# Baker v. E.I. Dupont De Nemours and Co.

> District Court, N.D. New York · September 12, 2024

URL: https://www.frixlaw.com/law-library/cases/10660037

## Case

- **Court:** District Court, N.D. New York
- **Decided:** September 12, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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
This case involves a long running dispute concerning contamination of the water
supply in Hoosick Falls, New York. It has been vigorously litigated by the parties and
following settlement agreements with certain Defendants, DuPont is the sole remaining
Defendant. Plaintiffs allege that it is liable for its production of chemicals, specifically

perfluorooctanoic acid (“PFOA”) that ultimately made their way into the water residents
of Hoosick Falls drank. As this case entered the summary judgment phase, the parties
have filed numerous Motions to exclude expert witnesses.
As relevant to the Motions addressed here, Plaintiffs seek relief including “an
order requiring Defendant DuPont to establish a medical monitoring protocol for

Plaintiffs and PFOA Invasion Injury Class Members to monitor their health and
diagnose at an early stage any ailments associated with exposure, inhalation, or ingestion
of PFOA.” Dkt. No. 355, Third Am. Compl. at p. 49. This Decision addresses two of
those Motions — competing Motions to exclude experts proffered by each side on the
4) projected utilization and cost of such medical monitoring. Plaintiffs seek to preclude
testimony from Jessica Herzstein, an expert offered by Defendant. Dkt. No. 396.'
Defendant, in turn, seeks to exclude testimony from Edgar Gentle, an expert on behalf
of Plaintiffs. Dkt. No. 397. The Motions have been fully briefed. See Dkt. Nos. 413,
414, 426, & 428. Defendant has also requested to supplement the record on these
Motions. Dkt. Nos. 442 & 444. Plaintiffs oppose those requests, but in the interest of
completeness the Court grants them. Oral argument was heard on the Motions on
September 10, 2024.
For the reasons set forth below, each Motion to exclude is denied.
I. THE OPINIONS AT ISSUE
Dr. Jessica Herzstein is a Yale and Harvard educated medical doctor who also

holds a M.P.H in Environmental Health. Dkt. No. 414-4 at p. 1. She has been retained
by Defendant to offer expert opinions regarding the cost of the medical monitoring
program (“MMP”) Plaintiffs seek in this action. Specifically, as related to the present
Motion, Dr. Herzstein has submitted a supplemental report to rebut cost estimates and

' Defendant then filed an Amended Notice of Motion. mx No. 399.

projections on proposed utilization rates for such a program offered by Plaintiffs’
experts. See Dkt. No. 414-1, Herzstein Report.
Broadly stated, Dr. Herzstein’s opinions include:
1) the MMP advocated by Plaintiffs’ experts would be redundant of services
4) already available, or worse, “is far more likely to adversely affect participants’ health
than it is to detect a treatable targeted condition”;
2) due to historically low participation in such programs, one of the scale
proposed by Plaintiffs is unwarranted; and
3) the cost of the program advanced by Plaintiffs is “far less than proposed by
Mr. Gentle.”
Id. at p. 2.
Edward Gentle is an expert on behalf of Plaintiffs. He holds degrees from Miami,
Auburn, and Oxford Universities, as well, as the University of Alabama School of Law.
Dkt. No. 397-2, Gentle Report at p. 1. His practical experience includes direct
involvement in the administration of medical testing or monitoring programs in New

York, Alabama, and West Virginia. /d. at pp. 1-2. He has also been involved as a claims
administrator or special master in a wide variety of other class or mass tort litigation
matters. Gentle Report, Ex. A at pp. 1-5. Gentle’s expert opinion outlines proposed
parameters for a MMP in Hoosick Falls and offers cost projections based on several
different participation levels. Gentle Report at pp. 4-13 & Exs. B-1 & B-2.

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 is 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.” In 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)). “The
Supreme Court has tasked district courts with a ‘gatekeeping’ role with respect to expert
opinion testimony.” Pac. Life Ins. Co. v. Bank of New York Mellon, 571 F. Supp. 3d

106, 112 (S.D.N.Y. 2021) (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S.
579, 597 (1993)). In doing so the Court recognized that under the Federal Rules of
Evidence trial courts have “the task of ensuring that an expert’s testimony both rests on
a reliable foundation and is relevant to the task at hand.” Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. at 597. Faced with motions to exclude expert testimony, courts

should apply Daubert in a “flexible” manner, id. at 594, and be reminded that “the
admissibility of expert testimony should be viewed within the context of the entire rules
of evidence and the presumption of admissibility of evidence.” TC Sys. Inc. v. Town of
Colonie, New York, 213 F. Supp. 2d 171, 173-74 (N.D.N.Y. 2002). “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)).
Il. MOTION TO EXCLUDE JESSICA HERZSTEIN
Plaintiffs seek to preclude Dr. Herzstein from offering two opinions in particular:
1) that a medical monitoring program will not be utilized and 2) that the cost of such a
program would be less than Plaintiffs’ expert opines. Dkt. No. 396-7 at pp. 1-2. The
Court considers each in turn.
A. Utilization of a Monitoring Program
Dr. Herzstein’s report opines that “medical monitoring is not necessary or
appropriate.” Herzstein Report at pp. 5-6. She further opines that based on comparison

to another such program, the West Virginia C-8 MMP she expects the proposed program
here “is more likely than not to be non-utilized, making it ineffective and futile.” Jd. at
p. 6. Plaintiffs seek to exclude this opinion as lacking a reliable basis because it
represents “nothing but her subjective and unsupported opinion.” Dkt. No. 396-7 at p.
5.

Plaintiffs first contend that Dr. Herzstein has a flawed understanding of the C-8
MMP program and thus draws improper comparisons between participation in that
program and expected participation in a MMP in Hoosick Falls. Dkt. No. 396-7 at pp.
6-8. In support of this argument, Plaintiffs point to deposition testimony from Dr.
Herzstein which demonstrated that she was not fully familiar with the C-8 MMP. See,
e.g., Dkt. No. 396-3 at pp. 138-139. In response, Defendant suggests that it is Plaintiffs
and their experts who misapprehend the nature of the C-8 MMP. Dkt. No. 414-5 at pp.
2-5. It further contends that Dr. Herzstein’s opinion regarding likely participation in a
MMP is well-supported by her reliance on the C-8 program. /d. at p. 5.
Unsurprisingly, the experts retained on each side of this case have vastly different
opinions on how many class members will participate in any MMP implemented in
Hoosick Falls. As is discussed in more detail below, Plaintiffs have offered an opinion
from Mr. Gentle basing financial projections on exceptionally high expected
participation. See p. 13 infra; see also Gentle Report. Defendant’s expert counters that
the program will likely be vastly underutilized. Herzstein Report at p. 6.

Differences of opinion, however, do not mean that an opinion lacks a factual
basis. In re Zyprexa Prods. Liab. Litig., 489 F.Supp.2d 230, 285 (E.D.N.Y.2007) (“The
mere fact that an expert’s testimony conflicts with the testimony of another expert or
scientific study does not control admissibility.”). Plaintiffs do not appear to dispute the
numbers cited by Dr. Herzstein regarding the C-8 MMP. Instead, they argue that she

has selectively relied on statistics from only the second phase of that program where
participation numbers were greatly lower than in the first stage. Dkt. No. 396-7 at p. 7.
The parties vigorously dispute what the two phases entailed and how they compare to
the proposals offered in this action, compare id. at pp. 7-8 with Dkt. No. 414-5 at pp. 3-
with Defendant contending that the first stage numbers Plaintiffs emphasize did not
involve a medical monitoring program at all. Dkt. No. 414-5 at p. 3. The Court does
not understand Plaintiffs to argue that Dr. Herzstein has misstated the participation
figures she relies on. See Dkt. No. 396-7 at p. 7 (recognizing that participation in Phase
II of the C-8 MMP was “much lower’). Those numbers, therefore, give Dr. Herzstein’s
opinion some factual basis. That factual basis may be incomplete, but that is an issue
“| that clearly goes to the weight of her opinions, not whether they have some basis in fact.
“Those issues go to weight, not admissibility, and are fodder for cross-examination.”
Pac. Life Ins. Co. v. Bank of New York Mellon, 2021 WL 673479, at *17 (S.D.N.Y. Feb.
22, 2021); see also Latino Officers Ass’n City of New York, Inc. v. City of New York.,
2003 WL 21638165, at *2 (S.D.N.Y. July 14, 2003) (denying motion to exclude expert

who purportedly relied on incomplete data because doing so goes to weight of the
testimony, not its admissibility).
The same is true of the argument that Dr. Herzstein should be precluded from
offering an opinion about participation rates because she did not consider similar rates
from other programs. Dkt. No. 414-5 at pp. 5-6. Certainly no requirement exists that

an expert must consider all available evidence in reaching a conclusion. Chefs Diet
Acquisition Corp. v. Lean Chefs, LLC, 2016 WL 5416498, at *10 (S.D.N.Y. Sept. 28,
2016) (objection that an expert “did not consider all relevant data” goes “to the weight
of [the expert’s] testimony, rather than to its admissibility”). That Dr. Herzstein may
“) have failed to consider other relevant information is clearly a point counsel could pursue
on cross-examination, but it does not disqualify her from offering that opinion. BS BIG
V, LLC v. Philadelphia Indem. Ins. Co., 2022 WL 4181823, at *4 (S.D.N.Y. Sept. 13,
2022) (finding that purported contradiction of expert’s opinion in other available
literature on the subject goes to weight, not admissibility of the opinion).
B. Cost of a Monitoring Program
Dr. Herzstein’s opinion also suggests that any medical monitoring program
would cost significantly less than opined by Plaintiffs’ experts. Herzstein Report at pp.
7-8. Plaintiffs seek to preclude this opinion on two grounds: 1) Herzstein’s lack of
qualification to offer such an opinion and 2) the lack of a factual predicate for offering
this opinion. Dkt. No. 396-7 at pp. 9-14.

An individual may be qualified to offer expert testimony “by knowledge, skill,
experience, training, or education.” FED. R. EVID. 702. “The Second Circuit and courts
within this circuit have liberally construed expert qualification requirements.” TC Sys.
Inc. v. Town of Colonie, New York, 213 F. Supp. 2d at 174. For example, “a lack of
formal training does not necessarily disqualify an expert from testifying if he or she has

equivalent relevant practical experience.” Jn re Rezulin Prods. Liab. Litig., 309
F.Supp.2d 531, 559 (S.D.N.Y. 2004).
Contrary to Plaintiffs’ suggestion, Dkt. No. 396-7 at p. 9, the mere fact that Dr.
Herzstein is not an economist by trade does not automatically preclude her from offering
testimony about the costs of a MMP. “Courts have long held that an expert testifying
about damages need not be trained as an economist.” Arista Recs. LLC v. Lime Grp.
LLC, 2011 WL 1674796, at *16 (S.D.N.Y. May 2, 2011) (internal quotation omitted)
(citing cases). The Court is similarly unpersuaded by the argument that Dr. Herzstein is
unqualified because she has never opined on the cost of a MMP before. See Dkt. No.
396-7 at p. 10.
The record reflects that the witness has significant experience in the medical field
and has worked in corporate medical settings which involved monitoring programs. See
Dkt. No. 414-3 at pp. 17 & 24. This certainly represents “knowledge” and “experience”
in such programs. See FED. R. EVID. 702. That knowledge and experience necessarily
includes the operation and cost of such programs, even if she has not previously been

involved in offering expert opinions about those factors. Dkt. No. 414-3 at pp. 185-186.
Her prior lack of experience in predicting costs and the arguable inability to accurately
refute the cost estimates of others is another question concerning the weight of the
evidence, not her qualification to offer an opinion.

The Court also disagrees that Dr. Herzstein’s opinions about the cost of a MMP
lack sufficient factual support. On this point Plaintiffs again point to what they view as
deficiencies in Dr. Herzstein’s thoroughness in considering evidence available to her.
She allegedly, for example, does not understand the breadth or scope of the MMP
proposed by Plaintiffs, Dkt. No. 396-7 at p. 11, and purportedly did not fully and
accurately study Mr. Gentle’s report. /d. at pp. 12-13. In Plaintiffs’ view, these render
Herzstein’s opinions lacking any factual basis. That argument is simply not borne out
by the record. Again, the arguments advanced by Plaintiffs may well be the subject of
vigorous cross-examination, but they do not make Dr. Herzstein’s opinion so utterly
without factual basis so as to be inadmissible. “Only if the expert’s opinion is so
fundamentally unsupported that it can offer no assistance to the jury must such testimony
be excluded.” Hollman v. Taser Int’l Inc., 928 F. Supp. 2d 657, 670 (E.D.N.Y. 2013)
(quoting First Union Nat’l Bank v. Benham, 423 F.3d 855, 862 (8th Cir. 2005)). Dr.
Herzstein’s opinion that the costs proposed by Plaintiffs’ experts are too high rely in
significant part on her opinion that Plaintiffs over-estimate the participation level to be

expected. Herzstein Report at p. 8. In Herzstein’s opinion, a MMP of this sort should
expect to see participation of less than 100% of the eligible class members, id. at p. 6,
and decreased participation over time “[d]ue to waning interest as well as population
that is aging out.” /d. at p. 8. As aresult, she expects costs to lower over time. /d.

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At least some of these conclusions find support from Plaintiffs’ own expert, Mr.
Gentle, who has previously opined that “a medical monitoring program is fortunate if
half of the claimants participate, with a third sometimes being the case.” Dkt. No. 397-
4 at p. 7. Gentle also agrees that participation in an MMP sometimes drops over time.
4) Dkt. No. 397-3 at pp. 33-34. These facts alone provide a factual basis for attacking
Gentle’s budget estimate which appears to account for an exceptionally high
participation rate and one which does not diminish over time. See Gentle Report at Exs
B-1& B-2.
For these reasons, the Court finds no basis at this time to preclude the testimony
of Dr. Herzstein.
IV. MOTION TO EXCLUDE EDGAR GENTLE
Gentle’s opinion offers costs projections based on distinct potential class sizes.
Gentle Report at Exs B-1& B-2. Defendant argues that this opinion should be precluded
because it is purely speculative in that it assumes a 100% participation rate in a medical
monitoring program, despite Gentle’s own testimony that he has never seen such a high

participation rate. Dkt. No. 397-6 at pp. 6-10. It also argues that the Gentle report
provides for costs not available to Plaintiffs under New York law. /d. at pp. 10-14.
The Second Circuit has held that the court “should exclude expert testimony if it
is speculative or conjectural or based on assumptions that are ‘so unrealistic and
contradictory as to suggest bad faith’ or to be in essence ‘an apples and oranges

1]

comparison.’” Zerega Ave. Realty Corp. v. Hornbeck Offshore Transp., LLC, 571 F.3d
206, 214 (2d Cir. 2009) (quoting Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18, 21
(2d Cir.1996)). “[E]xpert testimony must have a traceable, analytical basis in objective
fact.” Bragdon v. Abbott, 524 U.S. 624, 653 (1998). Here, the record demonstrates that
“| there is a factual basis for the key predicate that forms the basis for Gentle’s opinion.
Gentle’s report offers two cost projections - one based on 2,000 class members and the
other based on 2,500 class members. Gentle Report at p. 3. Dr. Alan Ducatman, another
expert retained by Plaintiffs, reported that over 2,000 individuals participated in blood
testing conducted by the New York State Department of Health. Dkt. No. 418-32 at p.
15. Mr. Gentle expressly relied on that report in reaching his conclusions. Gentle Report
p. 2. The DOH figures provide a factual basis for Gentle’s cost projections that is
hardly speculative. In fact, the supplemental materials offered by Defendants show that
at one time there were even greater numbers of participants in the State blood testing
than discussed in Gentle’s Report. See Dkt. No. 444 at p. 6.
As Defendant points out, however, there is clear reason to question whether a

MMP will have participation at that level and whether that number of participants would
remain active in such a program for the proposed 30-year life span. Dkt. No. 397-6 at
pp. 6-8. The suggestion is well-taken, but beside the point because it goes to the weight
of Mr. Gentle’s testimony, not its admissibility. An expert opinion is admissible if it
relies on specific facts to reach a conclusion that could aid the jury. FED. R. EVID. 702.

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Gentle’s opinion satisfies those requirements. Defendant understandably makes much
of the fact that Gentle’s opinion seems to presume a 100 % participation rate in the MMP
and given the record that this historically does not happen, it argues the opinion is
speculative. Dkt. No. 397-6 at pp. 7-8. Plaintiffs, however, specifically disclaim that
Gentle is offering an opinion as to participation rates. Dkt. No. 413 at p. 27. Accepting
Plaintiffs’ representation about the scope of their own expert’s opinion, Gentle’s cost
projections based on two specific participant projections are hardly speculative.
Even if the Court were to consider the impact of the historical evidence regarding
participation rates that is in the current record, it would nonetheless find that Mr. Gentle
should be allowed to offer his opinion. While the Court understands Defendant’s
argument as to why it believes Mr. Gentle’s opinion is speculative, it does seem that
Defendant seeks to put Mr. Gentle in an unwinnable position. While a 100%
participation rate may be unrealistic, it is unclear that Defendant could not make the
same speculation argument about any other percentage opined by Mr. Gentle. He has
written that 50% would be a good number of participants, Dkt. No. 397-4 at p. 7, but

according to Defendant’s own expert participation rates can sometimes hover in the
single digits. Herzstein Report at p. 6. What number would not be speculative? The
Court agrees with Defendant that the number offered by Mr. Gentle appears unrealistic,
but it is a number objectively obtained and thus not so speculative as to void the opinion.
“Under these circumstances, the flexibility inherent in Daubert permits the Court to

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accept testimony that is more speculative than would ordinarily be desirable.” Adrea,
LLC v. Barnes & Noble, Inc., 2014 WL 8850434, at *1 (S.D.N.Y. Oct. 14, 2014). The
reality is that Gentle’s projections regarding the number of participants affects the
weight of Mr. Gentle’s opinion and can be subjected to vigorous cross-examination.
Finally, two of the grounds raised in support of excluding expert testimony from
Mr. Gentle relate to arguments involving what payments may be legally available to
Plaintiffs in the event they recover. Specifically, Defendant argues that Gentle’s
projections cover services potential class members are already receiving and cannot
receive again as a result of verdict in this action. Dkt. No. 397-6 at pp. 10-11. It also
argues that the MMP calculations offered by Gentle include funding cash incentive
payments that are not permitted under New York Law. Jd. at pp. 12-14. Plaintiffs
respond that on each point Defendant is wrong regarding what New York law permits
or requires. Dkt. No. 413 at pp. 25-26 & 28-30.
Those legal questions — the propriety of incentive payments and the need or lack
thereof of an offset — are not properly presented on these Motions. Those are questions

for the trial court, best resolved upon full briefing of motions in limine or during trial.
This Court cannot resolve those issues now and so those arguments present no basis for
excluding expert testimony at this stage of the proceedings. Cf Fed. Trade Comm’n v.
Vyera Pharms., LLC, 2021 WL 5279465, at *5 (S.D.N.Y. Nov. 12, 2021) (“the proper
role of a Daubert motion” 1s not to address arguments about applicable legal standards).

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Should the trial court find that certain forms of relief are unavailable under New York
law, that testimony would then presumably be excluded.
V. CONCLUSION
ACCORDINGLY, it is
ORDERED, that Defendant’s Motions to supplement the record (Dkt. Nos. 442
& 444) are GRANTED; and it is further
ORDERED, that Plaintiffs’ Motions (Dkt. Nos. 396 & 399) to exclude expert
testimony from Jessica Herzstein is DENIED; and it is further
ORDERED, that DuPont’s Motion (Dkt. No. 397) to exclude expert testimony
from Edgar Gentle is DENIED; and it is further
ORDERED, that the Clerk of the Court shall serve copies of this Memorandum-
Decision and Order on the parties.
Dated: September 12, 2024
Albany, New York

U.SMMfagistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10660037. Public record. Not legal advice.