The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
MICHELE BAKER, et al.,
Plaintiffs,
V. 1:16-CV-917
(LEK/DJS)
SAINT-GOBAIN PERFORMANCE
PLASTICS CORP., et al.,
Defendants.
DANIEL J. STEWART
United States Magistrate Judge
MEMORANDUM-DECISION AND ORDER
Presently pending before the Court is Plaintiffs’ Motion to exclude two expert
witnesses offered by Defendant — Dr. Adam Love and David Duffus. Dkt. No. 404.
Plaintiffs seek to preclude the testimony of these individuals on the ground that they
lack relevant evidence and thus cannot offer expert testimony that would aid the jury.
See generally Dkt. No. 404-18, Pls.” Mem. of Law at pp. 9-14. Defendants oppose the
Motion. Dkt. No. 411. Plaintiffs have filed a reply. Dkt. No. 425. This Court heard
oral argument on this Motion, together with other motions to exclude expert testimony
on September 10, 2024. For the reasons set forth below, the Motion is denied.
I. RELEVANT BACKGROUND
The allegations in this case concern the contamination of the drinking water in
Hoosick Falls, New York by perfluorooctanoic acid, a chemical commonly referred to
as PFOA. Dkt. No. 335, Am. Compl., ¥ 1. It is alleged that the “principal source of
contamination was the former fabric coating facility located on McCaffrey Street” in
Hoosick Falls. /d. at 4. Plaintiffs allege that “DuPont manufactured and sold aqueous
fluoropolymer dispersions (“AFD”) containing APFO to Saint-Gobain and Allied
Signal that were used at the McCaffrey Street facility in their manufacturing processes.”
Id. at 9 19. “Ammonium Perfluorooctonoate (APFO) dissociates in water to form
perfluorooctanoate (PFO) and under acidic conditions is protonated to form
perfluorooctanoic acid (PFOA).” /d. at § 23. Plaintiffs further allege that:
220. From the 1950s through approximately 2015, Defendant DuPont
developed, tested, assembled, manufactured, packaged, labeled, prepared,
distributed, marketed and/or supplied PFOA-containing AFD products for
sale and sold such products to Honeywell and Saint-Gobain in the ordinary
course of their business for use at the McCaffrey Street site.
221. By at least 1984, Defendant DuPont was aware of the health hazards
associated with PFOA exposure as well as the potential for PFOA to
contaminate soil and drinking water. DuPont was also aware that there were
technologies that could reduce or eliminate the PFOA emissions for AFD
coating manufacturing facilities and/or that PFOA could be replaced in AFD
with another surfactant. DuPont chose to continue to sell PFOA-containing
AFD and not to advise purchasers of the true hazards of PFOA or instruct
them about and recommend emission reducing technologies or recommend
that they test groundwater in the vicinity of their manufacturing facilities for
PFOA because of concerns for loss of profits.
DuPont denies many of the allegations made by Plaintiffs. See generally Dkt.
No. 356. As relevant here, it denies that it was a direct and proximate cause of Plaintiffs’
injuries, at least in part, because DuPont was not a significant factor in the ultimate
contamination of the Hoosick Falls water supply. See Dkt. No. 411-6, Def.’s Mem. of
4) Law at pp. 12-13 (discussing significance of expert testimony on defense). To bolster
that defense, Defendant has submitted expert reports from Dr. Adam Love, Dkt. No.
404-3, Love Report, and David Duffus, Dkt. No. 404-13, Duffus Report. Broadly stated,
the Reports suggest that DuPont contributed only around 15% of the total AFDs
delivered to the McCaffrey Street facility between 1991 and 2003.
II. LEGAL STANDARD
Under FED. R. EVID. 702:
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
the proponent demonstrates to the court that it is more likely than not that:
(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 1s based on sufficient facts or data;
” (c) the testimony is the product of reliable principles and methods; and
(d) the expert’s opinion reflects a reliable application of the principles and
methods to the facts of the case.
“The Second Circuit has distilled Rule 702’s requirements into three broad criteria: (1)
qualifications, (2) reliability, and (3) relevance and assistance to the trier of fact.” Jn re
LIBOR-Based Fin. Instruments Antitrust Litig., 299 F. Supp. 3d 430, 466 (S.D.N.Y.
2018) (citing Nimely v. City of New York, 414 F.3d 381, 396-97 (2d Cir. 2005)).
“Overall, “exclusion remains the exception rather than the rule.”” New York City Transit
Auth. v. Express Scripts, Inc., 588 F. Supp. 3d 424, 443 (S.D.N.Y. 2022) (quoting
Vazquez v. City of New York, 2014 WL 4388497, at *12 (S.D.N.Y. Sept. 5, 2014)).
I. DISCUSSION
A, Availability of Relief under New York Law
Plaintiffs advance several legal arguments concerning the extent to which a jury
or the Court could apportion fault to non-parties regarding the contamination in Hoosick
Falls. Pls.” Mem. of Law at pp. 9-11; Reply at pp. 14-15. The applicability of New
York’s apportionment statute and what the jury will and will not be able to consider
about DuPont’s legal responsibility are not issues properly presented on a Daubert
motion. It will be the responsibility of the trial court to make determinations about the
substantive law that will be applied at a trial. This Court will not preempt the trial court’s
prerogatives in that regard in the context of the present Motion. As a result, the Court
does not find these arguments to be a proper basis for excluding the proposed testimony
at this juncture.
B. Relevance and Foundation of the Proffered Opinions
Plaintiffs next seek to exclude evidence from Love and Duffus on the ground that
it is not relevant. Pls.” Mem. of Law at pp. 11-12. They argue that the “[t]he opinions
of Dr. Love and Mr. Duffus do not make it less probable that DuPont was a significant
factor in causing the contamination Hoosick Falls” because their opinions cover roughly
only a third of the time period in which it is known that DuPont supplied AFD to the
McCaffrey Street site. /d. at p. 11. All appear to agree, however, that DuPont can be
found liable only if it was a significant contributor of potential contaminants. See Dkt.
No. 411-6 at pp. 12-13; Dkt. No. 417 at pp. 15-16 (Plaintiffs’ argument in opposition to
summary judgment is that “DuPont may be liable if it made a significant contribution to
the PFOA in the Contamination Zone.”’). “Evidence is relevant if... it has any tendency
to make a fact more or less probable than it would be without the evidence,” FED. R.
Evip. 401(a), and “Rule 702 embodies a liberal standard of admissibility for expert
opinions.” Nimely v. City of New York, 414 F.3d 381, 395 (2d Cir. 2005). Under those
standards, the Court has no difficulty concluding that the comparative data presented in
the reports may make it more likely in the eyes of a jury that DuPont was not a significant
factor in distribution to the McCaffrey Street site. The reports, therefore, are relevant.’
Plaintiffs are free to seek exclusion of this testimony at the time of trial under Rule 403
on the ground that the limited data set make the reports more prejudicial than probative.
As the Supreme Court specifically noted in Daubert:
' The Court rejects the argument that the opinions are unnecessary to assist the jury because expert testimony is
not needed to establish the volume of AFD supplied by DuPont since the records establish that by themselves. See
Pls.’ Reply at p. 12. First, Dr. Love offers opinions that are beyond merely statistical ones and discuss the
significant scientific mformation regarding PFOA contamination. See generally Love Report. Mr. Duffus’
opinion also does not simply recount direct sales data but employed various accounting techniques to arrive at the
figures which formed the basis of his opinion. See Duffus Report at pp. 5-10. Explanations of how these figures
were arrived at could potentially assist the jury in understanding the data.
Rule 403 permits the exclusion of relevant evidence if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury. Judge Weinstein has explained: Expert
evidence can be both powerful and quite misleading because of the difficulty
in evaluating it. Because of this risk, the judge in weighing possible prejudice
against probative force under Rule 403 of the present rules exercises more
control over experts than over lay witnesses.
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. at 595 (internal quotations, citations,
and alterations omitted).
Plaintiffs argues that the sole relevant fact in the reports at issue is that DuPont
sold over 600,000 pounds of AFD after 1991 from which, along with other evidence, a
jury can find substantial contribution. Reply at pp. 11-14. This argument ignores that
the Second Circuit has previously concluded that market share data may be appropriate
“| evidence “that helps the jury determine the scope of the defendant’s contribution to the
plaintiff's injury.” Jn re Methyl Tertiary Butyl Ether (MTBE) Prod. Liab. Litig., 725
F.3d 65, 117 (2d Cir. 2013). The parties are free to argue what New York law requires
to establish substantial causation and the trial court will make an appropriate ruling on
that question at the time of trial, but for now Defendant has carried its burden of
establishing sufficient relevancy to warrant denial of this Motion.
Plaintiffs make a related argument, couched in the purported lack of an adequate
foundation, that the opinions cannot aid the jury regarding DuPont’s contribution to the
contamination because the data set speaks only to AFDs produced, which is not an
accurate representation of actual potential contaminants. Pls.” Mem. of Law at pp. 13-
14. The record, however, shows that this distinction is recognized and noted by Dr.
Love. See Love Report at pp. 26 & 43. While Plaintiffs argue that “these opinions
would only confuse the jury into thinking the relative quantity of AFD supplied would
be equivalent to the relative percentage of PFOA discovered in the environment,” Pls.’
Mem. of Law at p. 13, Dr. Love’s report specifically recognizes that “it was only the
APFO component that is attributed to PFOA emissions from the McCaffrey Street
Facility.” Love Report at p. 43. He also expressly stated that the records available to
him did not provide full information about APFO content. /d. at p.27. Dr. Love can be
cross-examined about what Plaintiffs perceive to be the resulting limited utility of his
opinions, but they are clearly not lacking in foundation or irrelevant.
Mr. Duffus’ opinion does not make the same scientific distinctions, see generally
Duffus Report, but is nonetheless not subject to preclusion on relevance or foundational
grounds at this juncture. The Amended Complaint specifically alleges, inter alia, that
“(f}]rom the 1950s through approximately 2015, Defendant DuPont developed, tested,
assembled, manufactured, packaged, labeled, prepared, distributed, marketed and/or
supplied PFOA-containing AFD products for sale and sold such products to Honeywell
and Saint-Gobain in the ordinary course of their business for use at the McCaffrey Street
site.” Dkt. No. 355 at § 220. Mr. Duffus, based on the limited available records, opines
about the percentage of AFDs actually supplied by DuPont during the period between
1991 and 2003. Duffus Report at p. 22. Again, permitting Plaintiffs’ able counsel to
cross examine Mr. Duffus about the perceived limitations of the data set and what, if
any, information can be gleaned from his opinion about DuPont’s potential contribution
of APFOs is a better remedy than total preclusion of this opinion.
Finally, to the extent Plaintiffs suggest that the opinions lack sufficient
foundation because Love and Duffus “rely solely on data produced by Saint-Gobain”
that addressed only a limited time period, that argument is rejected. The source of the
information does not render it less adequate. It appears that this data is the only
information available to the parties and provides a basis for the limited nature of the
opinions — which relates to Defendant’s distribution of chemicals during the time period
for which information was available. This argument, therefore, is unavailing.
IV. CONCLUSION
ACCORDINGLY, it is
ORDERED, that Plaintiffs’ Motions (Dkt. No. 404) to exclude expert testimony
from Adam Love and David Duffus is DENIED and it is further
ORDERED, that the Clerk of the Court shall serve copies of this Decision and
Order on the parties.
Dated: September 13, 2024
Albany, New York
Zz;
U.SMMagistrate Judge