Opinion
Nos. 3:94-CV-2477-H, 3:96-CV-1927-H, 3:96-CV-1929-H, 3:96-CV-2985-H, 3:96-CV-2993-H, 3:96-CV-3057-H, 3:96-CV-3092-H, 3:96-CV-3093-H, 3:96-CV-3094-H, 3:96-CV-3095-H, 3:96-CV-3096-H, 3:96-CV-3097-H, 3:96-CV-3098-H, 3:97-CV-0052-H, 3:97-CV-0055-H, 3:97-CV-1185-H.
December 14, 2000.
MEMORANDUM OPINION AND ORDER
On November 2, 2000, the Court held an evidentiary hearing on Defendants' Motion to Strike the Expert Designation of Dr. Jack Matson, filed August 4, 2000; Defendants' Motion to Strike the Expert Designation of Dr. Cohn Baynes, filed August 10, 2000; and Motion of Meridian Housing Co., et al., to Strike the Expert Designation of Dr. Baynes, filed August 10, 2000; and all pleadings related thereto.
For the reasons set forth below, the Court concludes that Plaintiffs' experts do not meet the threshold standards required to offer expert testimony in this case, and that Defendants' Motions should be GRANTED in part and DENIED in part, as set forth below.
I . The Court as Gatekeeper
The Supreme Court, in Daubert v. Merrell Dow Pharmaceuticals, Inc., defined the role of the district court as gatekeeper in determining both the reliability of those persons intending to offer expert testimony in scientific matters, and the relevancy of that proposed testimony. This gatekeeper's role now encompasses the proposed testimony of all designated experts, not merely those testifying on scientific matters.
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Court's gatekeeper role is grounded in the requirements of FED. R. EVID. 702, as amended (effective Dec. 1, 2000).
Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
The proponent of an expert witness must prove by a preponderance of the evidence that the testimony is reliable, i.e., that the expert's findings and conclusions are based on the scientific method. The proponent must show "some objective, independent validation of the expert's methodology," but need not prove that the testimony is correct. In examining the qualifications and reliability of such designated experts, the Court uses the factors set forth by the Supreme Court in Daubert as a starting point, and may supplement those factors with other considerations tending to establish the reliability and relevancy of the proposed testimony.
Moore v. Ashland Chemical, Inc., 151 F.3d 269, 276 (5th Cir. 1998) (en banc).
Id.
Tannery v. Westbrook, MD., 174 F.3d 542, 547 (5th Cir. 1999).
The Court's discretion extends to the rejection of proposed expert testimony where "there is simply too great an analytical gap between the data and the opinion proffered." Under the Federal Rules of Evidence, as amended, a qualified expert witness may testify "if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." "Under Daubert, `any step that renders the analysis unreliable . . . renders the expert's testimony inadmissible. This is true whether the step completely changes a reliable methodology or merely misapplies that methodology.'"
General Electric Co. v. Joiner, 522 U.S. 136 (1997).
FED. R. EVID. 702, as amended.
Moore, 151 F.3d at 278 n. 10 (internal citation omitted); FED. R. EVID. 702, as amended (Committee Note).
In this case, Plaintiffs have designated Dr. Jack Matson as their expert on arsenic air emission rates from various sources at the Commerce and Ridgeway sites and on the relevant industry standards of care applicable to Defendants; and Dr. Colin Baynes as their expert on modeling the atmospheric dispersion of arsenic from sources at and around the Hi-Yield facility in Commerce. Defendants assert that both of these experts failed to use appropriately tested and accepted methodologies in arriving at their opinions, and further that each committed substantial errors in applying their methodologies, rendering their testimony unreliable. The Court will address each of the experts in turn.
II . Analysis
A. Dr. Jack Matson
In their Response to Defendants' Motion and their presentation before the Court, Plaintiffs established the qualifications of Dr. Matson as an environmental engineer. Dr. Matson has Bachelor of Science and Master of Science degrees in chemical engineering and his Ph.D. in environmental engineering. He is currently a Professor of Environmental Engineering at Penn State University, is a Registered Professional Engineer, has worked as a chemical and environmental engineer in several industries, and was a member of the Texas Air Control Board from 1991 to 1993. Dr. Matson has authored various published technical publications and conference papers, particularly on topics related to industrial wastewater.
Defendants have moved to strike each portion of Dr. Matson's proffered testimony in this litigation, namely arsenic emission estimates at or near the Commerce site, arsenic emission estimates at the Ridgeway site, and the industry standards of care applicable to the Defendants. In support of their challenges, Defendants have proffered the analysis of their own engineering experts, Stanley Hayes and David Cabe, and submitted further documentary evidence.
1. Commerce
Dr. Matson testified that, in arriving at his opinion in this case, he selected and applied various emissions estimation methodologies that he had determined were best suited for application to the respective arsenic sources he studied. He testified, as the Plaintiffs contend in their pleadings, that he was limited in his analysis by sparse and decades-old data, and by the fact that similar studies and estimation methodologies were not available during the time period in which the Hi-Yield facility was actually in operation in Commerce.
Dr. Matson estimated probable airborne arsenic emissions from four process and area sources at or near the Hi-Yield facility in Commerce during the period 1962-1972. First, to estimate airborne emissions from the evaporator tower, constructed at the facility to reduce the industrial wastewater from on-site storage ponds, Dr. Matson applied a Gaussian dispersion algorithm. His testimony and expert report, as well as the peer-reviewed literature submitted by Plaintiffs, establish that this algorithm is an accepted scientific methodology for back-calculating emissions rates from industrial sources. With respect to the evaporator tower, the Court concludes that various calculation errors and faulty assumptions alleged by Defendants, including whether Dr. Matson sufficiently accounted for other possible sources of airborne arsenic during the relevant time period, are questions of the weight and credibility of his opinion and thus go beyond the Daubert threshold inquiry.
The second emissions source Dr. Matson analyzed was the scrubber flare system used at the Hi-Yield facility in the process of nitric acid recovery from the production of arsenic acid. Wastewater from the on-site ponds was pumped through a series of scrubbers, during which some water was entrained in the gas stream burned in the flare at the end of the system. Dr. Matson's report and testimony reflect his treatment of this scrubber flare as a continuous source of airborne arsenic emissions from the Hi-Yield facility from 1962 to 1972. Due to the lack of detailed information on the configuration of the system at Hi-Yield, Dr. Matson based his estimate of this source on analogy and extrapolation from the scrubber system at another arsenic acid production plant, operated by Elf Atochem in Bryan, Texas. He calculated his estimate for Hi-Yield's scrubber system based on a proportional comparison to the amount of arsenic processed at these two plants.
Despite Dr. Matson's own assertion that such use of analogy is an acceptable scientific method for yielding a reliable emissions estimate, Plaintiffs have not established that his use and application of this methodology is reliable in this case. Dr. Matson relied on a peer-reviewed work, namely the Master's Thesis of a student that he supervised, for his methodological approach to estimating emissions from the scrubber flare. This indicator of reliability notwithstanding, Dr. Matson lacked definitive information on certain features of the Hi-Yield system and has not established that this system was sufficiently similar to that used at Elf Atochem, so as to render his extrapolation reliable in this case. Moreover, he testified that he did not include in his calculations certain process variables set out in the Shamory methodology. Finally, he has indicated no means by which the reliability of his emissions estimates from the scrubber flare has been or can be tested.
Brett Damon Shamory, Airborne Arsenic Emissions From Arsenic Acid Production Plants (1994) (unpublished Master's Thesis, Pennsylvania State University). The Shamory thesis particularly examined the Elf Atochem plant in Bryan, Texas.
The third emissions source that Dr. Matson initially examined was the release of airborne arsenic particles from the dry handling of arsenic at the Hi-Yield facility. This dry handling of material was allegedly the single largest source of airborne emissions at or near the facility. Dr. Matson indicated in his expert report and his testimony that he derived this estimate for the years 1962-1972 by applying an emissions factor, that is, a percentage figure applied to the amount of a particular raw material handled at an industrial facility. While the Court does not question, based on Dr. Matson's testimony, that such percentage factors are generally accepted scientific methodology for estimating industrial emissions, Plaintiffs have not established that the factor Dr. Matson applied in this case was sufficiently reliable. In cross examination, Dr. Matson conceded that the EPA report and 1% factor which he used were based only on a survey of manufacturers; he could point to no engineering calculations that supported the emissions factor, and was not aware of any testing or verification that supported its accuracy in estimating arsenic emissions.
In particular, he applied the 1% emissions factor reflected in a report on arsenic sources and emissions prepared for the Environmental Protection Agency in 1971.
Finally, and following his initial analysis and report, Dr. Matson estimated a fourth source of arsenic emissions near the Hi-Yield facility, namely airborne particulate matter from the arsenic dust deposited on and around the stretch of industry railroad track used to transport raw material into the facility. After initially concluding that there was no reliable methodology by which to estimate this source, Dr. Matson was directed by Dr. Baynes to a methodology peer reviewed and accepted by the EPA, adapted from an equation for estimating topsoil erosion from open areas. Based on Dr. Matson's supplemental report and testimony and the expert reports and other documentation proffered by Defendants, the Court finds that Plaintiffs have not established that Dr. Matson selected and reliably applied a sound scientific methodology appropriate to the facts of this case. Although Dr. Matson opined that the Cowherd methodology could be applied to hazardous waste sites, he further testified that he was not aware of any application of this methodology to the factual context of railroad tracks or arsenic particulate matter. Plaintiffs have supplied no evidence that this methodology has been peer reviewed, accepted or tested for application other than in the "unlimited reservoir" context for which it was originally devised.
C. Cowherd, et al., Midwest Research Institute, Control of Open Fugitive Dust Sources, September, 1988.
The Court recognizes that the inquiry under Rule 702 and Daubert focuses on principles and methodology, not on the accuracy or sufficiency of an expert's conclusions. There is an obvious and unfortunate paucity of data available for the time period and the sites at issue in this case, and there may no scientific methodology designed explicitly for or easily adapted to the types of emissions estimates required. Considering all four sources collectively, however, and for the specific reasons previously articulated, the Court finds too great an analytical gap between Dr. Matson's analysis of airborne arsenic emissions and the facts of this case. The portion of his testimony addressing sources at or near the Hi-Yield facility in Commerce do not meet the reliability threshold required by Daubert and its progeny and Rule 702, as amended. To this extent, Defendants' Motion is GRANTED.
2. Ridgeway
Plaintiffs' expert designation of Dr. Matson extends to his estimates of arsenic emissions at the Ridgeway site, where wastewater from the Hi-Yield facility was transported and stored in several ponds. Dr. Matson calculated arsenic emissions for each of the three ponds whose contents were subjected to spray irrigation at that site. Regarding the underlying analysis of surface and sub-surface migration of arsenic, the Court recognizes that Dr. Matson's expert opinion is based on the data and analysis of Plaintiffs' expert Gary D. Schroeder. Based on the Court's previous denial of Defendants' Motion to Strike the Expert Designation of Schroeder, Defendants' Motion to Strike Dr. Matson, with respect to the Ridgeway portion of his testimony, is DENIED. Defendants' challenges to Dr. Matson's further analysis of arsenic emissions from the spray irrigation process go to the weight and credibility of this portion of his testimony, not to its admissibility under Daubert. Dr. Matson relied on data from the Hi-Yield facility, as well as guidance from the Texas Natural Resource Conservation Commission (TNRCC) and various studies evaluating the impact of spray irrigation, in arriving at his conclusions. For this further reason, the Court finds that his testimony as to the Ridgeway site meets the minimum reliability threshold.
See Order of August 21, 2000.
3. Industry Standards of Care
Finally, Plaintiffs have designated Dr. Matson as their expert on the industry standards of care applicable to certain Defendants in this case. Plaintiffs and Dr. Matson clarified at the hearing that his opinion does not purport to establish Defendants' legal duty. Dr. Matson acknowledged that he does not have direct experience in the specific industries involved in this case. The Court finds, however, that this portion of his proposed testimony meets the minimum reliability requirement of the gatekeeping inquiry, based on his professional experience in other industries and his study of the Elf Atochem plant, mentioned above. Accordingly, this portion of Defendants' Motion is DENIED.
Dr. Matson's opinion is based on the parameters defined for expert testimony on standard of care, published by the National Society of Professional Engineers Recommended Practices, published in 1988.
B. Dr. Cohn Baynes
In their Response to Defendants' Motions and their presentation before the Court, Plaintiffs established the qualifications of Dr. Baynes as an engineer, environmental consultant, and atmospheric dispersion modeler. He has Bachelor's, Master's, and a Doctoral degree in engineering science, is a Registered Professional Engineer in Canada, has held various teaching and lecturing positions at Canadian universities, served as an expert air pollution consultant on numerous projects in the U.S. and abroad, and has authored various technical papers and presentations on a variety of topics. As with Defendants' challenge to Dr. Matson's testimony, however, the Motions to Strike Dr. Baynes' testimony in this litigation are not predicated on his general credentials or the relevance of his testimony but rather on his selection and application of methodology to the facts of this case. For the reasons set forth below, both Motions to Strike Dr. Baynes' testimony are GRANTED.
As set forth in the Motion filed by ASARCO and the Railroads, Dr. Baynes' testimony is inextricably linked to that of Dr. Matson. More specifically, Dr. Baynes' air dispersion modeling is based on Dr. Matson's emissions estimates of several of the sources of airborne arsenic in Commerce. Based on the Court's ruling on this portion of Dr. Matson's testimony, Dr. Baynes' proffered opinion based on his modeling results must also be, and hereby is, stricken. The Court further finds that Dr. Baynes has not otherwise minimally established that he reliably applied his methodology to the facts of this case. First, as reflected in the pleadings and in his cross examination testimony, Dr. Baynes has not established that the meteorological data on which he relied are sufficiently complete to run the model he employed in his analysis. Second, and relatedly, he could point to no source that indicates a minimum threshold of data sufficiency for the long-term, retroactive application of the model required by this case.
In addition to the unreliability resulting from Dr. Baynes' use of Dr. Matson's data and other input data not supported by scientific literature or otherwise tested, the Court finds that Dr. Baynes' testimony should be stricken based on his selection of air dispersion model for this case. It is not disputed that the model Dr. Baynes used is generally accepted, including by the EPA, and has been peer reviewed and tested, for short-term modeling in the regulatory context. The Court, moreover, recognizes that Rule 702 and Daubert and its progeny do not extend the gatekeeping inquiry to the district court's favoring one reliable methodology over another reliable methodology proffered by an opposing expert.
This argument was asserted in the other Motion to Strike, filed by Meridian Housing Co. and other related Defendants.
Dr. Baynes used a modified version of the Industrial Source Complex Short Term Model, referred to as "ISCST3."
Plaintiffs have not established, however, that the ISCST3 model is even minimally reliable for modeling atmospheric dispersion of particulate matter over a long term, and long past, period of time. Dr. Baynes' own assertions in this regard are not sufficient. Plaintiffs have provided no evidence that this use of the TSCST3 model has been peer reviewed, tested, or generally accepted in the relevant scientific community.
See Joiner, 522 U.S. at 146 ("[N]othing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.").
III . Conclusion
For the reasons set forth, the Court finds that portions of the proposed testimony of Dr. Jack Matson and the entire testimony of Dr. Colin Baynes do not meet the minimum requirement of FED, R. EVID. 702 and of Daubert and its progeny, namely that it be based upon tested and accepted theories and methodologies that have been applied reliably to the facts of the case. Defendants' Motion to Strike Dr. Matson is therefore GRANTED in part and DENIED in part. Defendants' Motion to Strike Dr. Colin Baynes and the Motion of Meridian Housing Co., et al., to Strike Dr. Baynes are GRANTED.
Pursuant to the provisions of the Case Management and Scheduling Order governing this case, entered March 4, 1999, the Plaintiffs may replace any expert stricken, as described in ¶ VIII.E.
THE CLERK IS DIRECTED TO IMMEDIATELY FAX THIS ORDER TO ALL COUNSEL.
SO ORDERED.