Opinion
90-CV-1324C
June 23, 2001
BUCHANAN INGERSOLL PROFESSIONAL CORPORATION (DANIEL M. DARRAGH, ESQ., of Counsel), Pittsburgh, PA, for Defendant Westwood-Squibb Pharmaceutical Co., Inc.
PHILLIPS, LYTLE, BLAINE, HITCHCOCK HUBER (ROBERT E. GLANVILLE, ESQ., of Counsel), Buffalo, NY, for Defendant National Fuel Gas Distribution Corporation.
INTRODUCTION
There are presently three motions pending in this long-running CERCLA litigation. Both Westwood-Squibb Pharmaceuticals, Inc. ("Westwood") and National Fuel Distribution Corporation ("National Fuel") have brought Daubert motions. In addition, Westwood has brought a motion to reconsider. By its Daubert motion, Westwood asks that the proffered testimony of Matthew A. Low be excluded at trial. Item 198. National Fuel has filed a Daubert motion directed at Westwood's expert, Wayne M. Grip. Item 208. In its motion to reconsider, Westwood asks that the court modify the law of the case and hold that Westwood and National Fuel are limited to CERCLA § 113(f) contribution claims against one another and that liability under § 113(f) is several rather than joint and several. Item 196. The court heard oral argument on April 20, 2001.
DISCUSSION
I. Reconsideration of Liability under § 113(f)
In its December 2000 order, the court resolved the liability of both Westwood and National Fuel by granting Westwood's and National Fuel's partial motions for summary judgment. See Item 195, p. 37 (finding that "both parties must bear liability for the contamination" of the Westwood facility, as that facility was defined by the order). The court also reiterated at that time that Westwood, as the current owner of the facility, is "`strictly, jointly, and severally liable for any response costs'" under CERCLA § 107(a)(1). Id. at 4 (quoting Westwood Pharmaceuticals, Inc. v. National Fuel Distribution Corp., 737 F. Supp. 1272, 1275 (W.D.N.Y. 1990)). In addition, the court determined that National Fuel bears continuous successor liability as owner and/or operator of the Westwood Property from 1898 to 1972 under CERCLA § 107(a)(2). See Item 195, pp. 23-24, 27.
Westwood asks that the court modify the law of the case by holding that each party's liability, while strict, is several only. National Fuel insists that Westwood's motion should be denied. National Fuel agrees that its claim against Westwood is limited to a contribution claim under CERCLA § 113(f)(1). However, National Fuel argues that after the allocation trial, it will be within this court's discretion to impose joint liability on either party. While Westwood agrees with National Fuel's argument to a point, it maintains that the current law of the case incorrectly states that Westwood's liability is joint and several. Westwood contends that this determination of law is premature in light of the fact that there has been no allocation trial.
As a threshold matter, it is clear that the parties are limited to § 113(f)(1) contribution claims against one another. As a matter of law, Westwood argues that § 113(f) imposes only several liability, as opposed to joint and several liability. In Volunteers of Western New York v. Heinrich, 90 F. Supp.2d 252, 256 (W.D.N.Y. 2000), Judge Telesca stated that "[l]iability under § 113 is several." Judge Telesca, in turn, cited Judge Larimer's decision in Seneca Meadows, Inc. v. ECI Liquidating, Inc., 16 F. Supp.2d 255 (W.D.N.Y. 1998), which was a case involving a § 113(f) action between potentially responsible parties. There, Judge Larimer found that "liability under § 113 is several only." Id. at 258 (citing Gould, Inc. v. A M Battery and Tire Service, 901 F. Supp. 906 (M.D.Pa. 1995), vacated on other grounds 232 F.3d 162 (3d Cir. 2000)).
A potentially responsible party may not sue for full recovery for remediation costs under CERCLA § 107, and is instead limited to a § 113(f) contribution claim against other potentially responsible parties. See Bedford Affiliates v. Sills, 156 F.3d 416, 419, 424 (2d Cir. 1998).
National Fuel argues that Judge Telesca's and Judge Larimer's observations were dicta and, in any event, are not binding on this court. National Fuel also insists that the Second Circuit has held that "`where multiple parties are responsible, joint and several liability attaches.'" Item 202 (quoting Bedford Affiliates, 156 F.3d at 424). Yet, National Fuel takes this language out of context. In Bedford Affiliates, the court was referring to the nature of liability under CERCLA § 107, not § 113(f). 156 F.3d at 424 (observing that "one potentially responsible person can never recover 100 percent of the response costs from others similarly situated since it is a joint tortfeasor — and not an innocent party — that ultimately must bear its pro rata share of cleanup costs under § 107(a)"). National Fuel also directs this court's attention to Acushnet Co. v. Mohasco Corp., 191 F.3d 69 (1999), where the First Circuit held:
[A] defendant may avoid joint and several liability for response costs in a contribution action under § 9613(f) if it demonstrates that its share of hazardous waste deposited at the site constitutes no more than background amounts of such substances in the environment. . . . This rule is not based on CERCLA's causation requirement, but is logically derived from § 9613(f)'s express authorization that a court take equity into account when fixing each defendant's fair share of response costs.
Id. at 75.
While § 113(f) grants the court broad discretion in allocating remedial costs, it does not, as a matter of law, authorize the court to impose joint and several liability. At this stage of the proceedings, this court looks to the holdings of Judge Telesca in Heinrich and Judge Larimer in Seneca Meadows. Consistent with these opinions, the liability presently imposed on Westwood and National Fuel is strict and several only. Of course, it is possible that the court could allocate substantially all liability to one party after considering the evidence at trial and exercising its discretion and sense of equity. Compare Browning-Ferris Industries of Illinois, Inc. v. Ter Maat, 195 F.3d 953, 957 (7th Cir. 1999) (indicating that "(j)oint liability thus is optional, rather than unavailable" in § 113(f) actions). However, as Westwood rightly observed at argument, a holding of joint liability is premature at this stage.
II. Daubert Motions
The Federal Rules of Evidence set forth the standard for admissibility of expert testimony:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. . . .
Fed.R.Evid. 702. The trial judge is to act as a "gatekeeper" with respect to expert testimony to ensure that such testimony is both relevant and reliable. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-91 (1993). The Daubert rule applies not only to scientific knowledge, but also to technical or other specialized knowledge. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999). The two-pronged determination as to the relevance and reliability of such evidence is committed to the sound discretion of the trial court. See id. at 158.
As to the first prong, the inquiry into relevance requires the court to decide whether the expert testimony will assist the trier of fact in understanding or determining a fact in issue, i.e., whether the expert's testimony "fits" the facts of the case. Daubert, 509 U.S. at 594-95. "[T]he `helpfulness' standard incorporated in [Fed.R.Evid.] 702 means that the expert's opinion must relate to an issue that is actually in dispute and must provide a valid scientific connection to the pertinent inquiry." Margaret A. Berger, Procedural Paradigms for Applying the Daubert Test, 78 MINN. L. REV. 1345, 1351 (1994).
As to the second prong, Daubert set forth specific factors, such as "testing, peer review, error rates, and `acceptability' in the relevant scientific community," which the trial court may consider in determining reliability. 509 U.S. at 595. However, the Daubert test is flexible and its "list of specific factors neither necessarily nor exclusively applies to all experts or in every case." Kumho, 526 U.S. at 151. To this end, the Supreme Court has more generally explained that trial courts should "make certain that an expert . . . employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Id. at 152. Furthermore, expert testimony is reliable where it has "a traceable, analytical basis in objective fact. . . ." Bragdon v. Abbott, 524 U.S. 624, 653 (1998) (citing General Elec. Co. v. Joiner, 522 U.S. 136 (1997)). Finally, in determining reliability the court must generally "focus . . . on principles and methodology, not on the conclusions that they generate." Daubert, 509 U.S. at 595.
A. Westwood's Daubert Motion as to Matthew A. Low
1. Nature of Low's Expertise and Proffered Testimony
Matthew Low is National Fuel's proffered allocation expert. Low is an attorney who has practiced environmental law for almost thirty years. See Item 204, Att. A. For the last twenty years, Low has focused exclusively on resolving disputes involving CERCLA liability and CERCLA allocation. In 1986, Low started an environmental consulting company called TLI Systems, Inc. ("TLI"). Id. As the principal of TLI, Low acts as an "[a]rbitrator, mediator and expert witness in hazardous waste site cases." Id. Low has made a career of consulting with private and public parties on how to resolve CERCLA allocation disputes and, as a result, has extensive experience in "developing allocation schemes, facilitating allocation negotiations, acting as an arbitrator, and providing expert testimony." Id. Westwood acknowledges that Low would be eminently qualified to arbitrate or mediate CERCLA allocation disputes. However, Westwood maintains that "CERCLA allocation" is not a proper subject area of "expert testimony" under Rule 702.
As an expert in CERCLA allocation, Low bases his proffered testimony on what he calls an "allocation framework." According to Low, the allocation framework guides his findings and, if endorsed by the court, might also guide the court on how to weigh the relevant facts and equitable factors under § 113(f). In order to set the stage for his allocation framework, though, Low first provides detailed "assumptions of fact" or "factual inferences," as well as a few conclusions of law. See Item 198, Exh. A, pp. 35-36 (describing facts in expert report as assumptions or reasonable inferences); see also id. Exh. B, pp. 3-15 (containing Low's various factual assumptions). In offering these factual assumptions, Low also makes several credibility determinations regarding various witnesses. See Item 198, Exh. A, p. 36.
Low is not an expert in any of the scientific or technical fields that are pertinent to this litigation (or CERCLA litigation generally), such as hydrogeology, engineering, chemistry, or toxicology.
With respect to conclusions of law, Low assumes that the contamination resulting from Buffalo Gas's operations (1901 to 1917) would be deemed an "orphan share." That is, Low assumes that National Fuel-as a successor to People's Gas-would be liable for little of the contamination caused by Buffalo Gas's operations. See Item 198, Exh. B, pp. 5-6, 19, 21. In an order dated December 13, 2000, this court held that National Fuel was liable through People's Gas for the contamination that occurred during Buffalo Gas's operations. See Item 195.
Low goes on to explain his allocation framework as a system that "aggregates" a number of § 113(f)'s equitable factors, groups them into categories, and assigns the categories proper weight. In this case, Low believes that there are two broad categories of equitable factors at play: (i) "contaminant contribution and impact on the remedy" and (ii) "degree of involvement, knowledge, assumption of responsibility and economic benefit." Low has developed an allocation framework in which the court would assign a weight of 70 percent to the first category of factors, and a weight of 30 percent to the second category. See Item 198, Exh. B, p. 22. Finally, Low applies his factual assumptions and inferences to the framework. However, this framework is purportedly designed so that any set of facts — Low's "assumptions" or the court's ultimate factual findings — can be plugged into the framework to yield a different result. See id. at 20-22. In Low's analysis, for example, he assumes that the majority of contaminants were placed into the ground during Buffalo Gas's operations (1901-1917) and that National Fuel should bear no significant responsibility for Buffalo Gas's activities because the corporate affairs of National Fuel's predecessor — People's Gas — were so dominated by Buffalo Gas. See id. at 21.
Similarly, the weight attached to the two categories can be changed to yield a different result.
After applying his factual assumptions to the framework, Low offers five different allocation scenarios. Under the second scenario, Low recommends relative measures of responsibility and then recommends a pro rata distribution of the 1901-1917 orphan share. Under this scenario, National Fuel would pay 63 percent and Westwood would pay 37 percent. Under a third scenario, Low recommends relative measures of responsibility and indicates that the orphan share could be distributed per capita. Under this scenario, National Fuel would pay 57 percent and Westwood would pay 43 percent. See Item 198, Exh. B, Att. A.
Low acknowledges that his proffered testimony mirrors the allocation analysis that courts undertake under CERCLA § 113(f). Low observes that courts must "consider equitable factors, consider the facts, and render a decision that allocates portions of site liability to the respective parties before it," Item 198, Exh. A, p. 45, and then admits that his testimony "offer[s] an opinion as to how the court should resolve those . . . questions [of equity] in this case." Id. Low further describes his expertise and proffered testimony in the following way:
Q: As part of performing an allocation, is one of the first steps essentially making . . . factual findings, if you will?
A: I think you have to have a factual predicate, it is either a finding that you make or an assumption that you make or an inference that you draw.
. . . .
[W]hat I [then] try to do is develop an allocation framework which essentially looks at the allocation factors that appear most relevant in the particular case, and which are supported by a reasonable factual predicate or inferences, and then put them in a framework that . . . a court can use . . . to see how various factors have been weighed and considered and what assumptions, inferences, or facts have gone into the overall outcome.
. . . .
Q: You assessed the facts, you drew some factual conclusions or . . . inferences and you established an allocation framework that you would propose be used to do the allocation determination; correct?
A: I think that's a fair statement, yes.
Q: . . . In your understanding of how in the judicial process a court resolves an allocation case, is the judicial process, decision-making process essentially the same one that you went through?
A: Well, I think roughly the same. I think that many court[s] are less likely to develop an allocation framework more likely to give you an outcome based on an assessment of various factors. . . .
. . .
I think that an allocation expert can be helpful to a court . . . by taking that intermediary step and developing some sort of a framework that the . . . court can see that if they don't agree with the factual predicates, they can make changes to the numbers or the assessment within the framework and see what the outcome would be and how the outcome would change.
Item 198, Exh. A, pp. 26-28. Finally, Low states that there is a "shade of difference" between how he approaches the task of being an expert witness and how he approaches the task of serving as an arbitrator. Item 198, Exh. A, p. 34.
There are no scientific or technical principles per se that guide Low's analytical process. Indeed, Low states that only scientific and technical evidence is used in order to form his recommendations. Low explains that his "guiding principles" are the equitable factors that courts have identified under § 113(f). Item 198, Exh. A, pp. 23-25.
A: . . . I think the basic principle that applies to superfund allocations is to take into account equity and equitable factors as they have been articulated and applied in a very long list of cases since the 1980's.
Q: Is there an overriding basic principle?
A: . . . [T]here are various principles that, in my opinion, have emerged as being important in superfund allocations.
Q: Emerged where?
A: In the course of my work and other neutrals' work in helping to settle cases, and in the course of allocation decisions that have been rendered by courts.
Q: What are those basic principles?
A: As I said, the first basic principle is to apply these equitable factors in a way that comports with the evidence. I think that courts, as a general rule, will look to see if they can discern which parties contributed to the contaminants of concern at the site that are either causing the need for remediation or causing — or influencing the scope of the remedial plan.
I think they will look to the degree of involvement of various parties and their ability to control the site and control what happened at the site. They will look to, very often they will look to the ownership and the current owners of the site and see how they have been involved in the site and what role they have now played or should play in paying for the cleanup at the site.
Item 298, Exh. A, pp. 24-25.
2. Arguments as to Relevance
Westwood's argument as to relevance is straightforward. That is, Westwood believes that Low seeks to do exactly what the court must do: weigh facts and equitable factors in order to reach a decision on how costs should be allocated. In sum, Westwood argues that Low's area of expertise — CERCLA allocation — is not a proper subject area for expert testimony under Rule 702.
Westwood also points out that Low is not qualified to interpret or explain the various expert evidence in the record, since he is not an expert in any scientific or technical field.
Westwood claims that Low will not "help" the court resolve issues of fact and law, he will only suggest how the court should resolve those questions by trying to substitute his own judgment for the court's. Westwood notes that Low has formed these opinions by going through the very same analytical process that he goes through as a third-party neutral and that this court will go through in allocating responsibility for cleanup costs at the site.
Westwood acknowledges that it might be considered "helpful" in some sense of the word to have Low proffer arguments and proposed conclusions from the witness stand, but that this is not the kind of "help" or "assistance" contemplated by Fed.R.Evid. 702. While an expert's testimony should assist the court in understanding or determining a fact in issue, it should not seek to relieve the court of its duty to find facts and reach conclusions of law.
National Fuel denies that Low's testimony could intrude on the court's role as fact finder and arbiter of the law. National Fuel points out that a qualified expert is permitted to offer opinions on issues of fact. See Boeing Co. v. Cascade Corp., 207 F.3d 1177, 1188 (9th Cir. 2000); Tosco Corp. v. Koch Industries, Inc., 216 F.3d 886 (10th Cir. 2000); and United States v. R.W. Meyer, Inc., 932 F.2d 568, 573 (6th Cir. 1991). Indeed, it is clear that experts are often permitted to speak to "ultimate issues" of fact. See Fed.R.Evid. 704; United States v. Feliciano, 223 F.3d 102, 120-21 (2d Cir. 2000). Thus, National Fuel insists that Low does not purport to resolve any legal issue that is before the court. Rather, National Fuel states that Low will proffer an "allocation framework," United States v. Duncan, 42 F.3d 97, 101, 103 (2d Cir. 1994) (quoting United States v. Bilzerian, 926 F.2d 1285, 1294 (2d Cir. 1991)), and will then offer opinions on the proper equitable factors to be used and the proper facts to apply to those factors — all of which will be Low's expert opinion on issues of fact.
National Fuel's argument supporting Low does not carry the day. In Boeing, the district court admitted competing expert testimony from two engineers on the "relative mass of each party's contribution to the" site's contamination. 207 F.3d at 1188. Boeing's engineer posited that Cascade's contribution was 80 percent and Boeing's 20 percent, while Cascade's expert insisted that a mere 20 percent would understate Boeing's contribution. Id. Under Boeing and cases like it, it is clear that trial courts regularly allow technical and scientific experts to proffer opinions on ultimate issues of fact, such as what percentages of contamination each party has contributed to a CERCLA site. Compare Fed.R.Evid. 704.
In Feliciano, the court of appeals affirmed the trial court's decision to allow an FBI agent to testify — in the context of a criminal RICO trial — that the defendants had "`been involved in narcotics trafficking.'" 223 F.3d at 120-21 (citation omitted). The court found that the agent's testimony was admissible, because even though it embraced an ultimate issue of fact, it was relevant to the charge that the defendants engaged in racketeering activity and it did not go so far as to state a legal conclusion.
Yet, authorities like Boeing and Feliciano are not truly on point with this case because Low is not an engineer or a chemist who could tell the court when certain contaminants were put into the ground or what amounts of different contaminants are attributable to the parties. Instead, Low is an attorney who has reviewed the opinions of the engineers, chemists, etc., and now intends to tell the court how to interpret those opinions and how to weigh that evidence in light of certain equitable factors.
The court recognizes that several federal courts have admitted and considered the testimony of CERCLA allocation experts. See United States v. Pesses, 120 F. Supp.2d 503 (M.D.Pa. 2000); Boeing, 207 F.3d 1177; Ekotek Site PRP Committee v. Self, 1 F. Supp.2d 1282 (D.Utah 1998); Browning-Ferris Indus. of Illinois v. Ter Maat, 13 F. Supp.2d 756 (N.D.Ill. 1998); Gould, Inc. v. AM Battery Tire Service, Inc., 987 F. Supp. 353, 361 (M.D.Pa. 1997); United States v. Atlas Minerals and Chemicals, Inc., 1995 WL 510304 (E.D.Pa. Aug. 22, 1995). Specifically, Matthew Low's testimony was admitted and considered in Pesses, 120 F. Supp.2d 503, which was a CERCLA action involving dozens of potentially responsible parties. There, "Low prepared a database which considered the relative contributions (by weight), and the fact that the removal was performed due to the generation and commingling of waste materials while Metcoa was processing the metals at the site. [Low] concluded that the database was a reasonable basis for the allocation of the costs." Id. at 507. However, Pesses is distinct from this case since Low and his company, TLI, were involved in Pesses as part of a "court sanctioned allocation development process." Id.
Nevertheless, decisions such as Ekotek, Gould, and Browning-Ferris make it clear that courts often hear the testimony of allocation experts. In Gould, the court reviewed testimony from several allocation experts in detail, 987 F. Supp. at 361-65, and relied on what it deemed the most persuasive testimony when reaching its conclusions, id. at 366-71.
Westwood acknowledges that other courts have admitted testimony from allocation experts, but observes that there is no published opinion where a court has admitted a CERCLA allocation expert's testimony over the kinds of objections that Westwood raises here. The court's research confirms this fact. Westwood argues that courts routinely bar the testimony of expert witnesses who seek to state legal conclusions and who essentially suggest how the court should resolve the ultimate legal issues at hand. See United States v. Scop, 846 F.2d 135, 142 (2d Cir. 1988); Marx Co., Inc. v. Diners' Club Inc., 550 F.2d 505, 510 (2d Cir. 1977); United States v. Lumpkin, 192 F.3d 280, 289 (2d Cir. 1999); United States v. Boissoneault, 926 F.2d 230, 233 (2d Cir. 1991), United States v. Simmons, 923 F.2d 934, 937 (2d Cir. 1991).
For example, in Scop, the court of appeals ruled that testimony from the government's securities expert was inadmissible. The court there looked to the Advisory Committee Notes from the Fed.R.Evid. and observed that "`Rules 701 and 702, [which require that] opinions . . . be helpful to the trier of fact, and Rule 403 [, which] provides for exclusion of evidence which wastes time . . . afford ample assurances against the admission of opinions which would merely tell the jury what result to reach . . . . [These rules] also stand ready to exclude opinions phrased in terms of [legal conclusions]." Scop, 846 F.2d at 140 (quoting Fed.R.Evid. 704 Advisory Committee Notes of 1972). The Scop court went on to rule the challenged testimony inadmissible because the expert had "made no attempt to couch the opinion testimony at issue in even conclusory factual statements but drew directly upon the language of the statute and accompanying regulations concerning `manipulation' and `fraud.' . . . In essence, his opinions were legal conclusions that were highly prejudicial and went well beyond his province as an expert in securities trading." 846 F.2d at 140.
Westwood also insists that a Rule 702 expert witness must have some "specialized knowledge" and that Low has none. That is, Low's status as an "expert" at deciding what "equity requires" does not make him an "expert" as that concept is understood under Fed.R.Evid. 702. National Fuel believes that CERCLA allocations like this one present technical issues outside of a trial court's expertise and experience, and for these reasons the court should allow Low to assist it in resolving the many issues of fact and equity that will arise in the upcoming bench trial.
Here, it must be stated that the question of whether Low's testimony would be "relevant" cannot be answered without addressing the prominent role that equity plays in Low's testimony. This issue of how equitable principles affect the admissibility of Low's testimony will be discussed and resolved when the court takes up the issue of "reliability" in Part II, B, 3, see infra.
3. Arguments as to Reliability
Westwood contends that Low's proffered testimony is not based on any reliable methodology or principles and is inadmissible under Rule 702 as a result. Westwood points to Daubert's four factors (testing, peer review, error rates, and acceptability) and argues that Low's methods as an allocation expert fail to satisfy any of these elements. However, courts have recognized that the four factors set forth in Daubert are not exhaustive and, in many cases, are simply unhelpful to the analysis. See United States v. Brumley, 217 F.3d 905 (7th Cir. 2000) (allowing expert with extensive experience in drug trafficking to offer opinion on whether defendant was carrying a "user or dealer" amount of heroin despite poor fit with Daubert factors).
This court acknowledges that portions of Low's testimony could be considered reliable under Rule 702. Specifically, Low's proffered "assumptions of fact" or "reasonable inferences of fact" might be seen as sufficiently reliable, since Low's analysis of the site's history and operations seems rational and considered. Low supports his reading of the record by citing and discussing specific evidence and drawing on decades of experience in CERCLA allocations. By way of example, Low formed his opinions on Iroquois Gas's role in contaminating the site by relying on reports and testimony from several experts, an historical report from the Buffalo Sewer Authority, testimony from former Iroquois employees, and a newspaper article from 1947. After reviewing all of this evidence, Low concluded that:
Low cited testimony from several experts, including: Mr. Harkins, Dr. Nakles, and Mr. Grip. Item 198, Exh. B, pp. 8-9.
See Item 198, Exh. B, p. 8 n. 10.
Low cited testimony from several former employees of Iroquois, including: Fyle, Sacha, and Eckert. See Item 198, Exh. B, pp. 8-9.
See Item 198, Exh. B, p. 8.
The primary source of contamination present on the terrestrial portion of the Site appears to be the large quantity of fill placed on the northern portion of the Site, along the Creek bed. . . . From the testimony of some of the former National Fuel employees deposed in this case, it appears that little, if any, manufacturing process wastes were disposed of on the Site during the 1940s to the early 1950s. During the period 1917-1928 it appears that an active tar collection system was in place. . . . [M]uch of the fill and/or process wastes appear to have been disposed prior to or during Buffalo Gas' operating period, before Iroquois or its predecessor commenced operations.
Item 198, Exh. B, p. 10. The balance of Low's report resembles, in essence, the foregoing analysis. Thus, it is apparent that Low took great care to ground his analysis in objective fact and did not substantiate his opinions by linking them to the evidence ipse dixit, as Westwood contends. Compare e.g., General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). In addition, Low's methods substantially resemble those used by other CERCLA allocation experts throughout the country. See, e.g., Item 198, Exh. A, pp. 23-28 and Item 205, ¶¶ 9-11.
The reliability of Low's proffered testimony — and its relevance — becomes less clear, however, when Low begins choosing equitable factors, recommending how those factors should be weighted, and recommending how the facts should be applied to the equitable factors. Low concedes that the guiding principles of his opinions are the various equitable factors that courts have endorsed in deciding CERCLA allocation disputes over the last twenty or more years. Specifically, Low testified that the "basic principle is to apply these equitable factors in a way that comports with the evidence." Further, Low stated that, like most trial courts and arbitrators, he typically looks
to see . . . which parties contributed to the contaminants of concern at the site that are either causing the need for remediation or causing — or influencing the scope of the remedial plan.
[I also typically look] to the degree of involvement of various parties and their ability to control the site and control what happened at the site. . . . [I] look to the ownership and the current owners of the site and see how they have been involved in the site and what role they have now played or should play in paying for the cleanup at the site.
Item 298, Exh. A, pp. 24-25.
Equitable questions are mixed questions of law and fact. Actions in equity evolved as an alternative to the strict confines of common law, and it was originally the clergy that heard and decided them. To this day, equity requires the decision maker to determine a fair, just, and moral result. As one court observed in the context of CERCLA allocation:
"Equity" is defined as "[j]ustice administered according to fairness as contrasted with the strictly formulated rules of common law."
"The hallmark of a court of equity is its ability to frame its decree to effect a balancing of all the equities and to protect the interest of all affected by it, including the public." Congress reemphasized that the trial court should invoke its moral as well as its legal sense by providing that the court use not just "equitable factors," which phrase already implies a large degree of discretion, but "such equitable factors as the court determines are appropriate." This language broadens the trial court's scope of discretion even further.
United States v. R.W. Meyer, Inc., 932 F.2d 568, 572 (6th Cir. 1991) (citation omitted) (emphasis added). At oral argument, Westwood suggested that Low's lack of principled methodology under Rule 702 becomes especially evident in light of the fact that allocation case law is of little value when a court is faced with the unique facts and equities of any given allocation trial. In other words, in the same way that trial courts cannot make equitable determinations by relying heavily on allocation case law, allocation experts cannot support their opinions by relying on an objective method of analysis.
The court agrees with Westwood's position. By necessarily incorporating principles of equity into his testimony, Low seeks to do something different — something more — than what experts in cases like Boeing and Feliciano did. That is, Low does not merely seek to proffer opinions on ultimate issues of fact; he seeks to offer opinions on mixed issues of law and fact: which equitable factors to choose, how to weigh those factors, and what facts to apply to those factors.
Although principles of equity are not "legal" in the sense that they derive from a constitution, a statute or common law, they do resemble legal principles since "most equitable claims are based on traditional principles, in which the standard to be applied are those that govern the subject area bearing on the claim." Land v. United States, 29 Fed. Cl. 744, 752 (Fed.Cl. 1993). Indeed, the so-called "Gore factors" were unsuccessfully offered as an amendment to CERCLA § 113 by then-Representative Al Gore, and still guide courts in resolving CERCLA allocations. See, e.g., Boeing, 207 F.3d at 1187 n. 34 (9th Cir. 2000).
Since Low's testimony is ultimately directed at issues of equity, his testimony is more like a series of legal conclusions than it is like a series of opinions on ultimate issues of fact. While Rules 701, 702, and 704 of the Federal Rules of Evidence abolished the "ultimate issue" rule, see supra Part II, B, 1, these rules are not intended to open the door for experts to state conclusions of law from the witness stand. See, e.g., Scop, 846 F.2d at 139. And although Rule 702 need not be applied as strictly when the court is the trier of fact, see, e.g., Gibbs v. Gibbs, 210 F.3d 491, 500 (5th Cir. 2000), the relaxation of the standard of admissibility does not mean that the court should devote its time and resources, as well as those of the opposing party, to a witness whose testimony might be presented with equal effect through pre-trial and post-trial briefs.
B. National Fuel's Daubert Motion as to Wayne M. Grip
1. Nature of Grip's Expertise and Methodology
For its part, National Fuel has filed a Daubert motion directed at Westwood's expert, Wayne Grip. Item 208. Mr. Grip states that he is an expert in "photogrammetry." Item 215, ¶¶ 1 5. According to Grip, "[p]hotogrammetry is the science of obtaining reliable spatial measurements from three dimensional photography . . . by obtaining [preferably] stereoscopic pairs of photographs of the subject location." Id. ¶ 5. When serving as an expert in an environmental case such as this, Grip compares and contrasts aerial photographs that were taken of the CERCLA site over the course of years or even decades. Grip analyzes and compares these photographs in order to develop a likely history of the site. Grip states that this process enables him to proffer an opinion regarding when materials were deposited at a site over the course of several decades. See generally Item 215, ¶¶ 1-2.
"Stereoscope," and by extension "stereoscopic," is defined as follows:
An instrument for obtaining, from two pictures (usually photographs) of an object, taken from slightly different points of view (corresponding to the positions of the two eyes), a single image giving the impression of solidity or relief, as in ordinary vision of the object itself.
OXFORD ENGLISH DICTIONARY (obtained online at http://www.oed.com/).
Grip has 22 years of professional experience in interpreting aerial photographs and has given testimony in connection with dozens of CERCLA actions. See Item 215, ¶ 2. Grip's methodology requires the use of highly specialized computer equipment (a specially designed "photogrammetric work station"), which Grip uses to study a site's evolution over time. Grip uses this equipment to outline, color-code, label, and map each "feature" of the site-with "significant" features mapped within 2 feet of accuracy. Item 215, ¶ 4.
2. Grip's Methodology and Proffered Testimony
Grip's testimony in this case deals mainly with the volume of "fill" that was deposited on a stretch of Scajaquada Creek's eastern bank ("the eastern bank") between the years 1926 and 1951. During that time period, the site was owned and operated by Iroquois Gas, which is National Fuel's predecessor in interest. Grip breaks his estimates down into three different time periods: (a) 1926-1938; (b) 1938-1942; and (c) 1942-1951. For each of these time periods, Grip provides a "value range" of volume that was likely deposited. Grip states that the accuracy of these value ranges is a function of the quality of the available photos and the inherent limitations of the available technology.
Grip estimates that 14,653 cubic yards of fill was deposited at the site between 1926 and 1938. Grip states that this figure could be overestimated by 40 percent. Thus, if the low value of Grip's estimate for this period were accepted as true (8,792 cub. yds. or 40 percent less of 14,653), but in reality the volume of fill was 14,653, then Grip would have underestimated by 67 percent. Here, National Fuel argues that the irrelevance and unreliability of Grip's volume estimates is revealed not only by the possibility that he might have overestimated the fill deposited by 40 percent, but also by his failure to explain how he arrived at 40 percent as his likely margin of error.
Thus, if Grip's estimate of 14,653 were accepted as true, but in truth the actual amount of fill was the low value in Grip's range (8792), then Grip would have overestimated by 40 percent. That is: 14,653 less 8792 is 5861; and 5861 divided by 14,653 yields 40 percent. It should be noted that 1926-1938 is the only time period where Grip indicates the extent to which he might have overestimated. However, for each of the other two time periods, Grip indicates a potential error in terms of "+ or — 20%."
That is: 14,563 less 8792 is 5861. Then, 5861 divided by 8792 yields 67 percent.
Grip estimates that approximately 2,875 cubic yards of fill was deposited at the site between 1938 and 1942. Grip states that his estimate might be off by + or — 20 percent. Thus, Grip's "range of values" for 1938 to 1942 is 2,300 to 3,450 cubic yards of fill. This range of values creates a possible underestimate of 50 percent and a possible overestimate of 33 percent. Again, National Fuel maintains that such a margin of error is too high for Rule 702 evidence and complains that Grip has not even attempted to explain how he arrived at a figure of + or — 20 percent as his error rate.
Twenty percent of 2875 is 575. Then, 2875 plus 575 is 3450, and 2875 less 575 is 2300.
In other words, if the lowest value (2300) were accepted as true, but in truth the highest value was correct (3450), then Grip would have been off by 1150 cubic yards. In other words, an underestimate of by 50 percent (i.e., 1150 is 50 percent of 2300). On the other hand, if the highest value were accepted as true, but in truth the lowest value was correct, then Grip would have overestimated by 33 percent (i.e., 1150 is 33 percent of 3450).
Grip estimates that approximately 1,825 cubic yards of fill was deposited at the site between 1942 and 1951. See Item 209, Att. A, pp. 9-10. Here again, Grip concedes that this estimate might be off by + or — 20 percent. Thus, Grip's range of values for this time period is 1,460 to 2,190. As with the time period of 1938-1942, this rate of error means that Grip could have underestimated by 50 percent or overestimated by 33 percent. See supra note 13. Once again, National Fuel argues that this margin of error is far too high and also points out that Grip has not even attempted to explain how he arrived at his error rate.
Based on these three "value ranges," Grip believes that anywhere from 12,552 to 20,293 cubic yards of fill was deposited on the eastern bank of creek between 1926 and 1951. This overall range yields a possible underestimate of 62 percent and a possible overestimate of 38 percent.
In order to form these opinions, Grip has looked at aerial photographs of the site from 1926, 1938, 1942, and 1951. Grip acknowledges that the photo he looked at from 1926 was not easy to work with, since it is "monoscopic" rather than "stereoscopic" and has a very low resolution. See Item 215, par; 6. All of the other photos, though, are stereoscopic and have much better resolution than the 1926 photo. Despite the 1926 photo's limitations, Grip was able to map the location of the eastern creek bank as of 1926 by analyzing that photo and comparing it with older maps of the site. Item 215, par; 11. Grip is confident that he accurately mapped the eastern bank's location as of 1926.
Next, Grip looked at the 1938 photo and compared it with his analysis of the 1926 photo. Based on this comparison, Grip concluded that the eastern creek bank had moved significantly westward between 1926 and 1938. Grip says that this westward movement of the eastern bank is a clear indication that the operator of the site was depositing fill on the eastern bank from 1926 to 1938. Item 215, par; 12. Next, Grip estimated the volume of fill that was deposited between 1926 and 1938 by measuring the "filled area," which Grip estimated to be just over 25,000 square feet, and determining the average difference between the height of the eastern bank and the water level of the creek itself, which Grip estimated to be 15.5 feet. Based on these two figures, Grip derived the approximate volume of fill that was deposited between 1926 and 1938.
That is, Grip looked at how far the eastern bank had moved westward.
Grip acknowledges that there are certain variables that he cannot know with absolute certainty and that these uncertainties are the reason for the acknowledged "margin of error" in his volume estimates. See Item 215, ¶ 12. For example, Grip's 1926-1938 estimate assumed
that the slope of the [eastern] creek bank over time was essentially the same. I made this assumption on the basis that material that is dumped as fill tends to achieve essentially the same slope. However, I noted that if this assumption was incorrect it could result in my having over estimated the volume of fill in the area between the surface of the water and the crest of the bank.
Id. For reasons like these, Grip admits that he may have overestimated his 1926-1938 estimate by 40 percent. For the other two time periods, 1938-1942 and 1942-1951, Grip had access to much better photographs. As a result, these volume estimates have only a + or — 20 percent margin error. Id. ¶ 13. In any event, Grip states that his margins of error would be considered acceptable by other experts from his field. See id.
3. Analysis
In Daubert, the Supreme Court stated that the focus of an inquiry into reliability should "focus . . . on principles and methodology, not on the conclusions that they generate." 509 U.S. at 595. However,
conclusions and methodology are not entirely distinct from one another. Trained experts commonly extrapolate from existing data.
. . . [N]othing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion offered.
General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). Nevertheless, "[i]f the principles, methodology and reasoning are . . . valid then it follows that the inferences, assertions and conclusions derived therefrom are . . . valid as well." Cayuga Indian Nation of New York v. Pataki, 83 F. Supp.2d 318, 322 (N.D.N.Y. 2000) (quotation and citation omitted).
National Fuel objects to Grip's testimony largely because his volume estimates are qualified by margins of error between 20 percent and 40 percent. See supra. National Fuel insists that Grip's volume estimates are so plainly fraught with error that there is no way for his testimony to be deemed relevant or reliable under Rule 702 of the Federal Rules of Evidence. In addition, National Fuel maintains that margins of error this large compel a finding that Grip's testimony will not be "helpful to the court," as that phrase is understood under Rule 702. See generally Campbell v. Metropolitan Property and Casualty Insurance Co., F.3d 2001 WL 204022 (2d Cir. Feb. 2, 2001) (commenting on issue of relevance under Daubert). In sum, National Fuel believes that Grip's volume estimates would offer the court all the help of a coin toss.
National Fuel bases its argument against Grip primarily on Daubert's "rate of error" element and argues that the margins of error in Grip's volume estimates are impermissibly large for the purposes of Rule 702. Not only does Grip offer an overall range of volume that is no more specific than 12,000 to 20,000 cubic yards, but he fails to explain the reasoning behind his error rates. It is the latter of these two issues that seems more troubling to National Fuel.
National Fuel cites Cayuga Nation, 83 F. Supp.2d at 324, and Zwillinger v. Garfield Slope Housing Corp., 1998 WL 623589 (E.D.N.Y. 1998), as examples of cases where a court has deemed an expert's testimony unreliable because of a significant rate of error in the proffered conclusions. National Fuel insists that Grip cannot redeem his wildly imprecise volume estimates simply by using state-of-the-art computer technology as a means of analyzing aerial photographs.
The court finds that cases such as Cayuga Nation and Zwillinger are not on point with the issues raised by Grip's proffered testimony. In Cayuga Nation, the court detailed a host of problems with the methodology and techniques of a purported real estate expert, John Havemeyer. Specifically, the court found troubling "discrepancies between actual sales data and how it was recorded in the comparable sales sheets Havemeyer used to compile his data." Cayuga Nation, 83 F. Supp.2d at 324. As a result of this kind of simple clerical error, Havemeyer overvalued one comparable sale by almost $120,000. See id. Havemeyer also improperly "doublecounted" certain lake front properties for the years 1988 and 1989 and, as a consequence, he overvalued the fair market value for that time period by at least $500,000. See id. The court also took issue with the way in which Havemeyer "used . . . an intuitive approach in selecting comparable sales," that is, "he selected by `feel' the four sales [from each year] which he used in his analysis. . . ." Id. Furthermore, Havemeyer admitted on cross-examination that the sales data "upon which [he relied] was not always accurately reported." Id. at 325. For example, Havemeyer conceded that the sale price of one tract "was `probably taken off the deed incorrectly,'" id. (citation omitted), and later admitted that he had not always investigated whether certain sales were arm's length transactions. Id. Finally, "although Havemeyer . . . recognized the possibility of [the need to make] various adjustments, such as [adjustments for] location, topography, date of sale, and conditions of sale, in the end he made no adjustments whatsoever. Havemeyer made no adjustments, even for size, which he acknowledged is an important consideration when using the sales comparison approach." Id. In sum, the court found that Havemeyer's testimony was insufficiently reliable because of repeated failures to follow basic real estate appraisal practices and to do so with a professional's care and attention. Id. at 326.
In Zwillinger, the court discussed the testimony of plaintiff's proffered expert, Dr. Michael Gray, at length and detailed myriad problems with his work. First, Dr. Gray based his opinions on work that he had not empirically tested, even though this underlying work was the kind of scientific inquiry that lent itself to empirical testing. Zwillinger, 1998 WL 623589, at *11-12. The court rejected Dr. Gray's reliance on dozens of scientific studies because those studies neither addressed the particular issue before the court nor lent support to his theories. See id. at * 12. Next, the court observed that none of Dr. Gray's tests and studies had yet been subject to peer review. Id. at * 17-18. Third, the court determined that Dr. Gray's work was likely to suffer from a high rate of error since he had failed to develop an "objective test for determining the cause" of plaintiff's alleged disease and, in spite of the fact that sound scientific practice required it, failed to "employ a control group as part of his study. . . ." Id. at *18. In addition, the court found no general acceptance of Dr. Gray's theory that there was a "correlation between exposure to [the chemical] 4-PC and [plaintiff's alleged disorder which was characterized by a] heightened sensitivity to everyday [chemical] substances." Id. at *20. Finally, the Zwillinger court observed that "every federal court that has considered the admissibility of expert testimony [like Dr. Gray's] has . . . found [it] . . . to be too speculative to qualify as `scientific knowledge'. . . ." Id. at *21. In light of all this, the court not only found that Dr. Gray's research failed to satisfy any of Daubert's factors, it also determined under Joiner that there was a yawning "analytical gap between the data and the opinion proffered." Id. at 23.
In this case, the objections to Grip's testimony differ in both quantity and quality from those set out in Cayuga Nation and Zwillinger. In his supporting affidavit, Grip has carefully explained the science of photogrammetry and has credibly discussed how he analyzes aerial photographs in the context of CERCLA litigation. For its part, National Fuel does not attack Grip's methods and principles, but only his conclusions as to volume. Yet, the court as gatekeeper focuses on the expert's principles and methodology, not the results. Where the expert's principles and methods appear sufficiently reliable under Rule 702, subsequently derived results can be presumed reliable as well. See Cayuga Nation, 83 F. Supp.2d at 322 . Therefore, Grip's testimony will not be barred simply because he acknowledges margins of error from 20 percent to 40 percent. That is, Grip's volume estimates are not rendered unreliable per se simply by virtue of being qualified by margins of error.
Moreover, Grip does not qualify his essential conclusions, i.e., that the eastern bank of the creek moved approximately 100 feet west from 1926 to 1951; that the average difference between the height of the eastern bank and the water level was 15.5 feet; and that "significant amounts" of fill were deposited on the eastern bank between 1926 and 1951.
What is troubling, however, is that Grip has not explained the methodology and principles that enabled him to set his margins of error nor has he explained how he determined that the average difference between the bank and the water level was 15.5 feet. See infra.
With respect to these issues, National Fuel has essentially offered two arguments against Grip. First, National Fuel insists that it is undisputed that filling occurred at the site from 1926 to 1951 and that it is therefore unnecessary for Westwood to proffer Grip's testimony in order to establish that filling occurred during that time period. National Fuel points to deposition testimony from Thomas Rafter, who was an engineer at National Fuel's Manufactured Gas Plant during the 1940s and 1950s. See Item 218, p. 4; Item 217, Exh. A. According to Rafter, Iroquois took loads of soil from its off-site excavations and brought them to the site throughout the `40s and `50s. Rafter also stated that these loads of soil were deposited onto the eastern creek bank. See id. Thus, National Fuel states that it is undisputed that some filling took place between 1926 and 1951 and that Grip's testimony cannot be relevant simply because it speaks to that issue.
Here, National Fuel also relies on testimony from Don Becker, Item 217, Exh. B, and the report of Rocco Termini, who is an expert for Westwood, Item 217, Exhs. C D. However, Becker testified that he had no memory of fill being deposited into the creek bank and Termini's report merely speaks of fill that was deposited in the 1970s. Thus, the evidence from Becker and Termini does not convince the court that this issue of filling activities between 1926 and 1951 is undisputed.
While National Fuel acknowledges that filling took place during that time period, it is National Fuel's position that only clean fill was deposited on the eastern creek bank during that time.
Yet, National Fuel only seems prepared to admit that some filling took place between 1926 and 1951. On the other hand, Grip's opinion is that there was a significant amount of filling during that period. Westwood seeks to use Grip's testimony to do more than just show that there was some undetermined amount of filling activity between 1926 and 1951. Instead, Westwood intends to rely on Grip's conclusion that there was "significant" filling at the site between 1926 and 1951 and that this activity caused the creek's eastern bank to move 100 feet westward. Grip's testimony on the filling that took place during the relevant time period is substantially different from what National Fuel seems ready to admit. For these reasons, the issue of whether filling took place between 1926 and 1951 — and how much — is disputed and Grip's testimony is relevant to resolving this issue.
Next, National Fuel argues that Grip's testimony is irrelevant because it cannot help the court determine the critical issue of whether the fill that was deposited at the site between 1926 and 1951 was contaminated at the time of its disposal. National Fuel disputes Westwood's insistence that Grip's testimony will "tie together" the soil-boring logs and the testimony of other expert witnesses. See Item 218, p. 5. National Fuel's argument on this point is two-pronged.
First, National Fuel points out that Grip's report and his aerial charts do not refer to soil borings. Indeed, the soil borings at issue are plotted on a map that was prepared by another Westwood consultant, Geotrans and its principal, Dr. Charles Faust. While Grip believes that the creek's eastern bank moved 100 feet westward as a result of fill deposited from 1926 to 1951, he cannot say that the soil borings were taken from that 100 foot-wide area of landfill that was created from 1926 to 1951. Further, Westwood will not present a witness who can explain where the soil borings were likely drilled relative to Grip's aerial charts. The upshot of National Fuel's argument is this: Grip's aerial charts and the Geotrans soil-boring map were not prepared by the same person and are not identical in terms of relative distances, etc. Since the soil borings are plotted only on the Geotrans map, National Fuel argues that Westwood cannot use Grip's testimony and aerial charts to suggest that the soil borings were taken from the 100 foot-wide area of landfill created between 1926 and 1951.
As further support, National Fuel attempts to rely on testimony from Dr. Charles Faust, see Item 217, Exh. E, and the expert's report of Rocco Termini, see id. Exh. C. According to National Fuel, both Faust and Termini suggest that the distance between the water's edge and the top of the bank may have varied widely.
As to the second prong of this argument, National Fuel contends that Grip's estimates regarding the depth of the fill are little more than guesswork. Here, National Fuel observes that Grip's calculations regarding the area of the filled area are purportedly accurate within a matter of two feet. See Item 215, ¶ 12. Yet, Grip expresses his volume estimate as a range of approximately 12,000 to 20,000 cubic yards. What accounts for this broad range is Grip's uncertainty as to the depth-or height-of the fill.
Since volume is a function of area multiplied by height-or in this case depth-National Fuel reasonably infers that Grip is uncertain when it comes to judging the depth of the fill that was deposited onto the eastern creek bank from 1926 to 1951.
National Fuel believes that Grip's uncertainty as to depth bars Westwood from using Grip's testimony to establish that soil borings were taken from the 100-foot-wide landfill area allegedly created by the filling activity of 1926 to 1951. In other words, assume for the purposes of analysis that Westwood obtained a 1970 soil boring that was drilled 30 feet from the eastern bank and at a depth of 50 feet. National Fuel contends that Grip's uncertainty regarding the depth of the 100-foot-wide landfill would preclude Westwood from linking Grip's testimony to the soil-boring data, since depth is obviously a crucial element of soil-boring data. See Item 218, pp. 8-9.
Thus, National Fuel contends that the differences between Grip's aerial charts and the Geotrans soil-boring map as well as Grip's uncertainty regarding the landfill's depth combine to create an "inherent disconnect" between his testimony and the soil-boring logs, which are a primary source of proof on contamination. Thus, National Fuel insists that Grip's testimony is irrelevant to the issue of whether fill deposited at the site from 1926 to 1951 was contaminated at the time it was deposited.
The court finds that there is logic and force to National Fuel's argument on whether Grip's testimony can be linked to data taken from soil-boring logs. Nevertheless, these objections are best left to cross-examination. Admittedly, Grip's opinion that the eastern creek bank was filled-in and moved 100 feet westward does not conclusively show that a soil boring taken 30 feet from the creek bank came from landfill that was deposited between 1926 to 1951. Nevertheless, Grip's testimony does tend to make it more likely that soil borings taken within 100 feet of the creek's eastern bank were taken from fill that was deposited at the site between 1926 and 1951. The fact that the soil borings are plotted on a different map goes to the weight of Grip's testimony, not its admissibility.
Likewise, Grip's estimates as to the fill's depth may ultimately prove to be an obstacle in Westwood's effort to link Grip's testimony to data from soil-boring logs. Grip himself admits that he was unable to determine the likely depth of fill with a great deal of certainty. Grip explains that he "used an average elevation difference [of 15.5 feet] to simplify the volumetric calculation" even though "the actual difference in [the bank's] elevation varies from point to point along the crest line of the bank. . . ." Item 215, ¶ 12.
Grip goes on to acknowledge that his "calculation assumes that the slope of the creek bank over time was essentially the same. I made this assumption on the basis that material that is dumped tends to achieve essentially the same slope. However, I noted that if this assumption was incorrect it could result in my having over estimated the volume of fill. . . ." Item 215, ¶ 12. Grip's assumption that the slope of the creek's bank remained the same may have caused him to overestimate the depth of the fill.
In its role as gatekeeper, though, the court is far less concerned with the accuracy and precision of Grip's proffered conclusions than it is with the methodology and principles that led Grip to his conclusion. Thus, Grip's testimony will not be excluded simply because he acknowledges that his depth calculations could be in error if he has incorrectly assumed that the slope of the creek's bank remained constant over the course of filling activity. Although Grip's uncertainty regarding depth might make it less likely that his opinions will be linked to data from the soil-boring logs, it does not foreclose that possibility and it does not render his testimony irrelevant to the process of determining whether the fill deposited from 1926 to 1951 was contaminated at the time it was placed there.
However, the court is concerned with Grip's failure to explain the methodology and principles that led him to make two assumptions: (a) that the average height difference between the water level and the creek bank was 15.5 feet and (b) that the slope of the creek's bank would have remained basically the same as fill was deposited over the course of approximately 25 years. Grip simply notes that the 15.5 feet figure and the creek bank's constant grade are assumptions of fact that he has made in forming his opinions. Without some kind of explanation from Grip regarding these two assumptions, Grip's volume estimates can only be linked to other admitted evidence ipse dixit. Under Joiner, 522 U.S. 136 (1997), Grip's opinion is insufficiently reliable if it does not have a traceable, analytical basis in objective facts. While the court is satisfied that the other aspects of Grip's testimony meet the requirements of Rule 702 and the leading cases of Daubert and Kumho Tire, the principles underlying these two assumptions of fact must be sufficiently explained before Grip can offer an opinion regarding the volume of fill deposited at the creek bank from 1926 to 1951.
In his expert's report, Grip sets forth the average difference in height between the water level and the bank's crest-15.5 feet-without providing any discussion at all of how he arrived at that figure. See e.g., Item 209, Exh. A, pp. 9-10. Grip summarily indicates:"In order to estimate the volume of fill that had been placed [on the creek bank] between 1926 and [1951], I determined that the average elevation difference between the water surface in the creek and the land surface where the tanks are located is 15.5 feet. . . . I am also quite confident in the determination that the height of the crest of the bank was, on average, 15.5 higher than the water surface. . . ." Item 215, ¶¶ 12, 15.
It is worth noting a recent CERCLA decision from the Seventh Circuit, where that court expressed general approval of photogrammetry as a valid and reliable discipline and also acknowledged the utility of hearing testimony from experts in photogrammetry. See Nutrasweet Co. v. X-L Engineering Co., 227 F.3d 776, 787-88 (7th Cir. 2000).
In sum, the court finds that much of Grip's proffered testimony may enhance the court's understanding of the facts at issue, especially since the parties have already stipulated that aerial photographs of the site may be submitted into evidence. See Item 215, ¶¶ 16-17. Yet, Grip has not adequately explained the principles and methodology that underlie some of his factual assumptions. As a result, his testimony regarding the volume of fill deposited at the site between 1926 and 1951 is insufficiently reliable at this stage. Yet, the court is also mindful of the fact that Grip was never deposed by National Fuel. Therefore, Westwood may seek to introduce Grip's opinions regarding volume at trial by having Grip articulate an adequate foundation regarding his assumptions that there was a 15.5 foot height differential between the water level and bank's crest and that there was an essentially constant slope of the creek's bank from 1926 to 1951.
CONCLUSION
For the foregoing reasons, the court grants Westwood-Squibb's motion for reconsideration (Item 196). Westwood's Daubert motion is also granted. (Item 198). The court recognizes that Low has extensive experience in the field of CERCLA allocation. Nevertheless, much of Low's proffered testimony deals with principles of equity, i.e., his recommendations regarding which equitable factors to consider, how to weigh them and how to apply them to the facts. The court is also mindful of conserving its time and resources, as well as those of the opposing party. The substance of Low's testimony is better suited to argument.
Finally, National Fuel's Daubert motion is granted in part and denied in part (Item 208). Grip's broadly stated opinions — e.g., that significant filling took place at the site between 1926 and 1951 — are relevant and also sufficiently grounded in objective fact. However, Grip's opinion as to the volume of fill deposited at the site — in its current form — is insufficiently reliable. Westwood will have an opportunity to cure this deficiency at trial.
The court will meet with counsel on Monday, July 9, 2001, at 2:30 p.m. Mr. Darragh may participate by telephone.
So ordered.