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Cooper v. Meritor, Inc.

United States District Court, N.D. Mississippi, Greenville Division

February 11, 2019

BRENDA J. COOPER, et al. PLAINTIFFS
v.
MERITOR, INC., et al. DEFENDANTS

          ORDER

          DEBRA M. BROWN UNITED STATES DISTRICT JUDGE

         In these consolidated cases, residents and former residents of the Eastern Heights neighborhood in Grenada, Mississippi, claim that the illegal disposal of chemicals at a nearby industrial facility contaminated their homes and property, and that the various operators of the facility concealed such disposal. Before the Court are numerous motions concerning certain opinions of three groundwater experts and a vapor intrusion expert designated by the plaintiffs.

         Because some of the challenged opinions offered by these experts do not meet the requirements for admission imposed by Federal Rule of Evidence 702 or Daubert v. Merrell Dow Pharmaceuticals, Inc., such opinions will be excluded.

         I Relevant Background

         These cases concern the Eastern Heights neighborhood (“Subdivision”) in Grenada, Mississippi; a neighboring industrial facility (“Facility”); and various bordering properties.

         The Facility property includes three areas of interest: (1) a former equalization lagoon on its northern border; (2) a known area of contaminant release referred to as AOC-A; and (3) another known area of contaminant release referred to as AOC-B, which is just to the west of AOC-A.

         The footprint of the Eastern Heights neighborhood may be described as a rough inverted cone shape, with the angled “bottom” pointing northwest and the round “top” pointing southeast. The round part of the cone is bordered to the southwest by the Facility, to the south by a triangular-shaped railyard property (“Railyard”) owned by the Grenada Railway, to the southeast by a stoneyard (“Stoneyard”) now owned by Dunham, Inc., and to the east by a railroad which runs south past the Subdivision and the Facility.

         To the east of the railroad is a large rectangular tract of land which the parties refer to as the Moose Lodge Road Area (“MLRA”). Four rectangular parcels of interest sit on the MLRA's western border, and run from north to south in the following order: (1) property owned by Kirk Family Holdings, LLC (“Kirk Property”); (2) property owned by Packaging Corp of America (“PCA Property”); (3) property owned by International Paper (“IP Property”); and (4) an area on the IP Property known as the former Buffing Compound Disposal Area (“BCDA”), where Facility employees disposed of chemicals in the late 1960s. These four areas are bordered to the east by Moose Lodge Road, which runs north to south through the MLRA and then turns east at the southern edge of the BCDA. A Permeable Reactive Barrier Wall (“PRB”), which was constructed in approximately 2004 to filter out chemicals from the groundwater, sits to the west between the Facility and Riverdale Creek.

         The locations described above are roughly demonstrated in Figure 1[1] below.

         Figure 1

         (Image Omitted)

         The Kirk Property has housed various structures of unknown purpose and has been used, at least in part, for storage of drums of unknown substances. The drums were stored in the southwest portion of the property. The PCA Property was used primarily as agricultural land but has since been abandoned. The Railyard has "historically been used for railcar storage."

         The various properties sit atop a layer of surficial soil, which is primarily made up of silt and clay. The surficial soil overlays an upper aquifer, which is comprised primarily of fine to coarse sand. The upper aquifer is divided in places into shallow and deep zones by a layer of intermediate clay, and overlays a layer of shaley clay, which itself overlays a lower regional aquifer comprised of sand with trace clay partings. The regional aquifer is the source of water for the area, including the Subdivision.

         II Relevant Procedural History

         On March 16, 2016, Brenda Cooper, Sylvia Caffey, Margaret Odems, Bernice Richardson, Dora Ward, Rosie Brady, Pearl Seldon, Betty Phillips, Alice Crumley, and Sylvia Cunningham filed a complaint in the United States District Court for the Northern District of Mississippi against Rockwell International Corporation and the Randall Division of Textron, Inc. Doc. #1. On June 30, 2016, United States Magistrate Judge Jane M. Virden consolidated the case with four member cases[2] for purposes of discovery and motion practice. Doc. #41. The day after consolidation, the plaintiffs filed an amended complaint against Meritor, Inc., Rockwell Automation Inc., The Boeing Company, and Textron, Inc. Doc. #43.

         In the amended complaint, the plaintiffs, residents or former residents of the Subdivision, seek damages for injuries to their homes and property caused by the operation of the Facility. The plaintiffs allege that the Facility was operated by (1) Rockwell International Corporation, the predecessor to Rockwell Automation, Inc., which itself is a predecessor to The Boeing Company, from 1965 until 1985; and (2) Randall Wheel Trim, a subsidiary of Textron, Inc., from 1985 until the present. Doc. #43 at 1-6, 9. The plaintiffs further allege that the Facility, which was used to manufacture chrome-plated wheel covers, utilized numerous chemicals, including hexavalent chromium and trichloroethylene (“TCE”), and that these chemicals were illegally placed into the environment, including the air and groundwater, with the defendants concealing such disposal.

         On August 19, 2016, Judge Virden issued a case management order which set an April 28, 2017, expert disclosure deadline for the plaintiffs. Doc. #83. At some point before the deadline, [3] the plaintiffs disclosed C. Scott Simonton, James Brinkman, and David Jenkins as three of their experts (“Groundwater Experts”). The plaintiffs also disclosed a joint report (“Groundwater Report”) prepared by the Groundwater Experts titled, “Trespass of Environmental Contamination into the Eastern Heights Subdivision Resulting from Past Activities Associated with the Grenada Wheel Cover Manufacturing Facility at 635 Highway 332 in Grenada Mississippi.” Doc. #569-1.

         The Groundwater Report sets forth eighteen distinct opinions:

Opinion 1: The Grenada Wheel Cover Manufacturing Facility (the Facility), former Rockwell International / Randall Textron Facility, and the Facility waste disposal area along Moose Lodge Road (disposal area) in Grenada, Mississippi, are known and continuing source of environmental contaminants. The Facility and disposal area have contaminated ambient air, groundwater, surface water, subsurface soils and soil vapors, and contamination has migrated though air, groundwater and soil vapor onto the property and into the homes in the Eastern Heights Subdivision (the Subdivision).
Opinion 2. Based on the chronology of the facility ownership, the responsible parties at a minimum include Rockwell International (also incorporated as Arvin-Meritor and Meritor) and Textron Automotive Company (formerly Randall Textron).
Opinion 3: Contaminated air, subsurface vapor and/or groundwater exist on all properties within the Subdivision. The plume of contaminated groundwater is much larger than shown in the reports that have been produced by consultants for the facility. The full extent of contamination from the facility and disposal site has not been characterized even though environmental investigations have been ongoing for almost 30 years.
Opinion 4. Contamination in groundwater has trespassed into the subdivision. Evidence for this trespass was available in 1993. Sampling since 2012 has shown groundwater and soil vapor beneath the Subdivision already is contaminated with chlorinated and non-chlorinated Volatile Organic Compounds (VOCs) including but not limited to trichloroethene and toluene. VOCs volatilize (convert from a liquid to a gas) from contaminated groundwater causing contamination in soil vapors above the contaminated groundwater. These contaminated vapors eventually migrate upward through the soil and sometimes through homes or industrial buildings above the plume to the atmosphere.
Opinion 5: Airborne pollutant pathways from sources in adjacent areas near the subdivision will not be remediated by the activities described in this plan. The proposed remedies for the subdivision are designed to eliminate contaminants in subsurface air and in groundwater beneath the subdivision only. Because sources of contamination on the facility and disposal area will not be remediated by activities described in this plan, contamination of ambient air within the subdivision will continue after groundwater and soil vapor contamination has been remediated.
Opinion 6: The Grenada facility and activities related to this facility are the sources of groundwater contamination beneath the facility, the disposal site and the subdivision. The contamination beneath the subdivision originated as uncontrolled migration of contaminated groundwater from adjacent properties. No other commercial or industrial activity capable of generating the contamination exists within or by the subdivision.
Opinion 7: The aquifer beneath the subdivision is threatened by future uncontrolled migration of contaminated groundwater from both the disposal site and the Facility: 1. Contaminated groundwater is presently migrating from the disposal site and will continue to migrate unless remedial measures are implemented. 2. Effective remedial measures implemented within the subdivision could induce groundwater contamination from the facility to flow northward into the subdivision unless preventive measures are implemented to isolate the subdivision from contamination on the adjacent properties.
Opinion 8: Protecting and remediating the aquifer beneath the subdivision with only a pump and treat remedy would accelerate the arrival of more highly contaminated groundwater into the subdivision from the adjacent properties and would increase the cost and time to complete the remediation of contaminated groundwater beneath the subdivision due to continuous importation of additional contamination.
Opinion 9: To restore groundwater quality while preventing the migration of more contaminated groundwater from the adjacent source areas into the subdivision, a pump and treat system combined with a slurry wall is the optimal solution. The slurry wall will be installed along the eastern and southern sides of the subdivision. The slurry wall will divert natural groundwater flow paths southward around the subdivision while avoiding any potential contaminant migration northward into areas which are not believed to be contaminated. The pump and treat system and Monitored Natural Attenuation (MNA) are the remedies which will be operated behind the slurry wall and within the subdivision to remove contaminated groundwater. These remedies will continue until the groundwater in the subdivision is restored to concentrations below the EPA and MDEQ Maximum Contaminant Levels (MCLs) for each of the contaminants.
Opinion 10: The groundwater cleanup will be accomplished in a reasonable timeframe as described by RCRA guidelines for RCRA Corrective Actions (EPA, 2004, Handbook of Groundwater Protection and Cleanup Policies for RCRA Corrective Action, EPA530-R-04-030 April 2004). The time for remediation of groundwater beneath the subdivision is estimated to be 30 years, assuming no free-product/dense non-aqueous phase liquids are found within the shallow aquifer beneath the subdivision. Two pore volumes of groundwater can be removed by pumping from the aquifer beneath the subdivision in 30 years. Pumping behind the slurry wall will cause clean water to flow into the subdivision from uncontaminated areas north of the subdivision. Removal of two pore volumes of contaminated water and replacement with clean groundwater will lower contaminant concentrations sufficiently that pumping can be diminished while MCLs are achieved by MNA. The slurry wall is essential to isolate the subdivision's groundwater from contaminated groundwater from the Facility and the disposal site during the pumping process and insure that only clean water is brought into the subdivision.
Opinion 11: The 30-year remedial measure timeframe will be preceded by a two-year period for project design and installation of the slurry wall, treatment plant and appurtenances, pumping wells and monitoring wells.
Opinion 12: The 30-year remedial measure timeframe will be followed by an indefinite period during which the pumping system and groundwater treatment facility will be maintained in a standby condition. The groundwater monitoring network around the subdivision will be maintained and will be sampled periodically during this time until groundwater remediation on the contaminated adjacent properties is no longer a threat to the groundwater quality beneath the subdivision.
Opinion 13: This plan and cost estimate uses a five-year post-remediation monitoring period. Because the duration of the post-remediation monitoring period depends entirely on the removal of the threat created by contamination on the adjacent properties, specifically, the successful remediation of continuing contaminant source and groundwater at the facility and the disposal site, the duration of the post-remediation monitoring period may be much longer than five years.
Opinion 14: The treatment plant and appurtenances will be decommissioned and removed, and pumping wells and monitoring wells will be removed after protection from the offsite groundwater contamination is no longer required.
Opinion 15: The cost of restoration for the properties to pre-impacted conditions is greater than $1.7 million per property. This cost is based on an aggregate approach, that is, restoring and protecting the subdivision as a whole. The cost to restore and protect each property individually would be much greater.
Opinion 16: The restoration of the subsurface groundwater and soil vapor will not prevent the continuing pollution of ambient air within the subdivision from sources on the facility and the disposal site.
Opinion 17. Recent testing and airborne pollution modeling (SWAPE, 2017) indicate that the subdivision has historically been exposed to volatile organic contaminants in ambient air and that this exposure continues. As stated in the opinions above, contamination sources for this pathway will remain in place and airborne contamination will continue to impact the subdivision and other areas surrounding the facility and disposal site until these source areas are remediated.
Opinion 18: Dense Non-Aqueous Phase Liquid (DNAPL) has been observed on the Grenada Facility near the SWMU 4, the former sludge lagoon, in monitoring well MW-2 and by AOC A, the leak from the former above-ground TCE storage tank, (Grenada 2012 Annual Report p.1-7). TCE is heavier than water and can penetrate clay layers, which threatens the water quality in the regional aquifer. The regional aquifer is the water supply for Grenada County. The data presented in Attachment 2 show that in 2015, TCE concentrations were increasing in most Facility monitoring wells, which had enough samples for evaluation. The threat to the regional aquifer will remain despite the efforts described in this report to protect the subdivision.

Id. at 2-5.

         The plaintiffs also disclosed James Fineis as a vapor intrusion expert, and produced his expert report titled, “Evaluation of Vapor Intrusion Conditions Eastern Heights Neighborhood Grenada, Mississippi 38901” (“Fineis Report”). Doc. #626-1. The Fineis Report sets forth the following conclusions:

Based on the evaluation of 119 samples (50 soil gas, 15 background air, 22 indoor air and 32 sub-slab) collected during the initial phase of the investigation of Eastern Heights neighborhood, the vapor intrusion pathway from groundwater or soil gas is complete for all 19 homes tested. The vapor intrusion pathway with regards to soil gas contamination is complete for all 50 properties tested. Additionally, significant levels of chemicals associated with the operations at the Grenada Manufacturing Facility have been detected in the background air samples collected within the neighborhood which puts all residents within Eastern Heights neighborhood at risk.

Id. at 12.[4]

         After the reports were disclosed, Meritor, Boeing, and Rockwell (“Meritor Defendants”) filed motions to exclude certain opinions and testimony of Brinkman, Doc. #569; Simonton, Doc. #571; and Jenkins, Doc. #578. Textron independently filed a motion to exclude certain opinions of the Groundwater Experts, Doc. #585; and a motion to exclude certain opinions of Fineis, Doc. #583. The Meritor Defendants joined Textron's two motions. Doc. #593; Doc. #594.

         In response to the defendants' motions, the Groundwater Experts and Fineis executed separate affidavits which the plaintiffs have relied on in numerous briefs, including their responses to the defendants' motions to exclude certain experts. On May 29, 2018, the defendants filed a motion to strike the affidavits prepared by the four experts. Doc. #700. All motions have been fully briefed.

         III Motion to Strike

          The Meritor Defendants ask the Court to strike portions of the four challenged affidavits as untimely new expert opinions. Doc. #700. The plaintiffs argue that “the affidavits [are] not new opinions” but are “rejoinders to counter the Defendants' gross mischaracterizations of their Rule 26 report and prior testimony.” Doc. #741 at 4.

         Federal Rule of Civil Procedure 26 governs discovery in federal court. Regarding experts, Rule 26(a)(2)(A) requires that “a party must disclose … the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.” “[I]f the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony, ” Rule 26(a)(2)(B) mandates that the disclosure be accompanied by an expert report. Pursuant to Rule 26(a)(2)(B):

         The report must contain:

(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the case.

         Rule 26(e) further requires a party who has made a disclosure under Rule 26(a) to supplement an expert report “in a timely manner if the party learns that in some material respect the [report] is incomplete or incorrect.” To ensure compliance with these dictates, Federal Rule 37(c)(1) provides that “[i]f a party fails to provide information … as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.”

         Consistent with the above, it is appropriate to strike or exclude from consideration expert affidavits which are filed after the expert disclosure deadline and which amount to new opinions. See, e.g., Brumley v. Pfizer, Inc., 200 F.R.D. 596, 604 (S.D. Tex. 2001) (“Polukoff's … affidavit is untimely under Rule 26 to the extent that it goes beyond the opinions in his report …. The Court strikes … any … opinion that was not contained in the initial Rule 26 report.”); Talbert v. City of Chicago, 236 F.R.D. 415, 424 (N.D. Ill. 2006) (“It is no surprise that supplemental expert opinions that threaten to belatedly send the case on a wholly different tack are excluded.”) (collecting cases). However, “[t]o the extent that an expert affidavit is within the scope of the initial expert report, it is properly submitted in conjunction with dispositive motions even outside the time frame for expert discovery.” Advanced Analytics, Inc. v. Citigroup Glob. Mkts., Inc., 301 F.R.D. 31, 36 (S.D.N.Y. 2014) (collecting cases).

         As a general rule, “[t]he moving party bears the burden of showing that its adversary failed … to [timely] disclose information required by Rule 26.” In re Sept. 11th Liab. Ins. Coverage Cases, 243 F.R.D. 114, 125 (S.D.N.Y. 2007). Accordingly, the Court must decide whether the Meritor Defendants have shown that the challenged affidavits represent impermissible new opinions, or appropriate supplemental opinions.[5] In this regard, “[t]he line between supplemental opinions and new opinions is not always clear, and the decision regarding how to make the distinction likely depend[s] on the facts of the case.” In re Enron Corp. Secs., Derivative & Erisa Litig., MDL No. 1446, 2007 WL 5023541, at *8 (S.D. Tex. Feb. 1, 2007). Generally, “[c]ourts distinguish ‘true supplementation' (e.g., correcting inadvertent errors or omissions) from gamesmanship and have repeatedly rejected attempts by parties to bolster their position at summary judgment by ‘supplementing' an expert report with a ‘new and improved' expert report.” Petersen v. Midgett, 140 F.Supp.3d 490, 502 (E.D. N.C. 2015) (collecting cases). “To rule otherwise would create a system where preliminary reports could be followed by supplementary reports and there would be no finality to expert reports, as each side, in order to buttress its case or position, could ‘supplement' existing reports and modify opinions previously given.” Beller ex rel. Beller v. United States, 221 F.R.D. 696, 701 (D.N.M. 2003).

         Of relevance here, while Rule 26 requires the disclosure of an expert report which includes, among other things, a “complete statement of all opinions the witness will express and the basis and reasons for them, ” the rule does not prohibit experts from filing joint reports. Dale K. Barker Co., P.C. v. Valley Pizza, 541 Fed.Appx. 810, 815-16 (10th Cir. 2013). However, it “does require that the report contain the ‘basis and reasons' for each expert's opinions.” Adams v. United States, No. 4:cv-03-49, 2011 WL 2144574, at *1 (D. Idaho May 29, 2011). Thus, “[w]hen [multiple] experts work as a team and divide up the work, the report must reveal this division of labor.” Id. In contrast, when experts “reviewed the same materials and, working together, came to the same opinions” a single joint report may be appropriate. Valley Pizza, 541 Fed.Appx. at 816. In this sense, a joint report is properly considered as a report produced by each of its authors, with the scope of the report limited to the work actually performed by each expert. Thus, when an expert participates in the production of a joint report, his role in the production of the report dictates the scope of his initial disclosure.

         A. Simonton Affidavit

         The Meritor Defendants argue that Simonton's affidavit includes eight opinions which are outside the scope of the initial report: (1) opinions regarding property-by-property analysis of contamination or exposure levels; (2) an opinion that “[c]hromium, arsenic and lead are present at super-regulatory levels in the groundwater throughout the entire neighborhood;” (3) opinions in the form of “contamination plume contour maps, ” which purport to show contamination in the groundwater of individual properties; (4) opinions regarding individual detection levels for chromium, arsenic, lead and TCE as compared to maximum concentration levels for drinking water; (5) an opinion that “toxins are currently present in Eastern Heights at and on the above-enumerated properties at levels that exceed applicable regulatory and/or human health standards;” (6) an opinion that “[t]he concentrations at which the contaminants are found in the Subdivision decrease gradually and consistently as the distance from the Facility increases, supporting the conclusion that the Facility is the source of these contaminants;” (7) an opinion linking contamination in the groundwater to contamination in the soil; (8) an opinion that because arsenic was not detected in certain monitoring wells, it can be inferred that arsenic, chromium, and lead are not naturally occurring metals in the native soil.

         1. Property-by-property analysis

          Simonton's affidavit includes a table purporting to represent the minimum “concentrations of chromium, arsenic, lead and TCE present under the properties at issue ….” Doc. #618-44. The affidavit represents that data in the table was “[b]ased on Arcadis' vertical profile sampling, which was conducted [at the direction of the defendants] to determine nature and extent of contamination.” Id. at 5. There is no dispute that the wells tested by Arcadis, a contractor hired by the defendants, were not located on the plaintiffs' specific properties. Rather, it appears Simonton made his property-specific calculations by taking the data from the Arcadis wells and extrapolating the specific contaminant levels to the plaintiffs' properties based on his creation of certain plume maps attached to his affidavit.

         In opposing the motion to strike, the plaintiffs contend that “[t]he data for the charts included within Simonton's affidavit come from boring locations in Eastern Heights chosen by Arcadis … to create a vertical aquifer profile of the neighborhood and were included in Figures 6 and 7 of Simonton's expert report.” Doc. #741 at 5. They also argue, without citation or detail, that “[t]he data and methods used by Simonton to reach this opinion were clearly and succinctly laid out within the original expert report.” The Court has reviewed the Groundwater Report and has found no opinion on the specific levels of chromium, arsenic, lead and TCE present under the properties at issue. Rather, the report refers to the presence of such chemicals in the Subdivision as a whole. See Doc. #569-1 at 5. This focus is consistent with Simonton's deposition, in which he testified that he looked at TCE concentrations “as a community, ” and not at concentrations on any one property. Doc. #700-1 at 115.

         While it is true the Groundwater Report included the Arcadis data on which Simonton's new opinion is based, the plaintiffs have cited no authority that an expert may introduce a completely new opinion based on data included in an initial report. To the contrary, the law is clear that “courts will not admit supplemental expert evidence following the close of discovery when it expounds a wholly new and complex approach designed to fill a significant and logical gap in the first report, as doing so would eviscerate the purpose of the expert disclosure rules.” Advanced Analytics, 301 F.R.D. at 36 (alterations omitted; collecting cases).

         As explained more fully below, Simonton's affidavit applies a wholly new and complex approach-utilizing contour lines to extrapolate contaminant concentrations-to calculate the contaminant concentrations on the relevant properties. This new approach, which produced a new set of data for new locations, constitutes a new opinion which is properly excluded under Rule 37. Id.

         2. “Super-regulatory levels” of chromium, arsenic, and lead

          The Meritor Defendants argue that Simonton's statement regarding the presence of chromium, arsenic, and lead at “super-regulatory levels” is improper because “[i]n the Groundwater Report, Simonton does not offer an opinion about detection levels of chromium, arsenic, and lead.” Doc. #701 at 7. As support for this position, the Meritor Defendants cite the following portion from Simonton's deposition:

Q: At any point in time did you play any role in determining whether or not there was hexavalent chromium in the neighborhood?
A: We've certainly recognized the threat of metals. Certainly, there's chrome detections in the water. It seems like there's hex chrome and arsenic and lead, for example I'm pretty confident that at least some of the analytical data shows that. I don't recall who found it, where it was found, all that.
Q: Do you recall seeing any data suggesting that there was hex chrome in the groundwater beneath the Subdivision?
A: I think that was the same question you just asked, but yes, I think -- again, I know there's detections of chrome. I think there's detections of hex chrome, but I'm not sure.

Id. (quoting Doc. #700-1 at 210-11).

         The plaintiffs respond that the Groundwater Report contains an explicit reference to the presence of the specific contaminants when it states:

The contamination resulted from activities from the facility. These activities include onsite and offsite chemical dumping, onsite leaks, discharges to groundwater and air emissions. The contaminants have trespassed and continue to trespass in the subdivision groundwater, soil, soil has and air. The contaminants in the subdivision environment include but are not limited to trichloroethene (TCE), 1, 2-dicholorethene (DCE), vinyl chloride, tetrachloroethene, toluene, xylenes, benzene, methylene chloride, acetone, 2-butonone, bis (2-ethylhexyl) phthalate, chromium, hexavalent chromium, and lead. (2015 Moose Lodge Road Area Additional Investigation Report Tables 4-1 an 4-2). Many of these contaminants, including TCE, DCE, methylene chloride, arsenic, lead, chromium, and hexavalent chromium are in the subdivision at concentrations that exceed USEPA Risk-Based Screening Levels.

Doc. #741 at 6 (quoting Doc. #628-11 at 5). Additionally, though not argued by the plaintiffs, the Groundwater Report includes a goal of restoring “concentrations below the EPA and MDEQ Maximum Contaminant Levels (MCLs) for each of the contaminants.” Doc. #629-1 at 7.

         Although less than clear, it appears the Meritor Defendants argue that, notwithstanding the Groundwater Report's references to the levels of the identified contaminants, Simonton may not opine on the issue because he was not involved in the report's analysis of the contaminants. Put differently, they seem to argue that the presence of the contaminants was not a part of Simonton's initial report and that, therefore, he may not offer a supplemental opinion on this issue.

         As quoted by the plaintiffs, the Groundwater Report includes an express statement that the levels of arsenic, chromium, and lead exceed relevant regulatory levels. Thus, to the extent this statement is properly attributed to Simonton, his similar statement in his affidavit is properly considered within the scope of his initial report. In this regard, while it appears the report's authors were responsible for various aspects of the remediation plan included in the report, the Meritor Defendants have offered no evidence that Simonton was not involved in the analysis of contaminants in the Subdivision. To the contrary, Simonton testified that, while he could not recall the source of the information, he believed the data he relied on showed the presence of the relevant contaminants. Under these circumstances, the Court concludes that the statement in the initial report regarding the presence of various contaminants is properly considered a part of Simonton's initial expert disclosure and that, therefore, his supplemental affidavit on the same subject is not a new opinion.

         3. Plume contour maps

          The Meritor Defendants contend the plume contour maps attached to Simonton's affidavit represent a new opinion which must be stricken. The plaintiffs respond that the contour maps are “demonstratives … to aid the Court's understanding of Dr. Simonton's original opinions-Eastern Heights is contaminated.” Doc. #741 at 7. The Meritor Defendants reply that “Simonton's creation of the maps is the methodology by which he took existing data from wells located off of Plaintiffs' properties and extrapolated that data to derive claimed levels of contamination specific to each subject property.” Doc. #745 at 3.

         The Court has reviewed Simonton's affidavit, as well as the Groundwater Report, and concludes that the Meritor Defendants' characterization of the plume maps is the most accurate. While portions of the maps, such as the location of the wells, may be demonstrative, there is no indication that the contour lines connecting the wells represent anything other than a new opinion regarding the specific chemicals at the Arcadis drilling sites. Accordingly, the maps are properly stricken.

         4. Maximum concentration levels

          The Meritor Defendants complain about the comparison in Simonton's affidavit of arsenic, chromium, TCE, and lead to the “USEPA's Maximum Contaminant Levels.” Doc. #701 at 10. As explained above, the Groundwater Report states that various contaminants exceeded “USEPA Risk-Based Screening Levels” and included a stated goal of restoring “concentrations below the EPA and MDEQ Maximum Contaminant Levels (MCLs) for each of the contaminants.” Doc. #629-1 at 7, 9. Insofar as this latter statement necessarily presupposes the opinion that the contaminants exceeded the relevant MCLs, the Court concludes that the challenged statement is within the scope of the Groundwater Report and is, therefore, not a new opinion.

         5. Regulatory and human health levels

          The Meritor Defendants argue:

The [Groundwater] Report makes no reference to either measured levels of contamination or any effect on human health. Simonton's affidavit now leaps beyond his original opinion to argue that “toxins are currently present in Eastern Heights at and on the above-enumerated properties at levels that exceed applicable regulatory and/or human health standards.” This statement about regulatory and human health standards is a significant, new addition to his 18 existing opinions- and vastly expands the reach of Simonton's opinions and one that Defendants should have had the opportunity to challenge.

Doc. #701 at 11 (record citation omitted). The plaintiffs respond that the initial report's reference to “USEPA Risk - Based Screening Levels” encompasses “regulatory and/or human health standards.” Doc. #741 at 6. This Court agrees.

         The EPA's risk-based screening levels are “risk-based concentrations … considered by the [EPA] to be protective for humans … over a lifetime ….”[6] Furthermore, MCLs are a part of “[t]he National Primary Drinking Water Regulations (NPDWR) [which] are legally enforceable primary standards … that apply to public water systems.”[7] Both metrics are indisputably related to health or human standards. Accordingly, the scope of the Groundwater Report clearly encompasses regulatory and/or health human standards, and the Meritor Defendants' argument to the contrary must be rejected.

         6. Source of contamination

          The Meritor Defendants seek to strike the opinion in Simonton's affidavit that “[t]he concentrations at which the contaminants are found in the neighborhood decreases gradually and consistently as the distance from the Facility increases, supporting the conclusion that the Facility is the source of these contaminants.” Doc. #701 at 11. The Meritor Defendants contend this conclusion amounts to a new opinion “correlating distance and concentrations vis-à-vis the Facility ….” Id. at 12. The plaintiffs respond that this opinion is a clarification of Opinion 6 from the Groundwater Report which states that the contamination in the Subdivision is attributable to the Facility. Doc. #741 at 8-9.

         While supplemental reports may clarify the way an expert formed an opinion, they may not use “different statistical methods” to support an earlier opinion. Compare Equal Emp't Opportunity Comm'n v. Performance Food Grp., Inc., No. MJG-13-1712, 2018 WL 3608745, at *2 (D. Md. July 27, 2018) (report utilizing new statistical method was impermissible new opinion) with Broyles v. Cantor Fitzgerald & Co., No. 3:10-857, 2017 WL 3301222, at *4 (M.D. La. July 24, 2017) (“It appears clear to me that this is not a new opinion and is simply his explanation, after review of documents which were dealt with in detail in the deposition and/or in the written discovery obtained from Dr. Youngblood, of how he reached his calculation.”). In other words, an expert may explain how he reached a particular conclusion but may not “provide[] new sources and justifications for his opinion.” Avance v. Kerr-McGee Chem. LLC, No. 5:04-cv-209, 2006 WL 3484246, at *3 (E.D. Tex. Nov. 30, 2006). In a similar vein, “[i]t is not mere supplementation when a party submits a manifestly incomplete report lacking analysis or a supporting rationale, waits for the summary judgment deadline to pass, and then submits a fuller report that contains actual reasoning.” United States v. Marder, 318 F.R.D. 186, 190 (S.D. Fla. 2016).

         Here, the Groundwater Report opines that the contamination was the result of migration of groundwater from the adjacent property. However, nothing in the report states or even suggests that this opinion was reached using the distance methodology set forth in Simonton's affidavit. Indeed, Simonton's discussion of distance in his affidavit is not framed as explanation for how he reached the opinion in his report. Rather, the methodology is presented as a part of his new property-by-property analysis. Accordingly, the Court concludes that the distance methodology represents a new method and, therefore, is properly stricken.

         7. Contaminated soil

          The Meritor Defendants also challenge Simonton's conclusion that contaminant concentration in the groundwater at the levels estimated in his affidavit compels a conclusion that the soil at the individual properties is also contaminated. Because this Court has concluded that the property-by-property approach represents an impermissible new opinion, it follows that the related conclusions of soil contamination must also be excluded.

         8. Naturally occurring contaminants

          In his affidavit, Simonton opines that a review of groundwater data indicates that the contaminants addressed in the report (chromium, arsenic, lead and TCE) are not naturally occurring in local soil at the concentrations observed. The Meritor Defendants argue this is an impermissible new opinion. Doc. #701 at 12-13. The plaintiffs respond that this opinion was necessarily included in Simonton's conclusion that the Facility caused the contamination and “[i]t was not necessary for Simonton to make a specific statement about the lack of naturally occurring metals in the soil at certain concentrations, because this was explicitly shown by the data available to both parties.” Doc. #741 at 10.

         Again, an expert offering a supplemental report or affidavit may explain how or why he reached a specific conclusion in his initial report but may not offer a new justification or opinion in doing so. Here, Simonton initially opined that the Facility caused the levels of contamination observed in various testing. While this opinion carries with it an implied conclusion that the levels of contamination were not naturally occurring, nothing in the Groundwater Report references or supports such a conclusion. Given the absence of any such information, the Court concludes that the affidavit's statements regarding naturally occurring contaminants is an improper new opinion. Marder, 318 F.R.D. at 190.

         B. Brinkman Affidavit

         Brinkman's affidavit is organized into six responses to specific points made in the Meritor Defendants' Daubert motion challenging his opinions. See Doc. #626-5. The Meritor Defendants challenge four opinions in the affidavit: (1) that the defendants are the sole cause of the contamination in the Subdivision; (2) the existence of vapor intrusion pathways; (3) the location of dumping sites; and (4) the cause of pollution by benzene, toluene, ethylbenzene, and xylenes (“BTEX”) in the Subdivision.

         1. Alternative causes

          In his affidavit, Brinkman opines:

There is no evidence in the record that any of the chemicals used by the facility that now contaminate the facility, Eastern Heights and the surrounding area were ever introduced by any party other than the Defendants (including their predecessors in interest). That is to say, the totality of evidence in the thousands of pages of evidence related to dumping, leaking and discharging of these chemicals establishes that only the former operators of the facility are responsible for their presence, and none other.
Past employee depositions indicate that the Facility dumped along the eastern boundary of the Facility property. Depositions also indicate that the Facility blew waste to the north and the east, which could account for shallow sources in and by the railyard and areas east of Eastern Heights. Given the indiscriminate dumping perpetrated by the Facility and the deposition statements, the most likely source of contamination in the railyard is the Facility from acknowledged dumping that occurred along Moose Lodge Road.

Doc. #626-5 at 4. Brinkman bases these conclusions on “the totality of evidence in the thousands of pages of evidence related to dumping, leaking and discharging of these chemicals ….” Id. The Meritor Defendants argue Brinkman's reference to this information amounts to improper buttressing. Doc. #701 at 13-14.

         To be sure, the Groundwater Report concludes that “[n]o other commercial or industrial activity capable of generating the contamination exists within or by the subdivision.” Doc. #629-1 at 7. However, during his deposition, Brinkman stated he arrived at this conclusion by “just kind of looking at the area. I didn't really do a thorough investigation.” Doc. #569-2 at 187. In light of Brinkman's initial characterization of his research, there can be no serious dispute that the affidavit's references to “thousands of pages of data” and “[p]ast employee depositions” represent new sources and justifications for his opinion and are, therefore, properly excluded.[8] Avance, 2006 WL 3484246, at *3; Beller, 221 F.R.D. at 695.

         2. Groundwater vapor intrusion pathways

          The Meritor Defendants next argue that the statement in Brinkman's affidavit “that toluene and TCE were detected in soil vapor, subslab samples and indoor air samples show that a pathway [from the groundwater] is complete” is new and must be stricken. As support for this position, the Meritor Defendants point to portions of Brinkman's deposition, in which he testified that he did not consider himself an expert on vapor intrusion pathways and that he had no opinion on the existence of a completed vapor intrusion pathway from the groundwater for TCE or DCE. The plaintiffs respond that Brinkman's reference to a completed pathway was not intended as “an opinion on vapor intrusion” but rather was a rebuttal to the Meritor Defendants' “unsupported proposition that the clay layer below Eastern Height is ‘impermeable.'” Doc. #741 at 12. The plaintiffs specifically argue that “Brinkman asserting that the clay layer is, in fact, permeable is not a new opinion, but rather a reaffirmation of an established position expressed by Brinkman ….”[9] Id.

         In considering the parties' arguments, the Court begins by noting that Brinkman's statements regarding his qualifications to render an opinion on vapor intrusion are irrelevant to the Meritor Defendants' motion to strike. If the opinion is new, it should be stricken regardless of Brinkman's qualifications.

         In evaluating whether the opinion is new, the Court notes that the Groundwater Report refers to “a completed vapor intrusion pathway for toluene contamination from the facility and disposal area” based on subslab analysis for homes. Doc. #629-1 at 18. Additionally, during his deposition, after an initial answer to the contrary, Brinkman testified that while he did not believe himself to be an expert on vapor intrusion, he believed there was a completed vapor intrusion pathway for TCE from the groundwater to the Eastern Heights neighborhood. Doc. #700-2 at 204. Under these circumstances, the Court concludes Brinkman's opinion regarding a completed vapor intrusion pathway for toluene and TCE from the groundwater is not new.

         3. ...


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