consumer and municipal products containing them

6

are being used in the LDW, including by the City). See Joiner, 522 U.S. at 146; City of Pomona,

7

750 F.3d at 1049. The City may disagree with Mr. Woodyard’s conclusions on this issue based

8

on his cited evidence, but such challenges go to the weight of his testimony, not its admissibility.

9

See Primiano, 598 F.3d at 564 (citing Daubert I, 509 U.S. at 596); Sanft, 2021 WL 5278766 at

10

*2.

11

2.

12

Opinion Six

The City argues Mr. Woodyard’s sixth opinion is not reliable because his conclusion that

13

there is no evidence PCBs in building products are a significant source of PCBs in the LDW is

14

connected only through the “ipse dixit” of his expertise. (Pl.’s Mot. at 8-9.) Defendants respond

15

that the City merely disagrees with Mr. Woodyard’s conclusion that there is no evidence PCBs in

16

building products are a significant source of PCBs in the environment and LDW. (Defs.’ Resp. at

17

8-9.)

18

For his sixth opinion, Mr. Woodyard opines there is “no evidence that PCBs in building

19

products are a significant source of PCBs in the environment or the LDW.” (Goutman Decl., Ex.

20

A at 3, 70.) In sum, Mr. Woodyard bases this conclusion on his understanding of the chemical

21

properties of PCBs, specifically finding that: (1) PCBs in open use applications, such as caulk,

22

were designed to remain in those applications, and loss rates of PCBs from open uses were low;

23

(2) only a fraction of PCBs lost from open use applications, such as caulk, would make it to the

ORDER - 31

Case 2:16-cv-00107-RAJ-MLP Document 784 Filed 09/13/23 Page 32 of 36

1

LDW; (3) PCBs that potentially volatilized from caulk had higher vapor pressure and more

2

readily degradable congeners; and (4) that recent research shows “PCB bioavailability” from

3

paint chips in the environment is “extremely low.” (See Goutman Decl., Ex. A at 70-72.) From

4

this, Mr. Woodyard opines contributions of PCBs from open use sources to the LDW is

5

negligible as PCBs sales from such sources were phased out and due to the 15 to 20-year lifespan

6

of caulk. (Id. at 72.)

7

Despite providing the chemical properties of PCBs and how their use in building

8

products would result in negligible PCB contamination contributions, Mr. Woodyard’s sixth

9

opinion does not go on to cite to any specific scientific studies conducted in the LDW

10

demonstrating the negligible impact of PCB-containing building products nor qualify how

11

building product contributions are not a “significant source” for PCB contamination in the LDW.

12

Instead, his sixth opinion cites to the lack of EPA regulatory requirements to remove PCB

13

containing building materials once discovered. (See Goutman Decl., Ex. A at 72-74.) He opines

14

that though there is evidence PCB-containing building products are present in the LDW and

15

“past their useful life and prone to deterioration,” there is no evidence they are constantly

16

escaping or were released from caulk, paint, and similar materials. (Id. at 74.)

17

Curiously, Mr. Woodyard goes on to cite several examples where PCBs from building

18

products were in fact detected in the LDW. (See Goutman Decl., Ex. A at 74-80.) For instance,

19

Mr. Woodyard predominantly cites to an Ecology commissioned study in 2011 that sampled

20

paint and caulk from 31 buildings located within the LDW and found PCBs detected in the paint

21

and caulk samples. (See id. at 75, 79-80.) He notes the study concluded “the paints [in the

22

commercial/industrial buildings sampled] contain relatively high concentrations of PCBs” but

23

avers that it did so incorrectly due to the EPA regulatory standards. (Id.) Mr. Woodyard also

ORDER - 32

Case 2:16-cv-00107-RAJ-MLP Document 784 Filed 09/13/23 Page 33 of 36

1

goes on to list the detection of PCBs in building materials at several other sites located in the

2

LDW, including the former Rainier Brewery, King County Youth Services Center, North Boeing

3

Field, Boeing Plant 2, and the Port of Seattle’s Terminal 117, with some of the referenced

4

sampling finding PCB levels above the EPA regulatory limit. (See id. at 75-78.)

5

Mr. Woodyard’s sixth opinion therefore presents “too great of an analytical gap” between

6

the data offered regarding the chemical properties of PCBs and the cited LDW building product

7

studies and his opinion proffered that PCBs from building products are not a significant source

8

of PCBs in the LDW. See City of Pomona, 750 F.3d at 1049 (“It is where expert opinion is

9

‘connected to the existing data only by the ipse dixit of the expert’ that there may be ‘too great

10

an analytical gap between the data and the opinion proffered’ to support inclusion of the

11

testimony.”) (internal citation and quotations omitted). Mr. Woodyard’s sixth opinion is

12

excluded.

13
14

v.

Rebuttal Opinion

Finally, the City argues Mr. Woodyard is not qualified to rebut Dr. Rodenburg. (Pl.’s

15

Mot. at 9-11.) The City notes that, in contrast to Dr. Rodenburg’s construction and application of

16

peer-reviewed methods to analyze PCB samples available in the LDW, Mr. Woodyard has no

17

experience to quantify the amount of byproduct PCBs in the LDW, has never employed PCB

18

fingerprinting to determine PCB sources, nor offers any competing method to identify PCB

19

sources. (Id.)

20

Defendants argue that Mr. Woodyard’s 40 years of experience consulting on PCB

21

management, disposal, and cleanup sufficiently qualifies him to rebut Dr. Rodenburg. (Defs.’

22

Resp. at 9-10.) Defendants further offer that Mr. Woodyard has “regularly conducted chemical

23

fingerprinting” throughout his experience as an engineer. (Id. at 10.)

ORDER - 33

Case 2:16-cv-00107-RAJ-MLP Document 784 Filed 09/13/23 Page 34 of 36

1

An expert is considered qualified to testify if the expert has “sufficient specialized

2

knowledge to assist the jurors in deciding the particular issues in the case.” Kumho Tire, 526

3

U.S. at 156. Because Rule 702 “contemplates a broad conception of expert qualifications,” only

4

a “minimal foundation of knowledge, skill, and experience” is required. Hangarter v. Provident

5

Life & Accident Ins. Co., 373 F.3d 998, 1015-16 (9th Cir. 2004) (internal quotations and citation

6

omitted; emphasis in original).

7

In his rebuttal report, Mr. Woodyard largely summarizes and cites to Dr. Rodenburg’s

8

previous deposition testimony, her issued reports on PCBs, as well as Dr. Rodenburg’s prior

9

articles on PCBs, to opine Dr. Rodenburg erroneously downplays the contribution of byproduct

10

PCBs to the LDW. (See Goutman Decl., Ex. Q.) Based on his cited sources, Mr. Woodyard

11

identifies Dr. Rodenburg’s use of PMF analysis as faulty because of its bias toward identifying

12

Aroclors. (Id. at 7-9.) In sum, Mr. Woodyard provides Dr. Rodenburg’s opinions are unreliable

13

inter alia because:

14
15
16
17
18
19
20
21
22

Dr. Rodenburg’s conclusions are flawed due to the way in which she went about
her analysis. She began by massaging the sampling data by eliminating possible
non-Aroclor congeners, assumed the results were Aroclors for the purpose of
running her PMF analysis, and then creating arbitrary R2 threshold values that
validated her hypothesis. I do not take issue with the use of PMF, only with the
biasing of the input data and the resulting misinterpretation of the output.
Absent a fair treatment of the data, her PMF-based conclusions that legacy PCBs
are dominant in the LDW watershed are unfounded and unreliable, because the
PMF model as she applied it was biased by her initial assumption that the PCBs
found were from Aroclors and not byproduct PCBs.
In addition, most of the data used in Dr. Rodenburg’s analyses were derived from
environmental sampling outside the LDW and she failed to use all of the data from
the relevant area.
(Id. at 9.)

23

ORDER - 34

Case 2:16-cv-00107-RAJ-MLP Document 784 Filed 09/13/23 Page 35 of 36

1

On this issue, though Mr. Woodyard has significant experience consulting as an engineer

2

and remedial contractor on PCB regulation, management, disposal, and cleanup (see Goutman

3

Decl., Ex. A at 105-113), his PCB management experience lacks the minimal foundation of

4

knowledge, skill, and experience to qualify him to identify flaws in Dr. Rodenburg’s PCB

5

identification methodology. Nor is it clear from his rebuttal report how he relies on his PCB

6

experience to identify the alleged errors in Dr. Rodenburg’s report.

7

Based on the record before the Court, Mr. Woodyard does not have any experience

8

identifying PCB sources through chemical fingerprinting, any specific or specialized experience

9

with PMF and MLR analysis, nor does his rebuttal report offer an alternative methodology for

10

identifying Aroclors from byproduct PCBs. (See Goutman Decl., Exs. A at 105-113, Q; see also

11

Woerner Decl., Ex. A (Woodyard Dep. at 147:21-23, 149:1-6, 231:15-22).) And though

12

Defendants claim Mr. Woodyard has “regularly conducted chemical fingerprinting,” Defendants

13

fail to provide any support for that contention (see Defs.’ Resp. at 9-10) nor does Mr.

14

Woodyard’s rebuttal report itself evince any basis for his experience with PCB fingerprinting

15

identification (see Goutman Decl., Ex. Q). Mr. Woodyard has also testified that “he does not

16

know what chemical fingerprinting analysis” is (see Woerner Decl., Ex. A (Woodyard Dep. at

17

137:9-13)), that he has no analytical laboratory experience with PCBs (see id. at 139:15-25), and

18

that he ultimately has no opinion or an alternative number with respect to Dr. Rodenburg’s

19

conclusion that greater than 95% of the total PCB contamination present in the LDW can be

20

sourced to Monsanto’s Aroclors. (See id. at 147:7-23, 148:21-149-6).)

21
22

Mr. Woodyard’s identified flaws in Dr. Rodenburg’s opinions based on her previous
deposition testimony, academic articles, and authored reports are more appropriately addressed

23

ORDER - 35

Case 2:16-cv-00107-RAJ-MLP Document 784 Filed 09/13/23 Page 36 of 36

1

by Defendants during Dr. Rodenburg’s cross-examination. 12 See Primiano, 598 F.3d at 564

2

(citing Daubert I, 509 U.S. at 596); Sanft, 2021 WL 5278766 at *2. The City’s Motion to

3

exclude Mr. Woodyard’s rebuttal opinion is therefore granted.
IV.

4
5
6

CONCLUSION

For the foregoing reasons: (1) Defendants’ Motion (dkt. # 634) is DENIED; and (2) the
City’s Motion (dkt. # 621) is GRANTED in part and DENIED in part.

7

The City’s Motion is denied as to Mr. Woodyard’s third, fourth, and fifth opinion, but

8

otherwise granted to exclude his first, second, “Slip 4” portion of his fourth, sixth, and rebuttal

9

opinions. The City’s motion to strike Defendants’ attached exhibits (dkt. ## 725-1, 725-2, 725-3)

10

submitted with their reply to their motion regarding Dr. Rodenburg is DENIED.

11
12

The Clerk is directed to send copies of this Order to the parties and to the Honorable
Richard A. Jones.

13

Dated this 13th day of September, 2023.

14

A

15

MICHELLE L. PETERSON
United States Magistrate Judge

16
17
18
19
20
21
22
23

The City provides that Defendants’ other rebuttal experts for Dr. Rodenburg, including Robert Karls,
Scott Recker, and Dr. Jennifer Wilkie, are also available to rebut Dr. Rodenburg’s opinion, and “have
more pertinent expertise.” (See Pl.’s Mot. at 9 n.47; see also dkt. ## 344-12 at 2-3, 678-1 at 3.)

12

ORDER - 36