UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
June 30, 1999
UNITED STATES OF AMERICA, PLAINTIFF,
JEROME LIGHTMAN, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Simandle, District Judge:
HONORABLE JEROME B. SIMANDLE
This matter is before the court on the motion of defendant Stepan Company ("Stepan") to strike a portion of the expert report of The Weinberg Group ("Weinberg"), which was retained by the defendant members of the Joint Defense Group ("JDG") *fn1 to serve as its allocation expert in this matter. Specifically, Stepan moves to strike Weinberg's modified allocation of responsibility for response costs at the Ewan and D'Imperio Sites. Because the court finds that Weinberg's modified allocation is based on speculation rather than on well-reasoned scientific analysis, the court grants Stepan's motion.
This is a civil action to identify the parties that should beat the cost of cleaning up environmental contamination at the Ewan and D'Imperio Superfund Sites caused by the illegal dumping of hazardous waste at the sites by the Lightman Drum Company ("LDC") in the mid- 1970's.
In connection with this litigation, the JDG retained Weinberg "to conduct an analysis regarding allocation of Superfund liabilities and potential costs at the Ewan and D'Imperio Superfund Sites." (Aronson Certification ("Aronson Cert."), Ex. A at 1.) In order to perform that task, Weinberg "reviewed and evaluated an extensive amount of information concerning the types and amounts of industrial wastes generated by members of [the JDG] and Stepan Company and disposal of these wastes at the Ewan and D'Imperio Superfund Sites by [LDC]." (Id.) Weinberg then created an allocation model based on the following assumptions:
(1) The approach used involves an assumption that both the volume and the characteristics of wastes assumed to have been deposited at the Ewan and D'Imperio Sites contributed to the costs associated with response or remediation. Waste streams with a high inherent hazard influenced placement of the Sites on the CERCLA National Priorities List and also affected the types and degree of remediation selected for cleanup of the sites (e.g., waste removal, groundwater treatment). However, the total volume of waste also influences the costs associated with each of the response actions undertaken at the Sites.
(2) The waste generators each produced one or more types of waste streams, and each of the waste streams contributed some hazardous substances and some volume of waste to the Sites.
(3) Characteristics of the individual waste streams differed to varying degrees; similar waste streams should be treated similarly in terms of contribution to overall remediation costs.
(4) A unit amount of waste with a high inherent hazard should bear a larger share of the remediation costs than waste with a low inherent hazard.
(5) A unit amount of waste that requires implementation of a more costly remedy should bear a larger share of the remediation costs than waste that requires a less costly remedy. (Id. at 1-2.)
The first step in Weinberg's methodology was "to characterize the individual waste streams contributed by each of the waste generators." (Id. at 3.) In doing so, Weinberg "relied on information produced by the waste generators during the discovery phase of this action, on expert reports characterizing the mobility and persistence of selected waste streams, on review of the scientific literature, and on [its] own professional experience concerning the content of waste streams from a variety of manufacturing operations." (Id.) Using this information, Weinberg then "calculat[ed] a numerical score to characterize the individual waste streams according to their relative inherent hazard and overall ability to affect remediation costs." (Id.)
This process included consideration of the quantity and toxicity of waste stream components and the mobility and persistence of the different waste streams. (Id. at 3-9.) Weinberg then assigned a percentage share of liability for remediation costs at each of the sites to the individual waste streams contributed by the waste generators. (Aronson Cert., Ex. A, at Tables 6 and 7.)
Finally, Weinberg proceeded to modify its initial allocation of percentage shares of liability for remediation costs at each of the sites to reflect "the effects that individual waste streams may have on other wastes also present in the disposal areas." (Id. at 10.) Weinberg explained its modification as follows:
Information presented in the Site Evaluation Report for the D'Imperio and Ewan Sites (Fluor Daniel GTI 1997) indicates that wastes assumed to have been disposed of by Stepan Company have facilitated transport and inhibited degradation of chemical of concern at both the Ewan and D'Imperio Sites, thereby promoting enhanced distribution of site contaminants of concern. Solute transport calculations presented in the report indicate that xylene and toluene in groundwater at the Ewan Site have migrated approximately two times further than would be expected using midpoint expected transport time assumptions and approximately as expected using minimum expected transport time assumptions. At the D'Imperio Site, xylene and toluene in groundwater have migrated approximately ten times faster then expected using midpoint expected transport time assumptions and approximately two times faster then expected using minimum expected transport time assumptions. In addition to the impact on organic wastes constituents associated with the surfactant and co-solvent effects of Stepan waste, the Site Evaluation Report concluded that there would be enhanced mobility of inorganic constituents present at the sites due to the acidic nature of Stepan wastes. Based on the conclusions presented in the 1997 Fluor Daniel Site Evaluation Report, increase distribution of site-related contaminants away from source areas has occurred due to the presence of the Stepan Company wastes at the site. This increased distribution of wastes has and will result in increased remediation costs that would not have occurred in the absence of the Stepan Company wastes. Therefore this contribution to remedial costs also should be accounted for in the cost allocation process.
The available date do not permit a precise quantification of the adjustment to the liability shares calculated based on inherent hazard. The types of activities undertaken as part of a Superfund investigation and remediation effort would not necessarily be affected equally by enhanced distribution of wastes by selected individual waste streams. For example, the effects of enhanced contaminant distribution due to the Stepan Company wastes may exert a greater effect on groundwater recovery and treatment operating costs than it would on site investigation costs. Construction of groundwater recovery and treatment facilities may be associated with intermediate costs. However, as a first approximation of the potential effects of the Stepan Wastes on the liability shares for the individual generator companies, the inherent hazard liability shares for the generators companies other than Stepan were reduced by one-half, and the total liability share deducted from these generator companies were adduced to the Stepan Company liability share. This adjustment reflects an assumption that increasing the areal distribution of site contaminants by a factor of two would increase site costs by a factor of two. The adjusted liability shares are shown in Tables 8 and 9 for the Ewan and D'Imperio Sites, respectively. (Id. at 10-11 and Tables 8 and 9.)
Stepan now moves to strike Weinberg's modified allocation, arguing that it is inadmissible because: (1) it is based upon the expert reports of Fluor Daniel GTI ("FDGTI"), which Stepan has separately moved to strike as unreliable under Federal Rule of Evidence 702; and (2) it is itself unreliable because it is arbitrary and not based on any recognized methodology. Stepan does not challenge Weinberg's initial allocation or the methodology that led to that allocation.
A. Standard for Admissibility of Expert Testimony
"Under the Federal Rules of Evidence, it is the role of the trial judge to act as a `gatekeeper' to ensure that any and all scientific testimony or evidence is not only relevant, but also reliable." Kannankeril v, Terminix Int'l, Inc., 128 F.3d 802, 806 (3d Cir. 1997)(citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993)). "The Rules of Evidence embody a strong and undeniable preference for admitting any evidence which has the potential for assisting the trier of fact." Id. (citing Holbrook v. Lykes Bros. S.S. Co., 80 F.3d 777, 780 (3d Cir. 1996)). Thus, "Rule 702, which governs the admissibility of expert testimony, has a liberal policy of admissibility." Id. (citing Holbrook, 80 F.3d at 780; In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 741 (3d Cir. 1994), cert. denied, 513 U.S. 1190 (1995)).
"Rule 702 has three major requirement: (1) the proffered witness must be an expert; (2) the expert must testify about matters requiring scientific, technical or specialized knowledge; and (3) the expert's testimony must assist the trial of fact." Id. (citing Paoli, 35 F.3d at 741-42). With regard to the second requirement, "`an expert's testimony is admissible so long as the process or technique the expert used in formulating the opinion is reliable.'" Id. (quoting Paoli, 35 F.3d at 742). To be deemed reliable, an expert's testimony must be based on "methods and procedures of science" rather than on "subjective belief or unsupported speculation." Id. (quoting Paoli, 35 F.3d at 744). To be admissible, however, an expert opinion "need not be so persuasive as to meet a party's burden of proof or even necessarily its burden of production." Heller v. Shaw Indus., Inc., 167 F.3d 146, 152 (3d Cir. 1999). Indeed, expert testimony may be admissible even when it is "shaky" or "provides only a `scintilla' of support for a claim or defense." Id. (quoting Daubert, 509 U.S. at 596). "`Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the tradition and appropriate means of attacking'" such evidence. Id. (quoting Daubert, 509 U.S. at 596).
"The evidentiary requirement of reliability is lower than the merits standard of correctness." Paoli, 35 F.3d at 744. "The grounds for an expert's opinion merely have to be good, they do not have to be perfect." Id. Thus, "[a] judge frequently should find an expert's methodology helpful even when the judge thinks that the expert's technique has flaws sufficient to render the conclusions inaccurate." Id. at 744-45. "The ultimate touchstone is helpfulness to the trier of fact, and with regard to reliability, helpfulness turns on whether the expert's technique or principle [is] sufficiently reliable so that it will aid the [factfinder] in reaching accurate results." Id. at 744 (citation and internal quotes omitted).
Stepan advances two arguments in support of its motion to strike Weinberg's modified allocation. First, Stepan argues that the modified allocation is inadmissible because it is based in large part on the FDGTI Reports, which Stepan contends are themselves inadmissible. As discussed in detail in the accompanying Opinion of today's date denying Stepan's motion to strike the FDGTI Reports, however, the court finds that the FDGTI reports are sufficiently reliable to be admitted under Rule 702. Thus, Weinberg's reliance on the FDGTI Reports in calculating its modified allocation does not render the modified allocation inherently unreliable and, therefore, inadmissible.
Stepan's second argument in support of its motion to strike Weinberg's modified allocation is that the modified allocation is itself arbitrary and not based on any recognized methodology. The court agrees.
Weinberg admits that its modification of its initial allocation "reflects an assumption that increasing the areal distribution of site contaminants by a factor of two would increase site costs by a factor of two." (Aronson Cert., Ex. A at 11.) There is absolutely no support in the record for this assumption. Indeed, Weinberg itself acknowledges that "[t]he types of activities undertaken as part of a Superfund investigation and remediation effort would not necessarily be affected equally by enhanced distribution of wastes by selected individual waste streams." (Id.) Weinberg notes by way of example that the enhanced distribution of co-disposed contaminants in groundwater at the sites attributed to Stepan by FDGTI "may exert a greater effect on groundwater recovery and treatment operating costs than it would on site investigation costs." (Id.) Similarly Dr. Paul C. Chrostowski, the primary author of the Weinberg report, acknowledged at his deposition that FDGTI did not suggest that Stepan facilitated the transport of drums or the transport of contaminants in soil at the sites. (Aronson Cert., Ex. D at 119-120.) Thus, as Stepan quite accurately points out, there is no reason to believe that the enhanced distribution of contaminants in groundwater at the sites attributed to Stepan by FDGTI would have any effect on response costs associated with drum removal or on-site soil remediation.
In sum, the court finds that Weinberg's modified allocation, which it characterizes as "a first approximation of the potential effects of the Stepan Wastes on the liability shares for the individual generator companies" (Aronson Cert., Ex. A at 11) is far too speculative to pass muster under Rule 702. It will be the court's function at trial during the allocation phase of this case to allocate response costs among liable parties according to such equitable factors as the court deems appropriate. See United States v. Kramer, 953 F. Supp. 592, 597 (D.N.J. 1997). The JDG will be free to argue at trial that Stepan's waste increased response costs at the Ewan and D'Imperio Sites beyond what those costs would have been in the absence of Stepan's waste due to the alleged potential of Stepan's waste to promote facilitated transport of co-disposed contaminants in groundwater at the sites, but the court does not believe that Weinberg's modified allocation will be helpful to the court, within the meaning of Rule 702, in evaluating such an argument or in arriving at an equitable allocation of response costs among the liable parties. Accordingly, the court grants Stepan's motion to strike Weinberg's modified allocation.
For these reasons, the court grants Stepan's motion to strike Weinberg's modified allocation of percentage share liability for response costs at the Ewan and D'Imperio Sites. The accompanying Order is entered.
JEROME B. SIMANDLE U.S. District Judge
THIS MATTER having come before the court on the motion of defendant Stepan Company ("Stepan") to strike a portion of the expert report of The Weinberg Group ("Weinberg"), which was retained by the defendant members of the Joint Defense Group ("JDG") to serve as its allocation expert in this matter, and the court having considered the submissions of the parties, and for the reasons set forth in the accompanying Opinion;
IT IS on this 30th day of June, 1999, hereby ORDERED that Stepan's motion to strike Weinberg's modified allocation of percentage share liability for response costs at the Ewan and D'Imperio Sites is GRANTED.
JEROME B. SIMANDLE U.S. District Judge