# Addison v. Louisiana Regional Landfill Company

> District Court, E.D. Louisiana · August 10, 2024

URL: https://www.frixlaw.com/law-library/cases/10648401

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** August 10, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10648401

## How later opinions describe it (automated extraction)

- noting that a party must establish general causation before seeking to offer specific causation evidence

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

FREDERICK E. ADDISON, SR., ET AL., CIVIL DOCKET
Plaintiffs

VERSUS NO. 19-11133
c/w 19-14512

LOUISIANA REGIONAL LANDFILL SECTION: “E” (5)
COMPANY, ET AL.,
Defendants

Applies to: Both Cases

ORDER AND REASONS
Before the Court is a contested Motion in Limine1 filed by Defendants seeking to
exclude testimony of Dr. Susan Schiffman, a purported expert in malodors and their
impact on humans.2 The Plaintiffs filed a memorandum in opposition.3 The Defendants
filed a reply in support of their Motion in Limine.4
BACKGROUND
This case concerns the operation of the Jefferson Parish Landfill in Waggaman,
Louisiana (“JPLF” or the “Landfill”), and the resulting odors emitted from the Landfill
between July 1, 2017, and December 31, 2019 (the “relevant time period”). Plaintiffs, who
are Jefferson Parish residents, filed several individual lawsuits that were consolidated
into a mass action, Addison v. Louisiana Regional Landfill Co., which contains over 500

1 R. Doc. 563.
2 See R. Doc. 416, pp. 3-4.
3 R. Doc. 595.
4 R. Doc. 626.
individual Plaintiffs.5 Plaintiffs assert negligence and nuisance claims under Louisiana
state law6 against Defendants: Jefferson Parish, which owns and contracts with others to
operate the Landfill; Aptim Corporation, which managed the gas and leachate collection
systems of the Landfill from July 2017 to May 2019; and the Waste Connections
Defendants, which operated the Landfill from May 2013 to December 2020.7

On November 5, 2019, the Court issued the first Case Management Order (“CMO”),
which established a bifurcated litigation schedule under which the issue of general
causation would be resolved first.8 The Court held a trial on general causation in early
2022.9 On November 29, 2022, the Court issued its Findings of Fact and Conclusions of
Law as to General Causation (the “General Causation Order”),10 determining that, during
the relevant time period: (1) odors and gases were emitted by the Landfill;11 (2) the
emissions of gases and odors from the Landfill occurred during the relevant time period;12
and (3) exposure to the odors and gases emitted by the Landfill at a level of five parts per
billion for thirty minutes “is sufficient by itself for individuals generally to be able to smell
hydrogen sulfide and for the exposure to cause a reaction.”13 Having found that Plaintiffs
established general causation for certain Allowed Injuries, the Court ordered that a trial

be conducted with a select number of Addison Plaintiffs (the “Trial Plaintiffs”).14 The first

5 See generally Second Amended Complaint, R. Doc. 431. Jefferson Parish residents also filed several
related class actions, which were consolidated into one case, Ictech-Bendeck v. Waste Connections Bayou,
Inc. See R. Doc. 48 (18-7889).
6 See Second Amended Complaint, R. Doc. 431 at p. 64.
7 Id. at pp. 52-53.
8 R. Doc. 80 at pp. 1-2.
9 R. Docs. 274-278, 286-289.
10 R. Doc. 323.
11 Id. at p. 5.
12 Id. at p. 26.
13 Id. at p. 27.
14 Id. at pp. 44, 46. See also R. Doc. 642 (defining the Allowed Injuries).
Addison trial was set to begin on September 5, 2023,15 and has since been continued to
begin on August 12, 2024 (the “first Addison Trial”).16
At the first Addison trial, Plaintiffs intend for Dr. Susan Schiffman to testify
“regarding the injuries, severity, and effects of malodors emanating from the Jefferson
Parish Landfill on the specific Addison Trial Plaintiffs.”17

In February 2024, the Court issued the Thirteenth CMO, which required the
parties to file all motions in limine regarding expert testimony in the first Addison trial
by June 6, 2024.18 The Defendants timely filed their Motion in Limine seeking to preclude
Dr. Schiffman from offering testimony related to certain opinions expressed in her Report
under Federal Rule of Evidence 702.19
LEGAL STANDARD
I. Federal Rule of Evidence 702 Standard
Rule 702 of the Federal Rules of Evidence governs the admissibility of expert
witness testimony:
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 or 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.20

15 R. Doc. 340.
16 R. Doc. 495.
17 R. Doc. 416 at pp. 3-4.
18 R. Doc. 498 at p. 6.
19 R. Doc. 563-1; FED. R. EVID. 702.
20 FED. R. EVID. 702.
Testimony from a qualified expert is admissible only if it is both relevant and reliable.21
Thus, the threshold inquiry is whether the expert witness possesses the requisite
qualifications to render an opinion on particular subject matter.22
If the expert’s qualifications are found to be sufficient, the court must then examine
whether the expert’s opinions are reliable and relevant.23 The United States Supreme

Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc.,24 provides the
analytical framework for determining whether expert testimony is admissible under Rule
702. “Under Daubert, Rule 702 charges trial courts to act as ‘gate-keepers,’ making a
‘preliminary assessment of whether the reasoning or methodology underlying the
testimony is scientifically valid,’”25 and of whether that reasoning or methodology “can be
reliably applied to the facts of the case.”26 The party offering the expert opinion must show
by a preponderance of the evidence that the expert’s testimony is reliable and relevant.27
“[E]xpert testimony proffered” must be “sufficiently tied to the facts of the case
that it will aid the jury in resolving a factual dispute.”28 This is essentially a relevance
requirement—relevant evidence, including relevant expert testimony, is that which has
“any tendency 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

21 Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir. 2002).
22 Wagoner v. Exxon Mobil Corp., 813 F. Supp. 2d 771, 798 (E.D. La. 2011). See also Wilson v. Woods, 163
F.3d 935, 937 (5th Cir. 1999) (“A district court should refuse to allow an expert to testify if it finds that the
witness is not qualified to testify in a particular field or a given subject.”).
23 United States v. Valencia, 600 F.3d 389, 424 (5th Cir. 2010).
24 509 U.S. 579 (1993).
25 See Pipitone, 288 F.3d at 243–44 (quoting Daubert, 509 U.S. at 592–93).
26 Valencia, 600 F.3d at 423–24; Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 352 (5th Cir. 2007).
See also Burleson v. Texas Dep’t of Crim. Just., 393 F.3d 577, 584 (5th Cir. 2004); Bocanegra v. Vicmar
Servs., Inc., 320 F.3d 581, 584–85 (5th Cir. 2003).
27 Mathis v. Exxon Corp., 302 F.3d 448, 459–60 (5th Cir. 2002).
28 Denley v. Hartford Ins. Co. of Midwest, 07-4015, 2008 WL 2951926, at *3 (E.D. La. July 29, 2008) (citing
Daubert, 509 U.S. at 591).
evidence.”29 With respect to the proper scope of expert testimony, Rule 704 provides that
“testimony in the form of an opinion or inference otherwise admissible is not
objectionable because it embraces an ultimate issue to be decided by the trier of fact.”30
Nevertheless, “[i]f the expert’s testimony brings no more to the finder of fact than the
lawyers can offer in argument, the expert’s opinions should be excluded.”31

“[A]n expert may never render conclusions of law,”32 as that “would constitute an
invasion of ‘the province of the court to determine the applicable law and to instruct the
jury as to that law.’”33 Allowing such expert testimony in a jury trial is both unhelpful and
harmful because
the jury would be very susceptible to adopting the expert's conclusion rather
making its own decision. There is a certain mystique about the word ‘expert’
and once the jury hears of the [expert]’s experience and expertise, it might
think the witness even more reliable than the judge. If an expert witness
were allowed to testify to legal questions, each party would find an expert
who would state the law in the light most favorable to its position. Such
differing opinions as to what the law is would only confuse the jury.34

Accordingly, expert testimony that offers a legal opinion is inadmissible.35
Moreover, “expert testimony on matters which a jury is capable of understanding and

29 Cunningham v. Bienfang, 2002 WL 31553976 (N.D. Tex. Nov. 15, 2002).
30 FED. R. EVID. 704.
31 Sudo Props., Inc. v. Terrebone Par. Consol. Gov’t, 04-2559, 2008 WL 2623000, at *8 (E.D. La. July 2,
2008).
32 Goodman v. Harris Cnty., 571 F.3d 388, 399 (5th Cir. 2009).
33 Willette v. Finn, 778 F. Supp. 10, 11 (E.D. La. 1991) (quoting United States v. Scop, 846 F.2d 135, 139 (2d
Cir. 1988)); Snap-Drape, Inc. v. Comm'r, 98 F.3d 194, 198 (5th Cir. 1996); Goodman, 571 F.3d at 399.
34 Cefalu v. Edwards, 2013 WL 5592947, at *1 (quoting Askanase v. Fatjo, 130 F.3d 657, 673 (5th Cir.
1997)); see also Jarrow v. Cupit, 99-3539, 2000 WL 1537989, at *2 (E.D. La. Oct. 17, 2000) (“[I]t is the
Court’s role, not that of one party’s expert witness, to instruct the jury on the law of this case. The law
‘requires only one spokesperson . . . who of course is the judge.” (quoting Specht v. Jensen, 853 F.2d 805,
807 (10th Cir. 1988))).
35 Estate of Sowell v. United States of America, 198 F.3d 169 (5th Cir. 1999); Askanase, 130 F.3d at 669.
deciding without an expert’s help should be excluded,”36 because expert testimony is
appropriate only when it will assist the trier of fact.37
“A district court's gatekeeper function does not replace the traditional adversary
system or the role of the jury within this system.”38 “Although the jury ultimately decides
the ‘weight’ of the evidence, the judge ensures there is sufficient probative value . . . to

justify submitting the issue in the first instance.”39 Rule 403 also allows the trial court to
“exclude relevant evidence if its probative value is substantially outweighed by a danger
of one or more of the following: unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”40 “‘Unfair
prejudice’ . . . means an undue tendency to suggest decision on an improper basis,
commonly, though not necessarily, an emotional one.”41 Because “Rule 403 is meant to
relax the iron rule of relevance, to permit the trial judge to preserve the fairness of the
proceedings by exclusion despite its relevance,” “the application of Rule 403 must be
cautious and sparing.”42 Indeed, as the Fifth Circuit has proclaimed, the “major function”
of Rule 403 “is limited to excluding matter of scant or cumulative probative force, dragged
in by the heels for the sake of its prejudicial effect.”43

“Vigorous cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and appropriate means of attacking

36 Jarrow, 2000 WL 1537989, at *2.
37 Id. Rule 702 requires the expert’s knowledge must “help the trier of fact to understand the evidence or to
determine a fact in issue.” FED. R. EVID. 702(a).
38 In re Pool Products, 166 F. Supp. 3d at 661 (citations omitted).
39 Daniel D. Blinka, Expert Testimony and the Relevancy Rule in the Age of Daubert, 90 MARQ. L. REV. 173,
191 (2006).
40 FED. R. EVID. 403.
41 Old Chief v. United States, 519 U.S. 172, 180 (1997).
42 United States v. Thevis, 665 F.2d 616, 633 (5th Cir. 1982).
43 United States v. McRae, 593 F.2d 700, 707 (5th Cir. 1979).
shaky but admissible evidence.”44 “As a general rule, questions relating to the bases and
sources of an expert’s opinion affect the weight to be assigned that opinion rather than its
admissibility and should be left for the [factfinder’s] consideration.”45 It is “the role of the
adversarial system, not the court, to highlight weak evidence.”46 “Courts break from this
general rule in exceptional circumstances, such as when an expert’s testimony relies on

‘completely unsubstantiated factual assertions.’”47
LAW AND ANALYSIS
Dr. Schiffman expressed 5 major opinions in her report:48
Opinion 1: Malodor perception and psychological effects. The salient odor
quality of the emissions reported by the trial plaintiffs was “rotten eggs” and
“sulfur” that are characteristic descriptions of the aversive odor of H2S.
Qualities of “trash/garbage/waste” and “sewage” that contain H2S were
salient as well. The trial plaintiffs’ descriptions of the odors are consistent
with the reports by other non-trial residents of the affected areas. Aversive
and noxious odors caused negative emotions including anxiety and worry.

Opinion 2: Malodor FIDO and Daily Activities. The exposure to the aversive
odors from the JPLF was frequent, temporally unpredictable, and
uncontrollable. It significantly interfered with the trial plaintiffs’ daily
activity, quality of life, and as well as use and enjoyment of their property.

Opinion 3: Malodor source – the JPLF. The maximum 30-minute and
hourly averages of H2S emitted to the Addison plaintiffs’ locations from the
JPLF as modeled by CALPUFF exceed the hourly average of H2S measured
by LDEQ in that vicinity. Although LDEQ clearly documented elevated
levels of H2S in these communities, their measurements over short discrete
intervals significantly underestimated the magnitude of H2S emissions
during the years 2017-2019. Volatile organic compounds (VOCs) detected
in the community where the plaintiffs reside are consistent with the
fingerprint of VOCs emitted by the JPLF (P=2.28E−15). The fingerprint of
VOCs along with additional documents and evidence indicate that JPLF was
the source of the malodors experienced by the trial plaintiffs.

44 Daubert, 509 U.S. at 596; see also United States v. 14.38 Acres of Land, 80 F.3d 1074, 1078 (5th Cir.
1996) (quoting Daubert, 509 U.S. at 596).
45 14.38 Acres of Land, 80 F.3d at 1077.
46 Primrose Operating Co. v. Nat'l Am. Ins. Co., 382 F.3d 546, 563 (5th Cir. 2004).
47 McCrary v. John W. Stone Oil Distrib., L.L.C., 14-880, 2016 WL 760744, at *3 (E.D. La. Feb. 26, 2016)
(citing Hathaway v. Bazany, 507 F.3d 312, 319 n.4 (5th Cir. 2007)).
48 R. Doc. 563-4, pp. 9-35.
Opinion 4: Malodor health effects. The malodorous emissions from the
JPLF are the major contributor to the health complaints reported by the
trial plaintiffs.

Opinion 5: Malodor lasting impact. Learned odor aversions likely resulted
from pairing of adverse biological effects with noxious emissions and odor;
these conditioned odor aversions will likely persist for the plaintiffs over
time.

The Defendants seek to exclude Dr. Schiffman’s testimony on the following four
grounds: (1) Dr. Schiffman lacks expertise to opine on whether hydrogen sulfide (“H2S”)
lingered inside the Trial Plaintiffs’ homes; (2) Dr. Schiffman lacks expertise to testify as
to Defendants’ best management practices for waste disposal; (3) Dr. Schiffman lacks
sufficient evidence that the Trial Plaintiffs were actually exposed to VOCs, which should
preclude her from offering testimony on the subject, and her opinion is unreliable; and
(4) Dr. Schiffman generally fails to provide a specific causation analysis in her expert
report because she has failed to properly evaluate the Trial Plaintiffs by ruling out other
causes of their injuries.49 Defendants seek to exclude Dr. Schiffman’s testimony under
Rule 702, insofar as the opinions expressed in her report improperly opine beyond the
scope of Dr. Schiffman’s expertise, are based on speculative, unreliable methodology, and
do not meet Fifth Circuit requirements for specific causation.50
Because the first Addison Trial is a jury trial, Defendants emphasize the need for
the Court to apply the more rigorous Daubert standard to Dr. Schiffman’s testimony in
comparison to the Court’s determinations during the general causation trial.51 The Court
will apply the more rigorous Daubert standard to the determination of this motion.

49 R. Doc. 563-1, pp. 2-4.
50 See generally id.
51 Id. at pp. 5-6.
Dr. Schiffman will be allowed to testify on her Opinion 1 with respect to
malodor perception, psychological effects, and negative emotions caused by
noxious odors.

In her first opinion, Dr. Schiffman concludes that based on her comparison of
complaints made by the Trial Plaintiffs to the scientific literature on odor exposure and
its effects, it is likely that “the malodors from the JPLF experienced by neighbors over the
period of 2017-2019 impaired their mood and overall health.”52 Dr. Schiffman opines that
noxious odors cause negative emotions including anxiety and worry. In her opinion,
genetic and biological effects of malodors have an anatomical basis because brain
structures and neural circuity that mediate odor overlap with those involved in emotions.
Dr. Schiffman describes the scientific process for determining how hydrogen
sulfide odors are perceived by individuals, and she discusses the scientific studies
assessing the effects of odor exposure on individuals.53 Dr. Schiffman reviews the Trial
Plaintiffs’ depositions, ascertains their descriptions of the odor they experienced and their
“characterization of odor characteristics,” and explains how these characteristics of the
odor were consistent with analyses performed by the Louisiana Department of
Environmental Quality (“LDEQ”) and hydrogen sulfide odors examined in other
studies.54 For example, Dr. Schiffman describes a study from Heaney, et al. assessing
individuals who resided near landfills emitting hydrogen sulfide; when hydrogen sulfide
emissions were high, study participants reported higher rates of negative mood.55 Dr.
Schiffman also opines that these odors produce negative feelings like “anxiety, worry,
[and] stress.”56 Upon reviewing scientific studies of the psychological effects of odors on

52 R. Doc. 563-4, p. 14.
53 Id. at pp. 9-15.
54 Id. at p. 11.
55 Id. at p. 14.
56 Id. at p. 12.
communities, Dr. Schiffman concludes that “the malodors from the JPLF . . . impaired
[the Trial Plaintiffs’] mood . . . [as] [m]alodor is an environmental stressor with
psychological, biological, and social consequences.”57
The Defendants do not challenge this opinion in Dr. Schiffman’s expert report. The
Court finds Dr. Schiffman employs a sufficiently reliable methodology in Opinion 1 to

withstand Daubert scrutiny, and she will be permitted to testify to these opinions at
trial.58
Dr. Schiffman will be allowed to testify on her Opinion 2 with respect to the
impact hydrogen sulfide odors are capable of producing on daily lives,
including quality of life and use and enjoyment of property. Dr. Schiffman
will be allowed to testify as to the lingering effect of hydrogen sulfide in the
air and the ability of hydrogen sulfide to accumulate and concentrate in
homes and low-lying areas. Dr. Schiffman will not be allowed to testify
regarding the number of times the Trial Plaintiffs experienced malodors
during the relevant time period because this testimony is more appropriately
given during Mr. Lape’s discussion of his dispersion modelling.

In her second opinion, Dr. Schiffman opines that exposure to the odors was
“frequent, temporally unpredictable, and uncontrollable,” which significantly interfered
with the Trial Plaintiffs’ day-to-day activities and enjoyment of their property.59 Dr.
Schiffman reviews Plaintiff’s expert James Lape’s CALPUFF dispersion model, in which
he relied upon emission rates calculated by Plaintiffs’ experts Dr. Jaana Pietari and Jose
Sananes, to “estimate the average exposures at the homes of the trial plaintiffs.”60 After
reviewing the odor incidents at each Plaintiffs’ home, Dr. Schiffman opines as to the
frequency and duration of odor exposure for each Trial Plaintiff.61 Dr. Schiffman also

57 Id. at pp. 14-15.
58 Dr. Schiffman will not be allowed to base her opinions on the reports of non-party residents of Jefferson
Parish except with respect to the Facebook page created during this time period.
59 Id. at p. 15.
60 Id.
61 See id. at p. 18.
attributes “differences” between the modeling and other information with regards to the
Trial Plaintiffs’ odor exposure to be “explained by the lingering of [hydrogen sulfide] in
the air after dispersion.”62 Dr. Schiffman then connects the odor emissions to the
“alterations in daily life reported by the trial plaintiffs in response to the malodors”63 and
opines that the Trial Plaintiffs’ frequent exposure to odors “substantially altered the daily

activity of the trial plaintiffs,” such as through contributing to uncontrollable,
unpredictable stress, increased isolation, and a decreased quality of life.64
In her deposition, Dr. Schiffman reiterated her opinion on the capacity for
hydrogen sulfide to “linger” inside homes and “collect in low places.”65 She described how
hydrogen sulfide collects “under the stairs, [and] in . . . basements” based on her review
of government agency data,66 and she opined that because hydrogen sulfide is heavier
than air, it accumulates “under” places like the kitchen sink and stairs.67 Though Dr.
Schiffman confirmed she never personally examined the individual Trial Plaintiffs’ homes
in reaching her opinions,68 she described her experience conducting studies and “finding
[hydrogen sulfide levels] higher inside than outside” because it was “building up and . . .
not degrading as fast.”69

Defendants challenge Dr. Schiffman’s qualifications with respect to the portion of
Opinion 2 which opines on how hydrogen sulfide “lingers” in areas of Plaintiffs’ homes
because her expertise is in “odor perception and its psychological effects,” not air

62 Id. at p. 19.
63 Id. at pp. 20-21.
64 Id. at pp. 22-23.
65 R. Doc. 563-5, p. 25.
66 Id.
67 R. Doc. 563-6, p. 5.
68 R. Doc. 563-4, p. 27.
69 R. Doc. 563-6, pp. 6-7.
dispersion.70 Further, Defendants briefly argue Dr. Schiffman has not followed any
reliable or peer-reviewed methodology in support of her opinion.71 Though Plaintiffs
argue Defendants’ first challenge to Dr. Schiffman’s qualifications is improper because
the Court has previously adjudicated the issue at the general causation trial, the Court
disagrees. This Court has not ruled whether hydrogen sulfide odors lingered inside these

particular Trial Plaintiffs’ homes in this matter.72
In her report, Dr. Schiffman asserts she has worked in the field of odor assessment
and effects for over fifty years, and she has served as a professor of medical psychology,
biomedical engineering, and biological and agricultural engineering.73 Dr. Schiffman has
performed research for over thirty years on malodors in outdoor air, ambient odors from
swine operations, wastewater treatment facilities, and landfills.74 She has investigated the
“psychological [and] molecular investigations of malodourous emissions, as well as
instrumentation for measuring signals from odorous compounds at confined swine
facilities and landfills.”75 She has published extensively on the malodorous emissions,
including hydrogen sulfide and ammonia, and has worked in researching and evaluating
alternative technologies for odor remediation.76

Relevant to Defendants’ arguments, in her report, Dr. Schiffman opines as to how
the odorous emissions negatively affected the Plaintiffs’ daily lives and interfered with the
use and enjoyment of their property.77 Dr. Schiffman reviews the models from Mr. Lape

70 R. Doc. 563-1, p. 2.
71 Id. at p. 9.
72 See R. Doc. 323.
73 R. Doc. 563-4, p. 6.
74 Id.
75 Id.
76 Id. at pp. 6-7.
77 Id. at p. 15.
and LDEQ’s data to explain how, given the data of the emissions in Plaintiffs’
communities, the Plaintiffs consistently experienced the odors, which “adversely altered
their daily lives.”78 She explains that in her opinion, due to the frequent odor emissions
demonstrated by the models, the Plaintiffs “bec[a]me conditioned to expect and to be
affected by, the odor whether it was a renewed assault or lingering odor,” as the malodors

would have “permeated their homes, their furniture and their clothes.”79 She further
explains the psychological effects of the odor emissions on the Plaintiffs, citing specific
studies to opine how the odors caused “degradation in quality of life” and altered
Plaintiffs’ daily activities.80 Plaintiffs highlight in their opposition that in her rebuttal
report, Dr. Schiffman further explained the science behind how odors accumulate inside
homes.81
A witness qualified as an expert “is not strictly confined to his area or practice but
may testify regarding related applications; a lack of specialization goes to the weight, not
admissibility of the opinion.”82 If there is some “reasonable indication of qualifications,”
the expert’s qualifications become an issue for the trier of fact.83 With respect to
Defendants’ challenge to Dr. Schiffman’s ability to testify to the concentration of hydrogen

sulfide inside particular Trial Plaintiffs’ homes, the Court finds Dr. Schiffman is qualified
to testify as to the capacity for hydrogen sulfide to linger in homes and low-lying areas.84
Having studied odors and emissions for decades, conducted studies on the effects of odors

78 Id. at pp. 15-20.
79 Id. at p. 21.
80 Id. at p. 22.
81 R. Doc. 595, p. 6.
82 Cedar Lodge Plantation, L.L.C. v. CSHV Fairway View I, L.L.C., 753 F. App'x 191, 195-96 (5th Cir. 2018).
83 Prest v. BP Expl. & Prod. Inc., 640 F. Supp. 3d 542, 550 (E.D. La. 2022), aff'd, No. 22-30779, 2023 WL
6518116 (5th Cir. Oct. 5, 2023).
84 Dr. Schiffman may not testify as to any property damage or the like as a result of the odors lingering
inside homes, pursuant to this Court’s prior orders clarifying that the Trial Plaintiffs are not seeking
physical property damages. See R. Doc. 155, p. 2.
and the impact of odors on communities, particularly with respect to hydrogen sulfide,
Dr. Schiffman is qualified to testify as to the mechanisms of how the hydrogen sulfide
odors impact the Trial Plaintiffs’ communities in this matter, including inside their
homes.85
Dr. Schiffman will not be allowed to testify regarding the number of times the Trial

Plaintiffs experienced malodors during the relevant time period relying on LDEQ’s and
Mr. Lape’s dispersion modelling. This testimony is better given by the experts who did
the work and produced the reports.
Defendants may cross-examine Dr. Schiffman on the specifics of her opinion to the
extent they challenge her qualifications or her opinions as to hydrogen sulfide
accumulation.86
Dr. Schiffman will not be allowed to testify as to the following portion of her
Opinion 3:

Malodor source – the JPLF. The maximum 30-minute and hourly averages
of H2S emitted to the Addison plaintiffs’ locations from the JPLF as
modeled by CALPUFF exceed the hourly average of H2S measured by LDEQ
in that vicinity. Although LDEQ clearly documented elevated levels of H2S
in these communities, their measurements over short discrete intervals
significantly underestimated the magnitude of H2S emissions during the
years 2017-2019.

Dr. Schiffman opines that the CALPUFF models of hydrogen sulfide emissions
exceed those measured by LDEQ because LDEQ’s measures were underestimated.87 Dr.
Schiffman analyzes the MAML grab canister data of hydrogen sulfide estimates and

85 This Court previously found Dr. Schiffman qualified to testify as an expert on the effect of malodorous
emissions on humans, including the psychological effects of exposure to odors on humans and the
physiological bases of the Allowed Injuries suffered by Plaintiffs. This Court prohibited Dr. Schiffman from
testifying about any Non-Allowed Injuries.
86 See, e.g., In re Vioxx Prod. Liab. Litig., 401 F. Supp. 2d 565, 582 (E.D. La. 2005) (instructing a party to
challenge an expert’s qualifications on cross-examination).
87 R. Doc. 563-4, p. 23.
compares these values to those from the CALPUFF models run by James Lape.88 The
Court is not convinced that this testimony is within Dr. Schiffman’s expertise, that it is
reliable, or that it is relevant to Dr. Schiffman’s opinions. This testimony will be excluded.
Dr. Schiffman will be allowed to testify as to the following portion of her
Opinion 3:

Volatile organic compounds (VOCs) detected in the community where the
plaintiffs reside are consistent with the fingerprint of VOCs emitted by the
JPLF (P=2.28E−15). The fingerprint of VOCs along with additional
documents and evidence indicate that JPLF was the source of the malodors
experienced by the trial plaintiffs.

In her third opinion, Dr. Schiffman opines that the findings from both LDEQ and
Mr. Lape regarding the consistency of VOCs present at the Landfill and in the
communities where the Plaintiffs reside demonstrate that the Jefferson Parish Landfill is
more likely than not a major contributing cause of the Plaintiffs’ injuries.89 In Opinion
3.4, Dr. Schiffman reviews the individual VOCs within the MAML grab canisters in the
Trial Plaintiffs’ neighborhoods and opines that 29 of the 35 VOCs present in the
neighborhood canisters were also present in the samples obtained from the landfill.90
Based on this analysis, Dr. Schiffman opines that the Landfill’s emissions were a major
contributing source of the harms suffered by the Trial Plaintiffs.91
With respect to VOCs, in her deposition, Dr. Schiffman affirmed that while she did
not personally take samples of the VOCs in the Plaintiffs’ residences, she explained that
what is important to her analysis is the “mixture of all the VOCs” rather than “identify[ing]
them by individual.”92

88 Id. at pp. 23-27.
89 Id. at p. 31.
90 Id. at pp. 27-28.
91 Id. at p. 31. In her third opinion, Dr. Schiffman also includes discussion of the Defendants’ roles in the
landfill operation. The Court will not permit this testimony.
92 R. Doc. 563-5, p. 33.
Beyond challenging Dr. Schiffman’s qualifications to opine on VOCs, Defendants
also argue that Dr. Schiffman should not be permitted to testify as to VOCs because she
has no evidence that “any Trial Plaintiff was exposed to VOCs, much less the type of VOC
or the duration and concentration of the exposure.”93 Defendants argue Dr. Schiffman’s
lack of evidence of VOC exposure and concentration mandates that her opinion be

considered unreliable, as the Fifth Circuit requires “the type of chemical or the level, and
duration of exposure” for specific causation testimony.94
The Court rejects Defendants’ arguments. Dr. Schiffman may testify as to her third
opinion concerning VOCs, to the extent the VOC concentrations tend to show that the
emissions of hydrogen sulfide causing the Trial Plaintiffs’ damages came from the
Jefferson Parish Landfill.95 In relying on LDEQ and CALPUFF models, Dr. Schiffman
points to concrete data to support her conclusion that “the consistency between the
compounds that were measured by LDEQ in communities adjacent to the JPLF . . .
indicate that the JPLF is more likely than not, at the very least, the major contributing
cause of the harms suffered by the trial plaintiffs.”96
Further, Dr. Schiffman references numerous studies she has conducted

demonstrating the interaction of hydrogen sulfide and airborne VOCs, which increases
symptom-reporting in subjects.97 Dr. Schiffman does not, and will not be allowed to,
opine that the VOCs by themselves actually caused any of the Trial Plaintiffs’ damages;
Plaintiffs did not establish at the general causation trial that VOCs were independently

93 R. Doc. 563-1, pp. 11-12.
94 Id. at p. 13 (citing Knight v. Kirby Inland Marine, Inc., 482 F.3d 347, 351 (5th Cir. 2007)).
95 R. Doc. 563-4, p. 31.
96 Id.
97 Id. at pp. 31-24.
capable of causing Plaintiffs’ injuries,98 and the Court did not make that finding.99 Rather,
in Dr. Schiffman’s report, she presents evidence of the similarity of the VOCs present in
the Trial Plaintiffs’ communities to those at the Landfill to show that the malodors
experienced by the particular Trial Plaintiffs were likely caused by the hydrogen sulfide
emissions from the landfill.100 Dr. Schiffman also references scientific studies of the

impact of VOCs on enhancing a Plaintiff’s damages through intensifying “interrelated
health effects that can occur from activation of sensory nerves by airborne chemicals.”101
The Court finds Dr. Schiffman employs sufficiently reliable methodology in her
reliance on the emissions values from various experts, examination of tables, and value
comparisons to reach her third opinion, which ultimately is about the source of the
hydrogen sulfide emissions and the unique impact of the combination of hydrogen sulfide
and VOCs on Plaintiffs.102 Because “a trial court must take care not to transform a Daubert
hearing into a trial on the merits . . . [as] the fact-finder is entitled to hear . . . testimony
and decide whether it should accept or reject that testimony,”103 the Court finds Dr.
Schiffman’s testimony as to VOCs is admissible. Defendants may cross-examine Dr.
Schiffman with respect to any insufficiency in the data or other questions as to the

reliability of Dr. Schiffman’s conclusions.
Dr. Schiffman will be allowed to testify that volatile organic compounds (VOCs)
detected in the community where the plaintiffs reside are consistent with the fingerprint
of VOCs emitted by the Jefferson Parish Landfill. Dr. Schiffman will not be allowed to

98 See Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 351 (5th Cir. 2007) (noting that a party must
establish general causation before seeking to offer specific causation evidence).
99 See generally R. Doc. 323.
100 R. Doc. 563-4 at pp. 27-31.
101 Id. at p. 31.
102 Id. at p. 31, 35.
103 Pipitone v. Biomatrix, Inc., 288 F.3d 239, 250 (5th Cir. 2002).
testify that VOCs directly caused any of the Trial Plaintiffs’ injuries as there has been no
finding of general causation with respect to VOCs.
Dr. Schiffman will be allowed to testify as to her Opinion 4 but only to the
extent that she may testify that malodorous emissions have the capacity to
cause the Allowed Injuries. Dr. Schiffman will not be allowed to testify that
the Trial Plaintiffs have established specific causation as to each Plaintiff.

In her fourth opinion, Dr. Schiffman explains that the health complaints of the
Plaintiffs are characteristic of symptoms that typically occur from repeated exposures to
air pollution of the type generated by municipal solid waste landfills. She opines that the
malodors emitted from the Jefferson Parish Landfill “are a major contributor to the health
complaints reported by the trial plaintiffs.”104 Dr. Schiffman reviewed the injuries105
reported by Plaintiffs in their depositions and opines that these symptoms are
“characteristic of symptoms that typically occur from repeated exposure to malodorous
air pollution” typically generated by landfills.106 Dr. Schiffman highlights specific studies
she has conducted that demonstrate how hydrogen sulfide in combination with airborne
VOCs “increase[] the prevalence” of the Trial Plaintiffs’ reported symptoms.107 Dr.
Schiffman concludes that “to the extent that airborne chemicals from other sources were
mixed with the H2S and VOCs from the JPLF, the health symptoms suffered by the trial
plaintiffs were the consequence of activation of sensory nerves by the combination of
those sources.”108 Dr. Schiffman will be allowed to testify that the malodors generated by

104 R. Doc. 563-4, p. 31.
105 See R. Doc. 642, pp. 3-5 (describing Plaintiffs’ allowed injuries).
106 R. Doc. 563-4, p. 31.
107 See id. at pp. 32-34 (“[S]ubjects were 7.8 times more likely to report nausea when they were exposed to
24 ppb H2S (along with very low concentrations of VOCs) compared with clean air during a one-hour
exposure in an environmental chamber.”).
108 Id. at p. 35.
the Jefferson Parish Landfill have the capacity to cause the Allowed Injuries and that
VOCs may enhance or exacerbate the injuries.
Defendants argue Dr. Schiffman should be precluded from testifying as to specific
causation because she did not conduct a proper specific causation analysis of each Trial
Plaintiff.109 Defendants argue she “has not examined the Trial Plaintiffs, has not reviewed

their medical records or otherwise considered their medical history, [and] has not
considered other potential causes of their alleged injuries” such that her testimony is not
reliable.110 Defendants cite McNabney v. Laboratory Corporation of America in support
of this argument.111 Defendants highlight portions of Dr. Schiffman’s deposition when, in
response to Defendants’ question regarding her assessment of the injuries suffered by the
thirteen Trial Plaintiffs, she stated: “those were decisions that were made by others . . .
I’m just saying what the mechanism would be given that those are complaints.”112
Dr. Schiffman will not be allowed to testify that exposure to the malodors caused
each particular Trial Plaintiff’s injuries (specific causation). Other, more qualified medical
experts will provide opinions on this topic.
The Court will not allow Dr. Schiffman to testify as to specific causation for each

Trial Plaintiff.
Dr. Schiffman will be allowed to testify as to her Opinion 5 to the extent she
discusses malodor’s lasting impacts on health within the relevant time
period of July 1, 2017, to December 31, 2019. Dr. Schiffman may not testify to
chronic injuries occurring beyond the relevant time period.

In her fifth opinion, Dr. Schiffman opines that exposure to odors can cause
“conditioned odor aversions” and “subsequent exposure to the landfill odor alone in the

109 R. Doc. 563-1, pp. 3-4.
110 Id.
111 153 F. App'x 293 (5th Cir. 2005).
112 R. Doc. 563-1, p. 17.
absence of the adverse health effects will be perceived as a threat signal or potential
danger that [Plaintiffs] must avoid for their safety and survival.”113 Dr. Schiffman further
opines that “aversive odor conditioning induces long-term alterations in the piriform
cortex and the amygdala,” all to explain that “[t]he exposures from JPL experienced by
the plaintiffs may have long-term consequences.”114 The Court determined general

causation existed only for injuries suffered during the relevant time period of July 1, 2017
until December 31, 2019.115 As a result, Dr. Schiffman may testify to the substance of this
opinion only to the extent she is speaking of damages suffered by the Trial Plaintiffs, such
as the effects of repeated exposure to odors, between July 1, 2017 and December 31, 2019.
Dr. Schiffman may not testify to long-term effects of odor-exposure beyond December 31,
2019.
Dr. Schiffman will not be allowed to testify on best practices in the waste
management industry. the contractual relationship amongst the Defendants,
or any testimony about Defendants’ responsibilities in managing the landfill.

Defendants challenge Dr. Schiffman’s qualifications to testify as to “landfill
operations and contracts” and “best management practices,” and “maintenance issues”
because the subject is outside her scope of expertise.116 Defendants challenge Dr.
Schiffman’s qualifications to discuss contractual responsibilities because she is not an

113 R. Doc. 563-4, p. 35.
114 Id.
115 As stated in the Court’s July 3, 2024 Order and Reasons, “The undisputed fact that the Addison Plaintiffs
only seek damages incurred within the relevant time period is further supported by the representations of
Plaintiffs’ counsel Eric Rowe to the Court, as recorded in the transcript of the general causation trial:
The Court: [W]hat [is] the time period [] that they’re asking for damages[?]
[Eric] Rowe: . . . If they had asked us the question, are you asking for damages into 2020,
we would have said no. We’ve only modeled the years 2017, 2018, and 2019.
The Court: Okay. That was my understanding, too. So that is – you’re correct on that.
They’re only asking for damages through 2019.”
See R. Doc. 642 (quoting Gen. Causation Tr., R. Doc. 229 at 756:6-22).
116 R. Doc. 563-1, p. 11.
expert in contracts.117 Plaintiffs respond by arguing that Dr. Schiffman, as an expert in
odors, is qualified to testify on the “foreseeability of hydrogen sulfide generation at MSW
landfills” and “odor issues” resulting from waste disposal at landfills.118
In the overview to her report, Dr. Schiffman discusses “breaches in the waste
treatment system, all of which were known, or should have been known, to the Defendants

at times when preventive action could, and should, have been taken.”119 She also states
she is “familiar with the standards and best practices for odor control in the waste
management and disposal industry.”120 In opinion 3.5, Dr. Schiffman opines as to the
causation of the odors emitted from the landfill and elaborates that “the malfunctioning
leachate and gas collection systems . . . [were] the responsibility of Waste Connections
and Aptim.”121 Nevertheless, in her deposition, Dr. Schiffman clarified that she is not
offering opinions as to contractual responsibilities but was “[j]ust looking at who was
being sued.”122
Dr. Schiffman may not testify regarding the standard of care applicable to
Defendants’ operation of the landfill, her interpretation of the contractual relationship
amongst the Defendants, or any testimony about Defendants’ responsibilities in

managing the landfill, such as the opinion that certain Defendants “should have” taken
“preventative action.”123 Dr. Schiffman also may not opine as to which specific Defendant
was responsible for various operations at the Jefferson Parish Landfill.

117 Id. at pp. 10-11.
118 R. Doc. 595, p. 7.
119 R. Doc. 563-4, p. 5.
120 Id. at p. 6.
121 Id. at p. 31.
122 R. Doc. 563-5, p. 36.
123 Id. at p. 5.
Dr. Schiffman will not be allowed to testify with respect to statements by
Jefferson Parish officials, media sources, and other non-party residents,
except for evidence about the Facebook page created around this time.

In Opinion 3.5 to her Third Major Opinion, Dr. Schiffman states that “[f]urther
evidence that JPLF is the main source and cause of the malodors . . . is supported by
statements from Parish President Mike Yenni and others, interviews and articles
associated with WGNO and WWLTV, [and] reports by [experts] . . . .”124 Dr. Schiffman
further describes what occurred during Jefferson Parish Press Conferences and in an
investigative media series, and she concludes the data from these sources corroborates
her opinion that the odors came from the Jefferson Parish Landfill.125
Dr. Schiffman may not testify as to statements made by any third parties,126 such
as nonparty Jefferson Parish residents (except for evidence regarding the Facebook page
created around this time) or television reporters, to bolster her opinions. Dr. Schiffman
may also not testify as to any statements made by Defendants’ representatives, agents or
employees to bolster her opinions.
Accordingly;
CONCLUSION
“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.”127 “As a general rule, questions relating to the bases and
sources of an expert’s opinion affect the weight to be assigned that opinion rather than its

124 R. Doc. 563-4, p. 30.
125 Id.
126 See R. Doc. 702 (Rulings on Motions in Limine). This Court already has excluded evidence from non-
party Jefferson Parish residents with two exceptions.
127 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 596 (1993); see also United States v. 14.38
Acres of Land, 80 F.3d 1074, 1078 (5th Cir. 1996) (quoting Daubert, 509 U.S. at 596).
admissibility and should be left for the [factfinder’s] consideration.”!28 It is “the role of
the adversarial system, not the court, to highlight weak evidence.”!29 “Courts break from
this general rule in exceptional circumstances, such as when an expert’s testimony relies
on ‘completely unsubstantiated factual assertions.”!3° The Defendants may raise their
concerns regarding Dr. Schiffman’s testimony at trial.
For the foregoing reasons, IT IS ORDERED that Defendants’ Motion in Limine
is GRANTED IN PART AND DENIED IN PART.3!
New Orleans, Louisiana, this 10th day of August, 2024.

SUSIE ine
UNITED STATES DISTRICT JUDGE

128 74,38 Acres of Land, 80 F.3d at 1077.
129 Primrose Operating Co. v. Nat'l Am. Ins. Co., 382 F.3d 546, 563 (5th Cir. 2004).
130 McCrary v. John W. Stone Oil Distrib., L.L.C., 14-880, 2016 WL 760744, at *3 (E.D. La. Feb. 26, 2016)
(citing Hathaway v. Bazany, 507 F.3d 312, 319 n.4 (5th Cir. 2007)).
131 R, Doc. 563.

223

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10648401. Public record. Not legal advice.