Hobart Corporation v. The Dayton Power and Light Company

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

HOBART CORPORATION, et a/., .

Plaintiffs,

V. Case No. 3:13-cv-115

THE DAYTON POWER & LIGHT JUDGE WALTER H. RICE

COMPANY, et a/.,

Defendants.

DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING IN

PART WASTE MANAGEMENT OF OHIO, INC.'S MOTION IN LIMINE

TO EXCLUDE DECLARATION OF STEPHEN M. QUIGLEY (DOC.

#986); OVERRULING CONAGRA GROCERY PRODUCTS COMPANY,

LLC’S RULE 56(c)(2) OBJECTION TO EXHIBIT 1 OF PLAINTIFFS’

SURREPLY (DOC. #981); OVERRULING CONAGRA GROCERY

PRODUCTS COMPANY, LLC’S MOTION IN LIMINE TO EXCLUDE

CERTAIN EXPERT TESTIMONY OF DR. JURGEN EXNER (DOC.

#998); SUSTAINING IN PART AND OVERRULING IN PART

PLAINTIFFS’ MOTION IN LIMINE TO EXCLUDE CERTAIN

TESTIMONY AND OPINIONS OF DR. B. TOD DELANEY (DOC.

#999)

This matter is currently before the Court on three motions in limine: (1)

Waste Management of Ohio, Inc.’s Motion in Limine to Exclude Declaration of

Stephen M. Quigley, Doc. #986; (2) ConAgra Grocery Products Company, LLC’s

Motion in Limine to Exclude Certain Expert Testimony of Dr. Jurgen Exner, Doc.

#998; and (3) Plaintiffs’ Motion in Limine to Exclude Certain Testimony and

Opinions of Dr. B. Tod Delaney, Doc. #999. ConAgra has also filed a Rule 56(c)(2)

Objection to Dr. Exner’s Declaration, Doc. #981, raising arguments similar to those

raised in its Motion in Limine.

Factual Background

Plaintiffs, Hobart Corporation, Kelsey-Hayes Company and NCR Corporation,

filed suit against numerous defendants under the Comprehensive Environmental

Response, Compensation and Liability Act of 1980 (“CERCLA”), as amended, 42

U.S.C. § 9601, et seq., seeking contribution for response costs incurred in

connection with the South Dayton Dump and Landfill Site (“the Site”).

Two of those Defendants, Waste Management of Ohio, Inc. (“WMO”), and

ConAgra Grocery Products Company, LLC (“ConAgra”), have filed motions in

limine asking the Court to exclude, from consideration on the pending summary

judgment motions and at trial, certain expert witness testimony of Stephen M.

Quigley and Dr. Jurgen Exner. Plaintiffs have also filed a motion in limine, asking

the Court to exclude, both from consideration on summary judgment and at trial,

certain testimony and opinions of Con Agra’s expert witness, Dr. B. Tod Delaney.

ll. Motions in Limine

Although neither the Federal Rules of Evidence nor the Federal Rules of Civil

Procedure explicitly authorizes the Court to rule on an evidentiary motion in limine,

the Supreme Court has noted that the practice of ruling on such motions “has

developed pursuant to the district court's inherent authority to manage the course

of trials.” Luce v. United States, 469 U.S. 38, 41 n.4 (1984). The purpose of a

motion in limine is to allow the Court to rule on issues pertaining to evidence in

advance of trial in order to both avoid delay and ensure an evenhanded and

expeditious trial. See /ndiana Ins. Co. v. Gen. Elec. Co., 326 F. Supp.2d 844, 846

(N.D. Ohio 2004) (citing Jonasson v. Lutheran Child & Family Servs., 115 F.3d

436, 440 (7th Cir. 1997)). Also, pretrial orders often save the parties time and

costs in preparing for trial and presenting their cases.

Courts are generally reluctant to grant broad exclusions of evidence in

limine, however, because “a court is almost always better situated during the

actual trial to assess the value and utility of evidence.” Koch v. Koch Indus., Inc.,

2 F. Supp.2d 1385, 1388 (D. Kan. 1998); accord Sperberg v. Goodyear Tire &

Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975). A court should not make a ruling

in limine unless the moving party meets its burden of showing that the evidence in

question is clearly inadmissible. /ndiana Ins. Co., 326 F. Supp.2d at 846; Koch, 2

F. Supp.2d at 1388. If this high standard is not met, evidentiary rulings should be

deferred so that the issues may be resolved in the context of the trial. /nd/ana /ns.

Co., 326 F. Supp.2d at 846.

Ill. Waste Management of Ohio, Inc.’s Motion in Limine to Exclude Declaration

of Stephen M. Quigley (Doc. #986)

Stephen M. Quigley, of the environmental consulting firm GHD, oversees the

vapor intrusion (“VI") mitigation work plan at the South Dayton Dump and Landfill

Site. Plaintiffs designated Quigley as a lay witness who would testify about “Work

performed in VI and [Remedial Investigation/Feasibility Study]; consistency with

[National Contingency Plan]; releases at Site; [and] connection between releases

and incurrence of response costs.” Doc. #1038-1, PagelD#40208.

Plaintiffs also designated Quigley as an expert witness with respect to costs

incurred at the Site. In July of 2017, Quigley submitted a Memorandum

concerning past and future anticipated costs of vapor intrusion work activities.

Doc. #986-3, PagelD##37586-92. He submitted a supplemental report in July of

2018. Doc. #986-4, PagelD##37594-600.

When Quigley was deposed on September 6, 2018, he was questioned by

several Defendants about the methane gas found at the Site. He noted that they

had not been able to isolate the source of the methane. When asked whether,

based on his experience, he had an opinion on the source of the methane, he

responded “[t]he methane is coming from either the decomposition of some

organic material, be it wood or something else that’s been disposed of at the site,

or it’s coming from the degradation of other organics, organic solvents, it’s not

clear.” Doc. #1038-3, PagelD##40270-71.

Plaintiffs attached a December 20, 2018, Declaration of Stephen M.

Quigley, Doc. #986-1, PagelD##37539-43, to their Responses in Opposition to

WMO's Motion for Summary Judgment on behalf of Industrial Waste Disposal Co.,

Inc., Doc. #912-42, and WMO’s Motion for Summary Judgment on behalf of

Blaylock Trucking Company, Inc., Docs. #935-13.

In paragraphs 9 through 11 of his Declaration, Quigley notes that, as set

forth in the 2013 Administrative Settlement Agreement and Order on Consent

(“ASAOC”"), the United States Environmental Protection Agency (“EPA”) found that

vapor intrusion mitigation was necessary based on chlorinated volatile organic

compounds (“CVOCs"), primarily TCE, found in thirteen buildings at the Site, and

on “methane in sub-slab samples at concentrations greater than the Lower

Explosive Limit (LEL) in 2 buildings and in samples collected from an off-Site well.”

Quigley further states that methane was “one of the original drivers of EPA’s vapor

intrusion removal action at the Site.” Doc. #986-1, PagelD#37541.

In paragraph 12 of his Declaration, Quigley states:

As | stated in my deposition in this case on September 6, 2018, in

response to questioning by counsel for one of the defendants, the

sources of methane at the Site come from the decomposition of

organic material, such as wood or other materials disposed at the

Site, such as organic solvents. In addition to wood and solvents,

methane gas at landfills can be produced by organic wastes

including food, garden waste, street sweepings, textiles, cardboard,

newspaper and other paper products. See ATSDR, Landfill Gas

Primer: Landfill Gas Basics (2001), available at

www.atsdr.cdc.gov/hac/landfill/pdfs/landfill 2001 ch2mod.pdf

(accessed July 16, 2018); US Department of Interior, Bureau of

Mines, Johnson, G.E. et al, The Production of Methane by the

Anaerobic Decomposition of Garbage and Waste Materials (1972),

available at web.anl.gov (accessed December 18, 2018) ("...any

organic material is susceptible to some degree of degradation by

anaerobic digestion. a.

Id. at PagelD#37542. The documents cited in this paragraph were attached to

Quigley’s Declaration.

WMO has moved to exclude Quigley’s Declaration and the supporting

documents from trial, and from consideration on pending summary judgment

motions. WMO also asks that Quigley be prohibited from testifying at trial

concerning this Declaration. WMO argues that the Declaration should be excluded

under Fed. R. Civ. P. 37(c)(1) because: it is completely unrelated to Quigley’s

previous expert opinions, which were limited to the topic of the costs of vapor

intrusion mitigation activities; it was filed after the close of discovery; and it fails

to comply with the expert witness disclosure requirements of Fed. R. Civ. P.

26(a)(2).

Supplementation of a Rule 26 disclosure is warranted “if the party learns

that in some material respect the disclosure . . . is incomplete or incorrect.” Fed.

R. Civ. P. 26(e). However, Quigley’s previous reports on the costs of vapor

intrusion mitigation at the Site are not alleged to be incomplete or incorrect. WMO

maintains that the Declaration is an improper supplement to Quigley’s previous

expert reports, because it adds new opinions about the risks and sources of

methane at the Site, topics on which Plaintiffs have never designated Quigley as

an expert.

Although Quigley was questioned at his deposition about sources of

methane at the Site, WMO argues that this does not authorize him to offer new

"Fed. R. Civ. P. 37(c)(1) provides that “[i]f a party fails to provide information

... as required by Rule 26(a) or (e), the party is not allowed to use that

information . . . to supply evidence on a motion, at a hearing, or at a trial, unless

the failure was substantially justified or is harmless.”

expert opinions on this subject after the close of discovery. Deposition testimony

may form the basis for a supplemental report only if it is directly related to the

opinions in the expert witness report. See Lexington Ins. Co. v. Horace Mann Ins.

Co., No. 11C2352, 2015 WL 5174159, at **9-10 (N.D. Ill. Aug. 27, 2015)

(rejecting attempt to “supplement” expert witness report with new opinions

introduced at deposition). WMO argues that consideration of Quigley’s new

opinions would be unfair because WMO has not had the opportunity to cross-

examine him about his new Declaration or the supporting documents.

In response, Plaintiffs first note that WMO has actually objected to only a

portion of Quigley’s declaration, more specifically paragraphs 9-12.? Plaintiffs

argue that Quigley’s Declaration is “not a supplement to his expert report, but

rather a factual Declaration based on personal knowledge.” Doc. #1038,

PagelD#40184. The Court agrees with respect to paragraphs 9 through 11,

wherein Quigley simply recounts the EPA’s factual findings concerning methane

and vapor intrusion at the Site, as set forth in the ASAOC.

Paragraph 12, however, is different. Quigley therein opines about the

possible sources of methane gas at the Site, stating that the gas comes from the

decomposition of organic material. Plaintiffs maintain that these statements are

based on his experience doing technical work at landfill cleanups, and are

* Others portions of Quigley’s Declaration discuss his role as the project

coordinator, groundwater flow at the Site, and Defendant Valley Asphalt’s

Reclaimed Asphalt Pavement Pile.

consistent with his role as a fact witness testifying about releases at the Site and

the connection between those releases and the incurrence of response costs.

Nevertheless, as WMO notes, at his deposition, Quigley was asked if he had

“any opinions as to what you think might be generating the methane at this site.”

Doc. #1083-3, PagelD#40271 (emphasis added). Paragraph 12 of the Declaration

specifically refers back to his answer to this question. Moreover, Quigley’s

statements about sources of methane gas at the Site are beyond the understanding

of the average person. Rather, they are based on “scientific, technical, or other

specialized knowledge,” taking them outside the scope of lay witness testimony.

See Fed. R. Evid. 701. The Court therefore finds that paragraph 12 of Quigley’s

Declaration is more properly characterized as an expert opinion. See United States

v. Beierle, 810 F.3d 1193, 1203 (10th Cir. 2016) (“Knowledge derived from

previous professional experience falls squarely within the scope of Rule 702 and

thus by definition outside of Rule 701.”) (internal quotations omitted)

Plaintiffs maintain that, even if paragraph 12 is considered an expert opinion,

it is permissible because it builds on his deposition testimony on the same subject.

In support of this argument, Plaintiffs cite to Great Northern Insurance Co. v. BMW

of North America LLC, No. 2:11-cv-1153, 2015 U.S. Dist. LEXIS 83240 (S.D.

Ohio June 26, 2015). Therein, the court held that an expert witness could testify

at trial about deposition statements made in response to certain photographs that

were shown to him. /d. at *25. That deposition testimony, however, was directly

related to the opinions already contained in his expert witness report.

Here, in contrast, Mr. Quigley was presented as an expert witness on costs,

not on the causes of methane. His deposition testimony about sources of methane

at the Site falls outside the scope of his expert witness opinions on the cost of

vapor intrusion mitigation. The Court agrees with WMO that allowing Quigley to

offer a new expert witness opinion concerning the causes of methane at the Site

after the close of expert discovery would be unfair to WMO, which has not had the

opportunity to challenge these new opinions.°

Accordingly, under Fed. R. Civ. P. 37(c)(1), paragraph 12 of Quigley’s

Declaration, and the documents cited therein, must be excluded from trial and will

not be considered in ruling on the motions for summary judgment. Neither will

Quigley be permitted to testify about the sources of methane at the Site. As WMO

notes, Plaintiffs will not be prejudiced by the exclusion of this portion of Quigley’s

Declaration, given that they have retained Dr. Jurgen Exner to testify about

methane and toxicity issues.

For the reasons set forth above, the SUSTAINS IN PART and OVERRULES IN

PART WMO’'s Motion in Limine to Exclude Declaration of Stephen M. Quigley, Doc.

#986. Only paragraph 12 of the Declaration is excludable; the remainder is

admissible.

° Given that all of the motions for summary judgment are fully briefed, allowing

Quigley to be re-deposed at this late date is not a viable option.

IV. | Conagra Grocery Products Company, LLC’s Motion in Limine to Exclude

Certain Expert Testimony of Dr. Jurgen Exner (Doc. #998) and Rule 56(c)(2)

Objection to Exhibit 1 to Plaintiffs’ Sur-reply (Doc. #981)

Defendant ConAgra Grocery Products Company (“ConAgra”) is the

successor-in-interest to the McCall Printing Company (“McCall”). ConAgra has

moved for summary judgment, Doc. #874, arguing, in part, that Plaintiffs’ expert

witness, Dr. Jurgen Exner, testified at his deposition that he had no evidence that

McCall sent any substances containing chlorinated solvents to the Site. Doc.

#874-13, PagelD#25869.

In their Corrected Response to ConAgra’s motion for summary judgment,

filed on December 23, 2018, Plaintiffs noted that they had recently discovered a

Health Hazard Evaluation Determination, authored in 1975 by the National Institute

for Occupational Safety and Health (“NIOSH”), indicating that McCall used

kerosene and an unknown solvent named Ottoson No. 9 to clean equipment, and

that TCE was used to soften the glue used in splicing paper. Doc. #917-7,

PagelD#33717.*

Attached to ConAgra’s Reply Memorandum was a Declaration of ConAgra’s

expert witness, Dr. B. Todd Delaney, dated January 9, 2019. Doc. #957-1,

PagelD##37111-12. In response to the recently-discovered NIOSH report, Dr.

Delaney states that nothing in that report supports an assertion that McCall

disposed of TCE. He stated that “TCE is very volatile and evaporates quickly.” To

* Plaintiffs do not allege that ConAgra intentionally withheld this report.

10

the extent that the NIOSH report indicates that TCE was sprayed on the printer

rollers in short intervals, Delaney opines that it either ended up on the roller or

evaporated almost immediately. No waste containing TCE would have been

generated. /d.

Thereafter, Plaintiffs were granted leave to file a Sur-reply to address Dr.

Delaney’s Declaration. Attached to that Sur-reply was a January 22, 2019,

Declaration of Jurgen Exner, Ph.D., Doc. #975-1, PagelD##37410-11. In that

Declaration, Dr. Exner noted that he was not aware of the NIOSH report when he

had issued his previous expert reports. He now opined that it was “highly likely

that TCE waste was generated from cleanup of spills, leaks, cleanout of process

equipment, and disposal of TCE-containing containers.” He also opined that it was

“highly likely that TCE-containing waste and containers were disposed of by

McCall.” He disagreed with Dr. Delaney’s opinion that all of the TCE evaporated.

Id.

On February 14, 2019, ConAgra filed a Rule 56(c)(2) Objection to Dr.

Exner’s Declaration, arguing that it was untimely and prejudicial and should be

disregarded. Doc. #981. This was followed by ConAgra’s Motion in Limine to

Exclude Certain Expert Testimony of Dr. Jurgen Exner. Doc. #998. Again,

ConAgra asks the Court to prevent Dr. Exner from presenting any opinions

contained in his January 22, 2019, Declaration, which was submitted after the

expert disclosure and deposition deadlines. ConAgra seeks to restrict his

testimony to opinions offered in his July 13, 2017, and July 24, 2018, reports as

1]

limited by his deposition testimony. ConAgra argues that not only is Dr. Exner’s

January 22, 2019, Declaration untimely, unsupported, and inconsistent with his

prior deposition testimony, but it is also prejudicial in that ConAgra has not had the

opportunity to depose Dr. Exner on this topic. For these reasons, ConAgra urges

the Court to disregard Dr. Exner’s Declaration, and to exclude Dr. Exner’s new

opinions under Fed. R. Civ. P. 26(a)(2)(D) and Fed. R. Civ. P. 37(c)(1).

In response, Plaintiffs note that Dr. Delaney’s and Dr. Exner’s Declarations

were both filed beyond the established deadlines. However, this is attributable

solely to the fact that the NIOSH report was not discovered by Plaintiffs until late

November of 2018, after the close of discovery. The Court finds that, because the

failure to timely produce these supplemental witness opinions was “substantially

justified,” Fed. R. Civ. P. 37(c)(1) does not bar their consideration either at trial or

in connection with the pending motions for summary judgment.’

Moreover, this result is not unfair to either party. The expert witnesses of

both parties have already stated their opinions on the impact of the NIOSH report.

In addition, Plaintiffs have indicated that they do not object to conducting brief,

supplemental depositions of Dr. Exner and Dr. Delaney limited in scope to their

supplemental opinions related to that report. Should either party wish to pursue

> In its Reply brief, ConAgra argues that Plaintiffs’ response to the Rule 56(c)(2)

Objection is untimely. Given that ConAgra raised the same arguments in the

motion in limine that were raised in the Rule 56(c)(2) Objection, and given that

Plaintiffs’ response to the motion in limine was timely filed (following the Court's

May 22, 2019, conference call), the Court need not address this issue.

12

this option, the Court will entertain a motion for leave to do so. Any such motion

must be filed within 15 days of the date of this Decision and Entry.

For the reasons stated above, the Court OVERRULES ConAgra’s Rule

56(c)(2) Objection to Exhibit 1 of Plaintiffs’ Sur-reply, Doc. #981, and its Motion in

Limine to Exclude Certain Expert Testimony of Dr. Jurgen Exner, Doc. #998. The

Court will consider Dr. Exner’s belated Declarations in ruling on the pending

motions for summary judgment and he may testify about his opinions at trial.°

V. Plaintiffs’ Motion in Limine to Exclude Certain Testimony and Opinions of Dr.

B. Tod Delaney (Doc. #999)

Plaintiffs ask the Court to exclude from trial, and from consideration on

summary judgment, all testimony of ConAgra’s expert witness, Dr. B. Tod

Delaney, related to his assessment of the credibility of witnesses Edward Grillot

and Michael Wendling and his assessment of the trustworthiness of certain

documentary evidence. In addition, Plaintiffs seek to exclude certain opinions

presented in Dr. Delaney’s May 18, 2018, Expert Report and his July 24, 2018,

Rebuttal Report which rely on his personal weighing of the evidence and credibility

assessments. Doc. #999.

As WMO has noted, although the NIOSH report and Dr. Exner’s Declaration may

support a finding that McCall generated waste that contained TCE, neither the

report nor the Declaration supports a finding that McCall disposed of any such

waste at the South Dayton Dump. Evidence of that link would have to come from

elsewhere.

13

At his three depositions, Edward Grillot, whose family owned and operated

the South Dayton Dump, testified about materials that McCall disposed of at the

Site, including ink waste and solvents.’ Michael Wendling, Grillot’s cousin,

testified twice about hazardous waste transported by McCall to the Site, and later

submitted a Declaration concerning this topic. It is undisputed that the testimony

of these two witnesses has been somewhat inconsistent over time.

In his May 18, 2018, Expert Report, Dr. Delaney opined as follows: “Opinion

1. There is a low degree of certainty due to a lack of credible evidence that

McCall arranged for hazardous materials to be disposed of at the Site or that any

such materials generated by McCall were disposed of there.” Doc. #883-1,

PagelD#26495. At his deposition, Dr. Delaney explained that Grillot’s testimony

on this subject was “just not credible.” Doc. #883, PagelD#26419.

In his Report, Delaney noted that Grillot’s testimony was contrary to that of

Horace Boesch, Jr., the son of one of the former owners of the Site, who never

mentioned that McCall’s waste was hauled to the Site. It was also contrary to the

testimony of McCall employee, George Morris, Jr., and of several waste haulers

who denied hauling McCall waste to the Site. Dr. Delaney found that Grillot’s

deposition testimony reflected “uncertainty and confusion.” He further noted that

Grillot’s testimony concerning the nature of McCall's waste and the identity of

"As previously noted, ConAgra is the successor-in-interest to McCall Printing

Company.

14

who brought it to the Site did not remain constant across the course of his three

depositions. Doc. #883-1, PagelD#26495-96.

In his July 24, 2018, Rebuttal Report, Dr. Delaney challenges the opinions

of numerous other expert witnesses in this case. He concludes as follows:

Opinion 1. No expert can make a credible determination that McCall

disposed of hazardous materials at the Site or arranged for the

disposal of such materials there.

Opinion 2. Exner has insufficient information to determine that McCall

arranged for disposal of hazardous substances at the Site.

Opinion 3. Wittenbrink’s conclusions cannot be drawn to a

reasonable degree of scientific certainty.

Opinion 4. Hennet’s conclusion that McCall contributed VOCs to the

Site is unsupported by the evidence, and his allocation for McCall is

therefore flawed.

Opinion 5. White presents a reasonable preliminary framework, but

its immediate utility is limited because . . . the calculated waste

volume for McCall is founded on unreliable testimony.

Doc. #883-2, PagelD##26532-52. Dr. Delaney opines that, in reaching their

conclusions, Exner, Wittenbrink, Hennet and White relied on witness testimony

that was not supported by credible evidence, /.e., that of Grillot and Wendling.

Plaintiffs concede that the deposition testimony and Declarations of Grillot

and Wendling are inconsistent, and are contrary to the testimony of several other

witnesses. Plaintiffs argue, however, that these inconsistencies must be resolved

by the finder of fact, not by Dr. Delaney. Plaintiffs note that Delaney is not

qualified under Fed. R. Evid. 702 to opine on matters of credibility. Citing Davis v.

Duran, 277 F.R.D. 362, 370 (N.D. Ill. 2011), Plaintiffs further argue that Dr.

Delaney has improperly usurped the duty of the factfinder to weigh the evidence

and make credibility determinations. In addition, they argue that Delaney’s

15

credibility determinations are flawed in numerous respects. Plaintiffs therefore ask

the Court to exclude Dr. Delaney’s opinions and any testimony about his views on

the credibility of Grillot and Wendling.

In its Memorandum in Opposition to Plaintiffs’ Motion in Limine, ConAgra

agrees with Plaintiffs that it is improper for expert witnesses to make credibility

determinations. It argues, however, that Plaintiffs have mischaracterized Dr.

Delaney'’s opinions. According to ConAgra, Dr. Delaney did not make subjective

credibility determinations. Instead, most of his opinions “are rooted in the premise

that an expert cannot offer an opinion with any degree of scientific certainty if it

requires him/her to reconcile inconsistent witness testimony and make credibility

determinations.” Doc. #1039, PagelD#40275. ConAgra argues that, given the

conflicting witness testimony in this case, Delaney simply concludes that no expert

can opine with any degree of scientific certainty that McCall sent hazardous

material to the Site. ConAgra therefore argues that there is no reason to exclude

Dr. Delaney’s testimony or opinions.

The Court disagrees. It is clearly established that expert witness testimony

concerning the credibility of a fact witness is improper. Greenwell v. Boatwright,

184 F.3d 492, 496 (6th Cir. 1999) (holding that expert witness testimony

regarding credibility of eyewitness testimony is improper); MAA Oil Co. v. Korpan,

973 F. Supp. 2d 775, 787 (N.D. Ohio 2013) (holding that an expert report that

comments on the credibility of witnesses is improper); United States v. Scop, 846

F.2d 135, 142 (2d Cir. 1988) (finding that expert witnesses may not offer their

16

opinions “based on their personal assessment of the credibility of another

witness's testimony”). As the Tenth Circuit has explained:

Such testimony: (1) usurps a critical function of the jury; (2) is not

helpful to the jury, which can make its own determination of

credibility; and (3) when provided by impressively qualified experts on

the credibility of other witnesses is prejudicial and unduly influences

the jury.

United States v. Hill, 749 F.3d 1250, 1258 (10th Cir. 2014) (internal quotations

omitted). Moreover, such testimony “exceeds the scope of the expert's

specialized knowledge and therefore merely informs the jury that it should reach a

particular conclusion.” United States v. Shay, 57 F.3d 126, 131 (1st Cir. 1995).

Many of Dr. Delaney’s expert witness opinions are based on his personal

assessment of the credibility of Plaintiffs’ lay witnesses Grillot and Wendling. In

some cases, this is blatant, such as Opinion 1 in the May 18, 2018, Report

wherein he opines that “[t]here is a low degree of certainty due to a lack of

credible evidence” concerning McCall's alleged disposal of hazardous waste at the

Site, Doc. #883-1, PagelD#26495, and Opinion 5 in his July 24, 2018, Rebuttal

Report wherein he challenges Richard White’s expert opinion on the grounds that

“the calculated waste volume for McCall is founded on unreliable testimony.” Doc.

#883-2, PagelD#26548.

Likewise, Opinion 1 in the Rebuttal Report is based on Delaney’s personal

assessment that the other experts’ determinations that McCall’s waste was hauled

to the Site “are unsupported by any credible evidence,” and Opinion 3 is based on

his assessment that “Wittenbrink’s opinion that McCall self-hauled waste is based

IZ

on unreliable testimony.” /d. at PagelD ##26538, 26541. Opinion 2 faults Dr.

Exner for relying on “inconsistent” testimony of Edward Grillot and Michael

Wendling. On this basis, Delaney concludes that “Exner has insufficient

information to make a credible determination that McCall actually disposed or

arranged for the disposal of hazardous substances at the Site.” /d. at

PagelD##26539-40.

Of course, at trial, the fact witnesses will be cross-examined about the

inconsistencies in their testimony. Likewise, ConAgra and the other defendants

will almost certainly subject these expert witnesses to cross-examination about the

facts on which their opinions are based. To the extent that their opinions are

based on the testimony of witnesses whose credibility has been called into

question, that will no doubt be brought to light, possibly undermining the weight to

be given their expert opinions. See Fed. R. Evid. 705 (although an expert may

state an opinion without disclosing facts or underlying data, the expert may be

required to disclose those on cross-examination).

Nevertheless, the Court agrees with Plaintiffs that it is improper for Dr.

Delaney to offer an expert witness opinion about the credibility of fact witnesses.

Accordingly, Dr. Delaney will not be permitted to testify concerning his assessment

of the credibility of witnesses Edward Grillot or Michael Wendling. Likewise, to the

extent that Opinion 1 in the May 18, 2018, Expert Report, and Opinions 1, 2, 3

and 5 in the July 24, 2018, Rebuttal Report rely on Dr. Delaney’s personal

18

weighing of the evidence and credibility assessments, the Court will exclude those

Opinions from consideration on summary judgment and at trial. ®

Plaintiffs also seek to exclude Dr. Delaney’s testimony concerning the

trustworthiness of certain documentary evidence. At Dr. Delaney’s deposition,

Plaintiffs presented him with Building and Zoning Permits, and Applications for

Refuse Disposal Permits, filed between 1967 and 1972, in which the Site’s owner

repeatedly includes McCall on a list of sources of waste deposited at the Site.

Doc. #883-3, PagelD##26569-602. Dr. Delaney testified that, if there were other

credible evidence to corroborate a finding that waste from McCall was actually

deposited at the Site, he might find these permits and applications to be credible

also. However, because there was no credible corroborating evidence, he

speculated that these permits and applications may contain lists of potential

customers rather than actual customers. Doc. #883, PagelD##26412-13. To the

extent that Dr. Delaney’s opinion concerning the trustworthiness of these permits

and applications again hinges on his assessment of the credibility of witnesses

Grillot and Wendling, the Court will exclude it for the reasons set forth above.

As ConAgra points out, it is not entirely clear which of the five Opinions

contained in the July 24, 2018, Rebuttal Report Plaintiffs seek to exclude. At one

point in the Motion in Limine, Plaintiffs reference Opinions 2, 3, and 5; at another

point, they reference Opinions 1, 2, and 5. Doc. #999, PagelD##38392, 38394.

In an abundance of caution, ConAgra’s Response covers Rebuttal Opinions 1, 2, 3

and 5. In their Reply brief, Plaintiffs also ask the Court to exclude Opinion 4. Doc.

#1047, PagelD#40382. Because this is a new argument, to which ConAgra has

not had the opportunity to respond, the Court makes no determination as to

whether Opinion 4 should be barred from consideration.

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Another form submitted to the Ohio EPA in 1981 in connection with a

permit application by Dayton Press Company, which purchased the McCall plant

from ConAgra in the mid-1970s, estimates that the plant generates 4000 pounds

per year of spent halogenated solvents used in degreasing, which would include

TCE. Doc. #883-14, PagelD#26719; Doc. #883-15, PagelD#26723. Dr. Delaney

testified that, after the purchase of the plant, Dayton Press made few changes to

McCall's operations. Plaintiffs maintain that this gives rise to an inference that

McCall generated a like amount of spent halogenated solvents each year. Dr.

Delaney, however, testified that, with respect to the 4000 pounds of spent

halogenated solvents, “Dayton Press made a mistake” on the form because Dayton

Press did not do “degreasing” as that term is properly defined. Doc. #883,

PagelD##26432-33.

Plaintiffs argue that, in so testifying, Dr. Delaney again oversteps his

authority by deciding which parts of this permit application are credible. The Court

rejects this argument. Dr. Delaney testified that, based on his experience in this

industry during this particular period of time, this was a common mistake made by

industry representatives in completing this particular form. /d. Unlike Plaintiffs’

objections to Dr. Delaney’s other expert witness opinions, this one does not

involve a credibility assessment. Rather, it is an opinion based directly on his

specialized knowledge and experience in this industry. The Court therefore

concludes that Dr. Delaney may testify about why the statements contained in the

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1981 Ohio EPA form do not support a finding that McCall generated that amount

of spent halogenated solvents.

In accordance with the foregoing, the Court SUSTAINS IN PART and

OVERRULES IN PART Plaintiffs’ Motion in Limine to Exclude Certain Testimony and

Opinions of Dr. B. Tod Delaney, Doc. #999.

Vi. Conclusion

For the reasons set forth above, the Court:

e SUSTAINS IN PART and OVERRULES IN PART Waste Management

of Ohio, Inc.‘s Motion in Limine to Exclude Declaration of Stephen

M. Quigley, Doc. #986;

e OVERRULES Conagra Grocery Products Company, LLC’s Rule

56(c)(2) Objection to Dr. Jurgen Exner’s Declaration, Doc. #981;

e OVERRULES Conagra Grocery Products Company, LLC’s Motion in

Limine to Exclude Certain Expert Testimony of Dr. Jurgen Exner,

Doc. #998; and

e SUSTAINS IN PART and OVERRULES IN PART Plaintiffs’ Motion in

Limine to Exclude Certain Testimony and Opinions of Dr. B. Tod

Delaney, Doc. #999.

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Date: September 23, 2019 thst ee

WALTER H. RICE

UNITED STATES DISTRICT JUDGE

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