Good et al v. American Water Works Company, Inc. et al
MEMORANDUM OPINION & ORDER the 726 MOTION by Eastman Chemical Company for Summary Judgment on the Issue of Responsible Care is granted to the extent that Responsible Care is not the industry standard and does not impose an independent duty on Eastm an, but otherwise denied; the 734 MOTION by Eastman Chemical Company to Exclude the Opinions and Testimony of Lawrence M. Stanton is granted to the extent that Stanton opines regarding Responsible Care, but denied regarding risk management and haza rds of Crude MCHM; and the 852 MOTION by All Plaintiffs to Strike and Exclude Expert Reports Dated May 22, 2015 and February 22, 2016, Opinion, and Testimony of Michele R. Sullivan, Ph.D. is granted. Signed by Judge John T. Copenhaver, Jr. on 10/13/2016. (cc: attys; any unrepresented party) (skh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
CRYSTAL GOOD, individually and as
parent and next friend of minor children
M.T.S., N.T.K. and A.M.S. and
MELISSA JOHNSON, individually and as parent of her unborn
child, MARY LACY and JOAN GREEN and JAMILA AISHA OLIVER,
WENDY RENEE RUIZ and KIMBERLY OGIER and ROY J. McNEAL and
GEORGIA HAMRA and MADDIE FIELDS and BRENDA BAISDEN, d/b/a
FRIENDLY FACES DAYCARE, and ALADDIN RESTAURANT, INC., and
R. G. GUNNOE FARMS LLC, and DUNBAR PLAZA, INC.,
d/b/a DUNBAR PLAZA HOTEL, on behalf of themselves
and all others similarly situated,
Civil Action No.: 2:14-01374
AMERICAN WATER WORKS COMPANY, INC., and
AMERICAN WATER WORKS SERVICE COMPANY, INC.,
and EASTMAN CHEMICAL COMPANY, and
WEST VIRGINIA-AMERICAN WATER COMPANY,
d/b/a WEST VIRGINIA AMERICAN WATER, and
GARY SOUTHERN and DENNIS P. FARRELL,
MEMORANDUM OPINION & ORDER
Pending are the motion by Eastman Chemical Company
(“Eastman”) for summary judgment on the issue of responsible
care (ECF No. 726), Eastman’s motion to exclude the expert
testimony of Lawrence M. Stanton (ECF No. 734), and plaintiffs’
motion to strike and exclude the testimony of Michele R.
Sullivan, Ph.D. (ECF No. 852).
On January 9, 2014, approximately 300,000
residents in the Charleston, West Virginia, and the surrounding
area suffered an interruption in their water supply.
interruption was caused by a spill into the Elk River of a
mixture used for coal cleaning purposes, composed primarily of a
chemical known as Crude MCHM that was sold and distributed
exclusively by Eastman Chemical Company.
Crude MCHM consists
primarily of the chemical 4-methylcyclohexane methanol.
mixture was prepared and stored in a facility owned and operated
by Freedom Industries, Inc. (“Freedom Industries”).
Industries called the mixture that spilled into the Elk River
“Shurflot 944” (“Shurflot”).
Shurflot mixed Crude MCHM with
other elements, present in relatively small proportion.
mixture containing Crude MCHM infiltrated and contaminated the
WV American water treatment plant in Charleston, known as the
Kanawha Valley Treatment Plant (“KVTP”), which draws its water
from the Elk River.
By order entered on October 8, 2015 (ECF No. 470), the
court granted the plaintiffs’ motion to certify an issues class
under Federal Rule of Civil Procedure 23(c)(4) for the classwide determination of the defendants’ fault for the spill and
resulting water service interruption.
The issues class
certification also includes the comparative fault of Freedom, a
non-party, for those events.
As to Eastman, plaintiffs advance
two theories of liability, based on strict liability and commonlaw negligence.
Under their strict liability theory, plaintiffs
contend Eastman is liable for failing to warn of the dangers
inherent to Crude MCHM, failing to properly instruct Freedom
concerning the proper storage and handling of its product, and
for producing and selling a product that was unreasonably
dangerous and defective given its hazardous characteristics.
Under their negligence theory, plaintiffs allege that Eastman
failed to exercise reasonable care, as measured by applicable
industry standards, in its sale of Crude MCHM to Freedom.
Summary Judgment Motion on the Issue of Responsible Care
Eastman seeks summary judgment on the issue of whether
the American Chemistry Council’s (“ACC”) Responsible Care
initiative (“Responsible Care”) constitutes a set of industry
standards that impose a duty upon Eastman with respect to the
Eastman argues that Responsible Care is a voluntary
program rather than a codified set of standards against which
its conduct can be measured.
The motion seeks a ruling that
such a program does not create a duty to plaintiffs where none
otherwise exists, and that “without evidence of a duty owed to
Plaintiffs, Eastman is entitled to judgment as a matter of law”
on plaintiffs’ negligence claims.
Eastman’s Mem. Responsible
Care (ECF No. 727) at 1.
In their Memorandum in Support of Class Certification,
plaintiffs described their view that Responsible Care guidelines
provide “a standard of reasonable care for industry association
members to take action to ensure that a downstream user’s
storage and handling of a product [do not pose] a risk to public
ECF No. 414-21 at 18-19.
Plaintiffs have argued that
Eastman’s conduct did not comport with Responsible Care inasmuch
as Eastman failed to ensure its product, Crude MCHM, was
properly stored and handled by Freedom.
Id. at 19.
addition, plaintiffs argue that Eastman failed to meet “clear
industry expectations” requiring its personnel to be trained in
Responsible Care’s product stewardship principles.
Plaintiffs focus in particular on the fact that Glenda Flick, an
Eastman employee, visited the Freedom site prior to the spill,
on May 31, 2012, but did not assess the adequacy of Freedom’s
storage methods for Crude MCHM nor did she investigate the
condition of the tanks holding Crude MCHM.
that had Ms. Flick been properly trained in the principles of
Responsible Care, she would have identified the risks posed by
Freedom’s storage practices and notified the relevant Eastman
Eastman attacks the plaintiffs’ reliance on
Responsible Care as the basis for a duty owed by Eastman on
First, Eastman argues that even if Responsible
Care were an industry standard, this would not create a duty to
plaintiffs, a group Eastman describes as “tantamount to the
public at large.”
Eastman’s Mem. Responsible Care at 5.
Second, relying on the testimony of its expert Michele Sullivan,
Eastman argues that Responsible Care in fact “has no features of
an industry standard.”
Id. at 6.
In Eastman’s view,
Responsible Care cannot supply a standard of conduct because it
is intended to be flexible by design, allowing each member to
“tailor the initiative to its own needs.”
2016 at 4.
Sullivan Supp. Rep.
Eastman’s interpretation of Responsible Care is
consistent with that of the ACC, which in its amicus brief (ECF
No. 783-2) characterized Responsible Care as an “aspirational
initiative” that was not intended to create industry standards
or mandate uniform action. Id. at 14-15.
Sullivan also opines
that Responsible Care’s product stewardship principles do not
include a requirement that members audit or inspect their
Sullivan Rep. 2015 (ECF No. 726-1 at 7).
Plaintiffs respond with a number of arguments
supporting their interpretation of Responsible Care.
they rely on their expert, Lawrence M. Stanton, for the
proposition that Responsible Care has been widely adopted by the
chemical industry and “embodies and/or codifies the wellaccepted industry standard of care,” though Stanton does not
cite any specific examples.
Pls.’ Resp. Responsible Care (ECF
No. 831 at 3) (citing 2015 Stanton Decl. (ECF No. 831-2)).1
Second, plaintiffs rely on Mr. Stanton for an extensive
discussion of the purportedly mandatory nature of Responsible
Id. at 4.
Plaintiffs also cite statements
made by Eastman and its employees on the importance of
Responsible Care and the particular role it plays at the
Id. at 6-7 (describing Responsible Care as an
“indispensable information resource,” the “principle [sic] link
to customers,” and the “eyes and ears” of the company).
Turning to their legal arguments, plaintiffs point out
that the ultimate test of whether a defendant owes a legal duty
Plaintiffs also argue that Eastman engaged in “advocacy
efforts” which sought to limit federal regulation by bolstering
confidence in Responsible Care as a system of self-policing.
The only support for this observation comes from general
assertions by plaintiffs’ expert and one paragraph in a
Responsible Care implementation document. See RCMS –
Implementation, Operation and Accountability (ECF No. 831-4 at
6) (merely stating that Eastman has “an established federal
regulatory advocacy program” for matters of health, safety,
environmental and security regulation.)
is the foreseeability of injury, and that whether injuries were
reasonably foreseeable to Eastman is a mixed question of law and
fact that should be reserved for the jury.
Id. at 8 (citing
Neely v. Belk Inc., 668 S.E.2d 189, 198 (W. Va. 2008)).
Plaintiffs also argue that Eastman’s own policies show that
Responsible Care is an industry standard “by design” and that a
number of sources drawn from other industry participants confirm
Pls.’ Resp. Responsible Care at 13-17 (quoting
websites of various chemical company characterizing Responsible
Care as a “industry standard.”)
In its reply, Eastman reiterates its argument that
plaintiffs have failed to identify authority which supports
imposing a duty on Eastman owed to plaintiffs.
Responsible Care at 1 (ECF No. 901).
Eastman Reply on
Eastman argues that
imposing a duty on it to police its customers would essentially
render it a marketplace insurer.
Id. at 5.
Eastman also argues
that West Virginia law precludes imposition of such a duty where
Freedom, a third party, is criminally responsible for the
Eastman Reply on Responsible Care at 4
(“a person usually has no duty to protect others from the
criminal activity of a third party because the foreseeability of
risk is slight, and because of the social and economic
consequences of placing such a duty on a person” (quoting Miller
v. Whitworth, 455 S.E.2d 821, 825 (W. Va. 1995))).
As to Responsible Care, Eastman argues that it cannot
be treated as an industry standard due to its emphasis on
continual improvement, variation in implementation between
companies, and explicit language in guidance documents
disclaiming any intent to create binding standards.
cites its expert for the proposition that Responsible Care, even
if it were an industry standard, would not require Eastman to
inspect Freedom’s facilities or monitor how Crude MCHM was being
Eastman also objects to several of the materials relied
upon in the plaintiffs’ reply, including industry publications
referencing Responsible Care produced from websites and
testimony by an Eastman employee regarding safety measures
applicable to Crude MCHM adopted by Eastman following the spill.
Eastman argues that the latter would be inadmissible under
Federal Rule of Evidence 407 as a remedial measure.2
For the reasons discussed below, neither the statements
from industry members’ websites cited by plaintiffs nor the
testimony challenged by Eastman under Federal Rule of Evidence
407 would be material to the court’s ruling on these motions for
summary judgment. Accordingly, to the extent Eastman’s reply
contains a motion to strike those materials from the plaintiffs’
response, it is ORDERED that the motion to strike be, and it
hereby is, dismissed as moot.
Motion to Exclude Lawrence M. Stanton
Eastman moves to exclude Lawrence M. Stanton
(“Stanton”), plaintiffs’ expert on Responsible Care and
Eastman’s compliance therewith.
Stanton describes his
background as including “extensive experience and training in
the standards of care owed the public by the chemical industry
and its constituent companies, such as [Eastman].”
Decl. at 1.
Stanton’s recent experience includes working as the
Director of the EPA’s Office of Emergency Management and the
founding director of the Department of Homeland Security’s
Infrastructure Security Compliance Division.
Stanton claims to have “designed major components of chemical
risk management business practices, including as a central
participant in the American Chemistry Council’s development of
the Responsible Care Security Code.”
Id. at 2.3
Stanton has provided two expert declarations in
connection with this case.
In his initial declaration, Stanton
states his opinion that Eastman “fell short” of the requirements
of Responsible Care, exercising a level of care “beneath
An extensive statement of Stanton’s background was
attached to his initial expert declaration. See ECF No. 734-1
at 23. Eastman has not directly challenged Stanton’s
qualifications as an expert, focusing instead on the content of
his proffered opinions.
Id. at 4.
Stanton opines that Eastman was
aware of hazards associated with Crude MCHM and failed to
properly assess the risks associated with Freedom’s storage and
handling of the product.
In particular, Stanton states that
“Eastman was aware that [Freedom’s] physical plant was in a
deteriorated condition and that the company was not on firm
In simple terms, [Freedom] could not be
assumed to understand the hazards and risks of MCHM or how to
properly manage those hazards and risks.”
Id. at 5 (citations
Despite that knowledge, Stanton concludes that
Eastman “failed to take appropriate corrective action
commensurate with the risk of a spill.”
Id. at 6.
Stanton concludes that Eastman’s failure to warn Freedom, the
water company, and officials of the risks due to Crude MCHM “led
directly to the incident of January 9, 2014.”
Stanton’s opinion that Eastman’s conduct did not meet
the standards imposed by Responsible Care is based in part on a
review of twelve Responsible Care Guiding Principles.
opines that six of these principles specifically emphasize the
importance of communication of risk and hazard information to
III. To work with customers, carriers, suppliers,
distributors and contractors to foster the safe and
secure use, transport and disposal of chemicals and
provide hazard and risk information that can be
accessed and applied in their operations and products.
. . .
To promote pollution prevention, minimization of
waste and conservation of energy and other critical
resources at every stage of the life cycle of our
VII. To cooperate with governments at all levels and
organizations in the development of effective and
efficient safety, health, environmental and security
laws, regulations and standards.
VIII. To support education and research on the health,
safety, environmental effects and security of our
products and processes.
To communicate product, service, and process
risks to our stakeholders and listen to and consider
. . .
XII. To promote Responsible Care® by encouraging and
assisting others to adhere to these Guiding
2015 Stanton Decl. at 11-12 (quoting The American Chemistry
Council’s Responsible Care Guiding Principles) (emphasis
Stanton identifies two specific hazards associated
with Crude MCHM--its potential corrosiveness and its strong
odor--which Eastman was aware of and in his view was obligated
to analyze and effectively communicate to Freedom.
Id. at 13.
In his second declaration, Stanton adds observations
that Eastman “worked to build confidence in the Responsible Care
Code and its product stewardship” and “sought to limit the
extent of regulations to which [Eastman] was subject, including
regulations that may have materially impacted the Elk Creek
2016 Stanton Decl. (ECF No. 734-2 at 4).
disagrees with Eastman’s characterization of Responsible Care as
an aspirational initiative, arguing that Responsible Care is a
code of conduct and that the chemistry industry has represented
as much to the government for years.
Id. at 6 (“The Responsible
Care Code was offered as a better, more effective substitute to
regulations [and] was accepted as such by government on the
grounds that it was not ‘aspirational’ but was in fact an
enforceable set of standards . . .”).
Eastman’s motion to exclude Stanton rests on several
First, Eastman argues that Stanton’s opinions
constitute inadmissible legal conclusions and are supported by
nothing more than Stanton’s self-proclaimed authority on the
matters at issue.
Second, Eastman argues that much of Stanton’s
proffered testimony is not relevant and not supported by
sufficiently reliable data and facts as required by Daubert v.
Merrell Dow Pharm., 509 U.S. 579 (1993).
In particular, Eastman
argues that Stanton’s assertions that Responsible Care is an
industry standard is based on nothing more than his subjective
interpretation of Responsible Care, and notes his concession
that Responsible Care “is not a list of specific requirements.”
ECF No. 735, pg. 7 (quoting Stanton’s 2015 Dep. at 195). Eastman
also emphasizes that Stanton did not evaluate the practices of
other chemical companies in reaching the conclusions contained
within his reports. Id. at 8.
Third, Eastman seeks to exclude
Stanton because his testimony would be unduly prejudicial and
would tend to confuse or mislead the jury.
In opposition to Eastman’s motion to exclude Stanton,
plaintiffs argue that the court has already ruled that Eastman’s
criticisms go to the weight of Stanton’s testimony rather than
Plaintiffs refer to the court’s order of
October 8, 2015 (ECF No. 470), which considered Stanton’s
initial declaration in the context of the plaintiffs’ motion for
At that time, the court denied Eastman’s
motion to exclude Stanton for purposes of class certification,
finding that to the extent Stanton “relies on Responsible Care
standards that have not been adopted as industry standards and .
. . reaches conclusions regarding Eastman’s conduct based on
incomplete or selective evidence,” those objections went to the
weight rather than the admissibility of his opinion.
F.R.D. 274, 286 (S.D.W. Va. 2015).
Plaintiffs further argue
that Stanton’s opinions are not legal conclusions, that courts
routinely allow expert testimony on industry standards of care,
and that Stanton’s testimony on Eastman’s lobbying efforts are
both relevant and admissible “at a minimum, insofar as they
inform the existence of industry standard[s] commensurate with
Pls.’ Resp. Stanton (ECF No. 826) at 12.
In reply, Eastman argues that the court’s prior
treatment of Stanton’s testimony should not control because it
addressed only those issues germane to class certification.
addition, Eastman points out that Stanton’s 2016 declaration was
produced after class certification, and that his conclusions
regarding Eastman lobbying efforts are based on uncorroborated
Motion to Exclude Michele Sullivan
Plaintiffs, in turn, seek to strike and exclude the
testimony of Michele Sullivan, Ph.D. (“Sullivan”), Eastman’s
expert on Responsible Care.
Sullivan describes herself as an
“[e]xperienced senior chemical product safety/stewardship and
regulatory compliance professional and recognized expert.”
No. 852-1 at 17.
While she has worked as an independent
consultant in these areas since 2002, Sullivan’s most relevant
experience was a period from 1999 to 2001 during which she
served as a Senior Director at the American Chemistry Council,
with responsibilities including work on Responsible Care.
Sullivan has issued two reports for Eastman in connection with
this case, on May 22, 2015 and February 22, 2016.
Sullivan’s 2015 report discusses the background of
Responsible Care, concluding that Responsible Care “is not an
industry standard” because it “embraces a flexible approach for
improving performance . . . [and] does not prescribe specific
duties or standards of conduct.”
734-5) at 13.
Sullivan Rep. 2015 (ECF No.
Sullivan states her opinion that Responsible Care
“is not a manufacturer’s guarantee of safety” and that
“Responsible Care does not create a duty for Eastman to send an
employee to the Freedom Industries facility nor to inspect the
conditions of the site.”
Sullivan states that Responsible
Care includes a concept of “working with customers” with respect
to hazards and risks, but that the particular steps a company
takes to communicate risks should be commensurate with the risks
posed by a particular product.
Id. at 11-12.
In addition, she
states that “[t]here is no particular methodology or technique
for quantifying risk required by Responsible Care” and in the
case of Crude MCHM, Eastman’s decision to rely primarily on a
Material Safety Data Sheet (“MSDS”) to communicate the product’s
risks was appropriate. Id.
Sullivan’s second report largely responds to
criticisms levied by Stanton, in particular the suggestion that
Sullivan was conflating a global initiative by the International
Council of Chemical Associations (ICCA) with the domestic
Responsible Care program.
Sullivan Rep. 2016 (ECF No. 734-6) at
Sullivan reiterates that Responsible Care is not an
industry standard and states that the ICCA documents she relies
upon are relevant because “there is only one Responsible Care
Id. at 7.
Plaintiffs move to exclude Sullivan’s testimony and to
strike her reports in their entirety, arguing that her opinions
“examine Responsible Care in theory, not in practice, and convey
her subjective, unilateral interpretation of certain Responsible
Mem. Excl. Sullivan (ECF No. 853-2) at 2.
Plaintiffs also argue that Sullivan fails to base her opinions
on whether Responsible Care constitutes an industry standard on
a factual basis or any analysis specific to current industry
Id. at 4-5.
As a result, plaintiffs argue “there is
no analytical tie between the current industry and Dr.
Sullivan’s opinions with respect to what is not industry
Plaintiffs also highlight portions
of Sullivan’s deposition which in their view constitute
concessions that she is not qualified to render an expert
opinion with respect to management systems or standards of care.
Id. at 5-7.
Plaintiffs also object to the portions of
Sullivan’s reports which extensively quote portions of
Responsible Care documents, arguing that those materials should
be presented directly to the jury rather than introduced through
Finally, plaintiffs move to strike and exclude
Sullivan’s opinion that Eastman’s conduct complied with
Responsible Care, arguing that her opinion was reached without
any actual review of Eastman’s product stewardship with respect
to Crude MCHM.
Id. at 9-10.
In response, Eastman argues that Sullivan is fully
qualified to testify on Responsible Care and that plaintiffs’
challenges to her qualifications rest on statements “cherrypicked” from her depositions rather than her significant
Eastman argues that plaintiffs seek to exclude
Sullivan because her opinion contradicts their theory of
Eastman argues that Sullivan’s general observations
regarding the role of Responsible Care in the industry are
relevant and supported by the Responsible Care literature, and
that Sullivan did in fact engage in an analysis of Eastman’s
practices with respect to Responsible Care.
In their reply (ECF No. 902), plaintiffs again argue
that Sullivan’s opinions should be stricken in their entirety as
speculative and not sufficiently tied to the facts of the case.
Plaintiffs claim that Eastman’s position that Sullivan should be
allowed to testify as to the general contours of Responsible
Care concedes that she has not considered the adequacy of
Eastman’s practices in particular.
Plaintiffs also rely on
Sullivan’s deposition testimony to challenge her expertise in
several areas, including “management systems” and the evaluation
of “standards of conduct.”
Id. at 6-10.
argue that portions of Sullivan’s report reciting boilerplate
language from Responsible Care documents and purporting to
confirm Eastman’s compliance with those documents should be
stricken and excluded.
Id. at 12-14.
Summary judgment is appropriate only “if the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
“Material” facts are those necessary to
establish the elements of a party’s cause of action.
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also News
& Observer Publ’g Co. v. Raleigh-Durham Airport Auth., 597 F.3d
570, 576 (4th Cir. 2010) (same).
A “genuine” dispute of
material fact exists if, in viewing the record and all
reasonable inferences drawn therefrom in a light most favorable
to the non-moving party, a reasonable fact-finder could return a
verdict for the non-movant.
Anderson, 477 U.S. at 248.
When examining the record, the court must neither
resolve disputes of material fact nor weigh the evidence,
Russell v. Microdyne Corp., 65 F.3d 1229, 1239 (4th Cir. 1995),
nor make determinations of credibility, Sosebee v. Murphy, 797
F.2d 179, 182 (4th Cir. 1986).
Instead, the party opposing the
motion is entitled to have his or her version of the facts
accepted as true and, moreover, to have all internal conflicts
resolved in his or her favor.
Charbonnages de France v. Smith,
597 F.2d 406, 414 (4th Cir. 1979).
Along those lines,
inferences that are “drawn from the underlying facts . . . must
be viewed in the light most favorable to the party opposing the
United States v. Diebold, Inc., 369 U.S. 654, 655
Federal Rule of Evidence 702 governs the
admissibility of expert witness testimony.
A qualified expert’s
testimony is admissible if “it rests on a reliable foundation
and is relevant.”
Daubert v. Merrell Dow Pharm., 509 U.S. 579,
Neither Rule 702 nor case law establish a
mechanistic test for determining the reliability of an expert's
Rather, “‘the test of reliability is
flexible’ and ‘the law grants a district court the same broad
latitude when it decides how to determine reliability as it
enjoys in respect to its ultimate reliability determination.’”
United States v. Wilson, 484 F.3d 267, 274 (4th Cir. 2007)
(quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141-42
Testimony is relevant if it has any tendency to prove
or disprove an issue of fact that is of consequence in
determining the action. Fed. R. Evid. 401.
“typically presents a low barrier to admissibility,” United
States v. Leftenant, 341 F. 3d 338, 346 (4th Cir. 2003),
evidence must have some “plus value” to the trier of fact.
United States v. Queen, 132 F. 3d 991, 998 (4th Cir. 1997).
The court is not obliged to “determine that the
proffered expert testimony is irrefutable or certainly correct”
-- “[a]s with all other admissible evidence, expert testimony is
subject to testing by ‘[v]igorous cross-examination,
presentation of contrary evidence, and careful instruction on
the burden of proof.’”
United States v. Moreland, 437 F.3d 424,
431 (4th Cir. 2006) (quoting Daubert, 509 U.S. at 596)
(alteration in original); see also Maryland Cas. Co. v. Therm-ODisc., Inc., 137 F.3d 780, 783 (4th Cir. 1998) (noting that
“[a]ll Daubert demands is that the trial judge make a
‘preliminary assessment’ of whether the proffered testimony is
both reliable ... and helpful”).
Instead, the inquiry of the
court is focused on the principles and methodology employed by
the expert, not the conclusion reached.
Westberry v. Gislaved
Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999).
At the outset, the court notes that the arguments
between the parties as to Eastman’s motion for summary judgment
on the issue of Responsible Care encompass two distinct
First, there is a dispute about whether, as a
matter of law, Eastman owed a duty of care to the plaintiffs.
In that context, Eastman seeks a ruling that Responsible Care
does not supply such a duty.
The court has previously concluded
that Eastman may owe a duty of care to Plaintiffs arising from
the purported failure to provide information concerning the
potential hazards of Crude MCHM.
To the extent that Eastman’s
motion seeks a ruling that it owed no duty to Plaintiffs, it is
denied as moot.
Second, the parties dispute whether Responsible Care
is an industry standard and, if so, whether Eastman’s conduct
comported with its requirements.
The court concludes that the
record lacks competent evidence to establish that Responsible
Care represents the industry standard.
“Responsible Care” is an environmental, health, and
safety performance initiative of the chemical industry,
promulgated by the ACC.4
The Responsible Care guidelines are
intended to “establish a sense of direction and provide a
unifying vision” to “guide the actions of employees and
management.” Responsible Care Management System Implementation
Guidance (“RCMS Guide”), ECF No. 783-3, pg. 5.
stewardship” refers to the objectives of Responsible Care as
they relate to product handling and safety.
Surprisingly, there appear to be very few cases in
which courts have considered whether the ACC’s Responsible Care
guidelines represent the “industry standard” for the chemical
Eastman cites two prior cases in which courts
purportedly held that Responsible Care is not an industry
standard that creates a legal duty, Lescs v. William R. Hughes,
Inc., 1999 WL 12913 (4th Cir. Jan. 14, 1999) (unpublished), and
E. S. Robbins Corp. v. Eastman Chem. Co., 912 F. Supp. 1476
(N.D. Ala. 1995).5
Plaintiffs, in contrast, rely on Westley v.
Formerly known as the Chemical Manufacturers’ Association.
Eastman also cites Weist v. E.I. DuPont De Nemours & Co.,
2008 U.S. Dist. LEXIS 25615 (W.D.N.Y. Feb. 8, 2008) for the
proposition that, even assuming the adoption of Responsible Care
by the defendant in that case, it does not demonstrate an
assumption of a voluntary duty to monitor a customer’s handling
of a manufacturer’s products. The opinion cited is a magistrate
judge’s Report and Recommendation that was rejected by the
district court with respect to a different issue having to do
with negligent entrustment for which factual development was
still outstanding, resulting in recommittal to the magistrate
Ecolab, Inc., a case in which the district court held that
“product stewardship” is an industry standard in the chemical
industry based, in part, on a reference to Responsible Care.
See 2004 WL 1068805 at *11 (E.D. Pa. May 12, 2004)
Plaintiffs attempt to distinguish the cases
cited by Eastman, pointing out that Lescs and E. S. Robbins
Corp. dealt with limited aspects of Responsible Care and did not
explicitly hold that the program does not create a duty to third
In Lescs v. William R. Hughes, Inc., the plaintiff
asserted that defendant Dow Chemical failed to adhere to
standards contained within the Responsible Care Progress Report
for 1995-1996 in its production of the pesticide Dursban.
WL 12913 (4th Cir. 1999) (unpublished).
Dow’s failure to adhere
to Responsible Care, plaintiff asserted, meant that Dow failed
to meet industry standards, and thus could be liable under
Though the Fourth Circuit disposed of the issue
on the grounds that the Responsible Care guidelines relied on by
plaintiff were not in effect at the time of the production of
the pesticide, the court also was not impressed with the vague
language of Responsible Care.
See id. at *12 (“…a review of the
Id. at *3.
[Responsible Care report] reveals little in the way of
recognizable standards.”); see also id. at *12, n. 12 (“To put
it mildly, this language [of the Responsible Care report] paints
with a broad brush.”).
Similarly, in E. S. Robbins Corporation v. Eastman
Chemical Company, the district court for the Northern District
of Alabama rejected a purchaser’s argument that Responsible Care
imposed a duty on a chemical supplier to ensure that its
products were handled by a carrier in a particular manner.
F. Supp. 1476 (N.D. Ala. 1995).
The plaintiffs there contended
that the product stewardship provisions of Responsible Care
imposed a duty on the supplier (Eastman), owed to plaintiff, to
supervise or train carrier employees in how to load the chemical
product into plaintiff’s storage tanks.
In declining to
recognize a duty, the court emphasized the general, aspirational
nature of the guidelines.
See id. at 1493 (“The documents
simply show that Eastman . . . is studying a wide array of
safety and health-related factors concerning their products.”).
In contrast, in Westley v. Ecolab, Inc., the district
court for the Eastern District of Pennsylvania found that
Responsible Care was the industry standard for the chemical
2004 WL 1068805 (E.D. Pa. 2004).
In Westley, the
plaintiff, who had been injured on the job while using a
chemical cleaning product, sought to offer the expert testimony
that the product’s supplier had failed to properly train
plaintiff’s employer as to how to handle the product under the
Responsible Care guidelines.
The defendant sought to exclude
the expert’s testimony, arguing that Responsible Care guidelines
applied only to chemical manufacturers, not chemical product
The court, however, admitted the expert’s testimony,
Since the concept of ‘product stewardship’ appears to
be an accepted industry standard in the area of
chemical safety, Dr. Davidson’s testimony with regard
to this standard is not inappropriate.
Id. at *11.
The court appears to have based its conclusion
entirely on the testimony of a single expert, Dr. Davidson,
without reference to any case authority on the role of
The opinion does not indicate what
additional evidence, if any, suggests that Responsible Care
was the industry standard.
The brief treatments of the matter in the cited
opinions are of limited guidance.
However, the court
agrees with the concerns expressed in E. S. Robbins and
Lescs that the Responsible Care guidelines provide
relatively little in the way of substantive standards.
“industry standard,” is one that is well known and commonly
See Handley v. Union Carbide Corp., 804 F.2d
265, 273 (4th Cir. 1986).
Establishing an industrial
standard requires “at least some evidence that an equal or
similar standard was in place or recognized by a business
or industrial entity conducting the same or similar
activities as the defendant.”
Though the Plaintiffs
question whether they are more properly characterized as
“codes” than guidelines, it appears to the court that
Responsible Care and its implementation material provide
simply a set of principles and framework against which
Eastman derived its own specific rules regarding the
handling of its product.
See RCMS Guide, ECF No. 783-3,
pg. 4 (explaining that the guide provides “generic
Beyond their heavy reliance on the district court
opinion in Westley, the only other support for Plaintiffs’
contention that Responsible Care represents the “industry
standard” for chemical companies is the opinion of Plaintiffs’
Stanton’s opinions, however, are supported by
little more than his own assertions.
Stanton’s assertion that Responsible Care “is the
standard of care in the US chemical industry today,” is based
entirely on his professional experience with the chemical
industry and hazard regulations.
Though his experience is
extensive, the Federal Rules of Evidence require that the expert
establish some link between his experience and the facts.
Fed. R. Evid. 702 Advisory Committee notes (2000 amends.) (“If
the witness is relying solely or primarily on experience, the
witness must explain . . . how that experience is reliably
applied to the facts.”).
As discussed above, an “industry
standard,” requires at least some evidence that an equal or
similar standard has been adopted or recognized by another
See Handley, 804 F.2d at 273.
that he did not evaluate the practices of other chemical
companies in reaching the conclusions contained within his
reports. See Stanton 2015 Depo. at pp. 407-408.
acknowledges that Responsible Care does not impose specific
requirements or finite rules of behavior on chemical companies;
rather, it provides a list of general principles.
See id. at
Without some foundation to conclude that the broad
principles of Responsible Care translated into specific
practices or actions of companies that were well known and
commonly accepted within the industry, “Responsible Care” is not
shown to represent the industry standard.
The court will grant
Eastman’s motion for summary judgment, to the extent that it
seeks a ruling that Responsible Care is not an “industry
standard” and did not independently create a duty on Eastman
owed to Plaintiffs.
Turning to Eastman’s motion to exclude the testimony
of Stanton and in view of the reasoning above, the court
concludes that Stanton’s opinion is similarly deficient insofar
as it asserts that Eastman failed to adhere to the Responsible
The conclusions of Stanton’s report rest on an
assumption that Responsible Care imposed a duty on Eastman to
take particular actions concerning the handling of Crude MCHM.
Given the court’s finding that Responsible Care did not impose a
duty on Eastman, the court believes that Stanton’s testimony
lacks relevance to a finder of fact and should be excluded. See
Daubert, 509 U.S. at 597 (1993).
However, to the limited extent
that Stanton has opined regarding risk management and whether
the hazards of Crude MCHM would be obvious to those in the
chemical industry, the court concludes that his opinion is both
sufficiently reliable and relevant to a finder of fact as to be
As to Sullivan, her reports assert that Responsible
Care was not an industry standard, and serve to rebut Stanton’s
assertion that Responsible Care represents the industry
The remainder of her reports assert that Eastman’s
conduct did, in fact, comply with the Responsible Care
Thus, for the reasons discussed previously, the
court believes they lack relevance and will be excluded.6
For the above-stated reasons, the court ORDERS as
Eastman’s motion for summary judgment be, and it
hereby is, granted to the extent that Responsible Care is
not the industry standard and does not impose an
independent duty on Eastman, but otherwise denied;
Eastman’s motion to exclude Lawrence M. Stanton be,
and it hereby is, granted to the extent that Stanton opines
regarding Responsible Care, but denied regarding risk
management and hazards of Crude MCHM; and
Plaintiffs’ motion to exclude Michele R. Sullivan,
Ph.D. be, and it hereby is, granted.
A motion to strike expert testimony is generally improper,
and for that reason the court declines to strike any portion of
Sullivan’s reports. The federal rules provide that “[t]he court
may strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.” Fed.
R. Civ. P. 12(f) (emphasis added). The expert reports at issue
are not pleadings as defined by Rule 7, and there is no
provision in the rules for a motion to strike any other type of
document. In addition, motions to strike are generally viewed
with disfavor, and the Fourth Circuit has held that such motions
should be treated as “a drastic remedy.”
Scheduling conference at 4:30 p.m. at the Robert C.
Byrd United States Courthouse in Charleston, before
the undersigned, unless canceled. Lead counsel
directed to appear.
Entry of scheduling order.
Last day to serve F.R. Civ. P 26(a)(1) disclosures.
The Clerk is directed to forward copies of this
The Clerk is requested to transmit this Order
memorandum opinion and order to counsel of record and any and
Notice to all counsel of record and to any unrepresented
October 13, 2016
January 5, 2016
John T. Copenhaver, Jr.
United States District Judge
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