Sullivan et al v. Saint-Gobain Performance Plastics Corporation

RESPONSE in Opposition re MOTION to Exclude Plaintiffs' Expert Testimony

D. Vt.February 25, 2019

UNITED STATES DISTRICT COURT DISTRICT OF VERMONT JAMES D. SULLIVAN et al., individually, and on behalf of a Class of persons similarly situated, Plaintiffs, v. SAINT-GOBAIN PERFORMANCE PLASTICS CORPORATION, Defendant. Civil Action No. 5:16-cv-00125-GWC PLAINTIFFS’ RESPONSE IN OPPOSITION TO SAINT-GOBAIN’S MOTION TO EXCLUDE PLAINTIFFS’ EXPERT TESTIMONY Plaintiffs, by and through their undersigned counsel, respectfully submit this Response in Opposition to Defendant Saint-Gobain Performance Plastics Corporation’s (“Saint-Gobain”) Motion to Exclude Plaintiffs’ Expert Testimony [Doc. 217]. PRELIMINARY STATEMENT In Daubert v. Merrill Dow Pharm., Inc., 509 U.S. 579 (1993), the Supreme Court intended to relax the “traditional barriers to the admissibility of expert testimony,” as evidenced by the fact that, post-Daubert, the exclusion of expert testimony is the exception to rule of admissibility. Fed. R. Evid. 702, Advisory Committee Notes (2000). However, its Motion to Exclude Plaintiffs’ Expert Testimony [Doc. 218-1 (“motion”)], Saint-Gobain takes an inappropriate “shotgun approach” to Plaintiffs’ expert testimony, and “without taking proper aim” seeks to have this Court exclude the testimony of all of Plaintiffs’ experts. See Whatley v. Merit Distribution Services, 166 F.Supp.2d 1350, 1354 (S.D. Al. 2001); see also Fed. R. Evid. 702, Advisory Committee Notes, 2000 amend. (“… this amendment is not intended to provide an excuse for an automatic challenge to the testimony of every expert”) (emphasis added). Daubert also clarified that the primary purpose of a trial court’s admissibility inquiry is to bar “junk science” from the courtroom. See, Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 1 of 99 2 e.g., National Envelope Corp. v. American Pad & Paper Co. of Delaware, Inc., 2009 WL 5173920 at *5 (S.D.N.Y. 2009) (internal citations omitted). However, the testimony of Plaintiffs’ well- qualified experts is decidedly not “junk science;” in fact, it is a prime example of Rule 702’s “specialized knowledge” that will assist the trier of fact.1 Therefore, premised almost entirely on the disagreement between the parties’ experts, along with a dearth of Second Circuit authority and a corresponding overreliance on inapposite cases from other circuits, Saint-Gobain asks this Court to exclude all of Plaintiffs’ expert testimony. As aptly stated by one court faced with a similar Daubert challenge: [Saint-Gobain’s] arguments couched in terms of sufficiency of the data, or reliability of methodology, in reality [are] assertions that this court should reject certain data – facts, of course – in favor of others. The court may not resolve factual disputes in performing a Daubert analysis. In re Southeastern Milk Antitrust Litig., 2010 WL 5102974 at *1 (E.D. Tenn. Dec. 8, 2010) (emphasis added). Here, under the guise of “relevance” and “reliability,” Saint-Gobain, in addition to asking this Court to reject certain facts in favor of others, also inappropriately uses its Daubert motion more as an excuse to rehash the exact same arguments it previously made in opposition to Plaintiffs’ Motion for Class Certification than to credibly challenge the admissibility of any of Plaintiffs’ experts’ testimony. Similarly, its challenges to the reliability of Plaintiffs’ expert testimony on the merits demonstrating the increased risk of PFOA-related disease amounts to nothing more than a quintessential “battle of the experts” that is not suitable for a Daubert motion. For these and all of the following reasons, the Court should deny Saint-Gobain’s motion in its entirety. 1 This is evidenced by the fact Saint-Gobain does not attempt to exclude any of Plaintiffs’ experts based on a lack of qualifications. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 2 of 99 3 LEGAL STANDARD I. DAUBERT GENERALLY Fed. R. Evid 702 of the Federal Rules of Evidence, as amended in 2000 to reflect the Supreme Court’s decisions in Daubert v. Merrill Dow Pharm., Inc., 509 U.S. 579 (1993) and Kumho Tire v. Carmichael, 526 U.S. 137 (1999), governs the admissibility of expert testimony. Rule 702 provides: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts and data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. In Daubert, the Supreme Court, emphasizing the “liberal thrust” of the Rules of Evidence favoring the admissibility of expert testimony, rejected the “general acceptance” test of Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). Daubert, 509 U.S. at 588. In the Second Circuit, it is a “well-accepted principle” that Rule 702 embodies a “liberal standard of admissibility for expert opinions.” Nimely v. City of New York, 414 F.3d 381, 395 (2nd Cir. 2005); see also Amorgianos v. Nat’l RR Passenger Corp., 303 F.3d 256, 265 (2nd Cir. 2002) (observing departure, under Rule 702, from the Frye standard); Drake v. Allergan, Inc., 2014 WL 5392995 at *2 (D. Vt. Oct. 23, 2014) (Daubert emphasized “liberal thrust” of the Federal Rules of Evidence, favoring the admissibility of expert opinion testimony). With the foregoing in mind, under Daubert and its progeny, trial courts maintain a “gatekeeping responsibility” of ensuring that expert testimony is admissible, i.e., that it “both rests on a reliable foundation and is relevant to the task at hand.” Daubert, 509 U.S. at 597; see also Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 3 of 99 4 Amorgianos, 303 F.3d at 265. To fulfill its gatekeeping role, the trial court should consider Rule 702’s admissibility requirements, which the Second Circuit has delineated into three broad criteria: (1) qualifications;2 (2) reliability; and (3) relevance. Nimely, 414 F.3d at 396-397. However, the trial court’s gatekeeping role under Rule 702 was not intended to serve as a replacement for the adversary system. See, e.g., Fed. R. Evid. 702, Advisory Committee Notes, 2000 amend.; Royal Park Investments SA/NV v. Deutsche Bank National Trust Co., 2018 WL 1750595 at * (S.D. N.Y. April 11, 2018) (despite establishment of gatekeeper function, the Daubert test is nonetheless “a liberal” and “permissive” standard of admissibility); Floyd v. City of New York, 861 F.Supp.2d 274, 286 (S.D.N.Y. 2012). Instead, the traditional methods for attacking admissible expert testimony deemed “shaky” by a challenging party is not to exclude the expert testimony but rather to engage in “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.” Gonyea v. Irick Excavating, 2010 WL 11606974 at *3 (D. Vt. Aug. 12, 2010) (quoting Daubert, 509 U.S. at 595); see also Olin Corp. v. Certain Underwriters at Lloyd’s London, 468 F.3d 120, 134 (2nd Cir. 2006) (approving the techniques of cross- examination and presentation of opposing expert testimony to expose weaknesses in an expert’s testimony). Furthermore, the focus of the trial court’s inquiry must be solely on principles and methodology, not on the conclusions they generate. Daubert, 509 U.S. at 595, Campbell ex rel. Campbell v. Metropolitan Prop. & Cas. Ins. Co., 239 F.3d 179, 186 (2nd Cir. 2001) (arguments that an expert’s conclusions are wrong go to the weight of the evidence, not its admissibility). 2 Courts within the Second Circuit have “liberally construed” expert qualification requirements. See, e.g., In re MTBE Prods. Liab. Litig., 2008 WL 1971538 at *5 (S.D. N.Y May 7, 2008). However, as all of Plaintiffs’ experts are well-qualified, Saint-Gobain has not challenged the admissibility of any of their testimony on this basis. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 4 of 99 5 However, only serious flaws in an expert’s methodology or reasoning warrant exclusion, Amorgianos, 303 F.3d at 267 (emphasis added), and as long as an expert’s testimony rests upon “good grounds, based upon what is known,” it should be tested by the adversary process – competing expert testimony and active cross-examination – rather than being excluded. Daubert, 509 U.S. at 596. Thus, the court should not weigh the correctness of an expert’s opinion or choose between conflicting expert opinions, see, e.g., Perkins v. Origin Medsystems, Inc., 299 F.Supp.2d 45, 54 (D. Conn. 2000), and if an expert’s testimony lies within “the range where experts might reasonably differ,” the jury, and not the court, “should decide among the conflicting views of different experts.” In re Fosamax Product Liability Litig., 645 F.Supp.2d 164, 173 (S.D. N.Y. 2009) (quoting Kumho Tire, 526 U.S. at 153). In determining whether proffered expert testimony is relevant, the trial court should consider whether the testimony is sufficiently tied to the facts of the case to “make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed. R. Evid. 401; Campbell, 239 F.3d at 185; see also Daubert, 509 U.S. at 591. The relevance requirement has also been described as a question of “fit” - whether the proffered expert testimony is sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute. Daubert, 509 U.S. at 591; see also In re Rezulin Prods. Liability Litig., 309 F.Supp.2d 531, 540 (S.D. N.Y. 2009) (expert testimony should have a “valid connection” to the pertinent inquiry). Furthermore, the requirement that expert testimony “assist the trier of fact” also goes primarily to relevance. In re Fosamax, 645 F.Supp.2d at 173 (internal citation omitted); Drake, 2014 WL 5392995 at *2 (“Expert testimony that does not relate to any issue in the case is not relevant and, therefore, not helpful”) (internal citation omitted). Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 5 of 99 6 If proffered expert testimony is relevant, the court should then determine whether the testimony has a sufficiently “reliable foundation” to permit it to be considered by the trier of fact. Daubert, 509 U.S. at 597; see also Campbell, 239 F.3d at 185. The reliability inquiry is a “flexible one,” and the trial judge enjoys “broad latitude” in deciding how to determine reliability. Blanchard v. Eli Lilly & Co., 207 F.Supp.2d 308, 316 (D. Vt. 2002) (citing Kumho Tire, 526 U.S. at 142). Thus, the court should consider the non-exclusive list of factors ser forth in Daubert, including the ability to be tested, peer review and publication, potential rate of error, and general acceptance. Daubert, 509 U.S. at 593-595; Amorgianos, 303 F.3d at 266. Additionally, courts have identified other potential pertinent factors to utilize in determining the reliability of expert testimony, including: (1) whether the expert employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field; (2) whether the testimony comes from research conducted independent of the litigation; (3) whether the expert has considered alternative explanations; and (4) the non-judicial uses to which the technique is put. See, e.g., Wisdom v. TJX Companies, Inc., 410 F.Supp.2d 336, 341 (D. Vt. 2006) (internal citations omitted).3 The flexible Daubert inquiry thus provides the district court the discretion needed to ensure that the courtroom door remains closed to junk science while admitting reliable expert testimony that will assist the trier of fact. Amorgianos, 303 F.3d at 267. Indeed, “[I]t is well-established that the trial judge has broad discretion in the matter of the admission or exclusion of expert evidence.” Mobile Medical Intern. Corp. v. Advanced Mobile Hosp. Systems, Inc., 2015 WL 778553 at *2 (D. 3 Whether some or all of the foregoing factors apply in a particular case depend on the facts, the expert’s particular expertise, and the subject of his or her testimony, Kumho Tire, 526 U.S. at 153; see also Lyman v. Pfizer, 2012 WL 297550 at *2 (D. Vt. July 20, 2012). Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 6 of 99 7 Vt. Feb. 24, 2015) (quoting Boucher v. United States Suzuki Motor Corp., 73 F.3d 18, 21 (2nd Cir. 1996)). Thus, while expert testimony should be excluded if it is speculative or conjectural, or based on assumptions that are so unrealistic and contradictory as to suggest bad faith, or to be in essence an apples and oranges comparison, other challenges to the testimony go the weight, not the admissibility, of the testimony. Boucher, 73 F.3d at 21 (internal citations and quotations omitted); Gonyea, 2010 WL 11606974 at *6 (criticisms of expert’s methodology and conclusions went to weight of testimony, and not admissibility, as testimony was likely to assist the trier of fact). A. APPLICATION OF DAUBERT AT CLASS CERTIFICATION Prior to certifying a class, this Court should undertake a “rigorous analysis” of class certification issues, and “receive enough evidence, by affidavits, documents, or testimony, to be satisfied that each Rule 23 requirement has been met.” In re Initial Public Offerings Securities Litigation, 471 F.3d 24, 41 (2d Cir. 2006) (“In re IPO”). Of course, expert testimony can comprise one part of such evidence; however, the U.S. Supreme Court and the Second Circuit have not “definitively ruled on the extent to which a district court must undertake a Daubert analysis at the class certification stage.” In re U.S. Foodservice Inc. Pricing Litig., 729 F.3d 108, 129-130 (2nd Cir. 2013). This lack of definitive guidance notwithstanding, some courts in the Second Circuit have concluded that Daubert does apply at class certification, but have consistently held that the inquiry is limited “by the purpose for which the evidence is introduced – establishing the various class certification requirements.” In re LIBOR–Based Financial Instruments Antitrust Litig., 299 F.Supp.3d 430, 471 (S.D.N.Y. 2018); see also Chen-Oster v. Goldman Sachs & Co., 114 F.Supp.3d 110, 115 (S.D. N.Y. 2015) (the “scope of the Daubert analysis is cabined by its purposes at this [class certification] stage: the inquiry is limited to whether or not the expert reports Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 7 of 99 8 are admissible to establish the requirement of Rule 23”) (emphasis added); Hnot v. Willis Group Holdings Ltd., 241 F.R.D. 204, 210 (S.D.N.Y.2007) (the Court “may only examine the expert reports as far as they bear on the Rule 23 determination”). In other words, “[t]he question is not … whether a jury at trial should be permitted to rely on [the expert’s] report to find facts as to liability, but rather whether [the Court] may utilize it in deciding whether the requisites of Rule 23 have been met.” In re Visa Check/Mastermoney Antitrust Litig., 192 F.R.D. 68, 77 (S.D.N.Y. 2000); Allen v. Dairy Farmers of Am., Inc., No. 5:09- CV-230, 2012 WL 5844871, at *1 (D. Vt. Nov. 19, 2012) (“As no court has apparently required that the case be actually proven at the class certification stage, the court need only determine whether Plaintiffs have adduced sufficient admissible evidence which, if deemed credible, would establish by a preponderance of the evidence ... injury based upon evidence common to the class”); see also McGee v. Pallito, 2015 WL 5177770 at *6 (D. Vt. Sept. 4, 2015) (the proper inquiry at the class certification stage is “whether common questions with common answers exist”) (emphasis added). Based on the foregoing, when conducting the limited Daubert inquiry appropriate at the class certification stage, “the issue … is not which expert is the most credible, or the most accurate modeler, but rather have the plaintiffs demonstrated that there is a way to prove a class-wide measure of damages through generalized proof.” In re Ethylene Propylene Diene Monomer [EPDM] Antitrust Litig., 256 F.R.D. 82, 94, 101 (D. Conn. 2009). In fact, at an expert need not even implement his or her methodology at the class certification stage; instead, he just needs to show his methods are reliably applied to the class. Royal Park Investments, 2018 WL 1750595 at * 8 (internal citations omitted); see also In re Scotts EZ Seed Litig., 304 F.R.D. 397, 414 (S.D.N.Y Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 8 of 99 9 2015) (holding that neither Rule 23 nor Comcast4 require “an expert to perform his analyses at the class certification stage”) (emphasis in original). Thus, as evidenced by the lack of authority cited by Saint-Gobain in its motion, courts in the Second Circuit have rarely excluded expert testimony pursuant to Daubert at the class certification stage, but instead have consistently held, absent egregious circumstances not present in this case, that such challenges more properly go to the weight, as opposed to the admissibility, of the expert testimony. See, e.g., Hughes v. The Esther C. Company, 317 F.R.D 333, 343 (E.D. N.Y. Sept. 30, 2016) (holding defendant’s challenges to plaintiff’s expert’s methodology to calculate class-wide damages went to weight, not admissibility); Ge Dandong v. Pinnacle Performance Ltd., 2013 WL 5658790 at *14-15 (S.D. N.Y. Oct. 17, 2013) (Defendant’s argument that expert had no “verifiable methodology” and that his opinion was based upon nothing more than “subjective opinion” went to weight, and not admissibility); Royal Park, 2018 WL at *7 (flaws identified by defendant in expert’s methodology went to weight, and not admissibility, of expert’s report); Forth Worth Employees’ Retirement Fund v. J.P. Morgan Chase & Co., 301 F.R.D. 116, 130 (S.D. N.Y. 2014) (denying defendant’s Daubert motion as to expert’s opinions on numerosity, commonality, and damages); Goldemberg v. Johnson & Johnson Consumer Cos, Inc., 317 F.R.D. 374, 395-396 (S.D.N.Y. 2016) (finding expert’s methodology sufficiently reliable to inform court of common damages); McGee, 2015 WL 5177770 at *8 (rejecting opposing party’s expert’s contrary contentions and finding expert’s affidavit admissible). Furthermore, courts have utilized the flexible Daubert inquiry to adjust to the limited nature of the gatekeeping function for purposes of class certification. See, e.g., Goldemberg 317 F.R.D. at 394 (court would utilize flexibility provided by Daubert to craft reliability inquiry that 4 Comcast v. Behrend, 569 U.S. 27 (2013). Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 9 of 99 10 considers only what court needs to decide at class certification); Singleton v. Fifth Generation, Inc., 2017 WL 5001444 at * 5 (N.D. N.Y. Sept. 27, 2017) (holding challenged expert’s testimony required a flexible inquiry, and while methodology was “somewhat shaky,” it was sufficiently reliable to warrant admission for limited purpose of Rule 23). Accordingly, in ruling on class certification, the Court should take caution to ensure that it only resolves those challenges necessary to make the requisite Rule 23 determinations. Furthermore, to the extend Saint-Gobain challenges Plaintiffs’ experts’ merits’ opinions, the Court should not decide the admissibility of these opinions for purposes of class certification. Singleton v. Fifth Generation, Inc., 2017 WL 5001444 at *10 (N.D. N.Y. Sept. 27, 2017); the Court should defer ruling on any merit opinion challenges under Daubert until after it has ruled on class certification. See, e.g., Gates v. Rohm and Haas Co., 265 F.R.D. 208, 220 (E.D. Penn. 2010). ARGUMENT I. PLAINTIFFS’ CLASS CERTIFICATION EXPERTS’ OPINIONS “FIT” CLASS CERTIFICATION. Saint-Gobain argues that Plaintiffs’ class certification experts’ opinions do not “fit,” i.e., are not relevant to, class certification as these opinions purportedly cannot demonstrate that Plaintiffs’ claims are amenable to common proof under Fed. R. Civ. P. 23. However, Plaintiffs’ experts’ opinions are plainly tied to the facts of the case and demonstrate that Plaintiffs’ claims are appropriate for class-wide treatment, and therefore will undoubtedly assist the Court in making the requisite class certification determinations under Rule 23. Faced with this reality, Saint-Gobain resorts to asserting that the opinions of Plaintiffs’ class certification experts lack fit to class certification due to a purported reliance on “average” or “hypothetical” plaintiffs or circumstances. However, Saint-Gobain mischaracterizes Plaintiffs’ experts’ opinions, relies almost extensively Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 10 of 99 11 on its own expert’s critiques of Plaintiffs’ experts, and cites no Second Circuit authority but instead engages in futile attempt to analogize this case to inapposite cases from outside the Second Circuit. As demonstrated below, Plaintiffs’ class certification experts’ opinions at issue have a valid connection to class certification and furthermore demonstrate that Plaintiffs’ claims are amenable to class-wide treatment, are relevant to and fit class certification. A. DR. DUCATMAN’S CLASS-WIDE MEDICAL MONITORING OPINION IS BASED ON DIRECT EVIDENCE OF EXPOSURE COMMON TO ALL MEMBERS OF THE PUTATIVE EXPOSURE CLASS. In what amounts to little more than a rehash of its argument that certification of the Exposure Class is inappropriate because it is a “highly individualized remedy” [Doc. 215, p. 16], Saint-Gobain argues that Dr. Ducatman’s class-wide medical monitoring opinion does not fit class certification because he did not address certain individualized differences amongst the putative Exposure Class members [Doc. 218-1, pp. 15-16].5 However, Dr. Ducatman’s opinion as to the clinical necessity of class-wide monitoring is based primarily on direct evidence of above- background PFOA exposures, as well as the resulting increased risk of PFOA-related disease, both of which are common to all members of the putative Exposure Class. Given this compelling evidence of common exposures, any individualized differences amongst members of the putative Exposure Class are irrelevant to the clinical determination of whether medical monitoring is necessary and appropriate. Furthermore, although it addresses the merits of medical monitoring and not whether Plaintiffs’ request for monitoring is amenable to class-wide treatment, Dr. Ducatman in no way proposed monitoring for so-called “hypothetical plaintiffs.” Instead, he has accounted for any 5 Contrary to Saint-Gobain’s assertion, [Doc. 218-1, p. 15], Vermont law does in fact recognize medical monitoring as relief available in tort. See, e.g., Stead v. F.E. Myers, Co., 785 F. Supp. 56 (D. Vt. 1990). Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 11 of 99 12 individualized differences or considerations through the design of his proposed medical monitoring program, where these issues can be addressed after program implementation of his proposed medical monitoring program in the appropriate manner. Therefore, Dr. Ducatman’s opinion that class-wide medical monitoring of the Exposure Class is necessary and appropriate fits class certification as it is tied to the facts of the case and demonstrates that the elements of this Court’s test for medical monitoring6 can be demonstrated by common proof. 1. Given the Direct Evidence of Common Exposures, Individualized Issues are Irrelevant to the Determination of Whether Medical Monitoring is Necessary. Saint-Gobain contends that simply because Dr. Ducatman acknowledged that there are certain individualized differences amongst members of the putative Exposure Class, his opinions cannot support Plaintiffs’ request for medical monitoring presents common issues amenable to class-wide treatment [Doc. 218-1, p. 16]. However, this acknowledgment of the “truism”7 that individuals are unique in no way demonstrates that medical monitoring is not amenable to commonproof or suitable for class-wide treatment. Rather, given the direct evidence of toxic above-background PFOA exposures common to all members of the putative Exposure Class, and the corresponding increased risk of PFOA-related disease, these individualized considerations are, under generally accepted principles of medical monitoring, irrelevant to the determination of whether medical monitoring is clinically necessary. 6 See [Doc. 105, p. 6]; see also [Doc. 237 (Plaintiffs’ Reply in Support of Class Certification), pp. 15-20 (demonstrating that elements of medical monitoring are amenable to class-wide proof)]. 7 As Dr. Ducatman has opined on several occasions, the “truism that individuals are unique is an argument for an appropriate medical monitoring program for the exposed population, rather than against, or a determinant of who should be included. [Doc. 219-10, p. 11]; see also [Doc. 91-1, ¶ 17] [emphasis in originals]. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 12 of 99 13 Dr. Ducatman’s opinion that class-wide monitoring of the Exposure Class is necessary is based on common proof; specifically, direct evidence of PFOA blood serum tests, which demonstrate that all putative Exposure Class members have above-background PFOA exposures. See [Doc. 219-10, pp. 3, 9]; [Doc. 219-11, p. 1]; [Doc. 219-12, pp. 3-4 (noting the “completed exposure pathway” amongst members of the Exposure Class, as their toxic PFOA exposure is certain, as opposed to potential)]; [Doc. 113, ¶ 77 ( Exposure Class membership requires a blood serum test disclosing a level of PFOA in blood above recognized background levels)]; see also [Doc. 219-22, p. 15 (Dr. Grandjean’s “assessment of need for medical monitoring” is based on exposures) (emphasis added)]. These above-background PFOA exposures, and the corresponding increased risk of disease, are common to all members of the putative Exposure Class without regard to any individualized differences or considerations, including individual medical histories. [Doc. 219-12, p. 5 (emphasis in original)]. As Dr. Ducatman stated in his class certification report: I reject any suggestion that individual uniqueness is an argument against a common medical monitoring program for the Bennington residents who have been exposed to PFOA in their drinking water, or that individual histories or records are relevant to determining the clinical appropriateness of medical monitoring, or who among the exposed population should be included in the program. Doctors reject the idea that individual uniqueness is an argument against the usefulness of evidence-based testing and evaluation in any clinical setting. [Doc. 219-10, p. 13 (emphasis added)]; see also [Doc. 219-22, p. 15 (Dr. Grandjean’s assessment of the need for medical monitoring of the Exposure Class is based on exposures and does not depend on individual states of health)]. Therefore, individualized considerations, including the individual medical records or histories of the named Plaintiffs, are simply not relevant to whether class-wide medical monitoring is clinically necessary, nor are they relevant to an exposed class member’s eligibility for inclusion in Dr. Ducatman’s proposed medical monitoring program. See Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 13 of 99 14 [Doc. 219-10, pp. 11-18]; [Doc. 219-12; pp. 5-8]; see also [Doc. 91-1, ¶¶ 16-17, 21-22]. Stated differently, Dr. Ducatman’s opinion as to the clinical necessity of class-wide medical monitoring was made irrespective of any individualized differences amongst members of the putative class. Dr. Ducatman opined in his class certification expert report: In clinical care, if a risk is known to exist, we monitor and evaluate that risk. In Bennington, multiple adverse health risks are present in the exposure population as a direct result of their exposure to PFOA in drinking water, and for this reason they should be monitored, irrespective of individual differences. [Doc. 219-10, p. 13 (emphasis added)]. Similarly, he stated in his rebuttal report: Although any member of the Exposure Class may have the normal human condition of varying susceptibilities, pre-existing health conditions, and other factors … the commonality shared by every member of the Exposure Class is the increased risk of PFOA-related illness or disease caused by their above-background PFOA exposures. Given these common exposures, medical monitoring should be implemented on a class-wide basis, despite any individualized considerations …. [Doc. 219-12, p. 5 (emphasis added)]; see also [Doc. 91-1, ¶ 22] [“medical monitoring program is clinically necessary … irrespective of individual uniqueness or factors”]. This opinion is consistent with generally accepted standards of care and principles of medical monitoring, applicable regulatory guidance, and also Dr. Ducatman’s personal experience in the design, implementation and/or administration of medical monitoring programs arising out of exposure to toxic substances. See, e.g., [Doc. 219-12, p. 4]. Under Agency for Toxic Substances and Diseases Registry (“ATSDR”) medical monitoring guidance, as well as Dr. Ducatman’s real-world experience in working with medical monitoring programs, determinations as to the need for medical monitoring, and as to eligibility for such monitoring, are based solely on exposure to the toxic substance at issue and the (potential) resulting risks arising from that exposure. [Doc. 219-10, pp. 15-18]; see also [Doc. 219-12, pp. 5-8]. Thus, medical monitoring is available to the entire exposed community without regard to any individualized determinations. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 14 of 99 15 [Doc. 219-10, pp. 15-16 (emphasis added)]; see also [Doc. 219-12, pp. 5-7]. Furthermore, as discussed infra, to the extent any individualized considerations or individual medical issues warrant consideration, Dr. Ducatman has accounted for these issues through the design of his medical monitoring program so that these issues could be addressed at the proper time - after implementation of his proposed medical monitoring program - and through appropriate means. [Doc. 219-10, p. 11-12]; [Doc. 219-12, pp. 8, 17]; see also [Doc. 91-1, ¶ 19]. Saint-Gobain cites to no authority supporting the proposition that an expert’s opinion that class-wide medical monitoring is necessary and appropriate is inadmissible under Daubert, for a lack of fit or otherwise, and certainly not for the mere acknowledgement that individuals are unique. Instead, it cites to Rowe v. E.I. DuPont de Nemours & Co., 2008 WL 5412912 (D. N.J. 2008) and Rhodes v. E.I. DuPont de Nemours & Co., 253 F.R.D. 365 (S.D. W.Va. 2008), two cases which did not even involve a Daubert challenge and which Plaintiffs have repeatedly distinguished from this case throughout this matter. In fact, Rowe and Rhodes demonstrate the complete lack of merit to Saint-Gobain’s argument, as in these cases, the primary issue was the failure of the respective plaintiffs to demonstrate common exposures among the putative classes, largely due to their experts’ reliance on risk assessments and assumptions about exposure as opposed to direct evidence. See Rowe, 2008 WL 5412912 at *13-14 (“Rather than relying on assumptions about exposure … Plaintiffs could have conducted blood serum tests of the proposed class members to determine whether they indeed have levels of PFOA above the general population”) (emphasis added); see also Rhodes, 253 F.R.D. at 375-376 (named plaintiffs rely on blood tests, but putative class members rely on expert assumptions). Here, Dr. Ducatman’s class opinion is based on direct evidence (blood serum tests) of above-background exposures to PFOA that are common to all putative Exposure Class members, and he is no way relying on any type of Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 15 of 99 16 risk assessment or assumptions about exposure. See Burdick v. Tonoga, Inc., 2018 WL 3355239 at *11 (N.Y. Sup. Ct. July 3, 2018) (certifying medical monitoring class and distinguishing Rowe because “exposure above background levels has been established through blood serum tests”). 2. Dr. Ducatman’s Class-Wide Medical Monitoring Opinion Only Concerns Exposed Members of the Putative Exposure Class. As all putative Exposure Class members share the commonality of above-background PFOA exposures (and corresponding increased risk of disease), Dr. Ducatman has opined that individualized circumstances, including individual medical records and histories, are irrelevant to his opinion that medical monitoring is clinically necessary and appropriate on a class-wide basis. In its motion [Doc. 218-1, pp. 18-23], Saint-Gobain distorts this generally accepted conclusion into an overwrought argument that Dr. Ducatman has recommended medical monitoring for so- called “hypothetical plaintiffs.” However, Saint-Gobain’s arguments pertain to the suitability or appropriateness of medical monitoring, and more particularly critiques of the specifics of Dr. Ducatman’s proposed medical monitoring program, and these arguments go to the merits of Plaintiffs’ request for medical monitoring, and not whether medical monitoring is amenable to class-wide treatment. Therefore, the Court should not consider these arguments for purposes of class certification, as they have been raised here; furthermore, Saint-Gobain has failed to challenge Dr. Ducatman’s medical monitoring opinions on the merits. This crucial distinction notwithstanding, Dr. Ducatman did account for these individualized considerations in the design of his proposed medical monitoring program so that they could, if necessary, be addressed after implementation of his proposed program. Dr. Ducatman did not, as asserted by Saint-Gobain, “assume” the homogenous nature of the putative Exposure Class as it pertains to exposure and risk [Doc. 218-1, p. 19]. In sharp contrast, as discussed in detail supra, his opinion regarding the clinical necessity of class-wide Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 16 of 99 17 medical monitoring was based on common evidence of exposure and the corresponding increased risk of PFOA-related disease. However, to support its frivolous “hypothetical plaintiff’ argument, Saint-Gobain improperly attempts to argue the merits of Plaintiffs’ medical monitoring remedy under the guise of class certification; specifically, it challenges specific details of Dr. Ducatman’s proposed medical monitoring program as set forth in his expert merits report [Doc. 219-11], including his recommended clinical testing and monitoring protocol, the specific PFOA-related health endpoints/diseases for which he proposes to monitor the Exposure Class, and whether medical monitoring would “harm” the putative Exposure Class. See [Doc. 218-1, pp. 18-23]. These arguments go to the merits of whether Plaintiffs can demonstrate that Dr. Ducatman’s proposed medical monitoring program is appropriate, i.e., whether it meets the fourth element of this Court’s test for medical monitoring,8 and not whether Plaintiffs’ request for medical monitoring can be demonstrated on a class-wide basis. See Cook v. Rockwell, 151 F.R.D. 378, 383 (D. Col. 1993) (defendant’s objections to the suitability of medical monitoring goes to merits, and court will not conduct a “preliminary hearing on merits” at class certification) (emphasis added); Burdick, 2018 WL 3355239 at *10 (defendant’s arguments as to the efficacy of administering class-wide medical monitoring, and whether medical monitoring procedures may be harmful, go to the merits and are premature at class certification stage). As set forth in Plaintiffs’ Reply in Support of Class Certification [Doc. 237, pp. 15-20], all of the elements of this Court’s four-part test can be demonstrated by common proof and on a class-wide basis. Whether Plaintiffs ultimately prevail on the merits of their request for medical monitoring is a separate question, and the Court should not allow Saint-Gobain to blur this line in a Daubert motion. 8 The fourth element of this Court’s test for medical monitoring is the availability of a monitoring program which is: (1) different from the care provided to anyone who sees a doctor regularly; and (2) useful for the early detection of injury associated with exposure to [PFOA]. [Doc. 105, p. 6 (emphasis added)]. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 17 of 99 18 Regardless, the cases relied upon by Saint-Gobain to support its frivolous “hypothetical plaintiff” argument are completely inapposite to Dr. Ducatman’s class-wide medical monitoring opinion in this case. In Gates v. Rohm & Haas Co., 655 F.3d 255 (3rd Cir. 2011), the court found that plaintiffs had failed to demonstrate common proof of exposure, because they relied on expert testimony about “averages or community-wide estimations” of exposure. Id. at 266. Here, as discussed in Section I.A.1 supra, Dr. Ducatman has not relied on any such averages or estimations; instead, he relies on direct evidence, blood serum tests, which unequivocally demonstrate that all members of the putative Exposure Class have common, above-background PFOA exposures. Similarly, In re Pharmacy Benefit Managers Antitrust Liitg., 2017 WL 275398 (E.D. Penn. Jan. 18, 2017) is easily distinguishable from this case, as that court deemed plaintiff’s expert’s antitrust damages model inadmissible under Daubert due to the expert’s reliance on averages, which could not “demonstrate antitrust impact for individual class members.” Id. at *20. However, to the extent any individualized considerations, including individual medical records or histories,9 warrant consideration, Dr. Ducatman, as part of his merits report, designed his medical monitoring program for the Exposure Class, consistent with generally accepted medical monitoring principles, to address these issues after implementation of the program. See, e.g., O’Connor v. Boeing North American, Inc., 184 F.R.D. 311, 338 (C. D. Cal. 1998) (noting that medical monitoring programs assume and compensate for the fact that “individuals exposed to 9 Dr. Ducatman has opined that advance consideration of individualized medical histories is not consistent with real world experience in implementation and administration of medical monitoring programs, [Doc. 219-12, p. 7], and that the goal of individual medical record review prior to implementation of a medical monitoring program is to exclude members of the exposed population. [Doc. 219-10, p. 13 (emphasis added)]. Furthermore, In the context of medical monitoring, courts have held that experts could reliably testify as to an individual’s future risk of injury, and the corresponding necessity of medical monitoring, without actually examining the individual or reviewing their medical records. See, e.g., In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 790-791 (3rd Cir. 1994) (emphasis added). Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 18 of 99 19 hazardous chemicals have a wide variety of variables”); Foust v. Southeastern Pennsylvania Transp. Auth., 756 A.2d 112, 120-121 (Pa. Cmwlth. 2000) (“While individual issues may arise, including length and extent of exposure, age, gender, medical history, family history, lifestyle, preexisting conditions, intervening factors and the like, these items will be addressed when … a medical monitoring program is implemented) (emphasis added); Burdick, 2018 WL 3355239 at *13. Specifically, these considerations will be addressed through various means, including: (1) through utilization of a Third-Party Administrator, whose program administration and implementation functions would include addressing issues pertaining to the eligibility of putative Exposure Class members for the medical monitoring program [Doc. 219-11, pp. 16-18], [Doc. 219-12, p. 8]; (2) through the program’s initial diagnostic survey questionnaire [Doc. 219-11, pp. 16-17], [Doc. 219-12, pp. 8, 17 (survey is the “conventional way to address diagnostic and symptomatic reports of individual participants)”]; and (3) through the monitoring program’s procedures for the referral of participants with abnormal screening findings to his/her personal health care provider for follow-up [Doc. 219-11, pp. 14-15], [Doc. 219-12, p. 9]. As Dr. Ducatman has testified, the foregoing is, contrary to Saint-Gobain’s erroneous contentions [Doc. 218-1, p. 21], consistent with applicable regulatory guidance, including that of the ATSDR, as well as his personal experience in the design, implementation, and administration of medical monitoring programs. [Doc. 219-12, pp. 5-7]. B. PLAINTIFFS’ EXPERTS RELY ON COMMON DIRECT EVIDENCE TO DETERMINE THE PRESENCE, AMOUNT, AND SOURCE OF PFOA AT THE PROPERTIES WITHIN THE ZONE OF CONTAMINATION. Plaintiffs’ experts rely upon common direct evidence to determine the presence, amount, and source of PFOA at the properties within the Zone of Contamination. Their modeling methodologies were used to confirm that direct evidence, particularly as to the source and Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 19 of 99 20 mechanism by which the PFOA contamination was spread from Saint-Gobain’s facilities throughout the Zone. Both the direct evidence and the modeling fit the facts of the case and provide evidence applicable to the Class as a whole. Plaintiffs’ expert witness on groundwater contamination and hydrogeology is Donald I. Siegel, Ph.D., Professor of Earth Sciences at Syracuse University, and President-Elect of the Geological Society of America, an international professional geological organization with 25,000 professional members. Dr. Siegel has over 35 years of experience in hydrogeology and contaminant transport in groundwater, previously working with the United States Geological Survey and as Senior Hydrologist with Stearns and Wheler Engineers and Scientists. He has taught courses at the graduate level in hydrogeology, groundwater modeling, aqueous geochemistry and contaminant hydrogeology. [Doc. 219-61, (Siegel Class Cert Expert Report, SOQ-1)] Saint-Gobain has not challenged Dr. Siegel’s qualifications, but it has sought to attack his credibility by innuendo based on irrelevant questions and answers in his deposition. For instance, Dr. Siegel has written commentary articles about scientific certainty in the practice of hydrogeology unrelated to the specific issues in this case. Saint-Gobain questioned him on one such article and tried to tie Dr. Siegel’s general comments about the level of certainty required in the courtroom and the general accuracy of computational models to his specific analysis and opinions in this case. Dr. Siegel rejected this characterization in his deposition, but Saint-Gobain included it nonetheless: Q. And in your work in this case did you find you had to balance what constitutes scientific truth with what is the need to satisfy a paying client? A. Absolutely not. Q. You did not have to balance that? A. No. * * * Q. Is your opinion, beyond from this case, not to discover the truth but to help resolve a conflict? Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 20 of 99 21 A. No, I always go to discover the truth and in the process perhaps resolve a conflict. [Doc. 219-65 (Siegel Dep., at 123, 128, Ex. Q)]. Saint-Gobain continues to mischaracterize Dr. Siegel’s opinions and the bases for them, as it did in its opposition to Plaintiffs’ Motion for Class Certification. Dr. Siegel relied upon the direct evidence of the contamination in drinking water wells in Bennington and North Bennington to determine the extent, source, and pattern of contamination by PFOA. As hydrogeologists do in cases like this, based upon actual groundwater testing, he identified a plume of PFOA contamination with its source (highest concentrations of PFOA) at Saint-Gobain’s Water Street Plant, with concentrations decreasing with distance from the Plant. [Doc. 219-61, p. 2-2] Saint-Gobain argues that Dr. Siegel does not offer a method to determine the presence, amount or source of PFOA at any given location, but he has done so conclusively by his evaluation of the direct evidence: the concentrations of PFOA in groundwater throughout the Zone of Contamination. Dr. Siegel explained his methodology in his original Declaration and expert report for class certification (Perfluorooctanoic Acid (PFOA) Contamination in Groundwater in North Bennington, Vermont), in his expert rebuttal report,10 and in his Second Declaration filed with Plaintiffs’ Class Certification Reply Brief. [Doc. 237-7] Saint-Gobain has paid no heed to these explanations, because the explanations don’t fit Saint-Gobain’s false narrative contrived to defeat class certification. First, after evaluating and describing the geology of the area, Dr. Siegel evaluated the well sampling showing groundwater contamination throughout the Zone of Contamination. In his original Declaration, he stated: 10 Sullivan v. Saint-Gobain Performance Plastics Corp.: Rebuttal and Supplemental Report Regarding Class Certification Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 21 of 99 22 Based on the sampling and my hydrogeological evaluation, it is my opinion that the zone of PFOA contamination designated by the State of Vermont as the PFOA Area of Interest reasonably represents the area where groundwater has been contaminated with PFOA from the operations of the former ChemFab (now Saint- Gobain Performance Plastics Corporation (“Saint-Gobain”) facilities on Water Street in North Bennington, and Northside Drive in Bennington. [Doc. 107-44, p. 3]. Dr. Siegel refers to the readily recognized “plume” of PFOA contamination in his rebuttal report, stating, “[a]s a matter of first principles, soil and groundwater contamination is greatest in close proximity to the contaminant source and diminish with distance away from the source (e.g. Freeze and Cherry 1979).” In his rebuttal report he referred to a figure in Saint- Gobain’s hydrogeological expert’s report showing the readily recognized “plume” of PFOA contamination as follows: The second step in Dr. Siegel’s methodology was the recognition, based on his evaluation of the hydrogeology of the area, that the predominantly west to east plume pattern of the contamination could not have resulted from migration through the groundwater from discharges or disposal at the defendant’s facilities. Instead, the plume had to have originated by air emissions Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 22 of 99 23 of PFOA deposited on the surface. In his original class certification report, Dr. Siegel explains this as follows: The pattern of PFOA groundwater contamination identified by the VT-DEC is consistent with atmospheric deposition of PFOA contamination from air emissions from the defendant’s plants. This pattern is uniquely different from other potential sources such as contamination entering the aquifer from subsurface or surface spills at Water Street or Northside Drive. The PFOA groundwater plume from the Water Street plant extends in all directions, but farthest to the east. The plume crosses small watershed divides; this could not happen were contamination from surface or shallow spills. Moreover, if the contamination had resulted from surface discharge at the Water Street plant, the PFOA plume would have moved predominantly to the west in the direction of groundwater and surface water flow rather than dominantly to the east in the direction of winds. [Doc. 219-61, p. 2-5]. In his rebuttal report Dr. Siegel further explained one of his bases for concluding the PFOA plume resulted from air deposition: The distribution of PFOA in the groundwater plume is consistent with contaminant plumes in groundwater resulting from atmospheric deposition. For example, Shin (2011, 2012) shows diminishing concentrations of PFOA with distance from the location of the PFOA air emissions at the DuPont Washington Works plant in Parkersburg, West Virginia, which were analogous to the Chemfab/Saint-Gobain airborne sources. [Doc. 219-63, p. 2-7]. In his Second Declaration Dr. Siegel further elaborated on this opinion: (c) However, based on my hydrogeological knowledge and experience and my review of the hydrogeology of the area, it is apparent that the primary means by which migration of the PFOA occurred throughout the Zone of Contamination could not have been movement of contaminated groundwater from leaks or spills at the source of contamination through the groundwater. This is because PFOA contamination in Bennington also occurs upgradient (uphill) from the source, on the other side of major hydrogeologic divides, such as the Walloomsac River, and in the opposite direction from the general direction of groundwater flow. (d) The only other means of migration of PFOA to form such a compelling plume pattern observed in Bennington groundwater is deposition of PFOA through the air on the soils and then moving downward through the soils to groundwater below. I am familiar with scientific literature showing air dispersion and deposition of PFOA and other pollutants which contaminated groundwater in similar plume- Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 23 of 99 24 shaped patterns from the source. For instance, PFOA emissions from a DuPont plant in Parkersburg, WV, were carried miles downwind and deposited on soils resulting in contamination of drinking water wells on the other side of the Ohio River from the plant. [Doc. 237-7, pp. 4-5]. Having formed this opinion, the third step was to test it, which he did with the assistance of Dr. Phillip Hopke and Mr. Gary Yoder, Plaintiffs’ two air pollution expert witnesses. As described in more detail below, Mr. Yoder used an EPA-approved air pollution dispersion model to simulate the dispersion of emissions of PFOA from the stacks of Saint-Gobain’s two Bennington facilities and the resulting deposition of PFOA on soils in the area. Both Saint-Gobain’s consultant, Barr Engineering, and the Vermont DEC and its consultant, AMEC, used the same model. Mr. Yoder’s model, as well as those by Barr and Vermont DEC, showed that the pattern of distribution of PFOA emissions predicted by the models closely matched the plume pattern of groundwater contamination by PFOA [Doc. 219-63, Figures 1, 5].11 The Vermont Agency for Natural Resources tested the same opinion with air modeling and came to the same conclusion: It has been VT ANR’s expressed position that SGPP’s aerial emissions from the operations of two plants in Bennington and North Bennington during the period 1968 to 2001 distributed PFOA throughout the PFOA Area of Interest, including both Corrective Action Area I and Corrective Action Area II. [Doc. 237-1, p. 3]. Testing the opinion also involved assessing whether there were other sources of PFOA in the area that could have created the pattern and levels of groundwater contamination established by the well sampling. Dr. Siegel addressed this in his expert reports, as did Dr. Hopke and Mr. 11 The area in the southeast corner of the Zone of Contamination has few wells that were tested because the area is mostly served by town water. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 24 of 99 25 Yoder. Dr. Siegel thoroughly investigated the Bennington Landfill as a potential source of PFOA contamination and concluded: The Bennington Landfill is not a plausible source of PFOA contamination of the domestic water wells located near it. Rather, atmospheric deposition of PFOA by Saint-Gobain is the source of PFOA now contaminating domestic water wells, including those on the eastern end of the zone of contamination nearest the landfill. [Doc. 219-61, p. 4-2]. Each of these experts investigated Saint-Gobain’s claims of other “potential sources” and rejected them as rank speculation. Further discussion of this issue in this brief is in section II on reliability of the expert opinions. Finally, testing the opinion about air deposition also included testing whether PFOA can readily migrate through the types of soil and rock in the Bennington area to reach groundwater at the concentrations found in the wells in the area. This was done by Dr. Siegel using a well-accepted groundwater contamination vulnerability methodology, called the Rao method. This methodology has also been cited by the National Academy of Sciences as suitable for use in cases of groundwater contamination. [Doc. 219-61, p. 6-2; Doc. 219-63, p. 2-6]. Saint-Gobain complains that there is a lack of fit in the use of this calculation methodology as part of his opinions related to class certification, because Dr. Siegel didn’t apply it throughout the Zone of Contamination to predict the level of PFOA in groundwater, the source, and how long it had been there. Similarly, Saint-Gobain complains that the emissions rates selected by Dr. Hopke for the modeling performed by Mr. Yoder were not relevant to class certification. As Dr. Siegel has explained, that was not the purpose of the modeling. Dr. Siegel’s opinions regarding the direct evidence of PFOA groundwater contamination throughout the Zone of Contamination, the likely source of the PFOA distribution from air emissions from Saint-Gobain’s facilities, and the lack of other sources are clearly “relevant to the task at hand,” Daubert, 509 U.S. at 597. The soil-to- Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 25 of 99 26 groundwater contaminant transport modeling performed by Dr. Siegel, combined with the air modeling by Mr. Yoder, provides further confirmation of Dr. Siegel’s opinion that air emissions from Saint-Gobain’s facilities were the source of the groundwater contamination. These models are also clearly relevant, even if the modeling was not applied to each and every property. Together, they support Dr. Siegel’s opinions derived from the direct evidence like a belt and suspenders. 1. Plaintiffs’ Experts Have Presented Common Proof of the Presence of PFOA Throughout the Zone of Contamination. As discussed above, Plaintiffs have presented common proof of the presence of PFOA throughout the Zone of Contamination through direct evidence and through the hydrogeological opinions of Dr. Siegel, which were confirmed through the use of air modeling and groundwater contaminant modeling. Ignored by Saint-Gobain in its briefing, Mr. Yoder also provided an opinion of the presence of PFOA throughout the Zone of Contamination: Based on the AERMOD results and the deposition patterns, to a reasonable degree of scientific certainty PFOA was deposited from Chemfab’s operations on land surfaces in the area where PFOA was detected in residential water wells throughout the most recent Vermont DEC Sampling Boundary. [Doc. 219-92 (Yoder Class Cert Expert Report), p. 6]. Mr. Yoder’s qualifications as an expert in air dispersion modeling were not challenged, nor was his use of AERMOD for the modeling. Other Courts have found AERMOD to be a proven and reliable method. See e.g., Powell v. Tosh, 942 F.Supp.2d 678, 716-17 (W.D. Ky, 2013) (“The AERMOD model is a preferred and recommended air-quality and air-dispersion model. The Court thus finds the AERMOD model is a reliable methodology. The Court is further satisfied that [the expert’s] use of AERMOD in this matter satisfies the reliability requirements of Daubert and Rule 702. To the extent Plaintiffs wish to challenge [the expert’s] conclusions or selection of the Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 26 of 99 27 AERMOD model, these challenges go more appropriately to the weight of [the expert’s] opinions and are properly reserved for cross-examination”); see also Brooks v. Darling International, Inc., No. 1:14–cv–01128, 2017 WL 1198542, *4 (E.D. Cal. March 31, 2017) (AERMOD is proven method that can be used to establish commonality and predominance for class certification in air pollution cases). The fact that Mr. Yoder used more than one scenario for modeling the soil deposition resulting from PFOA emissions from Saint-Gobain does not undermine this opinion. Because the actual emissions of PFOA from Saint-Gobain’s facilities were apparently not measured during the operation of the facilities from 1968 to 2001, emissions rates for air modeling (pounds per year) had to be determined through information on the usage of PFOA by Saint-Gobain and knowledge of how it was used in Saint-Gobain’s manufacturing processes. The usage and process information was unclear at the time of the modeling and was being hotly debated by Saint-Gobain and the State of Vermont in the regulatory setting.12 As a result, Mr. Yoder used a unit rate (1 pound per year) for the modeling, from which the deposition rates of PFOA to soil could be scaled up linearly for determination of annual emissions rates. [Doc. 219-32, p. 4; Doc. 219-92, p. 3]. As examples to display his results, after consultation with Dr. Hopke, Mr. Yoder chose three emissions rates to model for the Water Street Plant, with the low end being based upon the numbers that were being asserted by Saint-Gobain (100 pounds per year),13 the mid-range being the emissions rate calculated by the State (1,000 pounds per year), and the high end being an amount calculated by Dr. Hopke using Saint-Gobain’s own PFOA usage data together with Dr. 12 Saint-Gobain has since accepted responsibility for the drinking water contamination throughout the Zone of Contamination, and the Vermont ANR has issued new results of its emissions rate calculations and a new air model which corroborates the opinions of Plaintiffs’ expert witnesses. [Docs. 237-3, 237-6, 237- 7]. 13 Barr Engineering’s calculation was 145 pounds per year on average based on the assumptions made. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 27 of 99 28 Hopke’s evaluation of the processes emitting the PFOA. [Doc. 219-32, p. 4]. The unit emissions model results were scaled up to each of these three emissions rates in Mr. Yoder’s figures to display three sets of PFOA deposition results. [Doc. 219-92, p. 3; Doc. 237-3, p. 2]. Saint-Gobain calls these “hypothetical” scenarios, but, instead, they are realistic scenarios based on real calculations of Saint-Gobain’s emissions by different experts using different assumptions.14 Saint-Gobain argues that the model results are not relevant for class certification because Mr. Yoder testified in his deposition that they don’t tell us how much PFOA was deposited onto any given property in the Zone of Contamination, when it was deposited, and cumulatively how much was deposited through the years. Although Mr. Yoder’s model has not yet been used for this purpose, it can be. In his Second Declaration, he states: My air dispersion model makes it is easy to display the model results for any emissions level chosen. For any emissions level chosen, my model can be used to determine, to a reasonable degree of scientific certainty, the amount of PFOA deposited on a given parcel of property as an annual rate of deposition (grams per square meter per year) or cumulatively through the years. When I was asked the questions in my deposition about whether my model could tell us exactly how much PFOA was deposited over time or in any given year at any specific property within the class area, I answered “no” because we were primarily focused at the time on determining whether the pattern of deposition matched the pattern of groundwater contamination and were using different emissions scenarios for this purpose. We had not yet selected an emissions level for the Chemfab/Saint-Gobain facilities. In fact, an expert need not even implement his or her methodology at the class certification stage; instead, they just need to show their methods are reliably applied to the class. Royal Park Investments, 2018 WL 1750595 at * 8 (internal citations omitted); see also In re Scotts EZ Seed 14 These emissions scenarios are each expressed as an annual average of pounds per year, which yields an annual average PFOA deposition at each location of grams per square meter per year. This is much different than the averages discussed in Gates, 265 F.R.D. at 222 n.25, because there the highest average rates were used for human exposure calculations. In the instant case, exposure is being measured by the levels of PFOA in human blood. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 28 of 99 29 Litig., 304 F.R.D. 397, 414 (S.D.N.Y 2015) (holding that neither Rule 23 nor Comcast require “an expert to perform his analyses at the class certification stage”) (emphasis in original). Saint-Gobain also complains that Dr. Siegel’s groundwater contaminant transport modeling doesn’t fit the issues of class certification because he did not use the modeling to predict the level of PFOA in any particular well at any particular location. As Dr. Siegel explained, this was not the purpose of his modeling. However, he used two examples of hydrogeological conditions that are representative of conditions found in many areas of the Zone of Contamination as the basis for his calculations to confirm his opinion that the groundwater contamination was the result of air emissions from Saint-Gobain’s facilities.15 [Doc. 219-61] Saint-Gobain likens Dr. Siegel’s calculations to the “plume movie” found lacking in In re TMI Litig. Cases Consolidated II, 911 F. Supp. 775, 798 (M.D. Pa. 1996), aff’d, 193 F.3d 613, 670 (3d Cir. 1999), but there is no comparison. Among other things, the “plume movie” failed to take into account the actual topography of the TMI area, failed to use actual weather data, and failed to incorporate primary data. In this case, Mr. Yoder’s air dispersion model took the actual topography of the Bennington area into account and used actual weather data in the modeling the dispersion and deposition of the PFOA emissions. [Doc. 219-92]. Then Dr. Siegel compared the results based 15 Saint-Gobain misrepresented Dr. Siegel’s deposition testimony when it argues that he “simply assumes” that the conditions are representative. That is not at all what he said in his deposition on page 33, lines 16- 18. Here is what he actually said at lines 10-18 on that page: Well, you misunderstand the model. The model models a cross-section area of 1 meter squared and the model is to reflect generically the kind of conditions you find within those areas. It's not specific for every point for the area, in those areas because there is variability in the PFOA concentrations that are measured in the groundwater. So I didn’t model that area per se. It just is representative for what I think would be found in that area. Further on page 104, lines 3-11, of his deposition, in response to the question, “it’s a theoretical location, correct,” he answered, “I would call it a representative rather than theoretical. Representative area through which water would move vertically downward.” [Doc. 219-65, p. 33:10-18, 104:3-11]. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 29 of 99 30 on the air deposition modeling and his calculations on the migration of the PFOA in representative soils and groundwater to the primary data on groundwater contamination. [Doc. 237-7, p. 5]. Dr. Siegel admits there is variability in the hydrogeology of the Bennington area, but he chose two particular bedrock and soil types to represent this variability. Instead of highlighting soundbites from his deposition, Saint-Gobain should have provided the Court with the text from his expert reports. For instance, in his rebuttal report, Dr. Siegel stated: I chose broad locations for the calculations because they represent typical hydrogeological conditions that are encountered throughout the contaminated plume area. Calculations in my Class Certification Report (IES, 2017b) generically presented a scenario for the contamination of the bedrock aquifer located east of the Chemfab/Saint-Gobain-Water Street plant and a scenario for the contamination of the area southwest of the Bennington Landfill where sand and gravel aquifers are present in the Walloomsac River Valley. Sand and gravel wells occur near the landfill but also in other locations (Figure 3). [Doc. 219-63, p. 2-5]. He included a geological map showing that the sand and gravel aquifer is present in about 19% of the area with the rest 81% being the bedrock aquifer. [Doc. 219-63, Figure 6]. As a class certification opinion, which goes to whether the groundwater contamination in the Zone of Contamination is, for all practical purposes, permanent, Dr. Siegel also calculated the time for PFOA to be flushed out of the aquifer in the Zone of Contamination. In his rebuttal report he discussed the basis for this calculation, which is not at all as Saint-Gobain describes it in its brief. [Doc. 219-63]. This calculation was for the removal of the mass of PFOA in the groundwater throughout the Zone of Contamination by dilution and flow out of the groundwater system into surface waters. Any such calculation over a large area has to rely upon representative conditions. The results Dr. Siegel calculated, that contamination will remain for decades, are in line with the age of contaminated groundwater in the area, 20-30 years, which shows it takes at least this long to flush out. [Doc. 219-63, p. 2-15]. This opinion and the methods used are directly relevant to a Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 30 of 99 31 class-wide issue, the permanency of the nuisance and trespass caused by Saint-Gobain’s PFOA releases. The Vermont ANR has acknowledged the permanence of the contamination by its decision to reclassify groundwater within the Zone of Contamination as non-potable [Doc. 237-1, ¶ 12 (Spiese Dec)]. 2. Plaintiffs’ Experts Have Common Proof of the Source of PFOA Despite the clear opinions in Plaintiffs’ three expert reports, Saint-Gobain squanders its credibility once again by arguing that Plaintiffs’ experts have no common proof of the source of PFOA. As Dr. Siegel made clear in his original expert report, the bullseye of the plume map of PFOA contamination is Saint-Gobain’s Water Street Plant. The contours of contamination spread out in decreasing levels from this clear source. [Doc. 219-61, p. 2-2]. The air dispersion modeling by Mr. Yoder, Barr Engineering, and the Vermont ANR are also clear in demonstrating that emissions from Saint-Gobains’ facilities deposited PFOA on properties throughout the Zone of Contamination. [Doc. 219-63]. Dr. Siegel has performed an in-depth search for other sources and has even attempted to verify many of the “potential sources” posited by Saint-Gobain’s consultants. None has been found.16 He evaluated the potential for the Bennington Landfill as a source, as discussed below, and concluded that it is not. Mr. Yoder did not assume that Saint-Gobain’s facilities were the only 16Saint-Gobain refers the Court to part of Dr. Siegel’s deposition to argue that “he is unable to state where the PFOA at any given property in the proposed class area came from. [Doc. 219-65, at 155:5-12]. To the contrary, here is what the question and answer were at this part of the deposition: Q. In the last sentence there it says, you say, “in my opinion there is no credible evidence that there are other sources of PFOA in the groundwater in of contamination other than the ChemFab/Saint-Gobain facilities,” correct? A. Yes. Q. It's an unqualified view, correct A. Correct. [Doc. 219-65, p. 155:5-12]. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 31 of 99 32 sources of PFOA when he performed his modeling, but no other source has been identified, and his results are consistent with these facilities as the only source. Dr. Hopke did not avoid performing source apportionment just because he “had more than enough other things to do,” as suggested by Saint-Gobain. [Doc. 219-1]. He did not perform source apportionment because there were no other sources to apportion. [Doc. 219-34, p. 3]. C. MR. UNSWORTH’S TESTIMONY “FITS” CLASS CERTIFICATION. 1. Plaintiffs Are Not Seeking to Prove Property Diminution on Class-Wide Basis. Saint-Gobain’s first argument in support of its motion to exclude Robert Unsworth is that he “does not show common proof in support of certification of a theory of diminished property value.” [Doc. 218-1, at 29]. However, Plaintiffs have not offered Mr. Unsworth to provide such common proof. Rather, they will prove Saint-Gobain’s liability for their common law property claims on a class-wide basis, including nuisance, trespass, strict liability, and negligence. The named Plaintiffs will prove their individual property damages—diminished property values, lost use and enjoyment of their property, and annoyance, upset, aggravation and inconvenience from living and owning property in the Zone of Contamination—during the class trial. Individual putative members of the Property Class will prove their individual property damages at a later stage of the litigation. Thus, Plaintiffs do not intend to prove their common law damages as a class. [Doc. 237, Plaintiffs’ Reply Memorandum in Support of their Motion for Class Certification, at 4]. Instead, Plaintiffs offer the expert opinions of Robert Unsworth to rebut those of Saint- Gobain’s property damage experts, Trevor Phillips and Thomas Jackson, Ph.D. [Doc. 219-85, Rebuttal Report Re: Dr. Jackson and Mr. Phillips, Aug. 1, 2018 (“Rebuttal to Jackson/Phillips”), at 1-4]. Trevor Phillips, a real estate appraiser, opines Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 32 of 99 33 Dr. Jackson, a “property valuation expert” [Doc. 218-1, at 30], opines; As to Mr. Phillips’ opinions, Mr. Unsworth provides the following rebuttals. Mr. Phillips’ conclusion that Doc. 219-85, at 2, 3, 6, 10-11, 18 (citing Jackson, T., “Real Property Valuation Issues in Environmental Class Actions,” The Appraisal Journal (2010))], and by the U.S. E.P.A.’s Guidelines for Preparing Economic Analyses, 2010. [Doc. 219-85, at 5-6, 15-16]; [Doc. 219-54, Expert Report of Charles Mullin, Ph.D., May 9, 2018 (“Mullins Report”), Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 33 of 99 34 at 5, and n.5] [Doc. 219-85, at 10; see also Doc. 219-91, Unsworth Deposition Transcript, 9/27/18, at 221-26; 275-76]. Mr. Phillips’ conclusion that the plain language of 12 V.S.A. § 1604, and with the fact that widely used property value data reported by the U.S. Bureau of the Census are based on owner- reported values, and with common experience [Doc. 219-85, at 2, 5-7; Doc. 219-91, at 185-86, 199-200, 216-26, 233-34]. In addition, the issue of the propriety and admissibility of Plaintiffs’ testimony regarding property valuation is the subject of a separate motion practice [See Doc. 216- 1 (Saint-Gobain’s motion to exclude Plaintiffs’ lay witness testimony); Doc. 227 (Plaintiffs’ memorandum in opposition to Doc. 216-1); and Doc 232 (Saint-Gobain’s reply thereto)]. Mr. Phillips’ conclusion that [Doc. 219-85, at 2-3, 7-15; Doc. 219-91, at 270-73, 284-89]. As to Dr. Jackson’s opinions, Mr. Unsworth provides the following rebuttals. Dr. Jackson’s opinion [Doc. 219-85, at 18-19; 219-91, at 300-10]. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 34 of 99 35 . [Id.]. Finally, Dr. Jackson’s opinion is [Doc. 219-85, at 3, 15-16; Doc 219-91, at 300-310]. Dr. Jackson’s opinion, joined by Mr. Phillips, [Doc. 219-85, at 3, 16-18; Doc 219-91, at 202, 298-302]. Dr. Jackson’s opinion that [Doc. 219-85, at 15; Doc 219-91, at 268-69, 275-76]. Mr. Unsworth opines that the “presence of PFOA in groundwater throughout the Bennington community is having a similar impact on all residential properties in the action area.” [Doc. 219-85, at 19; Doc 219-91, at 186- 88, 196-98, 310-14]. Therefore, while Plaintiffs are not seeking class treatment for the determination of property diminution, the shared disamenity and stigma of PFOA contamination - - throughout the Zone and upon all members of the Exposure Class -- can and should inform any consideration of Plaintiffs’ property diminution damages tesimony. [Doc. 219-85, 19-20; Doc 219-91, at 310-14]. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 35 of 99 36 2. Mr. Unsworth’s “Added Cost” Damages Under Vermont’s Groundwater Protection Act Are Proper. Saint-Gobain argues next that Mr. Unsworth’s damage calculations under Vermont’s Groundwater Protection Act (GPA) are inadmissible for class certification, despite his use of a common methodology to assess such damages across the Property Class. [Doc. 218-1, at 30]. Instead, Saint-Gobain argues, the only appropriate way to assess damages is to calculate each individual class member’s specific and unique damages, now and decades into the future. In so arguing, Saint-Gobain ignores the plain language of the Vermont GPA, which provides, inter alia, that “[a]ny person may maintain under this section an action for equitable relief or an action in tort to recover damages, or both, for the unreasonable harm caused by another person withdrawing, diverting or altering the character or quality of groundwater.” 10 V.S.A. § 1410(c). Thus, under the GPA, the question is not the value of each individual’s damages, but rather, the valuation of the unreasonable harm that this Saint-Gobain has caused to the common resource of Bennington’s groundwater. Mr. Unsworth articulates a reasonable approach to calculation of the damages from Saint-Gobain’s unreasonable harm to groundwater under the Act. Mr. Unsworth’s common methodology, using well-recognized environmental economic principles for calculating damages to natural resources, establishes by common proof a reasonable means of assessing the value of the harm to the public groundwater resource. As Mr. Unsworth has opined: Prior to the discovery of PFOA in the aquifer underlying the Town of Bennington and the Village of North Bennington, hundreds of residents relied on groundwater obtained from individual, private wells as their primary water source. The discovery of PFOA in the aquifer underlying these communities has resulted in actions by the State of Vermont to require some of these residents either to seal their wells and connect to one of two municipal water systems, or to operate point- of-entry-treatment systems (POETs) to limit their exposure to these compounds as their well water supply. These actions are being taken to protect public health going forward. Prior to this contamination event, groundwater in these communities met State and Federal drinking water standards, and was abundant. Absent this Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 36 of 99 37 contamination event, there is no reason to conclude that residents with private wells would have needed to abandon their wells and/or connect to one of the two municipal systems. [Doc. 219-84, Rebuttal Report re: Dr. Mullins (“Rebuttal to Mullins”), at 1]. Thus, “[c]onsistent with sound economic theory and common practice in the field of environmental economics” Mr. Unsworth examined the categories of damages experienced by members of the Property Class not addressed by the State’s actions. [Id., at 2]. These include “added costs,” which Mr. Unsworth defines as the uncompensated costs of quarterly water bills, net of the costs no longer incurred in owning and operating a well, for those class members who were reliant on groundwater prior to the discovery of PFOA contamination, and a “monetized value of damages for residents who cannot be connected to a municipal water system, and who will incur the disamenity of living in a home requiring a POET into the future.”17 [Id., at 2]. Saint- Gobain has challenged Mr. Unsworth’s opinions regarding such “added costs.” [Doc. 218-1, at 30- 34; 55-60]. Saint-Gobain asserts that Mr. Unsworth’s “added cost” model of groundwater damages “does not proffer any common proof. Instead, his opinion concerns damages only for a set of hypothetical, average residents” in the Bennington area. [Doc. 218-1, at 30]. In essence, Saint- Gobain argues, unless Mr. Unsworth makes “individual inquiries” into the specific circumstances of every member of the Property Class moving from well water to municipal water, as well as those with contaminated wells who cannot be connected to municipal water, his analysis will lack common proof, can “not fit class certification,” and is “fatally flawed.” [Id., at 28, 29, 31-32]. 17 Mr. Unsworth acknowledges that some of those who are not being connected to municipal water, and who continue on POETs, are being considered for deeper, differently engineered wells, but that the ultimate feasibility of this alternative for individual class members, and the number of homes for which this alternative will be considered, is still unknown. [Doc. 219-84, at 2 n.1]. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 37 of 99 38 Contrary to Saint-Gobain’s assertions, Mr. Unsworth’s “added cost” model is based on sound environmental economics literature, which “provides evidence that residents of communities have a ‘willingness-to-pay’ to maintain the option to use groundwater. In this case, the option for residents to use groundwater without treatment has been lost.” [Doc. 219-83, Unsworth Merits Report, 12/15/17, at 3]. “Added costs, also referred to as ‘averting costs,’ are widely accepted as a measure of environmental damage.” [Id., at 10 (citing U.S. EPA, Guidelines for Preparing Economic Analysis, § 7.3.1.4 (2014))]. Mr. Unsworth’s added cost calculations are based on a common methodology to assess the new expenses incurred by class members moving from a well to municipal water (including the number of residents connecting to each municipal water supply, the number of residents who are not being offered municipal connections and will continue to use POETs, current water rates, and the expected increase in future water rates), as well as all relevant savings to these class members associated with provision of municipal water (including the cost of electricity to operate the well pump, the cost of periodic well pump replacements, the cost of periodic pressure tank replacement, the cost of annual water tests, the potential savings in home insurance, and the cost of operating and replacing water softening units). [Id., at 11-13, and Exhibit 2]. Finally, Mr. Unsworth projects these costs 30 and 99 years into the future [id., at 14, n. 22], and then, using well-accepted economic principles, calculates the present value of these added costs. [Id., at 13-14, and Exhibit 3]. In rejecting Dr. Mullin’s assertion that , Mr. Unsworth maintains that “there are a limited set of common factors at play as relates to added cost . . . damages in this case. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 38 of 99 39 Specifically, there are a common set of inputs that determine damages across the proposed class.” [Doc. 219-84, at 11]. • All but a few of the plaintiffs previously reliant on private wells will be moving to the municipal system. • All of these plaintiffs will pay easily quantifiable – and largely similar – water bills following their connection to these systems. • All of these private well owners had previously operated and maintained a groundwater well, which involves use of a standard set of equipment and an identical list of operating and maintenance cost items. • All of the plaintiffs not moving to the municipal system will be forced to operate POETs indefinitely [with caveat that some may eventually be provided with deeper, differently engineered, replacement wells]. • All of these plaintiffs in the Zone of Contamination will be precluded from drilling a well for potable purposes, indefinitely. [Id.]. Mr. Unsworth was questioned about these common inputs in his rebuttal deposition: Q. So when you say “common inputs,” you’re just saying all of these things are implicated in determining whether someone has experienced damages? A. What I say is, is there’s a common set of inputs that determine damages across the proposed class. So the factors that would determine an individual’s loss are common across the individuals in this class. Q. So that is, to determine an individual’s damage in this class, for each individual, you need to look to the same set of things; is that correct? A. So -- so the purpose of this section is that Dr. Mullin rejects the idea that there can be a common methodology. He says the damages must be individualized. I am disagreeing with that opinion, and I'm saying no, I think that there can be a common methodology and there’s a common set of inputs, that there is – that the similarities here dominate over the differences, and it would be reasonably efficient and effective to address this as a class. [Doc. 219-91, Rebuttal Deposition of Robert Unsworth, 9/27/18, at 57-58 (objections omitted throughout)]. In his rebuttal to Dr. Mullin, Mr. Unsworth concludes: There is no reason that a class approach to damages cannot be effectively and efficiently applied in this matter. While Dr. Mullin argues with the magnitude of losses I calculate, his own calculations show that damages can be established on a class-wide basis. Once damages are established, a simple formula can be used to allocate these damages. The fact that Dr. Mullin applies my damages model and simply varies a common set of factors to generate a revised damage estimate affirms the conclusion that the factors affecting the degree of monetary harm suffered by Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 39 of 99 40 the plaintiffs are common, and thus damages can be efficiently and effectively established using a common and widely accepted methodology on a class-wide basis. [Doc. 219-84, at 11-12]. 18 While Saint-Gobain criticizes Mr. Unsworth’s application of well-recognized principles of environmental economic damage assessment as lacking “relevance” and “fit” for class certification [Doc. 218-1, at 30], the cases it cites in support are readily distinguishable. In re Asacol Antitrust Litig., 907 F.3d 42, 54-55 1st Cir. 2018), involved allegations that defendant drug company violated consumer protection and antitrust laws by withdrawing one drug, whose patent was about to expire, and replacing it with a similar drug, whose patent protection ran years longer. The First Circuit reversed certification of a consumer class in 25 states and the District of Columbia, where it was undisputed that thousands of putative members suffered no injury whatsoever, and thus that the need to identify such uninjured individuals would “predominate and render an adjudication unmanageable.” Id., at 53-54. Thus, the case did not involve a challenge under Daubert, nor any calculation of damages. Instead, the court rejected the plaintiffs’ expert’s attempt to prove actual injury by representative evidence that itself confirmed no injury to about ten percent of the class. Id, at 54. Here, by contrast, it is indisputable that Saint-Gobain’s PFOA pollution has contaminated Bennington’s groundwater, thereby causing unreasonable harm for which everyone in the Property Class can recover under the GPA. In addition, each putative class member who has moved or will 18 “Q. So let's just talk about your model, big picture. Your model purports to describe the total damages experienced by the putative class and various informally defined subclasses. Is that correct? A. Without the word ‘total.’ Q. It does not purport to describe the damages of any individual within that putative class, does it? A. Well, I think it does estimate damages for individuals within the class, yes. Q. But if we had more information about any individual in the putative class, we could come to a more precise and potentially more accurate measure of damages for that individual. Is that correct? A. And if you could see the future, that also might be correct. But we can’t. So we measure it as best we can based on reliable and appropriate information.” [Doc. 219-86, at 124]. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 40 of 99 41 have to move from private wells to municipal water, or who now will have to rely on POETs or, possibly, re-engineered wells, has suffered losses based on the “unreasonable harm” to the groundwater. Mr. Unsworth’s use of statistically reliable, common methodology to project such added costs for the class is both relevant and fits class certification, as it is plainly tied to the facts of the case and can be demonstrated by common proof. Fed. R. Evid. 401; Campbell ex rel. Campbell v. Metropolitan Property and Cas. Ins. Co., 239 F.3d 179, 185 (2d Cir. 2001). Moreover, the Supreme Court has rejected any blanket prohibition against such evidence: “A representative or statistical sample, like all evidence, is a means to establish or defend against liability. Its permissibility turns not on the form a proceeding takes—be it a class or individual action—but on the degree to which the evidence is reliable in proving or disproving the elements of the relevant cause of action.” Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1046 (2016). That is especially true where, as here, such statistical analysis may be “the only practicable means to collect and represent relevant data” establishing a defendant’s liability. Id. (citing Manual of Complex Litigation § 11.493, p. 102 (4th ed. 2004)). Saint-Gobain’s other cases are equally distinguishable. In Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331 (2d Cir. 1998), franchisees alleged Saint-Gobains’ handling of franchise advertising breached their Franchise and Trademark Agreements. In contrast to an attempt to calculate lost profits based on different agreements for hundreds of franchisees across the country, Mr. Unsworth’s added cost calculation for several hundred Bennington area property owners forced to discontinue using their wells as they had before Saint-Gobain’s PFOA contamination is easily subject to common proof using a common methodology.19 19 Nor are Saint-Gobain’s other cited cases relevant. Opperman v. Path, Inc. 2016 WL 3844326 (N.D. Cal. July 15, 2016), involved a class of close to 500,000 Texas and California users of a specific social networking application available through Apple’s App Store, during a specified period, who claimed the Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 41 of 99 42 3. Mr. Unsworth’s “Replacement Cost” Damages Are Proper Under Vermont’s Groundwater Protection Act. Once again, in arguing for Mr. Unsworth’s exclusion under Daubert, Saint-Gobain ignores the plain language of the Groundwater Protection Act, and the broad remedies it affords to those entitled to maintain an action under the Act. As this Court made clear, “Section 1410 (c) creates a new statutory remedy for all persons affected by groundwater contamination.” [Doc. 74, at 10]. Read together, the new remedy in § 1410(c) and the savings provision in § 1410(f) provide comprehensive private remedies allowing property owners to sue for damage to the groundwater underlying their individual properties. The existing theories of negligence, nuisance, strict liability and intentional harm are preserved and augmented by a new right to seek damages for “unreasonable harm” caused by a person who alters the character and quality of groundwater. [Id.]. To address the losses resulting from the “unreasonable harm” caused by Saint-Gobain to the groundwater underlying Plaintiffs’ properties—in addition to the State’s response requiring Saint-Gobain, inter alia, to extend municipal water lines to those who no longer can use their wells, and in addition to the added costs experienced by those closing their wells and moving to municipal water, or otherwise no longer able to use the groundwater as they had previously—Mr. Unsworth has calculated a second category of uncompensated losses. He terms these “replacement costs,” application invaded their privacy. The court found no “damages number arising from this model will apply to all class members, particularly since some of the class members, by this measure, will not have been injured at all.” Id. This is wholly distinguishable from the instant case, where each member of the putative class can prove harm to the groundwater, as well as their access to and use of it, and thus would be entitled to damages under Mr. Unsworth’s common model. In re Fluidmaster, Inc. v. Water Connector Components Prods. Liab. Litig., 2017 WL 1196990 (N.D. Ill. Mar. 31, 2017) (denying class certification in products liability claim on behalf of millions of individuals and companies across country, including those who experienced property damage after product failure, those who did not experience any failure, and subrogated insurers; rejecting damages theory predicated on conjoint analysis measuring individual preferences); In re Rail Freight Fuel Surcharge Antitrust Litig., 725 F.3d 244 (D.C. Cir. 2013) (vacating certification of class of shippers in antitrust action against four railroads, alleging price fixing conspiracy; rejecting damages model which could not establish by common evidence that all class members were injured by the conspiracy). Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 42 of 99 43 defined as the costs of restoration actions to offset the loss of a source of clean groundwater experienced by all residents in the Property Class area. These include actions necessary to assure (1) the quality of municipal water systems is maintained; (2) the capacity of these systems meets the added demand for water; and (3) that the remaining sources of water are protected and enhanced going forward. [Doc. 219-82, at 2]. Mr. Unsworth explains the replacement cost approach in his class certification report: While residents of Bennington and north Bennington whose wells were impacted by the presence of PFOA will receive municipal water hook-ups or POETs, the community as a whole has lost a source of clean groundwater. While in this case this groundwater cannot be replaced in situ, actions can be taken to replace the full- range of services provided by this resource in order to return the community to the conditions that would have existed absent the contamination event. [Doc 219-82, at 10, and n. 16 (citing The National Research Council, Committee on Valuing Ground Water, which “addressed the need for full consideration of all services when addressing the value of groundwater”)]. He goes on to list the factors he considered in assessing replacement costs: • Changes in the demand for water in both of the municipal systems. • Actions to ensure water quality is maintained throughout the municipal systems (for example, through the management of levels of disinfection by-products in tap water). • Actions to ensure the same production capacity, including reserve capacity, exists within the systems as existed in the but-for condition [of not PFOA contamination]. • Actions to ensure source water (raw water) quality is maintained. • Actions to ensure that these systems are reliable and have the necessary redundancy to minimize service disruption. • The time period over which these actions would be effective. • The present value cost of these actions, including capital costs as well as operations and maintenance, if any. [Doc. 219-83, at 15-16]. After interviewing officials from both the Bennington and North Bennington water systems, as well as their outside engineering consultants, including review of available long-term planning and capacity utilization reports and data for both systems [id., at 16], Mr. Unsworth Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 43 of 99 44 identified specific projects to improve the reliability of municipal water, “thus replacing some of the services previously provided by the groundwater.” [Id.] These include protecting the security of the watershed intake to the Bennington system against adverse uses by purchasing properties around the intake, modifying Bennington’s water filtration plant to assure water quality, and replacing a storage tank and related water lines to improve system integrity.20 [Id., at 16-17]. In order to ensure the completion of these projects, for the benefit of the class, Mr. Unsworth proposes placing the replacement cost damages in an environmental trust account for use by the Town of Bennington, dedicated to these projects. [Id., at 16 n. 25]. Saint-Gobain challenges Mr. Unsworth’s opinions regarding “replacement costs,” arguing that they address losses to “the public, not members of the putative class” [Doc. 218-1, at 34]; the projects are unrelated to the PFOA contamination because they were identified—but never implemented—before the contamination was discovered [id]; and, because these replacement costs would fund improvements to the Bennington water system, they do “not relate to the putative class.” [Id.] Saint-Gobain is wrong on all counts. As noted above, damages available under the Groundwater Protection Act address the harms necessitated by the loss of a public resource – clean groundwater. In addition to the individual harms suffered by the added costs of those required to close their wells and switch to municipal water, each member of the Property Class must now rely exclusively on municipal water for the foreseeable future. Thus, short of seeking injunctive relief requiring Saint-Gobain actively to remediate (rather than simply replace) the contaminated groundwater, which would be 20 Although Mr. Unsworth identified concerns regarding the quality, capacity and reliability of the North Bennington water system as a result of the increased demands on the system by the addition of new users, Village officials denied the need for any infrastructure changes to meet such increased demand. [Doc. 219- 83, at 18]. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 44 of 99 45 prohibitively expensive,21 [Doc. 219-83, at 19], Mr. Unsworth instead has identified a limited number of projects which will ensure, to the extent possible, clean water for the class into the future. In short, the statute provides a mechanism for Vermont residents to be made whole by the party responsible for contamination of groundwater. As described in my initial Expert Opinion, groundwater provides a range of services to the public, some of which can be interfered with when groundwater becomes contaminated. The analysis I conduct and conclusions I reach with respect to replacement of the services previously provided by groundwater is consistent with this cause of action, and consistent with well-accepted practice in the field of environmental damage assessment. [Doc. 219-84, at 24]. These “improvements to Bennington’s municipal water system [will] effectively compensate members of the Bennington community for contamination of their groundwater and thus for the loss of this valuable resource.” [Id.] Plaintiffs do not propose that these replacement cost damages be “award[ed] to the Town” of Bennington for its “unfettered” use as Saint-Gobain’s assets. [Doc. 218-1, at 35]. Rather, as Mr. Unsworth explains in his first deposition: Q. And your replacement cost opinion involves various improvements to the water infrastructure to the town of Bennington. Is that right? A. Well, the water infrastructure is managed by the town of Bennington for the betterment of all of its residents. And so the improvements would have to be managed by the town of Bennington but the benefits would accrue to the community, just like – you’re probably aware these -- the two water systems in Bennington and North Bennington were donated to the community. So it went to the betterment of everyone in the community. Q. But the infrastructure is owned by the town of Bennington. Is that correct? A. For the -- for the use of the residents of the town who have access to water. . . . And I'm also not assuming that the town of Bennington would be made better off by the projects I've suggested. They would be given funding, they 21 “To provide context for the replacement cost damage value I present above, I note that Barr Engineering [one of Saint-Gobain’s environmental consultants] had estimated the cost of groundwater remediation to be between $67.65 and $209.05 million, and contaminated surficial soil excavation at $752 million. As such, the cost of an active groundwater remedy at this site would be five to 17 times the cost of the set of replacement actions described above, and the cost of soil removal would be far in excess of this replacement cost estimate.” [Id., at 19 (citing Barr Engineering, 2017)]. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 45 of 99 46 would accomplish those projects at that funding cost, and that would be to the betterment of the citizens of Bennington. [Doc. 219-86, at 219; see also id., at 243 “([T]he presumption here is that you could use the municipal system as the mechanism to make people whole by providing them an equivalent replacement.”)]. Nor is it any concern that there may be a spillover benefit to residents in the Bennington area who are not members of the putative class, a possibility Mr. Unsworth acknowledges: I would say that we're providing improvements to the system here. To the extent that the benefits of that spills over, it’s still necessary to compensate the class members. I don’t have any other alternatives that I can go directly to those class members, unless we go to some sort of model that models their willingness to accept payment, which I would expect would be significantly higher. [Doc. 218-86, p. 240]. Again, the Groundwater Protection Act permits “any person” to bring an action for “the unreasonable harm” to groundwater. 10 V.S.A. § 1410(c). If the remedies sought have a positive impact on more than just the putative class, such a result is completely in keeping with the plain language and policy of the statute. I. PLAINTIFFS’ CLASS CERTIFICATION EXPERTS’ OPINIONS ARE RELIABLE. A. DR. DUCATMAN’S CLASS-WIDE MEDICAL MONITORING OPINION IS RELIABLE. Saint-Gobain contends that Dr. Ducatman’s class-wide medical monitoring opinion is unreliable for the “same reasons” it lacks fit [Doc. 218-1, p. 36]. As discussed in detail in Section I.A. supra, Dr. Ducatman’s opinion that class-wide medical monitoring of the putative Exposure Class is clinically necessary and appropriate on a class-wide basis is based primarily on the direct evidence of above-background PFOA exposures common to all members of the putative Exposure Class. These exposures, as well as the resulting increased risk of PFOA-related disease, are common to all members of the putative Exposure Class without regard to any individualized Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 46 of 99 47 differences; thus, any individualized considerations, including individual medical records or histories, are simply not relevant to Dr. Ducatman’s determination as to the necessity of class-wide monitoring. Instead, Dr. Ducatman, consistent with applicable regulatory guidance and real-world experience, designed his proposed medical monitoring program to accommodate any such individualized issues at the appropriate time – after implementation of his proposed medical monitoring program – and through proper means, including use of a diagnostic survey and through referral of participating class members with abnormal findings or reports to their personal health care provider. However, Saint-Gobain’s arguments about the suitability of medical monitoring, and the specifics of Dr. Ducatman’s proposed medical monitoring program, go to the merits of Plaintiffs’ request for medical monitoring, and not whether the methodology he used to form his opinion is reliable. Saint-Gobain has not cited a single case where a medical monitoring expert’s class certification opinion(s) were excluded pursuant to a Daubert challenge, for a lack of fit, for being unreliable, or otherwise. This Court should take notice of this fact and, moreover, the fact that Dr. Ducatman’s class certification opinion is reliable, and deny Saint-Gobain’s motion. B. PLAINTIFFS’ EXPERTS’ OPINIONS ON THE EXTENT AND SOURCE OF PFOA CONTAMINATION ARE RELIABLE. 1. Dr. Hopke’s Opinions Are Reliable. Saint-Gobain spends numerous pages of its brief arguing that a Ph.D. chemist and professor doesn’t understand chemistry and that the Court should instead rely on its masters-level atmospheric science consultant to dismiss Dr. Hopke’s opinion as unreliable. This is the classic battle of the experts and is not the proper subject for a Daubert attack. Lyman v. Pfizer, 2012 WL 2971550 at *7 (D. Vt. July 20, 2012). Dr. Hopke’s opinion about the mechanism by which PFOA Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 47 of 99 48 was released from Saint-Gobain’s processes is based on his knowledge of scientific principles underpinned by scientific experimentation and peer-reviewed scientific literature. He did not ignore “actual emissions data,” some of which was generated in Saint-Gobain’s Merrimack, NH, plant three years after the North Bennington plant was closed. He took this data into consideration but did not find it useful for determining the emissions from the North Bennington plant. His selection of three emissions scenarios for air dispersion modeling was not arbitrary—it was based on the best-available data on PFOA usage by Saint-Gobain and different experts’ evaluations of how much PFOA was emitted from Saint-Gobain’s processes, including his own. a. Dr. Hopke’s Emissions Opinion Considered Actual Emissions Data Saint-Gobain argues that Dr. Hopke did not consider actual emissions data. To start with, Saint-Gobain has not produced any actual PFOA emissions data from the operations at its Vermont plants. The only emissions data produced was from Saint-Gobain’s New Hampshire facility, and the first indication of any emissions testing at that facility came as part of a draft report by Saint- Gobain’s consultant, Barr Engineering. [Doc. 219-32, p. 3]. The Barr report which mentioned this testing was first produced to Plaintiffs shortly before Plaintiffs’ expert reports were due on September 5, 2017. The emissions testing was first discussed with Saint-Gobain’s 30(b)(6) deposition witness on August 21, 2017, who identified the emissions testing report referred to by Barr in its report [August 21, 2017 Deposition of Christopher Angiers (attached hereto as Exhibit 1) at 273:76, Ex. 63]. Dr. Hopke was able to briefly review this report before finalizing his original class certification expert report. In Dr. Hopke’s class certification expert report he gives his view of Barr’s interpretation of this data: Furthermore, Barr relies upon testing it performed for the Society of the Plastics [Industries] of two unidentified towers at the Saint-Gobain Merrimack, New Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 48 of 99 49 Hampshire, plant to assume that 89- 91.2% of the PFOA is destroyed in the towers. However, the report makes it clear that “a determination regarding destruction is inconclusive for several reasons…” Society of Plastics Industry, 2005, 2005 Dispersion Processors Mass Balance Evaluation, Process Material Balance Report Glass Cloth Coating. [Doc. 219-32, p. 3]. Clearly, Dr. Hopke considered this data and rejected its use for determining whether any PFOA was destroyed in the processes used by Saint-Gobain in Vermont.22 As a matter of fact, Dr. Hopke did rely upon available data for his opinions. He relied upon the available data for Saint-Gobain’s usage of PFOA to calculate emissions, just as Barr did. But he rejected the so-called “partition factor” relied upon by Barr for its emissions calculations using the same PFOA usage data. He also explained in detail his basis for rejecting Barr’s use of the so- called “partition factor” in developing his opinion that virtually all of the PFOA used in the process would have been emitted from the processes used by Saint-Gobain in Vermont. [Doc. 219-32, p. 2-3]. Barr is not testifying in this case as to why it can justify relying on the data rejected by Dr. Hopke. Saint-Gobain’s expert Chinkin, who is a masters level atmospheric scientist, disagrees with Dr. Hopke’s rejection of the so-called “partition factor,” but this disagreement among the experts is a matter for the jury to decide. Saint-Gobain is straining at gnats by arguing that Dr. Hopke’s opinion should be excluded because he explained his opinion in more detail in his deposition and in his rebuttal report than he did in his original expert report. The cases cited by Saint-Gobain do not support exclusion for this reason. For instance, in Haller v. AstraZeneca Pharms. LP, 598 F. Supp. 2d 1271, 1296-97 (M.D. 22 It is clear from Dr. Hopke’s deposition that he had forgotten he had reviewed the document and commented on it in his report. Dr. Hopke was given numerous documents to review over a short period of time before his report was prepared. [Doc. 219-34 at 103-106]. He admitted that he had not reviewed another so-called “publicly available industry-wide material balance report” in coming to his opinions in this case,” but Saint-Gobain did not produce this report to Plaintiffs in discovery, and it was first shown to Dr. Hopke in his deposition. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 49 of 99 50 Fla. 2009), the expert added four new grounds for his medical causation opinion after his deposition and after Saint-Gobain’s Daubert motion. Here, Dr. Hopke described in detail in his original expert report the basis for his opinion rejecting the destruction of PFOA in Saint-Gobain’s process. He disputed Barr’s assumption that the APFO stayed with the fabric to the baking stage, but then stated, “[i]f the APFO did stay with the fabric to the second phase of heating, or the baking stage, it would then vaporize from the fabric.” He also disputed Barr’s reliance on laboratory experiments by Krusick and Roe for the theory that PFOA is destroyed before it is emitted, and stated, PFOA “would have been vaporized into the gas phase and off the surface of the fabric” before it decomposed, citing a Ph.D. Dissertation by Dr. Catherine Barton, a civil engineer from DuPont, the manufacturer of the dispersions used by Saint-Gobain. [Doc. 219-32, p. 4]. Saint-Gobain argues that Dr. Hopke came to a conclusion first and then did research to support it, because he relies on the process of sublimation for his opinion that all the PFOA was released from the coated cloth but did not mention sublimation in his original expert report. Although Dr. Hopke did not mention the word “sublimation” in his original expert report, the reference he cited in that report by Dr. Barton discusses sublimation of APFO and PFOA throughout, mentioning the word “sublimation” over 20 times. [Doc. 219-35, p. 80]. He discussed sublimation in his deposition as one of the bases for his opinion. [Doc. 219-35, p. 230]. Then, because Saint-Gobain’s expert took issue with his relatively simple description of the volatilization of PFOA in his original report, he provided a detailed description of the chemistry in his rebuttal report. [Doc. 219-34, pp. 1-2]. His bases for his opinion did not change; they were explained in more detail in his rebuttal report, including the process of sublimation. Dr. Hopke’s reliance on the process of sublimation for his opinion is not untested or novel. As noted in Dr. Hopke’s rebuttal report, Saint-Gobain’s expert Mr. Chinkin confirms that APFO Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 50 of 99 51 sublimes at 130°C, a temperature at which it will not decompose. [Doc. 219-34, p. 2]. Dr. Hopke relied upon research by Dr. Barton which shows the temperatures at which APFO sublimes. There is nothing novel or untested about this theory. It is not the proven fact of sublimation that Saint- Gobain appears to dispute, but the mechanism of sublimation that Dr. Hopke discusses based on a scientific paper by Zhu (2007). Although Zhu’s experiment tested ammonium chloride, he stated that his mechanism was applicable to ammonium salts in general, which would include APFO. As discussed in Dr. Hopke’s deposition, Dr. Barton who provided data supporting the sublimation of APFO, also believes the Zhu mechanism is applicable to APFO.23, 24 [Doc. 219-32, p. 3; Doc. 219-34, pp. 2-3]. Saint-Gobain makes a confusing argument that Dr. Hopke’s opinions should be excluded because he relied on selected conclusions of one article while rejecting conclusions by the same author in another article. The case cited for this proposition says nothing to support the argument. In re Zoloft (Sertraline Hydrochloride) Prod. Liab. Litig., 858 F.3d 787, 797 (3d Cir. 2017). But in any event, Dr. Hopke’s original report and rebuttal report are consistent in how they treated the Krusic articles. He agreed with certain of the conclusions, but disagreed with others, based on his knowledge of the principles of chemistry.25 23 Dr. Hopke agreed that applying Zhu’s mechanism to the sublimation and of APFO is a hypothesis, as Dr. Barton described it in her paper. [219-40, p. 33]. It is of no moment that the hypothesis is untested, because the mechanism is not critical to Dr. Hopke’s opinion. 24 Saint-Gobain accused Dr. Hopke of using an erroneous formula for the vapor pressure of APFO causing an error by a factor of more than 1,000. If Saint-Gobain had been honest about Dr. Hopke’s deposition testimony, instead of pushing another misleading soundbite, it would have told the rest of the story: Dr. Hopke’s calculations were correct, as reported in his rebuttal report, but the formula he used from the Barton paper contained typographical errors when reproduced in his report. [219-40, p. 106]. 25 It is also puzzling what Saint-Gobain intends when it implies that Dr. Hopke relied upon scientific literature to draw conclusions that the authors themselves were unwilling to reach. Dr. Hopke clearly discussed the bases for his opinion, stating what findings and conclusions he relied upon and rejected. He relied on two authors to support his opinion that PFOA would not be destroyed in Saint-Gobain’s process, Barton and Zhu. Both of the articles support his opinion and his description of the mechanism by which PFOA is released. The cases cited by Saint-Gobain, which deal with medical causation and expert witnesses Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 51 of 99 52 Finally, Saint-Gobain also misses the mark by claiming that Dr. Hopke made a number of mistakes in his opinions that should disqualify him from testifying in this case. The only error Saint-Gobain discussed was the misleading accusation that Dr. Hopke used an erroneous formula for the vapor pressure of APFO causing an error by a factor of more than 1,000. If Saint-Gobain had been honest about Dr. Hopke’s deposition testimony, instead of pushing another misleading soundbite, it would have told the rest of the story: Dr. Hopke’s calculations were correct, as reported in his rebuttal report, but the formula he copied from the Barton paper contained typographical errors when reproduced in his report. [Doc. 219-40, p. 106]. b. Dr. Hopke’s Three Emissions Scenarios Were Reliable for the Purposes of the Air Dispersion Modeling Performed by Mr. Yoder and Relied Upon by Dr. Siegel to Confirm Air Emissions from Saint-Gobain’s Facilities as Consistent With the Pattern and Source of PFOA Groundwater Contamination. As discussed above, because Saint-Gobain has not provided any actual measurements of PFOA emissions from its Bennington facilities, all parties have had to calculate those emissions from other data in order to perform air dispersion modeling. Both Barr and Dr. Hopke used actual data on PFOA usage by Saint-Gobain’s facilities to calculate the emissions, although they disagreed on the assumptions to use for the calculations. Dr. Hopke’s calculations were near the high end of the range (10,000 pounds per year), and Barr’s were near the low end (100 pounds per year). At the time of Dr. Hopke’s expert reports, the State of Vermont had provided an estimate for its air modeling based on information received from a former ChemFab engineer and based on measured emissions of fluorinated hydrocarbons (which would include PFOA). These two estimates were near the mid-point of the range (1,000 pounds per year). [Doc. 219-32, p. 4]. going beyond support in the literature for their opinions have no relevance to Dr. Hopke’s opinions in this case. Huss v. Gayden, 571 F.3d 442, 459 (5th Cir. 2009); Happel v. Wal-Mart Stores, Inc., 602 F.3d 820, 826 (7th Cir. 2010); McClain v. Metabolife Int’l, Inc., 401 F.3d 1233, 1247 (11th Cir. 2005). Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 52 of 99 53 Recently, the State has refined its calculations, also using data on PFOA usage, and assumptions of PFOA destruction in the production processes to arrive at an average of 1,050 pounds per year from the Water Street Plant (for the years 1978 to 2001). [Doc. 237-3, p. 2; Doc. 237-6, p. 3]. Dr. Hopke provided Mr. Yoder with three different PFOA “emission rate scenarios” to use to present the results of his air dispersion modeling for comparison to the pattern of groundwater contamination. These emissions scenarios were reliable for the purpose of confirming air emissions from Saint-Gobain’s facilities as consistent with the pattern and source of PFOA groundwater contamination in the Zone of Contamination.26 They bracketed the calculations performed by the different experts, including Dr. Hopke, who each had a basis in actual data for their calculations. Saint-Gobain attacks the reliability of the two highest scenarios, but both have a basis in real data and were reliable for the purpose for which they were used. Using the same chemical usage numbers relied upon by Barr, but with different assumptions on PFOA concentrations and destruction percentages, Dr. Hopke calculated the emissions to be an average of 7,000 pounds per year. [Doc. 219-32, p. 4]. The reasoning behind Dr. Hopke’s opinion that virtually all the PFOA used in the process would have been emitted was discussed above. Another difference from the Barr calculations was that Dr. Hopke used the PFOA concentrations provided by the suppliers of the Teflon dispersions in their Material Safety Data Sheets to calculate the actual amount of PFOA used and emitted. For instance, DuPont’s MSDS for some of the most common products used 26 Dr. Hopke included the following statement in his report: However, for this analysis, given that discovery is still being conducted in this litigation, the ongoing review of Chemfab’s raw material usages, and the ongoing research of PFOA emission behavior in the PTFE fabric coating process, a unit emission rate approach was used as model input for this report with runs displayed for emissions of 100 lbs. per year, 1,000 lbs. per year, and 10,000 lbs. per year. These ranges, including the 10,000 lbs. per year upper bound, are reasonable given the data we have. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 53 of 99 54 listed the APFO concentration as < 0.5%, which is less than 5,000 parts per million. [Ex. 1, Angiers Dep., Ex. 46]. For some formulations 100% APFO was added. [Ex. 1, Angiers Dep. at 201]. Dr. Hopke used this 5,000 ppm number in his calculations, instead of a lower 2,000 ppm concentration assumed by Barr.27 [Doc. 219-32, p. 4]. Dr. Hopke also relied upon a 2001 APFO emissions calculation performed by Saint-Gobain to calculate emissions of APFO based on the usage of dispersions with APFO by the North Bennington Plant. The purpose of the calculations was for a New Hampshire air pollution permit application for the towers moved from North Bennington to New Hampshire in 2001. [Ex.1, Angiers Dep. at 236]. This spreadsheet was reproduced as an exhibit to Dr. Hopke’s expert report. In performing those calculations Saint-Gobain assumed that the APFO concentration was 0.5% or 5,000 ppm and assumed that 100% of the APFO was emitted.28 Dr. Hopke calculated PFOA emissions of nearly 7,000 pounds per year based on this spreadsheet. [Doc. 219-32, p. 4]. The use of an upper bound of 10,000 pounds per year for the model display is in the same order of magnitude as the 7,000 pounds per year calculation in keeping with the use of 1,000 and 100 to represent the range of opinions. As Dr. Hopke discussed in his second deposition, the State’s calculations were in the 1,000-pound range, and he relied upon the information provided by the Vermont DEC air modeling expert at the time as support for the midrange. Despite using the three scenarios for presentation of the modeling results, Dr. Hopke expressed his opinion in 27 The State of Vermont’s consultant AMEC used 3,000 ppm in its most recent calculations. [Doc. 219-35, p. 165]. 28 In his deposition Saint-Gobain attempted to confuse Dr. Hopke by introducing a different spreadsheet that he had not relied upon for his calculations. [219-35, p. 165]. As Dr. Hopke explained in his rebuttal report, “I did not use the spreadsheet I was questioned about in my deposition to calculate the emissions in my report (Ex. 20).” The number of process lines operating at any given time has nothing to do with his calculations based on total APFO usage. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 54 of 99 55 his deposition that the emissions were “certainly in 1,000 to 10,000 and likely more at the high end than the low end.” [Doc. 219-35, p. 137:14-16]. 2. Mr. Yoder’s Opinions Are Reliable. For the reasons previously discussed, Mr. Yoder’s reliance on the three scenarios from Dr. Hopke for presentation of the results of his air model air modeling opinion does not make his opinions unreliable or inadmissible. Saint-Gobain attacks Mr. Yoder’s opinions because he did not include “other potential sources” of PFOA in his modeling. Contrary to Saint-Gobain’s summary of Mr. Yoder’s deposition testimony, he did not acknowledge “that other potential sources existed.” In fact, his testimony was, “[a]s far as I understood, there wasn't any other significant sources of PFOA from an air emission standpoint in -- in Bennington.” [Doc. 219-95, p. 172:19- 23]. His role was modeling the emissions from Saint-Gobain’s plants, and he relied upon Dr. Siegel for determining whether other potential sources existed.29 Mr. Yoder did consider and rule out potential “background” concentrations of PFOA from distant sources, because groundwater does not show contamination outside of the Zone of Contamination where the modeling shows Saint-Gobain’s facilities to be the sources [Doc. 219-94].30 3. Dr. Siegel’s Hydrogeological Opinions Are Reliable. In arguing that Dr. Siegel’s use of contaminant transport modeling is unreliable, Saint- Gobain again misses the mark. Dr. Siegel’s opinions are based on direct data showing the pattern and extent of PFOA contamination of the groundwater. His modeling was used to confirm his 29 The two cases cited by Saint-Gobain have nothing to do with air modeling or consideration of speculative alternative explanations for other potential sources. Innis Arden Golf Club v. Pitney Bowes, Inc., 629 F. Supp. 2d 175, 190 (D. Conn. 2009), says nothing about air models. Matosky v. Manning, 428 F. App’x 293, 298 (5th Cir. 2011), was a medical malpractice case dealing with alternative causes of illness. 30As he states in his rebuttal report, if there was a significant background level of PFOA, “PFOA would have been found in the groundwater throughout the area, including in areas outside the Zone of Contamination where wells where there is no PFOA detected in drinking water wells.” [Doc. 219-95, p. 5]. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 55 of 99 56 opinions based on this direct data. The modeling he performed to confirm that air emissions and deposition of PFOA from Saint-Gobain’s facilities were the source of the PFOA contamination in the Zone of Contamination was reliably based on known hydrogeological conditions within the Zone. Dr. Siegel acknowledged the variability of hydrogeological conditions in the Bennington area, but that variability does not render his modeling unreliable, because he was not trying to model all of the varying conditions at each location within the area. a. Dr. Siegel’s Modeling Appropriately Used the Varying Hydrogeological Conditions in the Area for the Purposes for Which it Was Done. Contrary to Saint-Gobain’ argument, Dr. Siegel’s modeling used the varying hydrogeological conditions in the area appropriately for the purposes for which it was done. He did not perform “calculations in a vacuum” as Saint-Gobain characterizes his modeling.31 In fact, he performed the calculations using representative conditions so that the results could be compared with the real conditions of PFOA groundwater contamination. Saint-Gobain criticizes Dr. Siegel for not personally taking soil or water samples, but he did not need to. There were hundreds of samples taken by Saint-Gobain’s consultants under the direction of the Vermont ANR. [Doc. 219- 61] Dr. Siegel modeled PFOA transport and mixing in hydrogeological conditions for the area of the most contaminated zone east of the Water Street plant, underlain by fractured bedrock, and for an area around the Bennington Landfill with a shallow permeable sand and gravel aquifer. Based on geological reports, these conditions are representative of the two types of aquifers that lie under North Bennington where the vast majority of wells are located. In each case, he found 31 The judge in Burst v. Shell Oil Co., 104 F. Supp. 3d 773, 781 (E.D. La. 2015), cited by Saint-Gobain, excluded the expert testimony because the assumptions behind the calculations bore no resemblance to the gasoline exposure suffered by the plaintiff, and the expert had withdrawn his calculations, casting doubt on his entire opinion. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 56 of 99 57 that the deposition rate determined by Mr. Yoder’s air dispersion model at 1,000 pounds per year or more was consistent with the actual groundwater contamination levels in the areas modeled. He concluded “the predicted results were very similar to those observed, and changing parameters within plausible amounts would arrive to the same conclusion.” [Doc. 219-61, at 6-3 – 6-5]. Saint-Gobain argues that one parameter in Dr. Siegel’s calculations, Kd, which represents the ability of PFOA to stick to soils, was inappropriate because “he uses samples from the Iberian Peninsula and Belarus, not from the Bennington area.” This is yet another misleading soundbite. The scientific paper on which Dr. Siegel relied reported on experiments using soil samples from a variety of settings to develop a relationship between this Kd factor for PFOA and the organic content of the soils that could be used in any setting. Dr. Siegel used this relationship together with his knowledge of the organic content of the soils in the Bennington area to calculate Kd factors for use in his calculations. [Doc. 219-65 at 83-85]. b. Dr. Siegel’s Methods Were Based on Knowledge of Available Methods and His Review of the Scientific Literature and Not Created for Litigation. Saint-Gobain claims falsely that Dr. Siegel created the methodologies he used to confirm the source and patterns of PFOA contamination in groundwater only for this litigation, when in fact, he utilized widely-accepted methodologies in his field. The Rao methodology used by Dr. Siegel to determine how long it would take for PFOA on the surface to travel to groundwater in various hydrogeological settings was developed for pesticides but the calculations can be used for any chemical based on the properties of the chemical.32 [Doc. 219-63, p. 2-6]. Dr. Siegel cited a National Academy of Sciences report dealing with the inherent vulnerability of aquifers to surface 32 Saint-Gobain implies that Plaintiffs should have used a more complex model for the calculations in this case, but Saint-Gobain’s expert has not performed any modeling or adopted any modeling results performed on behalf of Saint-Gobain. [219-53]. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 57 of 99 58 contamination that highlighted the validity of the Rao methodology. Dr. Siegel was one of the authors of this report.33 Saint-Gobain has also complained about the differential equations used by Dr. Siegel to calculate the concentration of PFOA in groundwater following the migration of PFOA from the surface. Although he admits he has not used these specific equations in a peer-reviewed paper, he testified that “I’ve used similar equations. There’s nothing magic about the equations. They’re standard equations of solute transport.” [Doc. 219-65, at 99-100]. Saint-Gobain’s expert Morrissey did not contradict this testimony. [Doc. 219-53 (Morrissey Rebuttal Report)]. c. Dr. Siegel Properly Evaluated Saint-Gobain’s Speculative “Other Potential Sources” of PFOA, and His Conclusion There Are No Other Sources is Well Supported. Contrary to Saint-Gobain’s argument, Dr. Siegel did not ignore “other obvious sources” of PFOA contamination of groundwater in the Bennington area. Saint-Gobain’s consultant Barr Engineering only speculated about “other potential sources,” and Dr. Siegel conducted an investigation which ruled out any other known source. Most importantly, even minor sources of spills or leaks into groundwater would have produced a signature local plume and not the widespread pattern of contamination with Saint-Gobain’s Water Street facility at its core. [Doc. 219-61, p. 5-1; Doc. 219-63, p. 2-7]. As discussed below, Dr. Siegel’s investigation included a more intensive investigation into the hydrogeology and contamination around the Bennington Landfill.34 33 Ground Water Vulnerability Assessment: Contamination Potential Under Conditions of Uncertainty. Committee on Techniques for Assessing Ground Water Vulnerability Water Science and Technology Board, Commission on Geosciences, Environment, and Resources, National Research Council (1993). 34 Again, the cases cited by Saint-Gobain add nothing to its argument. See Doe v. Am. Med. Systems, Inc., 96 F. App’x 758, 759 (2d Cir. 2004); In re Fosamax Prods. Liab. Litig., 688 F. Supp. 2d 259, 268 (S.D.N.Y. 2010). Doe dealt with an expert totally ignoring other causes of the failure of a penile implant. In re Fosamax dealt with the sufficiency of a medical expert’s differential diagnosis, and the court admitted the Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 58 of 99 59 Dr. Siegel’s opinion ruling out the Bennington Landfill as a source of the PFOA contamination of wells in the vicinity of the landfill is certainly admissible under Rule 702 and Daubert, despite Saint-Gobain’s expert’s different interpretation of the data. Several pages of Dr. Siegel’s two class certification expert reports are devoted to this issue. The arguments raised by Saint-Gobain are more suitable for cross examination and contrary expert testimony. [Doc. 219- 61; 219-63]. Dr. Sigel’s opinion is well-reasoned, based on the geology of the area around the landfill, based on the lack of other landfill contaminants found in these wells, and based on the refutation of Saint-Gobain’s theory that other sulfonated per-and-poly-fluoroalkyl substances (“PFAS”) found in the wells near the landfill indicate the landfill must be the source and not Saint-Gobain’s plants. This last point warrants explanation. Saint-Gobain’s consultant had claimed that Saint- Gobain never used sulfonated PFAS at its plants in Bennington, and argued, based on this assumption, that any sulfonated PFAS found in groundwater indicated a different source for the PFOA contamination. However, when Saint-Gobain performed a site investigation of its former Water Street Plant in 2018, significant levels of sulfonated PFAS were found in the Plant building, including where stacks released process emissions into the air. The sulfonated PFAS and PFOA were both emitted from Saint-Gobain’s plant, and the pattern of PFAS and PFOA near the landfill is consistent with air deposition from Saint-Gobain’s plant. opinion testimony finding the expert had addressed “obvious alternative causes and provide[d] a reasonable explanation for dismissing specific alternate factors identified by the defendant.” Id. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 59 of 99 60 d. Other Than One Error Corrected by Dr. Siegel, What Saint-Gobain Calls an Error Rate Was Dr. Siegel’s Varying Parameters for His Calculations as a Sensitivity Analysis to Test the Results. PFOA is not degraded in the groundwater and persists forever unless flushed out clean groundwater flow. Dr. Siegel admitted an error in a spreadsheet used in his first report to calculate the amount of PFOA in the aquifer in the Zone of Contamination to determine how long it would take for the PFOA to be flushed from the groundwater. Dr. Sigel corrected the error and recalculated the time which resulted in a significant reduction. However, the time is still decades (30 years), which is for all practical purposes permanent. [Doc. 219-63. at 2-14, Fig. 7]. Saint-Gobain argues that Dr. Siegel’s calculations have a high error rate, because he ran the calculations with different parameters to determine how the results would be affected. Saint- Gobain’s Table 1 [Doc. 218-1 at 55] compiles calculations that Dr. Siegel performed to determine the effect of varying different parameters. This is what experts do to determine the sensitivity of the results to the parameters chosen. It is not an error rate.35 C. MR. UNSWORTH’S ADDED COST METHODS ARE RELIABLE AND ADMISSIBLE. Saint-Gobain reiterates here the same arguments it made earlier in its motion to exclude Mr. Unsworth’s added cost opinions. [Compare Doc. 218-1, pp. 30-34, and pp. 55-60]. As such, Plaintiffs rely on their earlier arguments, and will not repeat them here. See Sec. I.C.2-3, supra. Suffice it to say that Mr. Unsworth examined the categories of damages experienced by members of the Property Class under Vermont’s Groundwater Protection Act, which were not addressed either by the State’s actions, or by the Plaintiffs’ own claims for common law property diminution 35 Dr. Siegel’s Merits Report contains Table 1 showing the variability of parameters he used to calculate the time it took PFOA deposited on the surface to travel to groundwater. His opinion that it took the PFOA about 5 years to travel to the groundwater is consistent with the reasonable variability of the parameters. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 60 of 99 61 and, “[c]onsistent with sound economic theory and common practice in the field of environmental economics” [Doc. 219-84, at 2], utilized a common methodology to assess “added costs” across the Property Class. In assailing yet again Mr. Unsworth’s common and well-accepted methodology for calculating added cost damages, Saint-Gobain is not so much making a Daubert challenge as attacking the credibility of his conclusions. Plaintiffs maintain that Mr. Unsworth’s opinions more than meet the standards of Fed. R. Evid. 702. While Saint-Gobain’s criticisms are perfectly appropriate subjects for cross-examination before the fact-finder, and while its expert, Dr. Mullin, will clearly testify to the contrary, Saint-Gobain’s arguments here do not implicate this Court’s “gatekeeping role” to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” [Doc. 218-1, at 1-2 (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589, 597 (1993)]. As Saint-Gobain notes: “Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence. . . . These conventional devices . . . are the appropriate safeguards where the basis of scientific testimony meets the standards of Rule 702.” [Doc. 218-1, at 11 (quoting Daubert, 509 U.S. at 596)]. II. PLAINTIFFS’ EXPERTS’ MERITS OPINIONS ARE ADMISSIBLE. A. THE INCREASED RISK OPINIONS OF DR. DUCATMAN AND DR. GRANDJEAN ARE RELIABLE AND ADMISSIBLE. 1. Epidemiology and the Weight of the Evidence Methodology. Epidemiology is the field of public health and medicine that studies the incidence, distribution, and etiology of disease in human populations. Reference Guide on Epidemiology, REFERENCE GUIDE ON SCIENTIFIC EVIDENCE 551 (Federal Judicial Center, 3d ed. 2011); In re Fosamax, 645 F.Supp.2d at 187. Epidemiology focuses on the question of “general causation” Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 61 of 99 62 (i.e., is the agent capable of causing disease?) rather than that of “specific causation” (i.e., did it cause disease in a specific individual?), id. at 552; see also In re Rezulin Products Liability Litig., 369 F.Supp.2d 398, 402 (S.D. N.Y. 2005), and epidemiologic studies and evidence thus identify agents that are associated with an increased risk of disease in groups of individuals. Reference Guide on Epidemiology, at 552 (emphasis added); see also [Doc. 105, p. 6] [Plaintiffs must show, as one element of medical monitoring, that PFOA exposure has “caused an increase in the risk of injury or disease” (emphasis added)]. It is “well-established” that epidemiological studies can be powerful evidence of causation. Rider v. Sandoz Pharmaceuticals Corp., 295 F.3d 1194, 1198 (11th Cir. 2002); see also In re Agent Orange Product Liability Litigation, 611 F.Supp. 1223, 1243 (E.D.N.Y. 1985) (noting judicial notice of general acceptance of expert’s methodology of making inference of causation based on epidemiologic data) (emphasis added). Thus, an epidemiological study identifying a significant association between [exposure to a toxic substance] and a particular adverse effect, accompanied by an expert opinion that the association is causal, is “powerful” evidence of causation. In re Abilify (Aripiprazole) Products Liability Litig., 299 F.Supp.3d 1291, 1307 (N.D. Fla. 2018). However, epidemiology, in and of itself, cannot prove causation; instead, causation is a judgment for epidemiologists and others interpreting the epidemiologic data. Reference Guide on Epidemiology, at 598 (citing Restatement (Third) of Torts, Liability for Physical and Emotional Harm § 28 cmt. c (emphasis added); see also In re Fosamax, 645 F.Supp.2d at 187 (epidemiology cannot objectively prove causation; rather, causation is a judgment by epidemiologists and others interpreting epidemiological data). When making these judgments as to increased risk, epidemiologists and others generally engage in a review of the medical and scientific literature and the evaluation of the epidemiological Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 62 of 99 63 data, toxicological data, and dose–response relationships. Reference Guide on Medical Testimony, REFERENCE GUIDE ON SCIENTIFIC EVIDENCE 716 (Federal Judicial Center, 3d ed. 2011); see also In re Rezulin Prods. Liability Litig., 2004 WL 2884327 at *2 (S.D. N.Y. Dec. 10, 2004) (general causation is established “by demonstrating, often through a review of scientific and medical literature, that exposure to a substance can cause a particular disease”). Where both epidemiological and toxicologic studies are available, as in this case, there is no “universal rule” exists for how to interpret or reconcile them. Reference Guide on Epidemiology, at 564. However, numerous courts have approved of an expert’s utilization of a “weight of the evidence” analysis of these studies and other pertinent data to make a judgment or inference as to causation, for example. Magistrini v. One Hour Martinizing Dry Cleaning, 180 F.Supp.2d 584 (D. N.J. 2002), plaintiff’s expert stated: … the essence of the ‘weight of the evidence’ approach requires that different types of data be considered together. This may include toxicology and chemical structural studies, epidemiological studies, animal studies and comparisons with toxicity benchmarks. Id. at 601. As stated by another court, the “term ‘weight of the evidence’ is used to characterize a “process or method in which all scientific evidence that is relevant to the status of a causal hypothesis is taken into account.” Harris v. CSX Transportation, Inc., 753 S.E.2d 275, 287 (W.Va. 2013) (internal citation omitted); see also In re Abilify 299 F.Supp.3d at 1311 (holding that many experts utilize a “weight of the evidence” approach to analyzing causation “by weighing an entire body of scientific evidence”); Milward v. Acuity Specialty Products Group, Inc., 639 F.3d 11, 17 (1st Cir. 2011) (The “weight of the evidence” approach to making causal determinations involves a mode of logical reasoning often described as “inference to best explanation”); In re Zoloft (Sertraline Hydrochloride) Products Liability Litig., 858 F.3d 787, 795 (3rd Cir. 2017) (the Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 63 of 99 64 “weight of the evidence” analysis involves a series of logical steps used to infer causation to the best inference). This methodology is generally recognized as being reliable. In General Electric. Co. v. Joiner, 522 U.S. 136 (1997), Justice Stevens stated the following regarding the weight of the evidence methodology: [T]he Court of Appeals expressly decided that a ‘weight of the evidence’ methodology was scientifically acceptable. To this extent, the Court of Appeals’ opinion is persuasive. It is not intrinsically ‘unscientific’ for experienced professionals to arrive at a conclusion by weighing all available scientific evidence – this is not the sort of junk science with which Daubert was concerned. Id. at 153 (Stevens, J., concurring in part, and dissenting, in part) (emphasis added); Milward, 639 F.3d at 19-20 (“No serious argument can be made that the weight of the evidence approach is inherently unreliable”); In re Zoloft, 858 F.3d at 796-797 (recognizing that the weight of the evidence methodology is generally reliable); Magistrini, 180 F.Supp.2d at 602 (D. N.J. 2002) (noting that application of Daubert permits court to find that the weight-of-the-evidence methodology is not unreliable); see also Milward, 639 F.3d at 23 (finding it valid for an expert to infer causation based on the “totality of the evidence” when combined it supports such an inference); In re Tylenol (Acetaminophen) Marketing, Sales Practices, and Prods. Liab. Litig., 198 F.Supp.3d 446, 454 (E.D. Penn. 2016) (expert physician’s general causation methodology of weighing the totality of the evidence found reliable as opinion was based on case series, case reports, clinical trials, FDA documents, animal studies, and his own clinical experience). The Second Circuit, and courts within the Second Circuit, including this court, also recognize the reliability of a weight (or totality) of the evidence approach to expert opinion testimony as to general causation or increased risk. See McCullock, 61 F.3d at 1044 (finding plaintiff’s expert’s causation testimony, which was based on a “range of factors,” including his Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 64 of 99 65 training and experience, published medical treatises, pathological studies, and differential diagnosis, to be admissible); see also In re Fosamax, 645 F.Supp.2d at 187 (case reports, prevalence studies, adverse event reports, animal studies, and hypothesis re: potential causal mechanism, taken together, were sufficiently reliable to permit experts to testify as to general causation). In Drake v. Allergen, 2014 WL 5392995 (D. Vt. Oct. 23, 2014), this court found plaintiff’s expert’s causation testimony to be admissible under Daubert, holding that, in some instances, “epidemiological evidence combined with other types of evidence are sufficient when packaged together.” Id. at *7 (emphasis added). Specifically, this court found that plaintiff’s expert’s reliance on, inter alia, meta-analysis, adverse event and anecdotal reports, biological plausibility, theoretical mechanisms of action, and her personal experience, considered together, rendered her opinion sufficiently reliable to be presented to a jury.” Id. at *9. Furthermore, it is well-known that the weight of the evidence methodology is also utilized by regulatory agencies for various purposes, including risk assessments. See, e.g., Harris, 753 S.E.2d at 288 (“The weight of the evidence methodology is used by regulatory agencies such as EPA and OSHA … to assess the total value of the scientific evidence that a substance may be dangerous to human health”); see also Doc. 219-12, pp. 9-10]; [Doc. 219-22, p. 11]. Based solely on this fact, Saint-Gobain argues that both Drs. Ducatman and Grandjean’s use of the weight of the evidence methodology renders their opinions as to increased risk of disease in this case unreliable, as they purportedly have simply conducted “regulatory risk assessments.” [Doc. 218- 1, pp. 62, 72-76]. However, as recognized by the court in In re Agent Orange Product Liability Litigation, 597 F. Supp. 740, 781 (E.D. N.Y. 1984): Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 65 of 99 66 In both the regulatory and tort models, the techniques for assessment of the probabilities of risk can be similar—courts need not deny themselves the same sophisticated methods used by regulatory agencies. Id. (internal citations omitted) (emphasis added). Furthermore, the authority cited by Saint-Gobain [Doc. 218-1, pp. 73-76] demonstrates that it conflates specific causation with general causation or increased risk. See Glastetter v. Novartis Pharm. Corp., 252 F.3d 986, 991 (8th Cir. 2001) (FDA’s removal of Parlodel from marketplace insufficient to demonstrate that Parlodel caused plaintiff’s stroke); Mitchell v. Gencorp, Inc., 165 F.3d 778, 783, n. 3 (plaintiffs’ “sizeable” reliance on fact that toluene is classified as a carcinogen in California insufficient to demonstrate plaintiff’s exposure caused him to develop leukemia); Allen v. Pennsylvania Engineering Corp., 102 F.3d 194, 1198 (agency finding that there was relationship between EtO and cancer insufficient to demonstrate plaintiff’s exposure to EtO caused his brain cancer); Reference Guide on Epidemiology, at 665-666 (discussing “specific causal association” between “individual’s exposure” and onset of disease) (emphasis added); see also Rider, 295 F.3d at 1201-1202 (in the absence of epidemiology, plaintiffs may prove causation by other evidence, but specific FDA actions regarding Parlodel did not provide scientific proof of causation). Furthermore, Saint- Gobain’s reliance on Rowe and Rhodes is, once again, misplaced [Doc. 218-1, p. 74]. In Rhodes, the court’s concerns with plaintiff’s expert’s risk assessment was that it made it “impossible to conclude that any one person exposed” had suffered significantly increased risk. Id. at 378. Here, Plaintiffs are simply not attempting to prove any individual’s personal injury. 2. Dr. Ducatman Utilized the Reliable Weight of the Evidence Methodology To Formulate His Increased Risk Opinion. Saint-Gobain argues that Dr. Ducatman utilized employed “no discernible methodology” in reaching his opinion that above-background exposure to PFOA causes an increased risk of the Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 66 of 99 67 PFOA-related diseases for which he has proposed medical monitoring36 [Doc. 218-1, pp. 60-61]. However, Saint-Gobain concedes that Dr. Ducatman utilized a weight of the evidence methodology, and thus the Court should summarily reject this contention; indeed, Dr. Ducatman’s use of this methodology is evident from a simple review of his expert reports submitted in this matter, and not just his rebuttal report. Furthermore, the weight of the evidence methodology is not inherently unreliable simply because it involves judgment on the part of an expert, and Dr. Ducatman has adequately explained how he chose and evaluated the studies he reviewed. Thus, since the weight of the evidence methodology is a recognized and reliable methodology, Saint- Gobain’s challenges to Dr. Ducatman’s use of this methodology go to the weight, and not the admissibility, of his increased risk opinion. See, e.g., Amorgianos, 303 F.3d at 276 (a “minor flaw” in an expert’s otherwise reliable methodology does not render expert’s opinion unreliable); Dial Corp. v. News Corp., 165 F.Supp.3d 25, 42 (S.D.N.Y. 2016) (plaintiff’s expert’s methodologies were not clearly unsound or unreasonable, thus parties’ “many disagreements” go to weight, and not admissibility, of testimony); Drake, 2014 WL 5392995 at *7 (expert’s “totality of circumstances” methodology reliable, and Saint-Gobain would be free to raise all of its “critiques” of her methodology on cross-examination). As discussed supra, courts have widely recognized the “weight of the evidence” methodology as a discernible, reliable methodology, and many experts utilize this or similar approach to analyzing causation by “weighing an entire body of scientific evidence.” See In re Abilify, 299 F.Supp.3d at 1311; Drake, 2014 WL 5392995 at *7. Dr. Ducatman utilized this 36 These disease endpoints include kidney and testicular cancer, pregnancy complications (pregnancy induced hypertension, thyroid disease during pregnancy, shortened duration of breast-feeding), thyroid disease (non-pregnancy), liver disease, hyperlipidemia, uric acid abnormalities and higher risk of gout, and ulcerative colitis. [Doc. 219-11, p. 3]. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 67 of 99 68 approach in his class certification report, and more comprehensively in his merits report, and thus there is no basis to Saint-Gobain’s contention that Dr. Ducatman did not identify his methodology until his rebuttal report [Doc. 218-1, p. 61].37 In his class certification and merits reports, based on his years of research into the health effects of exposure to PFASs, including PFOA, Dr. Ducatman conducted a comprehensive review of the peer-reviewed epidemiologic literature on the toxicity of PFOA, governmental publications and assessments on this subject, as well as toxicologic and other experimental data, and, based on his integration of all this data, opined extensively on the toxicity of PFOA to humans generally and on the disease outcomes for which members of the putative Exposure Class are at an increased risk due to their above-background exposure levels. See [Doc. 219-10, pp. 3-6, Ex. 2 thereto]; [Doc. 219-11, pp. 4-13, Ex. 2 thereto]. As Dr. Ducatman summarized in his merits report: Based on multiple peer-reviewed publications reporting results from exposed communities in the United States and around the world, and from governmental publications and assessments, we know to a reasonable degree of medical certainty that human exposure to PFOA leads to increased health risk. In my [class certification] report, I listed, with supporting citations, an illustrative, non- exhaustive list of adverse health effects in humans known to be associated with above background levels of PFOA. These included the conditions which can benefit from medical monitoring, discussed below, as well as conditions for which medical monitoring may not add immediate benefit to population health …. For purposes of this report, I review below the ample literature and experimental data demonstrating that human exposure to PFOA results in an increased risk for the specific diseases for which medical monitoring is recommended for members of the Exposure Class. [Doc. 219-11, p. 4 (emphasis added)]. He further explained: 37 If Saint-Gobain believed this purported “omission” somehow rendered Dr. Ducatman’s rebuttal report improper under Fed. R. Civ. P. 26, it could have filed a motion to strike pursuant to this Court’s Order re: Third Amended Discovery Schedule [Doc. 192]. However, tellingly, it did not file any such motion. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 68 of 99 69 … as evidenced by my previous reports and the literature cited therein, I conducted a thorough and comprehensive literature search, informed and focused by years of expertise in identifying the most pertinent and persuasive studies. After identifying these studies, and based on an integration of the most consistent epidemiologic, toxicologic, and physiologic findings, I then selected disease outcomes/processes that were supported by the weight-of-evidence. [Doc. 219-12, p. 9 (emphasis added)]. Thus, consistent with the various “definitions’ of the weight of the evidence methodology discussed supra, and as conceded by Saint-Gobain [Doc. 218-1, p.63], it was plainly evident from Dr. Ducatman’s expert reports that he utilized the weight of the evidence methodology, a widely-recognized discernible and reliable methodology. 38 Similarly, Saint-Gobain’s contention that Dr. Ducatman did not identify the criteria he used to select, exclude, and evaluate the studies he cited in his expert reports is false [Doc. 218-1, p. 61], as Saint-Gobain relies entirely on “cherry-picked” excerpts from Dr. Ducatman’s deposition which are extremely misleading and in no way demonstrate that he did not employ his methodology reliably. Initially, in the excerpts cited by Saint-Gobain, defense counsel was questioning Dr. Ducatman about his class certification report, not his merits report, the latter being where he conducted his comprehensive weight of the evidence analysis. See [Doc. 219-13, p. 43:9-16 (questioning about “your report” means class certification report unless specifically stated otherwise)]. Furthermore, Saint-Gobain’s selected excerpts from Dr. Ducatman’s deposition don’t convey the fact that defense counsel simply failed to properly ask Dr. Ducatman to describe his methodology, or to ask a more specific question as Dr. Ducatman requested: 38 Haller v. AstraZeneca Pharmaceuticals LP, 598 F.Supp.2d 1271 (M.D. Fla. 2009) is easily distinguishable from this matter. In Haller, plaintiff’s expert changed the bases for his causation opinion throughout the litigation, including at the Daubert hearing, not his methodology, and made other egregious mistakes that are simply not applicable to this case. Haller, 598 F.Supp.2d at 1296 (“the stark fact is that the grounds for his causation opinion have been a veritable moving target”). In sharp contrast, the grounds for Dr. Ducatman’s increased risk opinion have not changed. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 69 of 99 70 Q. What method did you use to reach the opinions in your report? 39 ATTORNEY WHITLOCK: Object to the form, vague and ambiguous. A. The way we – you’re asking me about a literature search strategy? Q. However you would describe it, so that’s a pretty broad question, but it’s the only way I know how to ask it. What method did you use to reach the opinions in your report? A. So, for each of these questions, there is a – a literature. That literature came almost completely …in the United States National Library of Medicine where you can use specific search terms with specific operators to find …. You pull up all those and you look at the ones that address the question you are asking, and then you cite the ones that you think are the best within those groups. Q. Anything else? A. I – I absolutely think there are other that I do as a matter of intuition, but you may have to ask me a more specific question for me to tell you what else you – you mean in your very broad question. [Doc. 219-13, pp. 85:16-86:17 (emphasis added)]. Thus, despite acknowledging the overbreadth of his question, defense counsel ignored Dr. Ducatman’s request for a more specific question as to his “method” and asked no further questions in this regard, as counsel had the “soundbite” it was looking for. Regardless, as noted above, Dr. Ducatman relied on the most pertinent and persuasive peer- reviewed studies. He testified during his deposition that, based on his years of research into the health effects of exposure to PFAS, including PFOA, he did not cite studies that were not “relevant,” [id. at 83:19, 84:9], or studies that are “less important,” [id. at 84:4, 85:7]. He also testified that he did cite studies that were “inconsistent” with his opinions, [id. at 84:14-15], demonstrating he did not just choose the studies that are supportive of his opinion. Further, as discussed in more detail infra, due to the voluminous nature of relevant studies, Dr. Ducatman has 39 Dr. Ducatman offered multiple “opinions” in his class certification report; thus, this question, as phrased, was not even clear as to what “opinions” defense counsel was referring to. As noted above, Plaintiffs’ counsel appropriately objected to the form of this question as vague and ambiguous. [Doc. 219-13, p. 85:18- 19]. This Court should rule on this objection prior to considering this testimony as relied on by Saint- Gobain. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 70 of 99 71 also stated that he also relied on recent governmental and other reviews to assist in focusing on the most persuasive studies. [Doc. 219-12, p. 10]. Thus, as he testified, he chose the studies that were “best in class,” [Doc. 219-13, p. 85:15], which is simply another way of saying he chose the studies that carry the most weight. This was confirmed by Dr. Grandjean, who stated in his rebuttal report that the “expert reports by Dr. Ducatman contain substantial information on the adverse health effects and also appropriately rely on the major reviews.” [Doc. 219-22, p. 17 (emphasis added)]. Finally, Saint-Gobain argues that the weight of the evidence methodology is inherently unreliable due to the fact it involves subjective judgment on the part of Dr. Ducatman. [Doc. 218- 1, p. 62]. However, as discussed supra, Justice Stevens stated otherwise in Joiner; furthermore, the First Circuit rejected this exact same argument in Milward: The fact that the role of judgment in the weight of the evidence approach is more readily apparent that it is in other methodologies does not mean that the approach is any less scientific. No matter what methodology is used, ‘an evaluation of data and scientific evidence to determine whether an inference of causation is appropriate requires judgment and interpretation.’ 639 F.3d at 19 (quoting Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 28 reporters’ note cmt. c(1)) (emphasis added). Similarly, Saint-Gobain’s complaints about Dr. Ducatman’s purported failure to provide a “method of weighting” [Doc. 218-1, p. 62] are meritless, as these complaints pertain to the so-called “Bradford Hill criteria,” and not the weight of the evidence methodology itself. In fact, Saint-Gobain’s citation to In re Zoloft is in reference to these “criteria,” not the weight of the evidence methodology; further, as noted supra, the In re Zoloft court found that the weight of the evidence methodology was “generally reliable.” Id. at 796-797. The court should reject Saint-Gobain’s argument that Dr. Ducatman failed to employ a discernible and reliable methodology. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 71 of 99 72 3. Dr. Ducatman’s Increased Risk Opinion is Reliable. Saint-Gobain next argues that Dr. Ducatman’s increased risk opinion itself is unreliable;40 specifically, Saint-Gobain alleges five purported deficiencies as to Dr. Ducatman’s increased risk opinion [Doc. 218-1, pp. 64-70]. These purported deficiencies are based on nothing more than the fact that Saint-Gobain’s experts disagree with Dr. Ducatman’s increased risk conclusion; as such, to the extent the Court finds any merit whatsoever to any of the following, which Plaintiffs expressly deny exists, it goes to the weight of Dr. Ducatman’s increased risk opinion, and not the admissibility, and Saint-Gobain’s motion to exclude Dr. Ducatman’s increased risk opinion should be denied. See, e.g., Perkins, 299 F.Supp.2d at 54 (court should not weigh the correctness of an expert’s opinion or choose between conflicting expert opinions); In re Fosamax, 645 F.Supp.2d at 173 (if an expert’s testimony lies within “the range where experts might reasonably differ,” the jury, and not the court, “should decide among the conflicting views of different experts”) (quoting Kumho Tire, 526 U.S. at 153); Lyman v. Pfizer, 2012 WL 2971550 at *7 (D. Vt. July 20, 2012) (the mere fact that an expert’s testimony conflicts with the testimony of another expert … does not control admissibility) (internal citation and quotation omitted). a. Dr. Ducatman Appropriately Focused on Studies that Carry the Most Weight. Saint-Gobain contends that Dr. Ducatman “cherry-picked” study results for his opinion that members of the putative Exposure Class are at an increased risk of certain PFOA-related disease [Doc. 218-1, p. 64]. However, as Dr. Ducatman stated in his rebuttal report, he did not “cherry-pick” from the literature, but rather conducted an appropriate weight of the evidence review: 40 Of course, it is axiomatic that the focus of this Court’s Daubert inquiry must be solely on principles and methodology, and not on conclusions they generate. Daubert, 509 U.S. at 595; see also Campbell, 239 F.3d at 186 (arguments that an expert’s conclusions are wrong go to the weight of the evidence, not its admissibility). Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 72 of 99 73 The weight-of-evidence approach not only values consistent findings in the epidemiologic literature, but also places them in context of what is known about toxicology and physiology. The focus of this approach is weight; it does not demand absolute consistency of epidemiologic findings for the simple reason that perfect consistency does not exist in nature, a point that Hill’s criteria acknowledge. (Hill 1965; Ioannidis 2016). Thus, I did not “cherry-pick” from the literature or otherwise ignore pertinent epidemiological, toxicological, or physiological process evidence; instead, I appropriately emphasized and referenced the literature that represents the best synthesis of all of this information. [Doc. 219-12, p. 9 (emphasis added)]. Similarly, in his rebuttal report, Dr. Grandjean deemed Saint-Gobain’s experts’ “cherry-picking” critique of Dr. Ducatman “misleading and inaccurate,” [Doc. 219-22, p. 26], and further, consistent with Dr. Ducatman’s (cherry-picked) deposition testimony cited by Saint-Gobain,41 Dr. Grandjean noted the “enormous task” it would be to review every single relevant publication. [Doc. 219-22, p. 26]; see also [id. at p. 19 (the focus should be on the studies that carry the most weight, not all available studies) (emphasis added)]. Dr. Grandjean also testified that epidemiologists and other medical professionals rely on reviews conducted by governmental, regulatory and research agencies, as this allows them to “focus on the key studies that carry the most weight.” [Doc. 219-22, p. 19]; see also [Doc. 219- 12, p. 10 (Dr. Ducatman stating, due to voluminous nature of relevant publications, and the absence of vested interests in governmental reviews, active PFAS researchers rely on such reviews to assist in focusing on key studies that are most persuasive for establishing thresholds, outcomes, or mechanisms) (emphasis added)].42 In fact, further supporting the fact that Dr. Ducatman did not 41 See [Doc. 219-13, p, 83:12-19 (Q: The studies you cite on pages five and six of your (class cert) report are not the totality of the published studies from PFOA exposed human populations on each of those end points, are they? A: No, there’s probably another group of studies. At some point, you run out of gas. Some of them are not that relevant …) (emphasis added)]. 42 As noted by both Drs. Ducatman and Grandjean, Saint-Gobain’s experts have largely ignored these governmental reviews, as well as other highly-pertinent studies, and as such could themselves be accused of “cherry-picking.” [Doc. 219-12, p. 8]; [Doc. 219-22, pp. 26, 70]. However, as such arguments plainly go to the weight, and not admissibility, of expert testimony, Plaintiffs chose not to waste the Court’s limited resources with a frivolous Daubert challenge. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 73 of 99 74 “cherry pick” from the literature is the fact that Dr. Ducatman’s causal opinion has been “predictive” of both dose-response and disease outcome findings contained in recent governmental reviews, and are thus “aligned with both mainstream and emerging scientific consensus.” [Doc. 219-12, p. 10]. As Dr. Ducatman stated: Recent deliberations by US state, federal, and international bodies have addressed the issue of the contribution of PFOA contaminated drinking water to human exposures, as well as the effects on human health following exposures. There is a strong correlation between the findings of these reviews and the health outcomes I have proposed to monitor for in Bennington. These reviews and their findings are thus further evidence of the reliability of my original literature search, as well as the unconventional (and outdated) opinions of Saint-Gobain’s experts. [Id. (emphasis added)]. Of course, this also supports the reliability of his increased risk opinion. Based on the foregoing, it is clear that Dr. Ducatman did not “cherry-pick” from the literature; rather, he has plainly utilized an “adequate” sample size of the available literature, using reliable “data gathering techniques,” and his “conclusions drawn” have already been demonstrated to be “statistically significant,” and thus his general causation opinion is admissible. See Guardians Assoc. of N.Y.C. Police Dept., Inc. v. Civil Service Comm., 633 F.2d 232, 240 (2nd Cir. 1980). Indeed, Saint-Gobain’s “arguments about the particular articles to which [Dr. Ducatman] refers go to the weight rather than admissibility. Drake, 2014 WL 5392995 at *3. b. Dr. Ducatman Did Not Ignore Study Limitations Or Results. Saint-Gobain also takes issue with the voluminous amount of epidemiological studies cited by Dr. Ducatman, see [Doc. 219-10, Ex. 2] & [219-11, Ex. 2], and, again based solely on the opinions of its experts, contends that Dr. Ducatman did not properly consider the limitations of these studies, and bias, chance, and confounding in particular [Doc. 218-1, p. 65]. However, these contentions go to the weight, and not admissibility, of Dr. Ducatman’s increased risk opinion, and Saint-Gobain’s motion should be denied. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 74 of 99 75 Plaintiffs point out that analytic epidemiological studies like those at issue here, which are primarily observational (case-control and cohort) studies, attempt, to the extent possible, to control for these limitations through study design: In contrast to clinical studies in which potential risk factors can be controlled, epidemiologic investigations generally focus on individuals living in the community, for whom characteristics other than the one of interest … may distort a study’s results. Because these characteristics cannot be controlled directly by the investigator, the investigator addresses their possible role in the relationship being studied by considering them in the design of the study and in the analysis and interpretation of the study results. Reference Guide on Epidemiology, at 556 (emphasis added). Similarly, as noted by the court in Deutsch v. Novartis Pharmaceuticals Corp., 768 F.Supp.2d 420 (E.D. N.Y. 2011), when dealing with critiques like those of Saint-Gobain here, i.e., that plaintiff’s expert’s causal opinions were unreliable due to reliance on observational studies: That the research is accepted for publication in a reputable scientific journal after being subject to the usual rigors of peer review is a significant indication that it is taken seriously by other scientists, i.e., that it meets the minimal criteria of good science. Id. at 434 (emphasis added); see also id. at 432 (“failure to control for an unknown confounding factor does not necessarily render the results unreliable”). Thus, as Dr. Ducatman has only relied on peer-reviewed literature, the possibility that his increased risk opinion has been significantly impacted by chance, bias, or confounding is low. Saint-Gobain again selectively cites from Dr. Ducatman’s deposition testimony in a manner that misrepresents his testimony [Doc. 218-1, p. 66]. First, like the deposition “soundbite” cited by Saint-Gobain in Section III.A.1, supra, the citation on page 66 of Saint-Gobain’s motion only pertained to Dr. Ducatman’s class certification report, and not his merits report, where he conducted a more comprehensive weight of the evidence literature review. Furthermore, the full testimony was as follows: Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 75 of 99 76 Q. Beyond providing summary statements, some of which are as short as one word and some of which are up to two sentences, you do not discuss, analyze or explain the methodological limitations or the particular data from any of the studies that you cite through endnotes on pages five and six of your report. Do you? ATTORNEY WHITLOCK: Object to the form.43 A. Could you repeat the question? Q: You do not discuss, analyze, or explain the methodological limitations or the particular data from any of the studies that you cite through endnotes on pages five and six of your report. Do you? A: No. Q. Why not? A. I didn't think it was needed. We were dealing with excess risk, and the excess risk is present and I thought that was what I was asked to do. [Doc. 219-13, p. 82:2-83:9 (emphasis added)]. Regardless, the contentions of Saint-Gobain’s experts that Dr. Ducatman purportedly did not consider these limitations go to the weight of Dr. Ducatman’s testimony and not its admissibility. See, e.g., Deutsch, 768 F.Supp.2d 420, 432 (E.D. N.Y. 2011) (Saint-Gobain’s dispute of the accuracy of plaintiff’s expert’s opinion due to reliance on epidemiological case-control studies went to weight, and not admissibility, of expert’s opinion); id. at 433-434 (the “weight of a conclusion derived from these studies involves the resolution of factual disputes and there is a classic question for the jury”); Drake, 2014 WL 5392995 at *3. In fact, courts in the Second Circuit have held that any such study limitations, even when “significant,” go to the weight and not the admissibility of the testimony. K.E. v. GlaxoSmithKline, LLC, 2017 WL 440242 at *12 (D. Conn. Feb. 1, 2017) (recognizing “significant limitations” of studies relied on by causation expert, but holding these would be best addressed by rigorous cross- examination). 43 The Court should rule on this objection prior to considering this testimony to the extent relied on by Saint-Gobain. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 76 of 99 77 c. Dr. Ducatman’s Reliance, In Part, on Animal Studies is Appropriate. Next, Saint-Gobain argues that Dr. Ducatman’s causation opinion should be excluded solely due to his reliance, in part, on animal studies as part of his weight of his evidence analysis [Doc. 218-1, p. 67]. However, it is well-established that animal studies, in conjunction with other scientific evidence, can contribute to an expert’s causation opinion. See Reference Guide on Epidemiology, at 563 (“In addition to observational epidemiology, toxicology models based on live animal studies (in vivo) may be used to determine toxicity in humans”) (emphasis added); see also In re Fosamax, 645 F.Supp.2d at 186-187 (animal studies serve “as piece[] of scientific puzzle” that contribute to reliability of experts’ causation opinions); Drake, 2014 WL 5392995 at *8 (D. Vt. Oct. 23, 2014) (expert’s reliance on meta-analysis, animal studies, case reports, and personal experience sufficient, taken together, to make causation opinions reliable and admissible) (emphasis added). In fact, pertinent to Saint-Gobain’s argument re: study limitations, consideration of animal studies has a number of advantages: Animal studies have a number of advantages. They can be conducted as true experiments, and researchers control all aspects of the animals’ lives. Thus, they can avoid the problem of confounding, which epidemiology often confronts. Exposure can be carefully controlled and measured. Refusals to participate in a study are not an issue, and loss to follow-up very often is minimal. Ethical limitations are diminished, and animals can be sacrificed and their tissues examined, which may improve the accuracy of disease assessment. Animal studies often provide useful information about pathological mechanisms and play a complementary role to epidemiology by assisting researchers in framing hypotheses and in developing study designs for epidemiologic studies. Reference Guide on Epidemiology, at 563 (emphasis added); see also In re Mirena Ius Levonorgestrel-Related Prods. Liability Litig., 341 F.Supp.3d 213, 228-229 (S.D. N.Y. 2018) (noting advantages of reliance on animal studies); Drake, 2014 WL 5392995 at *8 (same). Animal studies can also be used to demonstrate, amongst other things, “biological plausibility,” or whether Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 77 of 99 78 a causation opinion is “consistent with existing knowledge.” Reference Guide on Epidemiology, at 604. Thus, in GlaxoSmithKline, LLC, 2017 WL 440242, the court rejected Saint-Gobain’s argument that Plaintiff’s expert should not be permitted to testify as to his causation opinion, which was grounded in part on biological plausibility based on animal studies. Id. at *13. Dr. Ducatman opined in his rebuttal report: The animal and in vitro findings referenced in my previous reports and discussed in these agency reviews are a normal part of scientific corroboration …. The experimental animal data and cell physiologic data add to the human data and are further responsive to topics such as ‘biological plausibility’ … the areas where we normally seek outside confirmation (or the absence thereof) of the existence of explanatory or unifying mechanistic information in other species or cell systems. [Doc. 219-12, p. 15 (emphasis added)]. Dr. Grandjean also considered animal studies as part of his weight of the evidence analysis for the same “plausibility” purposes: In the absence of randomized clinical trials on [PFOA], the hazard evaluation must be based on observational epidemiology studies. Thus, I shall also examine the toxicological evidence from animal studies to evaluate the plausibility of the epidemiological findings, i.e., whether or not their plausibility is supported by the experimental evidence. [Doc. 219-22, pp. 14-15 (emphasis added)]. Saint-Gobain has failed to demonstrate that Dr. Ducatman’s reliance, in part, on animal studies for his increased risk opinion somehow renders that opinion unreliable or inadmissible. Furthermore, again, Saint-Gobain’s complaint in this regard goes to the weight and not admissibility of Dr. Ducatman’s increased risk opinion. See, e.g., Aventis Environmental Science USA LP v. Scotts Co., 383 F.Supp.2d 488, 514 (S.D.N.Y. 2005); Fed. R. Evid. 702, Advisory Committee Notes, 2000 amend (court is not authorized to exclude an expert’s testimony on the grounds that the court believes one version of the facts and not another); Drake, 2014 WL 5392995 at *3. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 78 of 99 79 d. Dr. Ducatman Did Not Conflate Association With Causation. Saint-Gobain further argues that Dr. Ducatman conflated “association” with “causation,” based on its contention that he has provided no framework to demonstrate how his reliance on studies showing statistical associations between above-background PFOA exposures and certain disease endpoints translated to his causal opinion of increased risk of PFOA-related disease amongst members of the putative Exposure Class [Doc. 218-1, p. 68]. However, Saint-Gobain’s is wrong, as Dr. Ducatman has explained how he integrated his findings to form his opinion as to increased risk, and application of the so-called Bradford Hill “criteria” is not, as contended by Saint-Gobain’s experts, a requirement for an increased risk causal opinion. Dr. Ducatman has opined to a reasonable degree of medical certainty that “human exposure to PFOA leads to increased health risk.” [Doc. 219-11, p. 4]. Furthermore, as discussed throughout this response, Dr. Ducatman has explained in detail the “framework” for how his weight of the evidence analysis supports and informed his increased risk causal opinion. For example, Dr. Ducatman testified that, after conducting his comprehensive literature search and identifying the most persuasive studies, he, “based on an integration of the most consistent epidemiologic, toxicologic, and physiologic findings,” selected the disease outcomes that were supported by the weight of the evidence. [Doc. 219-12, p. 9]; see also id. (The weight of the evidence approach places consistent epidemiologic findings in the context of what is known about toxicology and physiology) (emphasis added). He further elaborated: The animal and in vitro findings referenced in my previous reports … are a normal part of scientific corroboration under Hill’s “criteria” and also consistent with Ioannidis’ modern commentary about how we consider Hill’s criteria five decades later. The experimental animal data and cell physiologic data add to the human data and are further responsive to topics such as “biologic plausibility,” “coherence,” and “experiment,” the areas where we normally seek outside confirmation (or absence thereof) of the existence of explanatory and unifying mechanistic information in other species and cell systems …. However, my review Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 79 of 99 80 and subsequent agency deliberations point to underlying mechanistic findings that explain outcomes, which is a conventional scientific [] when considering outcomes. A full reading of Hill’s criteria and of Ioannidis’ subsequent and modern review reveal that there is agreed upon acknowledgement that health outcomes of toxic exposures are rarely ‘specific’ to a single disease or organ, and Ioannidis further points out that the most rigorous test of epidemiologic findings is comparison to the experimental literature. This was considered both in my weight-of-evidence review ….44 [Id. at 15 (emphasis added)]. Thus, Dr. Ducatman, through integration of the most consistent epidemiological, toxicologic, and physiologic findings, as well as mechanistic findings, as well as his informed judgment, took the associations identified from the epidemiological literature, determined the association was in fact causal and formed his increased risk opinion. Regarding Saint-Gobain’s experts’ insistence that the so-called Bradford Hill “criteria” must be applied before making an inference as to causality, while Sir Arthur Bradford Hill identified nine “viewpoints,” it is generally agreed that this list is not exhaustive and that no one type of evidence must be present before causality may be inferred. Milward, 639 F.3d at 17; see also Cook v. Rockwell Intern. Corp., 580 F.Supp.2d 1071, 1097 (D. Colo. 2006) (no authority, scientific or legal, that compliance with all, or even one, of [the Bradford Hill] factors is required for causation methodology and conclusions to deemed sufficiently reliable to be admissible under Rule 702). As the Reference Guide on Epidemiology explains regarding the Hill viewpoints: There is no formula or algorithm that can be used to assess whether a causal inference is appropriate based on these guidelines. One or more factors may be absent even when a true causal relationship exists. Similarly, the existence of some factors does not ensure that a causal relationship exists. Drawing causal inferences after finding an association and considering these factors requires judgment …. Although the drawing of causal inferences is informed by scientific expertise, it is not a determination that is made by using an objective or algorithmic methodology. 44 This testimony is, of course, also pertinent to Saint-Gobain’s critique of Dr. Ducatman’s increased risk opinion due to the fact he relied, in part, on animal studies. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 80 of 99 81 Id. at 600 (emphasis added); see also [Doc. 219-22, p. 25 (Dr. Grandjean stating that Sir Austin did not intend his concerns to be employed as a “checklist” of causal criteria)]. Furthermore, in regard to Saint-Gobain’s argument that Dr. Ducatman cannot identify any published study that supports his increased risk opinion, it is axiomatic in the Second Circuit that an expert need not “always back his or her opinion with published studies that unequivocally support his or her conclusions.” Amorgianos, 303 F.3d at 266-267; McCullock, 61 F.3d at 1043- 1044 (affirming admission of expert’s causation opinion despite lack of any literature that supported opinion); see also Drake, 2014 WL 5392995 at *7 (expert not required to back opinion with published study that unequivocally supports opinion, as in some instances, epidemiological evidence combined with other types of evidence are sufficient). “[E]pidemiology cannot objectively prove causation; rather, causation is a judgment by epidemiologists and others interpreting epidemiological data.” In re Fosamax, 645 F.Supp.2d at 187 (emphasis added) (internal citation omitted). Furthermore, an epidemiological study identifying a statistically significant association between [exposure to a toxic substance] and a particular adverse effect, accompanied by a reliable expert opinion that the association is causal, is “powerful” evidence of general causation. In re Abilify, 299 F. Supp.3d 1291, 1307 (N.D. Fla. 2018). Thus, any purported weakness as to Dr. Ducatman’s increased risk opinion goes to the weight, and not admissibility, of his opinion. e. Dr. Ducatman did not set an arbitrary threshold dose. Finally, Dr. Ducatman did not set an “arbitrary threshold dose” for inclusion in the Exposure Class; instead, consistent with generally accepted scientific and legal principles, he relied on the average blood serum level for PFOA in the U.S. population of 2.1 µg/l, as set forth in the National Health and Nutrition Examination Survey (“NHANES”). See, e.g., [Doc. 219-10, Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 81 of 99 82 pp. 3]. This is in no way arbitrary; in fact, it is a meaningful and pragmatic threshold, and thus there was simply no reason for Dr. Ducatman to calculate a threshold dose. Furthermore, the cases relied on by Saint-Gobain are inapposite to this matter. This average blood serum level is the generally accepted legal standard for the exposures necessitating medical monitoring. As explained by the court in Gates v. Rohm and Haas Co., 265 F.R.D. 208 (E.D. Pa. 2010), a case heavily relied on by Saint-Gobain: In evaluating class certification, the key question is whether each plaintiff in the proposed class was exposed to a level greater than the normal background level. In re Paoli Railroad Yard PCB Litig., 113 F.3d 444, 459 (3d Cir.1997). The rationale for this requirement is simple: Defendant will not be held responsible for causing an exposure that is comparable to ‘what ordinarily entered a person's body in everyday life, elsewhere in the ... area.’ Id. Id. at 221 (emphasis added); see also, e.g., Burdick, 2018 WL 3355239 at *10 (requiring PFOA in blood serum “above the national background level”). This is also a meaningful standard; as noted by Dr. Grandjean, given that adverse health effects have been “amply demonstrated” in populations with background exposures, it is eminently reasonable to conclude that above- background exposure levels result in increased risks of adverse health effects. [Doc. 219-22, p. 10]. Furthermore, this is a pragmatic threshold in that it is amenable to common proof. Dr. Ducatman testified during his deposition: Because I’m a clinician I am very comfortable with [utilizing the 2.1 µg/l]. We measure it in your blood and that’s your exposure. Because it’s very concrete. [Doc. 219-13, p. 100:3-6 (emphasis added)]. Similarly, Dr. Grandjean opined: … the main epidemiological evidence comes from observational studies … of subjects exposed at … background levels and above …. Luckily, as is the case in Bennington, blood concentrations of persistent compounds like PFOA can be relied upon as valid exposure biomarkers. [Doc. 219-22, p. 11 (emphasis added)]. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 82 of 99 83 Saint-Gobain relies primarily on McClain v. Metabolife Intern, Inc., 401 F.3d 1233 (11th Cir. 2005) to support this contention. However, in McClain, plaintiff’s expert agreed that a drug’s effect is dose-driven, but offered no testimony about the dose of Metabolife required to injure the plaintiffs or anyone else. Id. at 1241 (emphasis added). Furthermore, in Rosen v. Ciba-Geigy Corp., 78 F.3d 316 (7th Cir. 1996), the court found plaintiff’s expert testimony inadmissible because there was no evidence concerning the level of nicotine in plaintiff’s blood when he had the heart attack, and his expert in fact concluded that the nicotine patch had not caused Rosen's heart attack. Id. at 320 (emphasis added). Finally, Adams v. Cooper Indus., Inc., 2007 WL 1805586 (E.D. Ky. June 21, 2007), is easily distinguishable from this case, as in Adams plaintiff’s expert compared the blood level of an individual person to that of a mean for a control population, as opposed to comparing the mean of an exposed population to the mean for a control population to test for the differences across the groups. Id. at *5 (emphasis added). The Court expressly held that the latter, which is what Dr. Ducatman did in this case, is appropriate and reliable, whereas the former is not, and thus excluded the expert’s testimony. Id. 4. Dr. Grandjean’s Rebuttal Opinions are Reliable and Admissible. a. Dr. Grandjean’s Medical Monitoring Opinions are Reliable and Admissible. Saint-Gobain first argues that any opinions of Dr. Grandjean on the subject of medical monitoring should be stricken in accordance with the stipulation offered at Dr. Grandjean’s deposition [Doc. 218-1, p. 70]. As set forth in Plaintiffs’ Response in Opposition to Motion to Strike Dr. Grandjean’s Report [Doc. 226], this argument is based on a complete misrepresentation of the nature of the stipulation proposed by Plaintiffs’ counsel; in fact, defense counsel acknowledged the precise nature of the stipulation during Dr. Grandjean’s deposition: Q: So, during the break, counsel had a discussion to sort of flush out the parameters of the stipulation …. we understand it has been stipulated that Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 83 of 99 84 plaintiffs are not proffering you as an expert in medical monitoring, and as a result of that, we are going to forego questioning about individual blood tests, specificity, sensitivity, positive predictive value in the population, but you are nevertheless endorsing as a general principle Doctor Ducatman’s recommendation for a medical monitoring program … is that correct? A: It is reasonable and pragmatic and I think justified. [Doc. 219-24, 173:9-21 (emphasis added)]; see also [Doc. 219-24, 126:13-127:1] [Q: So rather than addressing a medical monitoring program, your report speaks to epidemiological issues, is that correct? A: And the need for medical monitoring …. (emphasis added)]. Thus, it was clear that Dr. Grandjean still intended to testify that class-wide medical monitoring of the Exposure Class was necessary and justified, and that, as a general principle, Dr. Ducatman’s proposed medical monitoring program for the Exposure Class was reasonable and pragmatic. Id. Cognizant of the foregoing, Saint-Gobain contends that Dr. Grandjean’s opinions as to the necessity of class-wide medical monitoring and the reasonable nature of Dr. Ducatman’s proposed medical monitoring program lack fit and are unreliable because he, like Dr. Ducatman, purportedly did not consider certain “individualized considerations” amongst members of the putative Exposure Class [Doc. 218-1, pp. 70-71]. However, as discussed in detail in Section I.A., supra, Dr. Grandjean, like Dr. Ducatman, consistent with generally accepted principles of medical monitoring, bases his opinion for the necessity of medical monitoring on exposure and agrees that monitoring should be conducted on a population basis irrespective of individualized considerations. [Doc. 219-22, p. 15 (“my assessment for need of medical monitoring is based on exposures,” and should be carried out “without regard to the residents’ … individual states of health”) (emphasis added)]. Saint-Gobain’s remaining arguments are beyond the scope of the stipulation proffered by Plaintiff’s counsel, as noted above, and, the Court should disregard these arguments. Dr. Grandjean was clear during his deposition testimony that, as a general principle, Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 84 of 99 85 he believes that Dr. Ducatman’s medical monitoring proposal is reasonable and pragmatic, but did not delve into this level of detail. However, Dr. Grandjean was also clear that Saint-Gobain’s experts’ insistence on additional criteria for medical monitoring, such as proof of efficacy and overall benefits, was simply unrealistic. [Doc. 219-22, p. 69]. In fact, these demands would require additional studies of exposed Bennington residents, and those at other locations, for many years in order to generate the proof demanded, thus essentially observing the occurrence of exposure-related disease without proper intervention. [Id., pp. 69-70]; see also [Doc. 219-12, pp. 4-5 (Dr. Ducatman opining that these experts’ “unrealistic demands” would necessitate years of additional study, and the irony of such a “research-first” approach is that it would defeat the primary early detection purpose of medical monitoring in the first instance)]. b. Dr. Grandjean’s Increased Risk Opinion is Reliable and Admissible. Saint-Gobain regurgitates the exact same arguments challenging Dr. Grandjean’s increased risk opinion as it did in regard to Dr. Ducatman’s similar opinion, i.e., that: he employed no real methodology [Doc. 218-1, pp. 72-80]; he “cherry-picked” from the literature [id., pp. 80-82]; he provides no framework, i.e., the Bradford Hill “criteria,” to justify his inference of causation [id., pp. 82-83]; and that he selects an “arbitrary threshold dose” [id., pp. 83-84]. Therefore, Plaintiffs incorporate by reference herein their responses to these same arguments as set forth in Sections III.A.1-3, supra, and will provide additional responses below where deemed necessary. First, Dr. Grandjean’s weight of the evidence analysis is not, as recognized by numerous courts, incompatible with a general causation or increased risk standard in tort. See, e.g., Milward, 639 F.3d at 23; McCullock, 61 F.3d at 1044; Drake, 2014 WL 5392995 at *9. As discussed in Section III.A.1, Saint-Gobain misunderstands the role of the technique of the weight of the Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 85 of 99 86 evidence methodology as employed by both Drs. Grandjean and Ducatman in this matter, and further conflates specific causation and general causation/increased risk. See, e.g., Glastetter, 252 F.3d at 991; Allen, 102 F.3d at 198. Indeed, during his deposition, Dr. Grandjean testified: Q: Do you know if there is difference between the legal standard for regulatory rulemaking and the imposition of liability in tort? A: I would believe there would be. [Doc. 219-24, p. 102:20-23]. There is simply no merit to Saint-Gobain’s “regulatory risk assessment” argument, as Dr. Grandjean was not offering his causal opinion for purposes other than to establish increased risk amongst members of the putative Exposure Class. This is a case involving serious exposures to a toxic chemical, and the increased risk of disease caused by these exposures, and not the carrying out of a regulatory risk assessment for purposes of public health. Second, the contention that Dr. Grandjean applied “no defined methodology” 45 is, as it was in the case of Dr. Ducatman, completely baseless, as Saint-Gobain has already criticized Dr. Grandjean for his use of the “weight of the evidence” methodology in its “risk assessment” argument discussed above. Dr. Grandjean states in his rebuttal report: In each of the following subsections, I discuss the epidemiological evidence that I rely on, summarize the supporting toxicologic evidence, and lastly discuss possible mechanisms, and additional studies or potential criticisms relating to the [disease] endpoint in question. I have made a comprehensive review of the epidemiological evidence, and have employed a weight of the evidence approach, as is commonly accepted in the scientific community in reviewing studies on a particular topic. Thus, I have cited the most relevant studies and I have not aimed at including references to studies of less validity or less strength. 45 As discussed supra, not only is the weight of the evidence a “defined” methodology, the Supreme Court and numerous other courts have held that it is a generally reliable methodology. casts serious doubt over the reliability of his critiques of Dr. Ducatman and Dr. Grandjean, which are the extent of his opinions in this matter. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 86 of 99 87 [Doc. 219-22, p. 27 (emphasis added)]. Dr. Grandjean then proceeds to conduct an approximate 35-page weight of the evidence analysis, and concludes, like Dr. Ducatman did previously, that members of the Exposure Class are at an increased risk of disease for the specific disease endpoints for which Dr. Ducatman has proposed medical monitoring. [Id., p. 27-62]. Additionally, as discussed in Section III.A.2, supra, the fact that this methodology involves judgment on the part of Dr. Grandjean does not render it unreliable. See, e.g., Milward, 639 F.3d at 19. Furthermore, while Saint-Gobain, once again, relies on “cherry-picked” deposition excerpts where defense counsel fails to ask appropriate questions [Doc. 218-1, p. 78], Dr. Grandjean discusses his “method of “weighting, weighing, and integrating,” to the extent this is necessary,46 including an entire section devoted to “Methodological Aspects.” [Doc. 219-22, pp. 11-15]. Third, Saint-Gobain asserts that Dr. Grandjean, as it erroneously argued Dr. Ducatman did, “cherry-picked” from the literature. As noted supra, Dr. Grandjean expressly stated that, in conjunction with his weight of the evidence approach, he “cited the most relevant studies,” and did not aim at referencing “studies of less validity or less strength.” [Doc. 219-22, p. 27]. Furthermore, while he discusses the PFAS generally in some instances in his report, his focus was plainly, as conceded by Saint-Gobain, [Doc. 218-1, p. 80], on PFOA. Furthermore, in his approximate 35-page weight of the evidence review, he cites to almost 300 published studies. [Doc. 219-22, Ex. D]. Thus, Saint-Gobain’s contention that Dr. Grandjean did not provide a “fair and complete picture” of the literature is disingenuous, as are its other arguments in this regard. Dr. Grandjean plainly conducted a thorough and appropriate weight of the evidence analysis; however, Saint-Gobain simply does not like his conclusion. 46 Saint-Gobain’s overwrought insistence on such demands is based solely on caselaw from outside the Second Circuit, such as the Third Circuit’s In re Zoloft decision. The Second Circuit has not required such strict demands, as discussed herein. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 87 of 99 88 Next, Saint-Gobain’s contention that Dr. Grandjean failed to apply the correct standard for inferring causation is, once again, based on a misrepresentation of Dr. Grandjean’s deposition testimony [Doc. 218-1, pp. 82-83]. Dr. Grandjean plainly stated that his understanding of the applicable legal standard is “not really relevant,” as he is just assessing the weight of the evidence and it is up to the court to determine what the legal standard is. [Doc. 219-24, p. 102:14-19]. Furthermore, defense counsel did not ask Dr. Grandjean any questions about the Bradford Hill viewpoints or his approach to inferring causation during his deposition, but now argues that Dr. Grandjean has none. Nevertheless, as discussed supra in regard to Dr. Ducatman, Dr. Grandjean does discuss the so-called Bradford Hill “criteria” in his report, [Doc. 219-22, pp. 24-26], and also noted his method for inferring causation. [Id.]; see also [Id., pp. 3, 27, pp. 27-62] Finally, for the same reasons discussed in regard to Dr. Ducatman, supra, Dr. Grandjean did not “select” an arbitrary threshold dose. In fact, because Dr. Ducatman had already decided, consistent with generally accepted scientific and legal principles, to utilize the “above- background” threshold, i.e., above the NHANES established national background level of 2.1 µg/l, prior to Dr. Grandjean’s involvement in this case, Dr. Grandjean did not “select” any threshold dose. Further, Saint-Gobain again misrepresents Dr. Grandjean’s deposition testimony, which plainly states that 2.1 µg/l is a reasonable threshold, and the only reason he could not answer the hypothetical about whether or not certain individuals should have been receiving medical monitoring in 1999-2000 was because (1) he had never considered the hypothetical and (2) because he believes that “above-background” might actually be too low of a threshold. [Doc. 219-24, p. 165:3-18. Therefore, this threshold is not arbitrary; instead, it is meaningful, reasonable, and pragmatic. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 88 of 99 89 Like its arguments as to the reliability of Dr. Ducatman’s increased risk opinion, all of the foregoing contentions go to the weight, and not the admissibility, of Dr. Grandjean’s testimony. See, e.g., Campbell, 239 F.3d at 186 (asserted gaps or inconsistencies in reasoning leading to expert’s conclusion goes to weight, not admissibility); McElroy v. Albany Memorial Hospital, 332 F.Supp.2d 502, 505 (N.D. N.Y. 2004) (court should not exclude expert’s testimony unless flaw in expert’s reasoning is large enough that he lacks “good grounds” for his conclusion); Perkins, 299 F.Supp.2d at 54 (court should not weigh the correctness of an expert’s opinion or choose between conflicting expert opinions); In re Fosamax, 645 F.Supp.2d at 173 (if an expert’s testimony lies within “the range where experts might reasonably differ,” the jury, and not the court, “should decide among the conflicting views of different experts”) (quoting Kumho Tire, 526 U.S. at 153); Lyman v. Pfizer, 2012 WL 2971550 at *7 (D. Vt. July 20, 2012) ( the mere fact that an expert’s testimony conflicts with the testimony of another expert … does not control admissibility) (internal citation and quotation omitted). B. PLAINTIFFS’ EXPERTS’ OPINIONS ON DEFENDANT’S VIOLATIONS OF VERMONT AIR POLLUTION RULES AND ON THE STATE OF THE ART AND STATE OF KNOWLEDGE IN THE INDUSTRY ARE ADMISSIBLE. 1. Dr. Hopke’s Opinions About Defendant’s Violations of Vermont Air Pollution Rules and Dr. Hopke’s and Dr. Siegel’s State of the Art Opinions Are Admissible. a. Dr. Hopke’s Opinions About Defendant’s Violations of Vermont Air Pollution Rules are Admissible. Because Mr. Mears adopted Dr. Hopke’s opinions about violations of Vermont’s air pollution rules by Defendant, the arguments concerning the admissibility of this part of Dr. Hopke’s merits report are presented below in the section concerning Mr. Mears’ opinions. However, it is important to note here that Dr. Hopke tied these violations to increased emissions of PFOA in his report. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 89 of 99 90 b. Dr. Hopke’s Opinions About the State of the Art and State of the Knowledge in the Industry are Admissible. Defendant also challenges Dr. Hopke’s merits opinions that Defendant failed to use available technologies that would have reduced their emissions of PFOA and that Defendant knew or should have known it was emitting PFOA into the air from its facilities in Bennington. These are in the nature of state of the art and state of the knowledge opinions that are commonly admitted through expert testimony. These opinions do not require any particular scientific methodology, just an expert who has the appropriate experience and relies on the appropriate facts. It is well established that experience-based testimony satisfies Rule 702 admissibility requirements. See Kumho Tire Co., Ltd., 526 U.S. at 141, 150-51; In re E. I. du Pont de Nemours and Company C-8 Personal Injury Litigation, 345 F.Supp.3d 897, 902-907 (S.D.Ohio, 2015) (A state of the art or state of the knowledge expert who intends to provide experience-based testimony or an experience- based opinion may well assist the trier of fact in understanding the evidence and/or in determining a fact in issue); Cook v. Rockwell Intern. Corp., 580 F.Supp.2d 1071, 1107 (D.Colo.,2006) (“critiques of an expert’s evidence gathering techniques ... generally go to the weight of the evidence, not its admissibility,” citing Little Hocking, 90 F.Supp.3d at 764 (S.D. Ohio 2015)). Defendant does not challenge Dr. Hopke’s long experience in air pollution control and air pollution chemistry that certainly qualify him to provide these opinions which are germane to the issue of Defendant’s negligence. It is of no matter that discovery documents concerning Defendant’s knowledge were provided to him by Plaintiffs’ counsel. What other way could the expert receive Defendant’s documents obtained in discovery? c. Dr. Siegel’s State of Knowledge Opinions are Admissible. Similarly, Dr. Siegel’s opinion that Defendant knew or should have known that its air emissions of PFOA would result in groundwater contamination is admissible under Rule 702. Dr. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 90 of 99 91 Siegel has the appropriate experience to provide this opinion, and his review of available documents and scientific literature is the manner in which an expert formulates an opinion about the state of knowledge in a given field. While Dr. Siegel may have agreed that it is “speculation based on common sense” whether Defendant was actually aware that its PFOA emissions could cause groundwater contamination prior to 2003, he testified about the knowledge in the field that would have been available to Defendant had it chosen to exercise due diligence. After 2003 it was clear in the field, based on enforcement actions by the State of West Virginia and EPA, that PFOA air emissions did, in fact, cause groundwater contamination. 2. The Testimony of David Mears is Proper Rebuttal. Given Defendant’s extensive regulatory history in Vermont— including neighbor complaints to VDEC regarding Defendant’s noxious and sickening odors starting as early as 1975 and continuing through 2000 [Doc. 107-1, at 5-9]; VDEC’s first Assurance of Discontinuance (AOD) against Defendant in 1975 for its admitted regulatory violations [id., at 6]; Defendant’s Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 91 of 99 92 failure to comply with the terms of that AOD, resulting in a second AOD in 1977 [id.]; Defendant’s failed promises to install and maintain appropriate pollution control devices [id.], resulting in a 1986 petition filed with the local zoning board by Defendant’s neighbors [id., 7]; Defendant’s 1996 request to VDEC to discontinue using mandated pollution control devices [id., at 8]; VDEC’s third AOD issued to Defendant in 1999, along with a $2,500 fine, for regulatory violations ; and Defendant’s decision to close its plant and leave Vermont in 2001, at least in part because it deemed VDEC’s regulatory oversight too onerous [Doc. 107-1, at 8-9]—Plaintiffs determined it was important to put Mr. Flechas’ opinions in perspective. Therefore, they proffered Mr. David Mears as a rebuttal expert. Mr. Mears served as Commissioner of VDEC from 2011 to 2015, is an environmental attorney with close to 30 years’ experience, and served both as the former Associate Dean and as a professor at Vermont Law School [Doc. 219-50, and attached C.V.], before taking his current position as Director of the Vermont Audubon Society. [Doc. 219-51, Deposition of David Mears, 9/25/18, at 8]. Defendant’s arguments with regard to Mr. Mears are less a Daubert challenge, than a motion in limine pursuant to Fed. R. Evid. 402, 403, 404(b), and 702. [Doc. 218-1, at 89]. First, Defendant urges that his “opinion on purported regulatory violations is inadmissible for lack of fit because none of those alleged violations have a meaningful connection to Plaintiffs’ theories of liability, causation, or damages,” and should be excluded “as irrelevant, unduly prejudicial, improper “character” evidence, and unhelpful to the jury.” [Id.]. However, in contrast to cases cited by Defendant [id., at 89], each of the regulatory violations in Mr. Mears’ rebuttal report and in Dr. Hopke’s Merits Report are precisely related to Plaintiffs’ theories of liability, causation and Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 92 of 99 93 damages.47 Furthermore, Dr. Hopke’s opinions regarding these violations offered in his Merits Report tie the long history of violations to increased air emissions in general and increased emissions of PFOA specifically [Hopke Merits Report at 3-4]. Indeed, Plaintiffs intend to prove that Defendant’s entire history of operations in Vermont reflected its failure to use due care in emitting industrial discharges into the air, its disregard of the impacts its air discharges were having on its neighbors, and its continued willingness to discharge air emissions outside the strictures of Vermont’s regulatory system. Thus, Defendant has no basis to argue that “Mr. Mears’ opinions should be excluded because they concern purported regulatory violations that have no bearing on this case.” [Id., at 91]. 3. The Testimony of David Mears is Not Legal Opinion. Nor does Defendant’s second argument—that Mr. Mears’ testimony is no more than inadmissible legal opinion—fare any better. [Doc. 218-1, at 92]. This is not a regulatory enforcement proceeding to determine whether Defendant violated its permits, Vermont’s air pollution laws or regulations. Rather, Plaintiffs allege that Defendant’s conduct over the decades was tortious under Vermont law. See, e.g,, In re Actos (Pioglitazone) Prod. Liab. Litig., 2014 WL 120973, *11-*12 (W. D. La., Jan. 10, 2014) (as case “is not an administrative proceeding asserting the violation of regulations,” but one in tort under New York law, former FDA Commissioner David Kessler permitted to testify to defendant drug company’s “interaction with the FDA”). As in In re Actos, and unlike the cases cited by Defendant, Mr. Mears’ proffered testimony does not seek to “usurp” the Court’s role. Id., at *11. 47 As such, the cases cited by Defendant in support are inapposite. In Langenbau v. Med-trans Corp., 167 F. Supp. 983 (N.D. Iowa 2016), where the plaintiffs alleged an air ambulance operator negligently chose to fly in icy weather, expert testimony regarding the company’s maintenance history and FAA maintenance violations was not relevant to pilot choice issues in dispute. Similarly, in Covic v. Berk, 214 WL 3510502 (W.D. Tenn. July 14, 2014), a case involving one tractor trailer colliding into rear of a second tractor trailer, expert testimony of safety violations unrelated to potential causes of this rear-end collision excluded. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 93 of 99 94 The common thread in Defendant’s cited cases is that expert opinion will be excluded when it seeks to instruct the jury about specific legal conclusions to reach in the pending case. This is juxtaposed with Fed. R. Evid. 704, which provides that an “opinion is not objectionable just because it embraces an ultimate issue.” Thus, in Hygh v. Jacobs, 961 F.2d 359, 361, 364 (2d Cir. 1992), a §1983 excessive force claim against New York City police, expert testimony which defined a key term in the litigation, and “merely [told] jury what result to reach,” was properly excluded. Similarly, in Hiramoto v. Goddard College Corp., 184 F. Supp. 3d 84, 86, 97 (D. Vt. 2016), a case alleging wrongful termination based on Japanese national origin, the expert was not permitted to testify that plaintiff’s dismissal was “based on racial and/or national origin discriminating attitudes among certain faculty.” See also Cowden v. BNSF Railway Co., 2013 WL 5442926 (E.D Mo. Sept. 30, 2013) (in personal injury suit against railway for negligence, proposed expert railway consultant not permitted to testify to regulatory violation governing ultimate issue in case); In re Rezulin, 309 F. Supp. 2d 531 (S.D. N.Y. 2004) (in products liability case, expert who opined that defendant’s conduct “constituted ‘negligence’ or ‘something more serous’” properly excluded); Contini by Contini v. Hyundai Motor Co., 876 F. Supp. 540, 545 (S.D.N.Y. 1995) (in personal injury case stemming from allegedly faulty seatbelt, expert permitted to testify regarding whether regulatory standard satisfied, but not “whether the seat belt complied with or violated the [regulatory] standard”). Mr. Mears is not proposing to testify that Saint-Gobain was “negligent.” By contrast, the Vermont Supreme Court has long held that violation of a safety statute is admissible evidence of negligence. See, e.g., Ziniti v. New England Central Railroad, Inc., 2019 VT 9, ¶ 33 (2019) (violation of safety statute creates rebuttable presumption of breach of applicable standard of care); Bacon v. Lascelles, 165 Vt. 214, 222 (1996) (“A prima facie case raises a Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 94 of 99 95 rebuttable presumption of negligence and shifts the burden of production to the party against whom the presumption operates.”); Ball v. Melsur Corp., 161 Vt. 35, A.2d 705 (1993) (violation of OSHA regulation is evidence of negligence); Duncan v. Wescott, 142 Vt. 471, 474 (1983) (breach of safety statue or ordinance establishes rebuttable presumption of negligence); Landry v. Hubert, 101 Vt. 111, 141 A. 593 (1928) (same). Finally, Defendant’s arguments to limit Mr. Mears’ testimony are more properly left to trial, as they “depend[ ] on the nature of the actual testimony.” Drake v. Allergan, 2014 WL 5392995, *5-*6 (D. Vt. Oct. 23, 2014) (in medical negligence case, deferring to trial limitation on scope of former FDA Commissioner Dr. David Kessler’s testimony, but allowing testimony “about the FDA’s regulatory scheme in general, FDA practices and procedures, [defendant’s] compliance with FDA regulations, . . . the standard of care for the pharmaceutical industry,” and other matters not commonly known to jury). See also In re Actos (Pioglitazone) Prod. Liab. Litig., 2014 WL 120973, at *11-*12 (same). 4. Mr. Unsworth’s Rebuttal to Saint-Gobain’s Property Valuation Experts Is Proper. Saint-Gobain’s final argument seeks to exclude Mr. Unsworth’s rebuttal opinions with regard to Saint-Gobain’s experts, Dr. Jackson and Mr. Phillips, on the grounds that they “endors[e] the admissibility” of the Plaintiffs’ testimony regarding their property valuations. [Doc. 218-1, at 94-97]. These arguments have been addressed earlier, see Sec. I.C.1., supra, and can be quickly dealt with here.48 Contrary to Saint-Gobain’s assertions, Mr. Unsworth is not offered to “vouch for others’ diminished value opinions.” [Id., at 94]. Nor is he offered to render opinions about the value of Plaintiffs’ properties as a result of the contamination, although he is also a recognized expert in 48 The issue of the propriety and admissibility of Plaintiffs’ testimony regarding property valuation is the subject of a separate motion practice [See Doc. 216-1 (Saint-Gobain’s motion to exclude Plaintiffs’ lay witness testimony); Doc. 227 (Plaintiffs’ memorandum in opposition to Doc. 216-1); and Doc 232 (Saint- Gobain’s reply thereto)]. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 95 of 99 96 that field. [Doc. 219-85, at 449, and 550]. As set forth in Sec. I.C.1., supra, Mr. Unsworth disagrees that the “appraisal technique” is the only valid method of discussing the impact of environmental harms on property values, or that appraisers are the only individuals capable of rendering such opinions: As noted above, there is a rich literature of published economic studies that address the role of environmental disamenities, particularly stigma, in determining public perception of a property or neighborhood due to some negative factor—in this case groundwater contamination. Such stigma can persist even after health risks are addressed. The most commonly applied method in this literature to reveal the effect of a disamenity on property value is referred to as “hedonic analysis.” Hedonic analysis uses well-established econometric techniques, based on large sample statistics, to determine the contributing factors to real property values. This literature provides support for the plaintiffs’ opinions in this matter that their property values have diminished due to PFOA contamination, and provides evidence for a persistent impact on property values given the lack of an active remedy to resolve groundwater contamination at this site. [Doc. 219-85, at 15]. Further: [aside from the Vermont 49 “I have assessed the impact of environmental contamination on residential home values at various sites across the U.S.” 50 “I have written guidelines for Federal agencies on the use of hedonic, or property valuation, techniques to assess damages due to the release of hazardous substances, and was a co-author of one of the first studies that used a repeat-sales approach to assess the impact of environmental contamination on property values.” (citing Mendelsohn, R., et al., 1992, Measuring Hazardous Waste Damages with Panel Models,” Journal of Environmental Economics and Management 22:259-271). Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 96 of 99 97 statute, 10 V.S.A. § 1604, the U.S. Census Bureau, and the published literature on hedonic property valuation methods] is found in the U.S. Environmental Protection Agency’s guidance for the conduct of economic analysis.51 This guidance was developed to establish best practices for understanding the economic implications of environmental change, and notes the availability of hedonic techniques and other methods (e.g., stated preference) for monetizing environmental factors. [Id., at 6] In his rebuttal deposition, Mr. Unsworth stated: “[M]y opinion . . . is that I don’t think it’s unreasonable for owners of real estate to express their own opinion as to diminution. I don’t think that’s an unreasonable thing. As I understand, it’s allowed for within the [Vermont] law. It’s used by the Census Bureau, and it’s -- you know, people do it when we buy homes. We all participate in markets.” [Doc. 219-91, at 199-200]. Importantly, he is not vouching for the Plaintiffs’ opinions: A. I’m not saying whether these particular plaintiffs’ opinions are reliable. What I’m saying is that individuals are capable of expressing what they believe to be the value of their home, based on whatever evidence they have before them. The reliability is determined by the trier of fact. Q. So you’re just saying that they are capable of expressing an opinion on the value of their home; is that correct? A More correctly, I’m saying that appraisal methods are not the only means to get to the value of a home. There are other ways to do it. [Id., at 243-44]. Thus, Plaintiffs maintain that Mr. Unsworth’s rebuttal opinions to Dr. Jackson and Mr. Phillips are proper and admissible. CONCLUSION For all of the foregoing reasons, Saint-Gobain’s Motion to Exclude Plaintiffs’ Expert Opinions should be denied in its entirety. 51 U.S. EPA, Guidelines for Preparing Economic Analyses, 2014, attached hereto as Exhibit 2. Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 97 of 99 98 This the 25th day of February, 2019. /s/ James S. Whitlock Gary A. Davis. Esq. (Pro Hac Vice) James S. Whitlock, Esq. (Pro Hac Vice) DAVIS & WHITLOCK, P.C. 21 Battery Park Ave., Suite 206 Asheville, NC 28801 T: (828) 622-0044 F: (828) 398-0435 jwhitlock@enviroattorney.com gadavis@enviroattorney.com Emily J. Joselson, Esq. James W. Swift, Esq. LANGROCK SPERRY & WOOL, L.L.P. P.O. Drawer 351 Middlebury, VT 05753 T: (802) 388-6356 F: (802) 388-6149 ejoselson@langrock.com jswift@langrock.com David F. Silver, Esq. BARR STERNBERG MOSS SILVER & MUNSON, P.C. 507 Main Street Bennington, VT 05201 T: (802) 442-6341 F: (802) 442-1151 dsilver@barrsternberg.com CERTIFICATE OF SERVICE The undersigned hereby certifies that on February 25, 2019, a copy of the foregoing was filed electronically in the United States District Court for the District of Vermont. Notice of filing will be sent by operation of the Court’s electronic filing system to all parties indicated on the electronic filing receipt. /s/ James S. Whitlock Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 98 of 99 99 Attorney for Plaintiffs Case 5:16-cv-00125-gwc Document 246 Filed 02/25/19 Page 99 of 99