ABARCA, Raul Valencia, et al., Plaintiffs,
v.
FRANKLIN COUNTY WATER DISTRICT, Defendants.
No. 1:07-CV-0388-OWW-DLB.
United States District Court, E.D. California.
August 31, 2011.*1201 Brett Lee Runyon, Heather Sharon Cohen, Michael Edward Lehman, Michael G. Marderosian, Marderosian, Runyon, Cercone, Lehman & Armo, Fresno, CA, Ricardo Echeverria, Shernoff Bidart Echeverria, LLP, Claremont, CA, Thomas Vincent Girardi, Girardi and Keese, Los Angeles, CA, Jack Silver, Law Office of Jack Silver, Santa Rosa, CA, for Plaintiff.
Eugene Tanaka, Best Best & Krieger LLP, Walnut Creek, CA, Jeffrey Frank Oneal, Thomas S. Brazier, Thomas S. Brazier, Lamore Brazier Riddle and Giampaoli, San Jose, CA, Eric Martin Steinle, Oakland, CA, Glenn Barger, Chapman, Glucksman, Dean, Roeb & Barger, Los Angeles, CA, Stephen E. Carroll, McCormick Barstow Sheppard Wayte and Carruth LLP, Scott D. Laird, Timothy Jones, John P. Kinsey, Jones Helsley PC, Fresno, CA, Donald Evan Sobelman, John F. Barg, John Frank Barg, Kathryn L. Oehlschlager, R. Morgan Gilhuly, Stephen C. Lewis, Barg Coffin Lewis and Trapp LLP San Francisco, CA, for Defendant.
MEMORANDUM DECISION RE: BAC DEFENDANTS' MOTION FOR JUDGMENT AS A MATTER OF LAW, OR IN THE ALTERNATIVE MOTION FOR NEW TRIAL. (PHASE 1)
OLIVER W. WANGER, District Judge.
INTRODUCTION
Defendants Merck & Co., Inc. Amsted Industries Inc., and Baltimore Aircoil Company, Inc. (collectively, "BAC Defendants") bring this motion for judgment as a matter of law ("JMOL"), or in the alternative, motion for new trial following jury verdicts in the first phase ("Phase 1") of this multi-party, multi-phase toxic tort case.
According to Defendants, Plaintiffs either failed to present or presented insufficient evidence of exposure to contaminants which allegedly originated from a now-closed cooling tower manufacturing facility (the "BAC site") operated by entities that were formerly owned by BAC Defendants. Specifically, Defendants assert that Plaintiffs' burden of proof (preponderance of the evidence) was not met regarding the surface water and air pathways, as required under the Phase 1 Court Order Modifying Scheduling Conference Order ("Phase 1 Pretrial Order"). (Doc. 540.) BAC Defendants further contend that Plaintiffs did not present sufficient evidence regarding Defendants legal responsibility for release of contaminates at the BAC Site, i.e., to what extent, and when did Defendants, Merck, Amsted and BAC own, direct actions, remediate, and/or operate the BAC Site to cause contaminant releases that could be actionable.
The first phase of discovery was focused on "whether contaminants from the former [] BAC Site, Franklin County Water District or the April 2006 Flood have ever reached any location where plaintiffs could have been exposed to them, and if so, when such contaminants arrived, how such contaminants arrived at the location, how long they were present, and at what levels they were present." (Doc. 540 at 1:14-1:28.)
Plaintiffs oppose the motion. Plaintiffs' rejoin that they presented "substantial evidence" at trial in the form of expert opinion *1202 and analysis to show that contaminants migrated from the BAC facility to Plaintiffs' homes and/or properties through the various pathways. Plaintiffs further argue that BAC Defendants' criticisms regarding certain expert testimony go to the weight, not admissibility of the opinion. Finally, Plaintiffs assert that corporate liability was not an issue for determination in Phase 1 and as such JMOL cannot be granted for Defendants on this issue.[1]
1. PROCEDURAL HISTORY.
On March 8, 2007, Plaintiffs commenced this civil action against the current public entity defendants, alleging property damage caused by an April 2006 flood. (Doc. 1.) On September 13, 2007, in the second amended complaint, Plaintiffs named Merck & Co., Inc., Amsted Industries, Inc., Baltimore Aircoil Company, and Track Four, Inc. as Defendants in this action. (Doc. 35.) The eighth amended complaint[2] was filed by Plaintiffs on March 26, 2010. (Doc. 633.) The eighth amended complaint alleges ten claims against the BAC Defendants: (1) violation of 42 U.S.C. 6972(a)(1) [RCRA]; (2) violation of 42 U.S.C. 6972(a)(1)(B) [RCRA]; (3) violation of 33 U.S.C. 1311(a) [CWA]; (4) violation of 33 U.S.C. 1342(a) and (b) [CWA]; (5) negligence; (6) trespass; (7) nuisance; (8) wrongful death; (9) fraud and deceit; and (10) civil conspiracy.
On March 23, 2009, BAC Defendants filed a "Motion for Case Management Order Re: Exposure" ("Cottel motion") to "compel plaintiffs to make a prima facie showing of exposure." (Doc. 355.) The motion was denied on July 6, 2009; however, on August 12, 2009, the Court established a multi-phase trial plan in which case-wide contaminant exposure issues were to be tried first ("Phase 1"), before general medical causation ("Phase 2") and plaintiff-specific exposure and causation ("Phase 3").[3] The August 12, 2009 Phase I Pretrial Order provides, in relevant part:
Discovery and expert disclosures shall be conducted in phases. Phase 1 shall focus on the issue of general exposure; that is, whether contaminants from the former [] BAC Site, Franklin County Water District or the April 2006 Flood have ever reached any location where plaintiffs could have been exposed to them, and if so, when such contaminants arrived, how such contaminants arrived at the location, how long they were present, and at what levels they were present.
(Doc. 540 at 1:14-1:28.)
On June 1, 2010, BAC Defendants moved for partial summary judgment on Plaintiffs' state law tort claims for personal injury and property damages. Defendants' motion was denied in part and granted in part. (Doc. 982.)
The Phase 1 trial began on February 2, 2011. The jury returned verdicts on March 31, 2011. (Doc. 1226.) Defendants filed their JMOL on April 28, 2011, asserting that Plaintiffs had not met their burden of proof regarding: (1) general exposure to contamination via the surface water pathways, including contamination via the El Capitan canal (the "canal") and water from a 2006 flood ("flood water"); (2) general exposure to contamination via the air pathway; and (3) the Plaintiffs' *1203 failed to present evidence regarding corporate liability of the Defendants for the relevant time-periods. (Doc. 1259.)
2. BACKGROUND.
The facts underlying this case are summarized in the Court's previous Memorandum Decisions in this case, filed on May 18, 2009, July 15, 2009, and January 5, 2011.[4] In brief: approximately 2,100 Plaintiffs seek damages relating to two occurrences: (1) an April 2006 flood; and (2) alleged long-term contamination comprised of hexavalent chromium (CR 6) and arsenic released from the BAC Site operated by entities formerly owned by the BAC Defendants. The BAC Site is the alleged source of contamination. Plaintiffs contend, relevant to this JMOL, that BAC Defendants caused and/or contributed to Plaintiffs' exposure to carcinogens and/or toxins released from contamination in the soil, air, a storm water pond (the "pond") and the El Capitan irrigation canal (the "canal") located on or connected to the BAC Site which reached Plaintiffs' residence (the "Beachwood neighborhood.")
Phase 1 of this multi-phase trial lasted nearly two months. Substantial evidence was presented and over thirty witnesses testified, approximately a third of whom were expert witnesses. At the close of trial, the jury was asked to determine whether contaminants from the BAC Site reached a location where Plaintiffs could have been exposed to them, and if so, when and in what amount contaminants arrived, how long they were present, and their concentrations. The jury's verdict found, in relevant parts: (1) hexavalent chromium was present in the canal from 1969 to 2006 at a concentration of 87 ppb; (2) hexavalent chromium was present in the flood water from 2006 to the "present" at a concentration of 87 ppb; and (3) hexavalent chromium reached the Beachwood neighborhood via the air in 1969 and was present for twenty-five years until 1994 at the concentrations described in trial exhibit 893, a series of maps (isopleths) prepared by Plaintiffs' expert Camille Sears.
3. LEGAL STANDARDS.
a. Judgment as a Matter of Law.
Fed. R. Civ. Pro. 50(a) provides:
If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:
(A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.
The standards governing a motion for judgment as a matter of law pursuant to Rule 50 are reiterated in Gibson v. City of Cranston, 37 F.3d 731, 735 (9th Cir.1994):
When confronted with a motion for judgment as a matter of law . . . a trial court must scrutinize the proof and the inferences reasonably to be drawn therefrom in the light most amiable to the nonmovant. . . In the process, the court may not consider the credibility of witnesses, resolve conflicts in testimony, or evaluate the weight of evidence . . . A judgment as a matter of law may be granted only if the evidence, viewed from the perspective most favorable to the nonmovant, is so one-sided that the movant is plainly entitled to judgment, for reasonable *1204 minds could not differ in the outcome. . . .
"[W]hen an expert opinion is not supported by sufficient facts to validate it in the eyes of the law, or when indisputable record facts contradict or otherwise render the opinion unreasonable, it cannot support a jury's verdict." Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 242, 113 S. Ct. 2578, 125 L. Ed. 2d 168 (1993). "A reasonable jury cannot credit testimony that fails to reflect reality." Hynix Semiconductor Inc. v. Rambus Inc., 2008 WL 73681, at *5 (N.D.Cal. Jan. 5, 2008).
b. Motion for New Trial
A motion for new trial "may be granted to all or any of the parties and on all or part of the issues . . . for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States." Fed. R. Civ. Pro. 59(a). "The grant of a new trial is `confided almost entirely to the exercise of discretion on the part of the trial court.'" Murphy v. City of Long Beach, 914 F.2d 183, 186 (9th Cir.1990).
A new trial is necessary when the court, upon reviewing the evidence presented at trial and considering the jury's verdict, "is left with the definite and firm conviction that a mistake has been committed." Tortu v. Las Vegas Metro. Police Dept., 556 F.3d 1075, 1087-88 (9th Cir.2009) (quoting Landes Constr. Co. v. Royal Bank of Canada, 833 F.2d 1365, 1371-72 (9th Cir.1987)). A motion for new trial may also be granted to correct an erroneous evidentiary ruling that results in substantial prejudice to a party. Ruvalcaba v. City of Los Angeles, 64 F.3d 1323, 1328 (9th Cir.1995).
The grounds upon which a new trial has been granted are: (1) where the jury's verdict is so contrary to the clear weight of the evidence; (2) if the verdict is based on false evidence; or (3) if there would otherwise be a miscarriage of justice. Roy v. Volkswagen of America, Inc., 896 F.2d 1174, 1176 (9th Cir.1990).
"While the trial court may weigh the evidence and credibility of the witnesses, the court is not justified in granting a new trial `merely because it might have come to a different result from that reached by the jury.'" Id. quoting Wilhelm v. Associated Container Transp. (Australia) Ltd., 648 F.2d 1197, 1198 (9th Cir.1981); Wallace v. City of San Diego, 479 F.3d 616, 630 (9th Cir.2007).
4. DISCUSSION
A. Exposure Via Surface Water.
The jury found that Plaintiffs could have been exposed to hexavalent chromium at a concentration of 87 ppb in the El Capitan Canal from 1969 to 2006 and in flood waters in the Beachwood neighborhood from April 2006 to the present:
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Year of How Long Chemical
Pathway Chemical Location Arrival was Present Concentrations
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Flood Water CR6 Beachwood April 2006 to Present 87 ppb
Neighbor-hood
----------------------------------------------------------------------------------------------------------------------------
Canal Water CR6 Canal 196 1969-2006 87 ppb
----------------------------------------------------------------------------------------------------------------------------
(Verdicts of Trial Jury at 3) (recreation.)
1. El Capitan Canal.
Defendants assert that the jury's finding of 87 ppb of hexavalent chromium *1205 in the canal throughout the period of 1969 to 2006 is unreasonable, or alternatively, the only reasonable time span the jury could find that 87 ppb hexavalent chromium existed in the canal is from 1969 to no later than 1991.
Facts on which these findings are based, include: Most of the data evidence presented were samples which reflected total chromium values. Evidence presented is uncontradicted that hexavalent chromium is a percentage of total chromium. It is undisputed that water from the pond flowed to the canal through a connecting pipe. It is further undisputed that the pond was the source of alleged contamination; i.e., no evidence was presented that, with regard to the canal surface water pathway, any other contamination source existed.[5] The dispute centers on whether and when above-standard levels ("MCL") of hexavalent chromium were present in the pond and/or canal.
a. Jury's Verdict Re: Canal Contamination From 1969-1991.
Over the period of 1969-1991, sampling of the pond was conducted only in January and March of 1989. These samples tested positive for both hexavalent and total chromium, which was recorded in a report by Dames & Moore titled, Phase II Soil and Surface Characterization Report ("Dames & Moore Report"). No sampling of the canal was done during this time. No other data or test evidence regarding the pond or canal was presented at trial for this time period. The absence of testing or sampling prevents any finding where contamination was present in the canal. Plaintiffs have strenuously argued that Defendants cannot benefit from their failure to test by asserting that negative inferences should be drawn against Defendants. This contention, however, does not substitute for evidence.
Defendants argue that Plaintiffs' have not met their burden of proof as to whether hexavalent chromium was in the canal during the period of 1969 to 1991 because no canal water sampling exists for that time period and Plaintiffs' expert, Dr. Laton, "admitted that samples collected at the outlet of the pond show non-detect-to-low detect concentrations of hexavalent chromium," citing Dr. Laton's testimony regarding the Dames & Moore Report's March 1989 sample results. (Doc. 1259 at 10:24-11:1.)
Plaintiffs' theory is significantly different and rests on a series of inferences. Plaintiffs rejoin that Dr. Laton conditioned his testimony regarding the March 1989 samples by opining that the January 1989 samples were representative, and these included a hexavalent chromium measurement of as high as 630 parts per billion ("ppb").
Dr. Laton further testified that surface soil measurements at the BAC Site were above-standard levels for hexavalent chromium in 2006. (See Declaration of Michael G. Marderosian ["Decl. Marderosian"], Ex. G, Rough Trial Transcript ["RT"] at 209:22-210:3, Feb. 9, 2011) [testifying to an 800 ppb hexavalent chromium surface soil sample when the remediation goal was 10 ppb.]. Plaintiffs argue that since remediation at the BAC Site was not started until 1991 and this soil sample was found even after remediation began, Dr. Laton made a reasonable scientific assumption that the soil at the BAC Site has been contaminated *1206 for the last forty years. The argument continues that, combined with Dr. Laton's testimony that the contaminated soil was being washed into the pond from 1969 on and, construing the evidence in the light most favorable to Plaintiffs, a jury could reasonably find that re-contamination of the pond and canal was constantly occurring during this time period before clean-closure of the pond. Dr. Laton opined as follows:
Q. Returning to the Feinstein report.. . . The document says, `Samples collected from the outlet of the pond during the rain event at that time contained significantly lower concentrations (total chromium at 180 and hexavalent chromium not detected above 50 parts per billion) . . .'
Do you agree with that?
A. I agree they had total chromium of 1490 and 630 parts per billion for hexavalent chrome [on January 20, 1989].
(Declaration of Stephen C. Lewis ["Decl. Lewis"], Ex. 5, RT at 33:1-9, Feb. 10, 2011.)
Q. Okay. And am I correct that the sample of water that was flowing out of the pond into the canal on March 15th, 1989, had no hexavalent chromium?
A. According to this sheet, yes.
Q. Do you have a doubt? I mean, when you said `according to this sheet.'
A. Because the January 20th, 1989 sample did have hexavalent chrome leaving.
Q. It had hexavalent chromium in January of 1989 in the pond surface waters; correct?
A. Correct.
(Decl. Lewis, Ex. 4, RT at 222:7-22, Feb. 9, 2011; and see Decl. Lewis, Ex. 25) (reporting the concentration value of 630 ppb hexavalent chromium in January 1989 and low-to-non-detect in March of 1989).
Q. So prior to 2008, is it your understanding that contaminated soils still remained on this site?
A. Yes.
Q. For almost 40 years?
A. Correct.
[. . .]
Q. What is your understanding of the mechanism [] as to how those soils reached the pond?
[. . .]
THE WITNESS: [] As the water moves over the surface and entrains sediments and other chemicals it comes in contact with, and then it moves toward that drainage ditch, which ends up at a sump, which is then pumped up into the pond.
And by the evidence of the water quality that we've seen in 1988 [sic] and 1989, within the pond, obviously contamination made it to that point.
(RT at 1155:16-1156:16, Feb. 9, 2011.)
Plaintiffs further argue that the jury's verdict was reasonable based on Dr. Laton's testimony that, pursuant to the Dames & Moore Report's 1989 sampling, an average of 581.8 ppb total chromium was flowing from the pond to the canal from 1969-1991. Dr. Laton opined as follows:
Q. And what was your opinion as to that range or average of chromium in that canal during that period of time between 1969 and 1991?
A. The average that I calculated was 581.8 micrograms per liter or parts per billion [of total chrome].
(Id. at 1154:16-22.)
Because evidence was presented that hexavalent chromium is included in the total chromium value, Plaintiffs argue the jury could reasonably infer that 87 ppb of hexavalent chromium existed throughout *1207 the canal as part of the 581.8 ppb total chromium value over the entire 1969-1991 time period.
Dr. Laton further opined that this 581.8 ppb total chromium concentration was flowing unimpeded into the canal from 1969 to 1991:
[A.] There's nothing to impede flow from what's in the canal to getwhat's in the pond to get into the canal. And then to migrate downstream from there.
So based upon that, I reviewed the dataset, which is only one year for the pond water quality, which ranged in values from a low of 6 to as high as 1490 micrograms per liter of total chromium. And took the average of that and just said that's a conservative value for what would be getting into that canal over that whole time frame.
(Id. at 1154:7-15) (emphasis added). From this, Plaintiffs argue, a reasonable jury could find that 87 ppb hexavalent chromium existed in the canal from 1969-1991 based on Dr. Laton's testimony.
Defendants rejoin that the jury's canal finding cannot be justified because Dr. Fendorf's "unrebutted" testimony concerning chromium valance conversion defeats Plaintiffs' argument and Dr. Laton had no basis to estimate that from one year of data observation, twenty-two years of contamination was present. Defendants assert that Dr. Fendorf's analysis proves that no above-standard levels of hexavalent chromium could have reached the canal, particularly because Dr. Laton refused to consider the degree of valance reduction of the chromium leaving the pond. Plaintiffs respond first, that Dr. Fendorf's testimony was successfully challengedi.e., Dr. Fendorf's theory was not presented or established as a matter of law.
Dr. Fendorf's direct examination established:
[T]he bacteria [in the pond] directly take[s] hexavalent chromium to trivalent chromium. . . . And seeing the pond . . . in terms of its vegetation and so on [w]e could see that it was reducing.
(RT at 105:15-17, Feb. 10, 2011.)
Any chromium that's coming out into, discharging into El Capitan Canal [] I would expect to have converted to trivalent chromium dominantly.
(Id. at 107:21-23.)
Dr. Fendorf's cross-examination, in relevant part, shows:
`Question: So in your work in this case, what did you do to determine the existence of anaerobic conditions in the soil?
Answer: I didn't do an extensive analysis. . . I was charged with looking at whether there might be conditions and to explain the conditions that could lead to this. What I did do is I went out to the site, I dug two soil pits.'
[. . .]
Q. But enable [sic] to determine if there were anaerobic conditions in areas where hexavalent chromium were used, no samples were dug in those areas?
A. No samples were dug . . .
[. . .]
Q. So the bottom line is this. You can't really tell this jury if there were really anaerobic conditions that existed on this site where the chemicals were used; can you?
A. Where they were used, no, I can't.
I can't say that. (Decl. Marderosian, Ex. U, RT at 173:25-174:8; 175:18-21; 196:13-16, Feb. 10, 2011.) Plaintiffs' question on cross-examination was "where" the chemicals were "used" in the retort, not where the chemicals were "released," which includes the drop pad, pond (sump) and its connection to the canal. This misdirection in the question negates any meaningful effect to the Fendorf answer, which is not impeaching about the anaerobic effects in the pond and canal. Dr. Fendorf's testimony *1208 invokes an indisputable scientific principle applicable to valance reduction of chromium.
Plaintiffs argue the jury was instructed that they may reject the testimony of an expert like Dr. Fendorf. (See Decl. Marderosian, Ex. I [jury instruction no. 13].) Jury instruction number 13 states:
Some witness, because of education or experience, are permitted to state opinions and the reasons for those opinions.
Opinion testimony should be judged just like any other testimony. You may accept it or reject it, and give it as much weight as you think it deserves, considering the witness's education and experience, the reasons given for the opinion, and all the other evidence in the case.
If the expert witnesses disagreed with one another, you should weigh each opinion against the others. You should examine the reasons given for each opinion and the facts or other matters that each witness relied on. You may also compare the experts' qualifications.
Id.
Nevertheless, Plaintiffs argue that it appears the jury did weigh each expert opinion. The jury found 87 ppb of hexavalent chromium, which Plaintiffs argue could have taken Dr. Fendorf's conversion theory into account since Plaintiffs' expert, Dr. Laton, testified to a hexavalent chromium level in the pond of 630 ppb and an average total chromium level of 581.8 ppb. In other words, because Dr. Laton testified to 630 ppb hexavalent chromium and 581.8 ppb total chromium and the jury's verdict of 87 ppb hexavalent chromium is significantly lower then either of these values, the jury must have taken Defendants' conversion theory into account.
Plaintiffs finally argue that Defendants' witness Ms. Kretsinger and Regional Board representative Mr. Austin admitted the pond was contaminated prior to 1991:
Q. Is it your opinion that the pond was not contaminated with hexavalent chromium between 1969 and 1991?
A. No. That is incorrect.
(RT at 79:8-10, Testimony of Ms. Kretsinger, Mar. 15, 2011.)
[Q.] Now, here, in this report, it is reported to the senator that, `From the early 1960s to mid 1991, wood treatment operations at the BAC site discharged hexavalent chromium. This hexavalent chromium polluted soil and groundwater. In addition, hexavalent chromium was released off-site through storm water discharges to an adjacent irrigation canal.'
Now, is that a true statement?
A. That's correct.
Q. So you told the senator that the pollutants from the BAC site entered the pond and then went off site through the storm water discharges to thisto this irrigation canal, the El Capitan; is that right?
A. Yes.
Q. And, in fact, isn't it true that you told the residents at the meeting in 2009, that the contamination got into the canal. Do you remember that?
A. Yes.
(RT at 192:13-193:6, Testimony of Mr. Austin, Feb. 18, 2011; see also Decl. Marderosian, Ex. E, Briefing for Senator Dianne Feinstein Former Baltimore Aircoil Company Cleanup Site, Jan. 15, 2009 ["Feinstein Report"] ["From the early 1960s to mid 1991, wood treatment operations at the BAC site discharged hexavalent chromium. This hexavalent chromium. . . was released off-site through storm water discharges to an adjacent irrigation canal."].)
Plaintiffs' evidence includes scientific inferences based on an extremely small amount of data, but it is still "tied to the *1209 facts of the case." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). Plaintiffs' mantra throughout trial was that BAC Defendants' failure to sample and test through the years "hid" the historical concentrations in the pond and canal. Based on the only sampling evidence presented, Dr. Laton opined that re-contamination was occurring via surface soil washing into the pond which flowed unimpeded into the canal at an average concentration of 581.8 ppb total chromium. The jury was told that part of this total chromium value could contain hexavalent chromium. Plaintiffs correctly argue that Dr. Fendorf's conversion theory was not proved as a matter of law and, nonetheless, the jury could have given some weight to Dr. Fendorf's theory based on the verdict.
Construing the evidence in the light most favorable to Plaintiffs, a reasonable conclusion is one which is consistent with the jury's verdict. Some evidence supports Dr. Laton's opinion that hexavalent chromium was being released from the pond into the canal. This evidence supports the jury's verdict on the canal water pathway for 1969-1991. The extent of aerobic reduction of hexavalent chromium remains a mystery. The parties had four years and approximately six days of Daubert hearings to prepare for these issues. Plaintiffs' evidence on canal waters through 1991 meets the sufficient evidence requirement based on the totality of the BAC Site operation from 1969-1991. Defendants' motion is DENIED as to the finding that hexavalent chromium in the canal from 1969-1991.
Defendants' motion for new trial is also DENIED. Although a very limited amount of quantitative evidence was presented "[d]oubts about the correctness of the verdict are not sufficient grounds for a new trial." Landes Constr. Co., 833 F.2d at 1372. The court must be "left with the definite and firm conviction that a mistake has been committed". Id. (citing Tennant v. Peoria & Pekin Union Ry., 321 U.S. 29, 35, 64 S. Ct. 409, 88 L. Ed. 520 (1944)). To justify a new trial, the errors must be "so prejudicial as to require a new trial which would be likely to produce a different result." O'Dell v. Hercules Inc., 904 F.2d 1194, 1200 (9th Cir.1990); see also Fed. R.Civ.P. 61. For the 1969-1991 time period, taking all Plaintiffs' evidence into account, including Defendants' own expert witness who admitted she believed the pond was or could be contaminated during that time period, the court would simply be substituting a different view of the evidence for that of the jury. The record does not create a "firm conviction" that the jury was mistaken.
b. Jury's Verdict Re: Canal Contamination From 1992-2006.
Defendants argue that there is no evidentiary basis for the jury's finding that 87 ppb hexavalent chromium existed in the canal after 1991 for the following reasons: First, the pond was "clean closed" and any contaminates it may or may not have emitted would have ceased. (See RT at 135:18-21, Feb. 18, 2011; Decl. Lewis, Ex. 7 ["[A]s far as the Water Board was concerned, the contaminated sediments in the pond had been adequately excavated and disposed of properly."]; Decl. Lewis, Ex. 21 [1992 Letter from Regional Water Quality Control Board ("RWQCB") stating "BAC-Pritchard has complied with its environmental remediation obligations with respect to the storm water pond."]).
Second, the only pond sampling data presented demonstrates only below-standard levels of total chromium from 1992-2007, *1210 aside from one above-standard sample, in January 1994:
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Storm Water Storm Water
Date of Discharge Total Entering Site
Sample Chromium (µ/L) Total Chromium (µ/L)
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07-Dec-92 20
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24-Jan-94 87
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09-Apr-94 20
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06-Dec-94 24
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20-Mar-95 26.4
---------------------------------------------------------------------
18-Dec-95 28.2
---------------------------------------------------------------------
05-Mar-96 30.7
---------------------------------------------------------------------
02-Jan-97 23.8
---------------------------------------------------------------------
10-Dec-97 13.4
---------------------------------------------------------------------
12-Jan-98 19.8
---------------------------------------------------------------------
23-Feb-98 10.6
---------------------------------------------------------------------
19-Jan-99 35.2
---------------------------------------------------------------------
08-Feb-99 13.8
---------------------------------------------------------------------
09-Mar-99 28.5
---------------------------------------------------------------------
18-Jan-00 24.1
---------------------------------------------------------------------
14-Feb-00 11.85
---------------------------------------------------------------------
11-Jan-01 24.8
---------------------------------------------------------------------
05-Mar-01 3.8
---------------------------------------------------------------------
02-Jan-02 16.2 15
---------------------------------------------------------------------
20-Feb-02 37.2 39.3
---------------------------------------------------------------------
20-Feb-03 4.5 10.4
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14-May-03 4.6 51
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11-Oct-07
(Decl. Lewis, Ex. 23 at 3) [Recreation of chart in Feinstein Report] (highlight added.)
Third, Dr. Laton admitted that after 1991 the average total chromium detected in the pond was below MCL standard at 22.3 ppb. (Decl. Lewis, Ex. 4, RT at 212:20-213:4, Feb. 9, 2011.)
Fourth, Ms. Kretsinger opined regarding over 50 surface water samples collected by IT Corporation and the Regional Water Quality Control Board in 1992, 1995, 1998, and 1999 from various locations along the canal, none of which detected chromium at concentrations above MCL standard:
A. This map shows locations along the El Capitan Canal, both upstream from the BAC-Pritchard facility and downstream and away from it. And these are locations that were included [in] sampling by our firm and also sampling that had been historically conducted by others. And also sampling that occurred by the Regional Water Quality Control Board after our investigation.
And so it includes samples collected by IT in 1995 and it includes sampling locations that were sampled on multiple events by IT in 1998 and 1999. And it includes the Regional Water Quality Control Board's sampling locations in February 2009.
And all of these locations are described in the text of my report and references to these documents.
*1211 Q. And approximately how many samples were collected at the various sites that are indicated on this exhibit, 5653.2?
A. There were 50 samples.
Q. And not all of those samples were tested for hexavalent chromium; is that correct?
A. That's correct. About a third of them were.
Q. And for those samples that were tested for hexavalent chromium, were there any detections of hexavalent chromium in that set of samples?
A. There was no hexavalent chromium detected in those samples.
Q. Okay. And that's between 1995 and 2009?
A. That's correct.
Q. Okay. Let's look, for a moment, at 5653.1.
[. . .]
A. All the sampling results that are shown by the bars were less than 10 or about 10 with one sample at 21 parts per billion. So they were all well below the California MCL for chromium.
Q. Do you know whether or not IT Corporation did any sampling in the El Capitan Canal before 1995?
A. Yes. I learned of another sample, in reading depositions just prior to my deposition. So there was a sample collected by IT in 1992.
Q. And do you recall what was found in that sample?
A. In that sample, they found [a below-standard value of] 44.4 parts per billion of chromium.
(RT at 33:20-36:6, Mar. 15, 2011.)
Plaintiffs' counsel briefly cross-examined Ms. Kretsinger on this subject, but the cross-examination predominantly focused on the pre-1992 time-period:
[Q.] So you're hereyour opinions are as of 2008 and 2009, no contamination in the canal. Correct?
A. No. No. We also looked at the historical data. So we had some 51 samples between the samples that we had collected and also those that had been collected by others, that were for the El Capitan Canal that showed that there was no contamination that exceeded the MCL.
Q. Right. All after the time the plant closed; correct?
A. It was closed from 1992 forward.
(RT at 81:13-21, Mar. 15, 2011.)
[Q.] We're talking about the 1992 canal sample. That was your understanding of the first sample that was taken of canal water; is that correct?
A. That was the earliest sample that we identified.
Q. And this was after the pond was drained and the sediment scraped out of it.
A. It was after closure, yes.
(RT at 91:15-21, Mar. 15, 2011.)
Plaintiffs' counsel attempted to challenge the 1992 canal sample value:
Q. All right. But in terms of the canal sampling, the 1992 sample, remember, I'm the one that showed you that in your deposition. Do you remember that?
A. Well, actually I brought deposition exhibits with me that explained the difficulty with how that sample had been collected and when it had been analyzed and had very high concentrations of aluminum and iron and silicon and how it had been affected by soil and how that sample resembled very highly the benchmark soils from Merced County in its composition.
Q. Okay. We're going to talk about that. But you're telling this jury that *1212 that sample, in 1992, of canal water is not valid; correct?
A. The sample was the sample. But it showed that it had been affected by the large amount of sediment . . .
(RT at 81:22-82:10, Mar. 15, 2011.)
[Q.] Do you remember reading this from the report about that 1992 canal sampling?
A. Yes.
Q. And it says, `In addition to the groundwater samples, two surface quality samples (CS-1, CS-2) were taken from the canal stream adjacent to the BAC-Pritchard facility (Figure 3).'
That's the figure we were just looking at.
`These samples were taken when the site was considering applying for a National Pollutant Discharge Elimination System (NPDES) permit so that interim groundwater control system could discharge to the canal. The first sample was taken upgradient from the facility.'
That's the one that I think you just referenced; is that right, Ms. Kretsinger?
A. Correct.
Q. Upgradient from the facility, while the second one was taken downgradient of the storm water retention pond. So that would been [sic] toward the Beachwood neighborhood; right? Downgradient?
A. It appears from the text that's in the downgradient direction.
Q. So there were two samples, one upgradient and one 22 downgradient from the pond; correct?
A. That's what the report says.
Q. And it says, `The results of the analysis detected in the first canal stream sample are presented in Table 10.' That's the table we just looked at that showed [below MCL standard] 44 parts per billion; correct?
A. Correct.
Q. `The second canal stream sample was not analyzed due to the decision to apply for a waste discharge permit and not the NPDES permit.'
So here's my question: Did you ever inquire as to why the second sample, the sample that was downgradient from the pond toward the Beachwood neighborhood, why that sample was never analyzed?
A. No.
Q. Did you look for any lab reports to see if it had been analyzed?
A. We read the report and understood that it was not.
(RT at 92:3-93:19, Mar. 15, 2011.)
Ms. Kretsinger did not admit that the 1992 sample was invalid and Plaintiffs' cross-examination did not illicit testimony that any post-1991 canal water samples were above MCL standard for total or hexavalent chromium.
Dr. Daniel B. Stephens testified similarly to Ms. Kretsinger that samples were taken of the canal water between 1995-2009 and there were no detections of hexavalent chromium. Dr. Stephens testified as follows:
Q. Okay. Were the tests that were done in 1995 of canal water for total chromium?
A. Yes.
Q. 1998, total chromium?
A. Yes.
Q. 1999, total chromium?
A. Yes.
Q. 2008, total chromium?
A. Yes.
Q. 2009, total chromium?
A. To the best of my knowledge.
Q. Was total chromium in any of those years ever found above drinking water standards?
A. Not that I know of.
*1213 (RT at 97:10-23, Mar. 3, 2011; and see Decl. Lewis, Ex. 27 [showing low-to-non-detect for hexavalent chromium in the El Capitan canal from 1995-2009]; Decl. Lewis, Ex. 28, [Dr. Stephens & Associates, Inc. Report showing no hexavalent chromium detected in El Capitan canal between 1998-2009].)[6]
Plaintiffs ignore this overwhelming and uncontradicted evidence and an attorney's questions and/or arguments are not evidence. (See Doc. 1224, Jury Instructions ["Arguments and statements by lawyers are not evidence . . . Questions and objections by lawyers are not evidence."].) Plaintiffs' argument rests solely the totally unsupported and argumentative testimony of Dr. Laton who opined that re-contamination was occurring in the canal throughout 1969-2006 based on the 1989 Dames & Moore Report pond water samples and the 2006 surface soil samples. For the 1992-2006 time period, however, this theory is not supported by a scintilla of evidence and directly conflicts with all the scientific and sampling evidence presented. Dr. Laton acknowledged and did not dispute the Feinstein Report's findings. (See Decl. Lewis, Ex. 4, RT at 212:25-213:4, Feb. 9, 2011) ["By reviewing the storm water reports presented by the defense, I was able to go through and look at all the chemical concentrations within the pond in the water. And the average of those, over that time frame [1992-2007], was only 22.3 micrograms per liter [of total chromium]."]. Dr. Laton never testified regarding the 1992-2009 canal sampling evidence, and made no effort to refute this undisputed evidence.[7] Neither he nor any other witness presented evidence to explain, e.g., why all the testing samples taken measured below MCL standard levels of total and hexavalent chromium, despite the alleged "continual re-contamination" of the pond. This is because, Defendants' point out, there cannot be recontamination when remediation has removed the source.
There is a total absence of evidence to provide a foundation for an opinion that re-contamination was occurring after 1991. Dr. Laton's unsupported, unscientific opinion is pure speculation. The testimony suggests a complete lack of scientific objectivity and the assumption of an advocate's role. An experts' opinion need not be accepted uncritically simply because his credentials render him qualified to testify. "When an expert opinion is not supported by sufficient facts to validate it in the eyes of the law, or when indisputable record facts contradict or otherwise render the opinion unreasonable, it cannot support a jury's verdict." Brooke Group Ltd., 509 U.S. at 242, 113 S. Ct. 2578 (finding that expert testimony was not sufficient to defeat JMOL because expert's opinion was not based on sufficient facts to support jury verdict); see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 157, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999) ("`[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 *1214 expert.'"); Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S. Ct. 512, 139 L. Ed. 2d 508 (1997) ("A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered."). Here, Dr. Laton's re-contamination testimony is based on no evidence. It is simply ipse dixit, which creates an unbridgeable analytical gap between the data and the opinion proffered.
Although not specifically argued by Defendants, even taking the January 24, 1994 sample into account, the jury's verdict is unreasonable for a further reason.[8] The measurement on January 24th is 87 ppb total chromium. The jury was instructed that hexavalent chromium is a fraction of the total chromium value. (See e.g., Doc. 1288 at 27:25-28:2 ["the jury had been provided ample testimony during trial as to the fact that total chromium included hexavalent chromium."]) (emphasis in original). This was proved by all the evidence presented and is indisputable. (See e.g., Decl. Lewis, Ex. 25, [Dames & Moore Report demonstrating that for each sample in which total chromium was detected in the pond, hexavalent chromium was detected at a fraction of the total chromium value; i.e., hexavalent chromium detections were never higher than 46% of the total chromium value]). The jury was never told by any expert that hexavalent chromium could encompass the entirety of or exceed a total chromium sample value.[9] The jury, nonetheless, found that 87 ppb hexavalent chromium was continuously present in the canal after 1991. Because the jury had no evidence whatsoever that hexavalent chromium could encompass and/or exceed the entire total chromium value in any sample, the jury could not reasonably find that 87 ppb hexavalent chromium was in the canal for approximately fourteen years after clean closure and remediation, based on the single 87 ppb total chromium, January 24th sample.
An absence of any evidence to support an opinion or finding of the continuous presence of 87 ppb hexavalent chromium existed in the canal is overreaching. And, an expert cannot provide opinions that are without factual and scientific basis. Defendants' motion for judgment as a matter of law is GRANTED as to the canal pathway from the time period 1992-2006.[10] There is no evidence of hexavalent chromium over the MCL for that time period.
(1) Flood water
The jury found that 87 ppb hexavalent chromium reached the Beachwood neighborhood during a flood which occurred in April of 2006 and remains in the neighborhood to the "present." The uncontradicted testimony is that flood waters subsided within two days. The canal is *1215 the sole source of alleged "contaminated flood waters"; i.e., no evidence was presented that flood water contamination occurred from any other source.[11]
Defendants assert that Plaintiffs have not met their burden to prove hexavalent chromium was in the flood water because the flood water emanated from the canal and the unchallenged evidence proves the canal was not contaminated during the relevant time period. It follows, Defendants assert, that since the flood water emanated from the canal, none of the flood water could have been contaminated.[12]
Plaintiffs assert their previously described argument, that the canal water was contaminated from 1969-1991 by the unimpeded flow of hexavalent chromium from the pond through the connecting pipe, which caused the canal water to remain contaminated until it was swept into the Beachwood neighborhood by the April 2006 flood. Dr. Laton testified:
[T]he levee breached in 2006. When that happened, water spilled into the Beachwood neighborhood. And so did the sediments that had been sitting there [the canal] from 1969 and earlier, all the way through 1991, being contaminated from the waters emanating from the BAC facility. They accrued over that time frame.
(RT at 41:25-42:5, Feb. 10, 2011.)
Dr. Laton's opinion about canal contamination after 1991 is not based on evidence. Sampling and test results show no detects above MCL and it is speculation that any flood water which emanated from the canal during the relevant time period, 2006 to present, could have been contaminated in light of the remediation, clean closure of the BAC Site, and testing evidence.
Defendants supplement this contention with three other undisputed facts to demonstrate that the jury's finding is unsupported by the evidence. First, the flood water was never tested. Plaintiffs concede this, but argue that they were not in a position to test the flood water as they were not notified by Defendants that the water could be contaminated and Defendants did "no testing." Plaintiffs' assertions are of little value, as Plaintiffs had the burden to present evidence of exposure and Plaintiffs present no case law that supports their assertion that absence of testing permits projections based on non-existent samples from facilities which had been remediated in conjunction with regulatory agency directives and Defendants' *1216 compliance with these regulatory requirements.
Second, any total chromium that existed in the canal had to be diluted by other contributing flood waters. Dr. Laton admitted:
A. There were other sources of water besides the BAC pond, obviously. The El Capitan Canal continues slightly to the north as Dr. Schaaf pointed out. And certainly those waters would have come in contact with that. And there would have been some dilution that would have been accounted for in there, yes.
(RT at 10:16-21, Feb. 10, 2011.) Defendants expert, Dr. Haltiner, quantified the extent of dilution: "Our estimate [of dilution] in our report was about 1500 to 1." (RT at 160:7-8, Mar. 15, 2011.) Although the existence of dilution was undisputed, the jury did not take dilution into account. After 1991 the only evidence to base a finding that hexavalent chromium was present in the canal, is the 87 ppb test sample of total chromium found in the pond in January 1994. Even assuming, arguendo, the 87 ppb sample of total chromium was comprised entirely of hexavalent chromium, a reasonable jury should have reduced such hexavalent value to less than 87 ppb hexavalent chromium to account for dilution.
Third, the 2008-2009 soil samples taken in the Beachwood neighborhood show low-to-non-detect levels of hexavalent chromium. Plaintiffs argue that there were two areas of the Beachwood neighborhood that the soils were sampled; one area that was immersed by the flood water, and another area, the Gospel Defender Church, that was not. The total chromium levels in the Gospel Defender Church soils were lower than the areas that were flooded. Plaintiffs argue this is circumstantial evidence that above MCL standard levels of hexavalent chromium reached the Beachwood neighborhood via the flood.
Defendants correctly rejoin that no evidence was presented and no expert testified in support of Plaintiffs' theory. Plaintiffs cite Defendants' expert, Ms. Kretsinger, who opined that even though the total chromium amount was higher in the flooded area, neither area tested at above-standard background levels.
A. 26.2 parts per million is 26,200 parts per billion.
Q. Certainly well above background; correct?
A. No, that's not correct.
Q. Okay. And what was the level detected at the Gospel Defender Church?
A. It was 6.8 parts per million.
Q. So at the Franklin County Water District yard, next to the canal, it was 26.2. But at the Gospel Defender Church, it was 6.8.
A. That's correct. But it's a range of concentrations that's comparable to the range of concentrations that we observed at locations removed from the BAC-Pritchard facility.
(Decl. Marderosian, Ex. C, RT at 101:5-16, Mar. 15, 2011.)
Finally, Plaintiffs' expert witness, Dr. James Schaaf, who modeled the migration of flood waters for Plaintiffs, testified that a "hydraulic connection" existed between the pond and Plaintiffs' neighborhood, but that he had no opinion whether chemicals from the BAC Site ever reached the Beachwood neighborhood:
THE WITNESS: Hydraulic connection means is it possible for water to flow from one area to another area so that those two areas are connected hydraulically.
(RT at 158:2-4, Feb. 9, 2011.)
Q. All right. So water from the pond reached the Beachwood neighborhood on April 4th, 2006; is that correct?
*1217 A. Yes.
(Final Trial Transcript ("FT") at 1110:12-14, Feb. 9, 2011.)
Q. And Dr. Schaaf, you did not ever perform any calculations to determine whether any compounds or sediments or materials from the BAC site ever reached the Beachwood neighborhood; is that correct?
A. That's correct.
Q. And you have no opinion as to whether any chemicals or compounds from the BAC site have ever reached the Beachwood neighborhood; is that correct?
A. That's correct.
(RT at 181:9-17, Feb. 9, 2011.)
There is no underlying evidence to base an expert opinion or finding that above-standard levels of hexavalent chromium existed in the Beachwood neighborhood from 2006 to present from the 2006 flood waters which receded after two days. (See RT at 80:9-11, Mar. 22, 2011.) Defendants' motion for judgment as a matter of law regarding the flood waters pathway after April 2006 is GRANTED.
B. Air Pathway.
The jury found that Plaintiffs in the Beachwood neighborhood could have been exposed to hexavalent chromium in air at the concentrations depicted in exhibit 893, a series of isopleth maps prepared by Plaintiffs' expert Camille Sears.
Defendants' continue to challenge Ms. Sears' qualifications and expertise in chemistry and her ability to perform chemical testing, but the challenge remains unpersuasive. Ms. Sears testified in the Daubert hearings that she has taken college level courses in chemistry; has taught chemistry through an extension program at the University of California at Santa Barbara; uses chemistry on a weekly basis in her job; and has calculated air emissions in a number of environmental contamination cases, beginning in 1983 when Ms. Sears was hired by the Santa Barbara county air pollution control district as an air pollution engineer. (See Doc. 982 at 28:22-33:27.) Further, Dr. Cowherd, the court's Fed.R.Evid. 706 expert, deemed Ms. Sears a "well-qualified" air modeler:
Q. Right. But you recognize Ms. Sears as an experienced air modeler withis that correct or not?
A. I do recognize that.
(RT at 113:12-14, Mar. 9, 2011.)
As the Memorandum Decision on Partial Summary Judgment ("Summary Judgment Order") analyzed and decided:
Camille Sears is qualified to offer the testimony about how to calculate fugitive air emissions from a former wood-treatment facility. She has substantial experience in the air emission field, having calculated air emission rates for over twenty years in and around Northern and Central California. Sears has calculated fugitive air emissions for public and private employers and has experience with industrial sites and a variety of harmful pollutants, including hexavalent chromium. By education and experience, Ms. Sears is qualified to opine on air emissions, analysis and modeling in this case and her calculations can be challenged through cross-examination and presentation of contrary evidence.
(Doc. 982 at 34:1-12.)
Defendants argue that the following nine "errors and baseless assumptions" in Ms. Sears' expert opinions renders her testimony an insufficient basis for the jury's verdict:
1. Ms. Sears assumed that chromium that dripped off of wood treated at the Facility would adhere to small particles of silt that would be subject to wind transport, when in fact, as Dr. Fendorf testified, almost no adsorption *1218 of chromium onto such particles would occur, resulting in Sears' model erroneously overstating emission concentrations by a factor of 1,000.[13]
2. Ms. Sears assumed that all of the chromiumand arsenic-containing particles on the surface of the treated wood storage area would be smaller than 75 microns. But Dr. Cowherd testified that only approximately 20 percent would be that size. Dr. Fendorf also explained that particles formed by evaporation would be larger than 150 microns in diameter, and site data showed that Ms. Sears' assumption was wrong. According to Dr. Cowherd, this erroneous assumption resulted in the model overstating emissions by a factor of approximately 5.51.
3. Ms. Sears assumed that chromium and arsenic were deposited uniformly over the entire treated wood storage area, whereas in fact the storage area contained marked traffic lanes separated by stacks of wood, and Dr. Cowherd testified that higher concentrations would accumulate in lowtraffic areas under and immediately around the stacks of wood. Dr. Cowherd testified that this erroneous assumption resulted in an overstatement of emissions by a factor of approximately 3.53.
4. Ms. Sears assumed that the concentrations of hexavalent chromium and arsenic in particulate matter at the Facility exceeded 90 percent (i.e., 900,000 parts per million), a concentration that exceeds by orders of magnitude any measured concentrations at the Facility and impliesimplausiblythat less than 10 percent of the material on the surface of the wood treating area was anything other than pure chromium or arsenic. When soils immediately beneath the traffic lanes in the treated wood storage area were tested for hexavalent chromium in 1990, while the Facility was still operating, eight out of nine samples detected no hexavalent chromium; the ninth had a concentration of less than 1 part per million.
5. Ms. Sears assumed, without any foundation or testing, that 100 percent of the chromium in particles at the Facility was hexavalent chromium, and not less toxic trivalent chromium, the only chemists to testify at trial, Dr. Cowherd and Dr. Fendorf, testified to the contrary.
6. Ms. Sears assumed that one year's worth of drippage would be present on the surface of the treated wood storage area at all times, but Dr. Fendorf testified that, in fact, any drippage would form easily soluble salts that would be flushed from the surface by rain.
7. Ms. Sears used an AP-42 emission factor that was developed for "freely flowing" traffic at speeds greater than 10 miles per hour, instead of the new AP-42 emission factor that applies to "stop-and-go" traffic traveling at less than 10 miles per hour, when the forklifts at the facility traveled stop-and go at an average speed of four to five miles per hour.
8. Ms. Sears admitted that her modeled emissions would be 30 percent lower if she used the current and *1219 appropriate EPA emissions factors to predict particle emissions from the Facility. Dr. Cowherd testified that the emissions would be 50 percent lower.
9. Ms. Sears relied on the erroneous calculations of plaintiffs' expert Franklin Agardy, who used the wrong chemical form of chromium in preparing his estimates of drippage. This error approximately doubled Ms. Sears' modeled chromium emissions from the Facility.
(Doc. 1259 at 20-23.)
Plaintiffs correctly rejoin that these identical criticisms were advanced and extensively analyzed and ruled on in Defendants' motion for partial summary judgment and the Daubert challenges to Ms. Sears' testimony and opinions made over six days of evidentiary hearings covered by the court. The Summary Judgment Order found that "[t]he comparison between the relevant expert opinions demonstrates that a reasonable scientific disagreement exists among the experts . . . Such a dispute goes [to] the credibility and the weight of the opinions, not admissibility." (Doc. 982 at 52:6-7.) "Having observed the experts at the Daubert hearing under intensive cross-examination by counsel, it is clear that the current dispute over Ms. Sears' calculations should be determined by the trier of fact, not by the Court on a motion to exclude." (Id. at 53:25-54:1.) These differing opinions were presented at trial. Under vigorous cross-examination, Ms. Sears responded with scientific explanations to each of Defendants' criticisms and explained her alleged volumetric overestimations.
Because these criticisms were extensively examined in the Summary Judgment Order and Daubert ruling, it is not necessary to revisit every detail. However, a prime example of a scientific factual dispute presented by Defendants' summary judgment motion and again at trial is Ms. Sears' emission calculations based on a 100 percent hexavalent chromium value. Defendants argue that Ms. Sears' values are unreasonable because Dr. Cowherd and Dr. Fendorf testified at trial that "there would be some conversion of Chromium 6 to Chromium 3 in the drippage." (Decl. Lewis, Ex. 12, RT at 115:5-6, Mar. 10, 2011; and see Decl. Lewis, Ex. 11, RT at 83:20-21, Mar. 9, 2011) ("Based on my general knowledge of this area, 100 percent would not be the appropriate number.").
Ms. Sears rejoined that her value conformed to scientific values:
Q. Can you point us to a specific piece of professional literature that establishes that your 100 percent chromium, hexavalent chromium assumption is true?
A. Well, I've got severalI have several different references that we discussed in earlier hearings on why I believe that that's reasonable. And, again
Q. What would those be?
A. I'll tell you what they are in a moment. But again, 100 percent versus 95 percent versus 90 percent, those are all trivial differences, in my view. That's only 5 percent, 10 percent difference.
Q. They're trivial to you.
A. They are. Over in the big picture of things, and when we're talking about the mass of material we're talking about. So to nit pick whether it was 99, 95, 90 versus 100, to me that's not an issue.
But to answer your question, the State of California, which has been regulating hexavalent chromium now for about a quarter of a century, has specific guidelines on how to deal with chromium compounds. One of the concerns that we talk about is what is the form of chromium. And because it's hexavalent chromium, which is the toxic form. There's also a trivalent form.
*1220 And the State of California has specific mass weighted adjustment factors and things like that for compounds such as chromium trioxide, which is one chromium and three oxygens. And basically, when you look at the mass of chromium versus the mass of the chromium and the oxygen together, it's 100 percent hexavalent.
And also, in the risk assessment guidelines that we talked about before that I helped develop, I was part of the group that helped develop them. The only time that they assumed that a chemical is not 100 percent hexavalent chromium is when the chromium has been underground for a period of time and has had some time and certain conditions that have to be measured specifically at the site to determine the rate at which the hexavalent chromium would convert to the less toxic form. That doesn't happen on the top of the surface, it happens in the soil. So I didn't have to worry about that.
And then we also have some data from 1994 that were measured at the facility in the shallow layer before the treated wood storage area, which showed that the hexavalent chromium to total chromium ratio was very high.
(Decl. Marderosian, Ex. B, RT at 104: 17-106:10, Feb. 10, 2011.)
In the scientific community, experts reach different conclusions from each other, however, reasonable differences in scientific evaluation are not a basis for granting JMOL. See Tennant, 321 U.S. at 35, 64 S. Ct. 409 ("Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.").
The following testimony by 706 expert Dr. Cowherd corroborates that Defendants' objections regarding Ms. Sears' opinions are factual scientific disputes going to weight rather than admissibility, which were properly decided by the trier of fact. First, while Dr. Cowherd did not agree with all of Ms. Sears' input values, he recognized that she was a "well-qualified" air-modeler and her methodology was correct:
Q. Yes. Now, do youyour knowledge of Ms. Camille Sears, the plaintiffs' expert in this case. Do you find that she has a reputation for being a respected air quality emissions expert?
[. . .]
[THE WITNESS:] As far as whether she can calculate emissions using an emission factor equation, I think she's very well qualified to do that. As far as her ability to apply AERMOD, which is the dispersion model, I recognize that she is very well qualified to do that.
[. . .]
[However,] [t]he calculation is not the problem, it's what value you put into the equation as the basis for the calculation, as I see it.
Q. You found thislet me ask this. And this is not intended as any disrespect at all, so please do not interpret it that way at all, Dr. Cowherd. But you are not an air modeler; is that correct?
A. I'm very familiar with air models, and I have used air models in the past. I'm not primarily an air modeler. However, I will say that I understand the function of an air modeler, I understand how input information is put in to the model. And I understand the model is only as good as the input information put into it.
Q. Right. But you recognize Ms. Sears as an experienced air modeler withis that correct or not?
A. I do recognize that.
*1221 (Decl. Marderosian, Ex. O, RT at 112:5-113:14, Mar. 9, 2011.)
Dr. Cowherd also recognized and agreed that hexavalent chromium reached the Beachwood neighborhood:
[Plaintiffs' counsel]: `Question: Based on the totality of your analysis in this case, is there reliable evidence that hexavalent chromium and arsenic were transmitted by the air toI'm going to call it the target site, you call it the receptor sitegiven all the information. I'm including in that description the qualifications that this be reliable in terms of scientific data.'
`Answer: My response to that would be yes. There is certainly indications, evidence that these concentrationsthat some concentrations exist at the target site or the receptor site. The question obviously is what is the level of those concentrations.'
Q. Do you remember that testimony?
A. Yes.
Q. And you still stand behind that testimony today?
A. I would make a similar statement, yes.
(Id. at 111:12-112:4.)
Finally, unlike, e.g., the evidence presented regarding the canal water pathway from 1992-2006, there was not a total absence of conclusive, unchallenged underlying evidence to demonstrate that Ms. Sears' opinions were wrong as a matter of law:
Q. [] I'm talking about the basis for the assumptions. Meaning the fact that you have to make assumptions, it has to be based on some data. Correct?
A. It has to be based on an assessment of what went on at the site. Yes.
Q. Right. And let me ask you this: Do you remember at the Daubertexcuse me, at the prior hearing, you indicating that there was very little data available from which to construct the amount of drippage and that that would be a critical quality to doing a scientific assessment in this case?
[. . .]
Q. And I can show you the testimony as well, whatever you're comfortable with.
A. Could you repeat the question?
Q. Yes. Do you recall testifying previously that, in this case, that `There was very little data available from which to construct the amount of drippage and that that would be a critical quality' quantity`critical quantity to have in doing a scientific assessment. So as a result, this kind of quantity needed to be estimated by an indirect method.'
Do you remember saying that?
A. Yes.
Q. Okay. Indirect method is modeling is one of the indirect methods; is it not?
A. II don't consider that to be modeling. Modeling, I consider to be a direct method.
Q. All right. But the direct method is, for example, in this case, it would have been good if, between 1969 and 1994, when the plant was in operation, when forklifts were moving about the plant, it would have been good if there was data collected at that time regarding these assumption issues. Do you agree with that?
A. That would have been helpful in deciding how much drippage actually occurred.
[. . .]
Q. Have you seen any data, Dr. Cowherd, that was collected when the plant was in operation on those issues?
A. I think I stated earlier that we did not find that kind of information in what we looked at.
[. . .]
*1222 Q. Have you seen any air quality studies that were obtained when the plant was in operation studying whether or not the air was contaminated with hexavalent chromium and arsenic from the activities in the treated wood storage area, in your work in this case?
A. I'm not aware of any such information.
(Decl. Marderosian, Ex. O, RT at 114:21-119:1, Mar. 9, 2011.) Some data was available regarding the air pathway. Based on this data, the experts made scientific assumptions based on recognized air modeling principles which formed the basis for their opinions.
Defendants' motion for JMOL regarding the air pathway simply seeks to relitigate the probative value and persuasive effect of the evidence introduced at trial. The motion is replete with inferences Defendants asked the jury to draw and theories for reduction of the weight and value that they wish the jury had applied to Ms. Sears' opinions. Each party submitted substantial evidence, bolstered by expert testimony, in support of their positions on air modeling. The jury found Plaintiffs' showing more persuasive. The jury reasonably could have concluded, based upon the record as a whole that Ms. Sears' scientific estimations were correct, but should have been substantially reduced based on evidence and expert opinions that supported Defendants' position that Ms. Sears' input amounts were gross overestimations of hexavalent chromium reaching and present in the Beachwood neighborhood. However, such conflicts in the evidence, reasoned by the jury as trier of fact, do not provide a sufficient basis for setting aside the verdict. See Tennant, 321 U.S. at 35, 64 S. Ct. 409 ("Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.").
Defendants' trial strategy took an all or nothing approach, arguing that Ms. Sears' testimony had to be entirely rejected. They ignored that Dr. Cowherd opined that some hexavalent chromium reached the Beachwood neighborhood. They did not, e.g., present competing calculations or offer specific valuations that reduced any amount of hexavalent chromium level which arrived through the air to Plaintiffs' neighborhood. Nor did Defendants ask Dr. Cowherd or any other air modeling defense expert to break down Ms. Sears' model and reduce all concentrations to the substantially reduced to non-existent levels they believed existed. This was a trial strategy and Defendants must abide by the consequences of this choice made by highly experienced and competent counsel. Defendants' motion for JMOL regarding the air pathway is DENIED. Because substantial evidence was presented by Plaintiffs' regarding this issue, Defendants' motion for new trial is also DENIED.
C. Entity Responsibility.
Defendants argue that the Phase 1 jury was asked to identify the entities that caused the release of contaminants at the former BAC Site and that Plaintiffs introduced no evidence at trial suggesting that any of the Defendants engaged in any activities that released contaminants as part of wood treating process. Plaintiffs rejoin that corporate liability was not an issue for determination in Phase 1.
The relevant facts are as follows: The Phase 1 Final Pretrial Order pertains only to Phase 1 of this multi-phase action. The Phase 1 Pretrial Order focused on containment exposure, i.e., whether contaminates of concern "reached any location where plaintiffs could have been exposed to them, and if so, when such contaminants arrived, how such contaminants arrived at the location, how long they were present, and at *1223 what levels they were present." (Doc. 540 at 1.) Discovery in Phase 1 was limited to "the issues relevant to exposure" including:
(b) BAC Site operations and history relevant to identification of the presence, amount and concentration of contaminants at the BAC Site and in the environment.
(Phase 1 Pretrial Order at 2:14-16).
Defendants filed a Cottel motion on March 23, 2009 which caused a predominant shift of discovery focus to the complex and time consuming scientific evidence regarding release of contaminants. From the time of the first case management conference, Defendants strenuously argued there was not and Plaintiffs could not find and/or produce any evidence of contamination. The Cottel motion was followed by a limitation on and stay of discovery in or around August of 2009 which discontinued discovery on corporate liability issues.
Significant confusion and dispute arose regarding the exact evidence to be presented at trial. The parties and the Court were not in agreement about whether evidence of corporate liabilitye.g., theories of vicarious liability, principal/agency, piercing the corporate veil, and related theories, would be tried and determined in Phase 1, or corporate responsibility for exposuree.g., a basic jury decision regarding who owned and/or operated the BAC Site during the relevant time period.
Defendants argue "they understood" that the Phase 1 jury would be asked to identify the entities that caused the release of contaminants at the BAC Site and assign legal responsibility. Defendants filed a trial brief, which they believe was "clearly framed . . . in accordance with the [Phase One Pretrial Order]," that "contain[s] a detailed discussion of the relationships among Merck, Amsted, Baltimore Aircoil, and the various facility owners and operators [and] discusse[s] controlling California case law." (Doc. 1259 at 30:19-31:9.)
The Court understood, as Defendants themselves point out, that Phase 1 would not "assign legal responsibility." (Doc. 1259 at 33:9-11.) "[T]here is no suggestion in the [Phase 1 Pretrial Order] that we are going to determine liability by party in this phase of the case." (Doc. 1259 at 32:2-3.) What Phase 1 would include, the Court stated, was a basic jury decision as to: "who owned, who operated [the BAC Site], what was done through the period that the lawsuit encompasses." (Doc. 1259 at 33:9-11.)
Plaintiffs acknowledge that corporate liability and/or exposure responsibility was an issue for one of the trial phases and at certain times Plaintiffs represented that they would be able to present sufficient evidence on the subject during Phase 1. Yet once Phase 1 began, Plaintiffs had not completed discovery on corporate liability and did not present evidence on the subject. (Doc. 1288 at 38:12-14.) Plaintiffs argue that discovery was not complete and a case was not presented because they understood that corporate liability was not an issue for Phase 1.
During the jury instructions conference after Phase 1 trial evidence closed, the Court determined that, due to confusion about the specifics and extent of corporate liability/ responsibility evidence was to be presented, in combination with the discovery stay sought by Defendants and the Cottel motion, such evidence was not presented for a jury determination on the subject in that Phase of trial. U.S. v. Dang, 488 F.3d 1135, 1143 (9th Cir.2007) ("the district court is given broad discretion in supervising the pretrial phase of litigation."); and see Fed. R. Civ. Pro. 42(b). In light of this totality of circumstances, judgment as a matter of law cannot *1224 be entered regarding corporate liability. (See also, Doc. 1442, Memorandum Decision Granting Plaintiffs' Motion for Leave to Amend Complaint, filed August 10, 2011, 2011 WL 3503096.) Defendants' JMOL is DENIED on this issue.
CONCLUSION.
For the reasons cited above, Defendants' JMOL is GRANTED in part and DENIED in part and Defendants' motion for new trial is DENIED in its entirety. The record unequivocally establishes that after clean-up and site remediation, there was no chromium of any valance at above MCL standards in the canal or surface water which could have reached Plaintiffs' properties.
1. Defendants' JMOL regarding general exposure via the El Capitan Canal surface water pathway from 1969-1991 is DENIED.
2. Defendants' motion for new trial regarding general exposure via the El Capitan Canal surface water pathway from 1969-1991 is DENIED.
3. Defendants' JMOL regarding general exposure via the El Capitan Canal surface water pathway from 1992-2006 is GRANTED.
3. Defendants' JMOL regarding general exposure via the flood surface water pathway from 2006 to present is GRANTED.
4. Defendants' JMOL regarding general exposure via the air pathway is DENIED.
5. Defendants' motion for new trial regarding general exposure via the air pathway is DENIED.
6. Defendants' motion regarding corporate liability is DENIED WITHOUT PREJUDICE. A revised trial schedule shall be implemented to ensure a full and fair trial on the merits of all corporate liability claims.
Defendants shall submit an order in conformity with this decision within five (5) calendar days following electronic service of this order.
SO ORDERED.
NOTES
[1] This issue has been resolved by Plaintiffs' motion to amend decided August 10, 2011 and an order scheduling discovery for the corporate liability claims.
[2] The eighth amended complaint is the current operative complaint; however, leave to amend in order to allege Plaintiffs' corporate liability claims was granted on August 10, 2011. (Doc. 1442.)
[3] This phasing schedule is set to change in light of the order granting Plaintiffs leave to allege their corporate liability claims.
[4] See, e.g., Abarca v. Franklin County Water Dist., 761 F. Supp. 2d 1007 (2011); Valencia v. Merck & Co., 2009 WL 2136384 (E.D.Cal. July 15, 2009); Abarca v. Franklin County Water Dist., 2009 WL 1393511 (E.D.Cal. May 18, 2009).
[5] All the data evidence and expert testimony presented from all parties was related to the pond, canal, and soil sampling and how this sampling evidence aligned with Plaintiffs' theory that "storm water comes in contact with the contaminated surface soils, [then flows] into the pond and then into the canal. That's the claim." (Final Trial Transcript at 1136:21-23, Feb. 9, 2011.)
[6] Plaintiffs' counsel's cross-examination of Dr. Stephens did not address this sampling evidence.
[7] Dr. Laton apparently did not review this sampling evidence and was never presented this evidence at trial. He was never questioned about nor did he testify to this evidence. (See e.g., RT at 12:11-19, Feb. 10, 2011) ("THE WITNESS: I don't recall reading any documents that stated [the canal] was sampled.") Plaintiffs, however, acknowledge that the canal was tested after 1991. (See e.g., Doc. 1288 at 26:2-5 ["If the Merck defendants had routinely tested the canal, perhaps their arguments on this basis could be taken seriously. Of course, no such testing was performed until after 1991 . . ."]) (emphasis added.) Despite their acknowledgment, Plaintiffs choose to turn a blind eye to this evidence.
[8] After 1991 the only evidence to base a finding that hexavalent chromium existed in the canal is the 87 ppb value of total chromium found in the pond in January 1994. (See Decl. Lewis, Ex. 23, Feinstein Report.)
[9] Dr. Laton agreed that "total chromium, as a measurement, is more commonly found in the earth's crust, naturally occurring, than hexavalent chromium." (Final Trial Transcript at 1171:6-10, Feb. 9, 2011.)
[10] At the July 11, 2011 hearing of argument on the motions, Defendants pointed out that the jury was presented evidence regarding a series of "caps" in or around 1994 in which cement was poured over the most contaminated areas of the BAC Site. (See Hearing Transcript at 47:24-48:5, July 11, 2011.) Defendants, however, did not cite at the hearing or in their brief where in the record this evidence was presented. With thousands of pages transcript and exhibits from this nearly two-month trial, a citation to the record is necessary in order for the evidence to be considered. Nevertheless, the need for this evidence is moot as Defendants' JMOL on the canal surface water pathway from 1992-2006 is granted despite the fact that the "capping" evidence was not considered.
[11] All expert witness to opine on the subject stated that the Beachwood neighborhood was flooded by a mixture of canal water and other water sources not-at-issue when a levee approximately a mile from the pond breached in April 2006. For example, Plaintiffs expert Dr. James Schaaf testified:
Q. You're not suggesting in any way that the pond at the BAC site was in any way a cause of the flood; are you?
A. It certainly wasn't the cause of the flood.
Q. What did you determine was the cause of the flood?
A. The excessive amount of water coming from the upper watersheds, particularly from Bear Creek.
Q. So there wasn't anything about the function of the BAC site, BAC-Pritchard site pond that you believe caused the levee to fail; is that correct?
A. No. It was just another one of the upstream watershed elements that flowed downstream. And there was just too much water for the system to handle.
(Final Trial Transcript at 1132:7-18, Feb. 9, 2011.)
[12] No evidence was admitted that in 2006 or after that any activity was conducted that released chromium or arsenic from the BAC Site, the pond, or the canal.
[13] In their Reply, Defendants assert that the court's 706 expert, Dr. Cowherd, and defense expert, Dr. Fendorf, "testified that Ms. Sears' individual errors caused her to overstate concentrations of hexavalent chromium in the Beachwood neighborhood by factors ranging from two to 1,000." (Doc. 1310 at 8:14-15) (emphasis added.)