Petition for Writ of Certiorari — Union Carbide Corporation, et al., Petitioners v. Lee Ann Sommerville

Supreme Court briefFeb 2, 2026

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No. _____

IN THE

Supreme Court of the United States

____________________

UNION CARBIDE CORPORATION; COVESTRO LLC,

Petitioners.

v.

LEE ANN SOMMERVILLE, individually, and on behalf

of all others similarly situated,

Respondent.

____________________

On Petition for a Writ of Certiorari to the

U.S. Court of Appeals for the Fourth Circuit

____________________

PETITION FOR A WRIT OF CERTIORARI

____________________

JOHN L. EWALD

SUSANNA MOLDOVEANU

KIRKLAND & ELLIS LLP

601 Lexington Avenue

New York, NY 10022

(212) 446-4800

DAVID A. FUSCO

WESLEY A. PRICHARD

T. NATHAN TOWNSEND

K&L GATES LLP

210 Sixth Avenue

Pittsburgh, PA 15222

(412) 355-6500

DONALD B. VERRILLI, JR.

Counsel of Record

ELAINE J. GOLDENBERG

RACHEL G. MILLER-ZIEGLER

KYLE A. SCHNEIDER

MUNGER, TOLLES & OLSON LLP

601 Massachusetts Ave. NW

Suite 500E

Washington, DC 20001-5369

(202) 220-1100

Donald.Verrilli@mto.com

Counsel for Petitioners

i

QUESTION PRESENTED

Whether, under Federal Rule of Evidence 702,

challenges to the factual basis of an expert witness’s

testimony always go to the weight of the evidence rather than to admissibility, as the First and Fourth Circuits hold, or whether such challenges go to weight

only if a court first finds it more likely than not that

an expert has a sufficient basis to support the testimony, as the Fifth, Sixth, Eighth, Ninth, and Federal

Circuits hold.

ii

PARTIES TO THE PROCEEDINGS

Petitioners Union Carbide Corporation and

Covestro LLC were defendants in the district court

and appellees in the court of appeals.

Respondent Lee Ann Sommerville, individually,

and on behalf of all others similarly situated, was the

plaintiff in the district court and appellant in the court

of appeals.

iii

RULE 29.6 STATEMENT

Petitioner Union Carbide Corporation is a wholly

owned subsidiary of The Dow Chemical Company,

which is a wholly owned subsidiary of Dow Inc. Dow

Inc. is a publicly held company. The Vanguard Group

owns more than 10% of the stock of Dow Inc.

Petitioner Covestro LLC is a wholly owned subsidiary of Covestro (Netherlands) B.V., and that entity is

a wholly owned subsidiary of Covestro Deutschland

AG. Covestro Deutschland AG is a wholly owned subsidiary of Covestro AG, a publicly traded company.

Covestro AG owns more than 10% of Covestro LLC.

ADNOC International Germany Holding AG owns

more than 10% of the stock of Covestro AG. ADNOC

International Germany Holding AG is a wholly owned

subsidiary of ADNOC International UK Limited,

which is a wholly owned subsidiary of XRG P.J.S.C.,

which is a wholly owned subsidiary of Abu Dhabi National Oil Company (ADNOC) P.J.S.C.

iv

RELATED PROCEEDINGS

The proceedings directly related to this petition

are:

•

Sommerville v. Union Carbide Corporation;

Covestro LLC, No. 24-1491 (4th Cir. Aug. 18,

2025)

•

Sommerville v. Union Carbide Corporation,

No. 2:19-cv-00878 (S.D. W. Va. March 20,

2024)

•

Sommerville v. Union Carbide Corporation,

No. 2:19-cv-00878 (S.D. W. Va. May 13, 2024)

v

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........................................... i

PARTIES TO THE PROCEEDINGS .......................... ii

RULE 29.6 STATEMENT ..........................................iii

RELATED PROCEEDINGS....................................... iv

TABLE OF CONTENTS.............................................. v

TABLE OF AUTHORITIES ...................................... vii

OPINIONS BELOW .................................................... 1

JURISDICTION........................................................... 1

PROVISIONS INVOLVED.......................................... 1

INTRODUCTION ........................................................ 1

STATEMENT OF CASE ............................................. 4

REASONS FOR GRANTING THE PETITION ........ 12

I.

The Courts of Appeals Are Divided Over

Whether Challenges to the Factual

Basis of an Expert’s Opinion Always Go

to Weight, Not Admissibility .......................... 12

II.

The Fourth Circuit’s Decision Is

Incorrect .......................................................... 21

III.

The Question Presented Is Exceptionally

Important and Warrants Review in This

Case ................................................................. 25

A.

Resolution of the Question

Presented Is of Overriding

Importance............................................ 25

B.

This Case Is an Ideal Vehicle .............. 30

vi

TABLE OF CONTENTS

(continued)

Page

CONCLUSION .......................................................... 32

APPENDICES

Appendix A: Opinion of the United States

Court of Appeals for the Fourth Circuit

(August 18, 2025) ...................................................... 1a

Appendix B: Opinion of the United States

District Court for the Southern District of

West Virginia (March 20, 2024) ............................. 42a

Appendix C: Opinion of the United States

District Court for the Southern District of

West Virginia (May 13, 2024)................................. 89a

Appendix D: Order of the United States

Court of Appeals for the Fourth Circuit

Denying Rehearing (November 4, 2025) .............. 116a

Appendix E: Provisions Involved ........................ 117a

vii

TABLE OF AUTHORITIES

Page(s)

FEDERAL CASES

Baker v. Blackhawk Mining,

141 F.4th 760 (6th Cir. 2025) ......................... 16, 19

Bliv v. Charter Oak Fire Ins.,

159 F.4th 539 (8th Cir. 2025) ............................... 18

Bresler v. Wilmington Trust,

855 F.3d 178 (4th Cir. 2017) ................. 2, 3, 10, 11,

.............................................................. 18, 22-24, 29

In re Camp Lejeune Water Litig.,

2025 WL 3565850 (E.D.N.C. Dec. 12,

2025)...................................................................... 29

Clark v. Martinez,

543 U.S. 371 (2005) .............................................. 23

Daubert v. Merrell Dow

Pharmaceuticals,

509 U.S. 579 (1993) ................. 2, 4, 5, 21-24, 26, 30

Doucette v. Jacobs,

106 F.4th 156 (1st Cir. 2024) ........................... 4, 21

EcoFactor v. Google,

137 F.4th 1333 (Fed. Cir. 2025) .... 6, 13, 16, 17, 20

Engilis v. Monsanto,

151 F.4th 1040 (9th Cir. 2025) ........... 14, 15, 19, 20

Gen. Elec. v. Joiner,

522 U.S. 136 (1997) ........................................ 11, 26

viii

TABLE OF AUTHORITIES

(continued)

Page(s)

Harris v. FedEx Corp. Servs.,

92 F.4th 286 (5th Cir. 2024) ........................... 17, 19

Kumho Tire v. Carmichael,

526 U.S. 137 (1999) .................................... 1, 26, 27

Michael’s Fabrics v. Donegal Mut. Ins.,

2025 WL 2624280 (D. Md. Sept. 11,

2025)...................................................................... 28

Milward v. Acuity Specialty Products

Group,

639 F.3d 11 (1st Cir. 2011) ....................... 20, 21, 24

Mincey v. Se. Farm Equip.,

2025 WL 2450913 (D.S.C. Aug. 26,

2025)...................................................................... 29

Nairne v. Landry,

151 F.4th 666 (5th Cir. 2025) ......................... 17, 19

In re Onglyza (Saxagliptin) &

Kombiglyze (Saxagliptin &

Metformin) Products Liability

Litigation,

93 F.4th 339 (6th Cir. 2024) ........................... 15, 19

Rodriguez v. Hosp. San Cristobal,

91 F.4th 59 (1st Cir. 2024) ............................... 4, 21

Sprafka v. Medical Device Business

Services,

139 F.4th 656 (8th Cir. 2025) ......................... 17, 18

ix

TABLE OF AUTHORITIES

(continued)

Page(s)

Tome v. United States,

513 U.S. 150 (1995) ................................................ 5

STATE CASE

Bower v. Westinghouse Elec.,

522 S.E.2d 424 (W. Va. 1999)............................. 7, 9

FEDERAL STATUTE

28 U.S.C. 1254(1) ......................................................... 1

FEDERAL RULES

Fed. R. Evid. 104(a) ....................................... 4, 5, 6, 13

Fed. R. Evid. 702....................... 1, 2-6, 11, 13-24, 27-31

Fed. R. Evid. 702(a) ............................................. 4, 5, 6

Fed. R. Evid. 702(b) .......... 2, 4-6, 11, 21, 22, 24, 29, 31

Fed. R. Evid. 702(c) ........................................ 4, 5, 6, 22

Fed. R. Evid. 702(d) ............................................. 4, 5, 6

OTHER AUTHORITIES

Margaret A. Berger, The Admissibility

of Expert Testimony, in Federal

Judicial Center, Reference Manual

on Scientific Evidence (3d ed. 2011) .................... 27

x

TABLE OF AUTHORITIES

(continued)

Page(s)

Stephen G. Breyer, Introduction, in

Federal Judicial Center, Reference

Manual on Scientific Evidence (3d

ed. 2011) ................................................................ 26

Federal Rules of Evidence–Expert

Testimony–Judicial Conference

Amends Rule 702–Federal Rule of

Evidence 702,

138 Harv. L. Rev. 899 (2025) ....... 13, 20, 29, 30, 31

Peter Huber, Junk Science and the Jury,

1990 U. Chi. Legal F. 273 (1990) ................... 23, 27

Lee Mickus, Amended Rule 702 in 2025,

Wash. Legal Found. (Oct. 7, 2025),

https://www.wlf.org/2025/10/07/

publishing/amended-rule-702-in2025-circuit-courts-embrace-thechanged-standard/ ................................................ 29

Christopher R.J. Pace, Admitting and

Excluding General Expert Testimony:

The Eleventh Circuit Construct,

37 Am. J. Trial Advoc. 47 (2013).......................... 27

Jed S. Rakoff, Science and the Law:

Uncomfortable Bedfellows,

38 Seton Hall L. Rev. 1379 (2008) ....................... 26

xi

TABLE OF AUTHORITIES

(continued)

Page(s)

Thomas D. Schroeder, Toward A More

Apparent Approach to Considering

the Admission of Expert Testimony,

95 Notre Dame L. Rev. 2039 (2020) ............... 24, 29

Victor E. Schwartz & Cary Silverman,

The Draining of Daubert and the

Recidivism of Junk Science in

Federal and State Courts,

35 Hofstra L. Rev. 217 (2006) .............................. 26

1

Petitioners respectfully petition for a writ of certiorari to review the judgment of the U.S. Court of Appeals for the Fourth Circuit.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, at

1a) is reported at 149 F.4th 408. The order denying

rehearing en banc (App., infra, at 116a) is unpublished. The district court’s order excluding expert

testimony (App., infra, at 42a) is available at 2024 WL

1204094. The district court’s order dismissing the case

(App., infra, at 89a) is available at 2024 WL 2139394.

JURISDICTION

The judgment of the court of appeals was entered

on August 18, 2025. App., infra, at 1a. A timely petition for rehearing en banc was denied on November 4,

2025. Id. at 116a. This Court’s jurisdiction is invoked

under 28 U.S.C. 1254(1).

PROVISIONS INVOLVED

The relevant provisions are reproduced in the appendix to this petition. App., infra, at 117a.

INTRODUCTION

Federal Rule of Evidence 702 imposes an obligation

on federal district judges to ensure that expert testimony meets threshold criteria of reliability before juries may consider that evidence. Faithful discharge of

that obligation is essential. “[E]xpertise that is fausse

and science that is junky” threaten the credibility of

the adjudicatory process. Kumho Tire v. Carmichael,

526 U.S. 137, 158-159 (1999) (Scalia, J., concurring).

Jurors seldom possess the knowledge and experience

necessary to assess the scientific and technical expert

testimony that has come to play such an outsized role

in complex civil litigation. At the same time, jurors

2

are prone to give considerable deference to such expert

testimony. See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 595 (1993).

Rule 702’s requirement that “the [expert’s] testimony is based on sufficient facts or data” addresses

those very risks. Fed. R. Evid. 702(b). For years after

this Court’s decision in Daubert, many courts of appeals held that district courts applying this criterion

must determine by a preponderance of the evidence

that sufficient facts or data support an expert’s opinion to render it reliable enough for the jury to consider.

But courts like the First and Fourth Circuits applied

a different rule. Those circuits held that doubts about

the factual underpinnings of an expert’s opinion categorically go to the weight jurors should give to that evidence, not to the threshold question of its admissibility. Needless to say, that approach materially increased the risks that jury verdicts will be the product

of junk science or other misconceived faux expertise.

In 2023, Rule 702 was amended for the express

purpose of repudiating the approach of the First and

Fourth Circuits and clarifying that district courts

should not admit expert testimony unless they first determine by a preponderance of the evidence that an

expert’s opinion is based on sufficient facts and data to

establish its reliability. Judge Schroeder, the Chair of

the Subcommittee that drafted the amendments, specifically pointed to the Fourth Circuit’s decision in

Bresler v. Wilmington Trust, 855 F.3d 178, 195 (4th

Cir. 2017)—which held that questions about an expert’s “factual underpinnings” do not “affect * * * admissibility”—as an exemplar of the error the amendment was trying to correct.

Unfortunately, the Fourth Circuit did not get the

message. In the decision below, a sharply divided

3

panel held that the district court had abused its discretion when it concluded that plaintiff’s proposed expert had not established by a preponderance of the evidence that the factual underpinnings of his analysis

were sufficiently reliable to justify admission of the

testimony.

This case—a putative class action in which the

plaintiff alleges a medical-monitoring claim based on

allegations that the plaintiff breathed in a contaminant allegedly generated by defendants’ operations—

is precisely the kind of case in which faithful application of Rule 702 is particularly important. The plaintiff’s proposed expert attempted to demonstrate community exposure to the contaminant by extrapolating

data from a single year over a 36-year period, using

data relating to a facility that has nothing to do with

plaintiff’s lawsuit, relying on projected emissions for a

single year that were inexplicably more than 100

times greater than for any other year, and using multiple contradictory sets of weather information from

non-representative locations.

Expressly relying on Bresler, one of the very decisions taking the approach that the Advisory Committee repudiated, the court of appeals held that the inadequacy of the factual basis for the expert’s testimony

was a matter for the jury to consider in deciding how

much weight to give that testimony—not a reason to

refuse to admit the evidence in the first place. As

Chief Judge Diaz observed in dissent, the court’s ruling is irreconcilable with Rule 702 and the rule that

most circuits apply. App., infra, at 35a (“an expert

who constructs a model based on faulty assumptions

and irrelevant data shouldn’t be handed a ‘get-out-ofDaubert-free card,’” regardless of whether “he uses an

otherwise reliable modeling system”).

4

At this point, it is clear that the 2023 amendments

have failed to bring the Fourth Circuit into alignment

with the correct understanding of Rule 702 that most

circuits apply. And the First Circuit has taken the

same obdurate approach as the Fourth Circuit. 1 Given

how frequently the question arises and how serious

the consequences of mistaken admission of expert scientific testimony can be in a wide variety of cases, including putative tort class actions like this one, this

Court’s immediate intervention is urgently needed.

STATEMENT OF CASE

1. Federal Rule of Evidence 702 states that an expert witness “may testify in the form of an opinion”

only “if the proponent demonstrates to the [district]

court that it is more likely than not” that several reliability-related requirements are satisfied. Fed. R.

Evid. 702; see Fed. R. Evid. 104(a). The proponent

must persuade the court that “the [expert’s] testimony

is based on sufficient facts or data.” Fed. R. Evid.

702(b). The proponent also must persuade the court

that “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”; “the testimony is the product of reliable principles and methods”; and “the expert’s opinion reflects a reliable application of the principles and methods to the facts of the

case.” Fed. R. Evid. 702(a), (c)-(d).

The current version of Rule 702 is the product of

two sets of amendments that occurred after this

Court’s landmark decision in Daubert v. Merrell Dow

See Rodriguez v. Hosp. San Cristobal, 91 F.4th 59, 70 (1st Cir.

2024) (applying rule from decision that Judge Schroeder identified as emblematic of the incorrect approach); Doucette v. Jacobs,

106 F.4th 156, 169 (1st Cir. 2024) (same).

1

5

Pharmaceuticals, 509 U.S. 579 (1993). Daubert requires trial courts to take on a “gatekeeping role” to

“ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Id.

at 589, 597.

In 2000, Rule 702 was amended to “affirm[] the

trial court’s role as gatekeeper.” Fed. R. Evid. 702 advisory committee’s notes to 2000 amendments. 2 The

2000 amendments added reliability requirements now

found in Rule 702(a)-(d), including the requirement in

Rule 702(b) that an expert’s testimony be based on sufficient facts or data. Ibid. At the time, Rule 702 did

not expressly state that the proponent of evidence

must demonstrate to the district court by a preponderance of the evidence that those requirements are satisfied. But the Advisory Committee Notes to the 2000

amendments explained that Rule 104(a) separately required that more-likely-than-not showing.

Rule

104(a) governs the “admissibility of all expert testimony” and gives the “proponent” of such testimony

“the burden of establishing that the pertinent admissibility requirements are met by a preponderance of

the evidence.” Ibid.; see Fed. R. Evid. 104(a) (“The

court must decide any preliminary question about

whether a witness is qualified, a privilege exists, or evidence is admissible.”).

In 2023, Rule 702 was amended again to “clarify

and emphasize that expert testimony may not be admitted unless the proponent demonstrates to the court

This Court has long “relied on th[e] well-considered [Advisory

Committee] Notes as a useful guide in ascertaining the meaning

of the Rules” of Evidence. Tome v. United States, 513 U.S. 150,

160 (1995).

2

6

that it is more likely than not that the proffered testimony meets the admissibility requirements set forth

in the rule.” Fed. R. Evid. 702 advisory committee’s

notes to 2023 amendments. The amendments added

the phrase “the proponent demonstrates to the court

that it is more likely than not that” before the list of

reliability criteria in Rule 702(a)-(d). Ibid. The Advisory Committee explained that “many courts have

held that the critical question[] of the sufficiency of an

expert’s basis” is a “question[] of weight and not admissibility”—and that those holdings “are an incorrect

application of Rules 702 and 104(a)” that “made [it]

necessary” to “emphasiz[e] the preponderance standard in Rule 702” itself. Ibid.; see ibid. (criticizing court

rulings that “arguments about the sufficiency of an expert’s basis always go to weight and not admissibility”).

The 2023 amendments did not change the substantive or procedural requirements imposed by Rule 702.

“Rather, the amendment is simply intended to clarify

that Rule 104(a)’s requirement applies to expert opinions under Rule 702.” Fed. R. Evid. 702 advisory committee’s notes to 2023 amendments; accord EcoFactor

v. Google, 137 F.4th 1333, 1339 n.8 (Fed. Cir. 2025) (en

banc) (“The 2023 amendment did not substantively

change the relevant standard.”).

2. In this putative class action, respondent Lee

Ann Sommerville sued petitioners as operators of two

separate manufacturing facilities located in South

Charleston, West Virginia (collectively, “the Plant”).

App., infra, at 1a-2a. Respondent, who did not work

at or have any special connection to the Plant, asserted

a single claim for medical monitoring under West Virginia common law. She alleged that Plant operations

between 1984 and 2019 emitted ethylene oxide (“EtO”)

7

into the atmosphere, that she breathed in the EtO in

the course of her daily life, and that she faced an increased risk of future harm as a result. Ibid.

Respondent acknowledged that she could not establish liability without admissible expert testimony

showing that she had significant exposure to a “proven

hazardous substance” and that her exposure was

greater than that of the population at large. App., infra, at 19a (quoting Bower v. Westinghouse Elec., 522

S.E.2d 424, 432-433 (W. Va. 1999)). In an effort to

meet that requirement, respondent offered Dr. Ranajit

Sahu as an expert on petitioners’ EtO emissions during the relevant period, including where emissions

traveled geographically, and the “potential exposure

levels of [respondent] and the proposed class members.” Ibid.

Dr. Sahu claimed that he could model EtO emissions and determine an individual’s cumulative EtO

exposure based on a residential address and information about the years the individual lived there.

App., infra, at 33a. But to run the model, he first “had

to select the inputs” that the model would use, which

“included source data, receptor data, and meteorological data.” Id. at 19a. Dr. Sahu conceded that the “accuracy of the model bears a strong positive relationship to the correct inputs being used * * * that represent the actual condition” of the Plant and “its emissions sources.” Id. at 35a.

Dr. Sahu submitted an expert report setting forth

his methodology and findings. App., infra, at 44a. The

report explained that he did not try to assess emissions from the Plant alone—instead, he commingled

“results from both” the Plant and Union Carbide’s separate facility in Institute, West Virginia, even though

that separate facility is not at issue in this case. Id. at

8

44a, 56a. He also listed the emissions sources, emissions data, meteorological data, and data regarding

background levels of EtO that he inputted into his

model. Id. at 45a-49a, 61a-62a. Relying on those inputs, he opined that “persons in the surrounding community were exposed to significant concentrations of

EtO.” Id. at 48a.

3. a. After discovery closed, the district court

granted petitioners’ motions to exclude Dr. Sahu’s testimony. App., infra, at 42a-88a. The court first rejected respondent’s “contention that the instant motions raise questions affecting the weight and credibility of Dr. Sahu’s opinions rather than their admissibility.” Id. at 54a. The court explained that, “[u]pon detailed review of the expert reports, I find that the opinions of Dr. Sahu are not based upon sufficient facts or

data because the inputs he uses in the air model are

speculative and are premised on assumptions that do

not accurately represent [petitioners’] operations.” Id.

at 42a.

The district court identified a number of independent “substantive issues” that cast serious doubt on the

“reliability” of the data that Dr. Sahu used and rendered his testimony inadmissible. App., infra, at 60a.

For instance, Dr. Sahu treated data from a single year

as representative of emissions levels over the entire

36-year period from 1984 to 2019, without any justification for such an assumption and in the face of official

warnings that the data should not be used that way.

Id. at 62a-63a, 67a-75a. He did the same thing with

the “meteorological data” that he used to assess “emissions dispersion characteristics,” while also using

“three different, contradictory sets of meteorological

data taken from different locations” that were not

“representative” of the Plant. Id. at 76a-78a; see id. at

9

62a (explaining that Dr. Sahu relied on data relating

to both the Plant and the separate Union Carbide facility in Institute, even though the latter has nothing

to do with respondent’s suit). And he used emissions

estimates that resulted in projections of “EtO concentrations for the year 1984” that are inexplicably “‘over

100 times greater’ than the estimates for some of the

other years in the potential class period,” without validating his data or adequately explaining the disparity. Id. at 70a.

b. In May 2024, the district court granted petitioners’ motion for summary judgment. App., infra, at

89a-115a. The court explained that respondent “relie[d] entirely” on the expert “to prove her alleged increased risk of cancer development due to the alleged

EtO emissions.” Id. at 104a. But the court had already “excluded * * * Dr. Sahu, because he used patently unreliable data and methods in creating the air

model used to determine the alleged estimated EtO

emissions—and therefore the increased risk of disease.” Id. at 104a-105a. Accordingly, the court concluded, respondent could not establish any injury and

lacked standing to proceed.

4. The Fourth Circuit reversed in a divided opinion. App., infra, at 1a-41a. While agreeing that respondent can pursue her medical-monitoring claim

only if she “put[s] forth admissible expert testimony to

establish” that “she was * * * ‘significantly exposed’

to a proven hazardous substance,” the majority (Ben-

10

jamin, J.) ruled that the district court abused its discretion in excluding Dr. Sahu’s expert testimony. Id.

at 18a-21a (quoting Bower, 522 S.E.2d at 432-433). 3

The majority identified the district court’s error as

“[e]xcluding Dr. Sahu” for his “choice of source [data]

and meteorological data.” App., infra, at 20a. That

was wrong, the majority held, because “questions regarding the factual underpinnings of the [expert witness’] opinion affect the weight and credibility of the

witness’ assessment, not its admissibility.” Id. at 20a21a (citation omitted). In a footnote, the majority purported to acknowledge that “a district court can decide

that an expert’s opinion lacks sufficient support in the

record.” Id. at 27a n.7 (citation omitted). But in the

same breath, the majority reemphasized that a court

cannot exclude expert testimony based on “disagreement with an expert’s choice of data” or “its own assessment of the correctness of an expert’s opinions,”

and quoted Bresler v. Wilmington Trust, 855 F.3d 178,

195 (4th Cir. 2017), for the unqualified proposition

that questions about an expert’s “factual underpinnings” do not “affect * * * admissibility.” Ibid. (emphasis omitted).

The majority repeatedly relied on that principle of

law, referring to Bresler multiple times throughout its

opinion. E.g., App., infra, at 21a, 22a, 27a. For example, the court of appeals deemed the district court’s critique of Dr. Sahu’s “choice of meteorological inputs”

improper on the ground that the court “conflated admissibility with the weight a factfinder might attribute Dr. Sahu’s testimony based on his choice of data.”

The majority also concluded that respondent has Article III

standing because of her alleged “need” to pay “for medical testing

today to mitigate an increased risk of illness.” App., infra, at 16a.

3

11

Id. at 24a-25a. The court of appeals said the same

thing about the district court’s analysis of Dr. Sahu’s

“choice of source parameters” and “emissions data selections,” deeming that analysis a “violat[ion of] Bresler’s holding that ‘questions regarding the factual underpinnings of the [expert witness’] opinion” go only to

“weight and credibility,” not “admissibility.’” Id. at

20a-22a (quoting 855 F.3d at 195). And the court of

appeals ruled that “[e]xcluding Dr. Sahu for failing to

‘validate’ his data” impermissibly rested on “disagree[ment] with Dr. Sahu’s choice of data,” which

Bresler “forbids.” Id. at 21a-22a (citing 855 F.3d at

196).

In dissent, Chief Judge Diaz explained why the district court “correctly excluded” Dr. Sahu’s testimony

and, at minimum, did not abuse its discretion. App.,

infra, at 33a. He emphasized that the majority was

mistaken in holding that district courts may not consider questions about the factual underpinnings of an

expert’s testimony in deciding admissibility. Id. at 36a

(citing Fed. R. Evid. 702(b), and Gen. Elec. v. Joiner,

522 U.S. 136, 146 (1997)).

Under the proper Rule 702 standard, Chief Judge

Diaz reasoned, it is clear that Dr. Sahu’s testimony

“wasn’t well-grounded in the facts and data available”

and that the district court “had good reason to be concerned about Dr. Sahu’s failure to justify the assumptions he made in creating the inputs for the dispersion

model.” App., infra, at 34a, 37a; see id. at 35a (“an

expert who constructs a model based on faulty assumptions and irrelevant data shouldn’t be handed a

‘get-out-of-Daubert-free card,’” regardless of whether

“he uses an otherwise reliable modeling system”). For

instance, Chief Judge Diaz explained, Dr. Sahu “relied

12

on values that expressly didn’t represent actual emissions”; “ignored telltale signs that there might be a

problem with the emissions values he used”; “combined meteorological data from three locations,” including locations “some distance away” from the Plant;

and “held a value (e.g., emissions, operations) from one

year constant over several years (or, for the meteorological data, for the entire thirty-year period at issue)”

without explaining how doing so could possibly make

sense. Id. at 38a-39a.

In Chief Judge Diaz’s view, those type of “concerns”

fall “squarely within the district court’s purview” because they are an important part of fulfilling its “gatekeeping responsibility.” App., infra, at 34a-37a. Because he would have upheld the exclusion of the expert’s testimony, he also would have affirmed the district court’s grant of summary judgment to petitioners

on the ground that respondent failed to “meet her burden * * * to demonstrate an injury in fact.” Id. at

33a. 4

REASONS FOR GRANTING THE PETITION

I.

The Courts of Appeals Are Divided Over

Whether Challenges to the Factual Basis

of an Expert’s Opinion Always Go to

Weight, Not Admissibility

The Fourth Circuit’s decision in this case entrenched a conflict between the First and Fourth Circuits on one side and the Fifth, Sixth, Eighth, Ninth,

and Federal Circuits on the other. Circuits in the for-

Chief Judge Diaz also would have held that “medical monitoring

costs (incurred or anticipated), without more, can’t confer standing to seek damages in federal court.” App., infra, at 30a.

4

13

mer category hold—in the words of the decision below—that challenges to the factual basis of an expert’s

testimony “affect the weight and credibility” of an expert’s testimony and “not its admissibility,” App., infra, at 20a-21a, while circuits in the latter category

hold that such challenges go to the weight of the evidence only if a court first finds it more likely than not

that an expert’s testimony has a sufficient factual basis to render it reliable.

A. That split has been brewing for a number of

years—but recent developments make it intolerable.

In 2023, Rule 702 was amended to address the decisions of “courts” that had “incorrect[ly]” “held[] that

arguments about the sufficiency of an expert’s basis

always go to weight and not admissibility.” Fed. R.

Evid. 702 advisory committee’s notes to 2023 amendments. That amendment was intended to “clarify,” not

to change, the existing requirements of the Rules of

Evidence. Ibid.; see EcoFactor v. Google, 137 F.4th

1333, 1339 n.8 (Fed. Cir. 2025) (en banc) (“The 2023

amendment did not substantively change the relevant

standard.”). It did so by adding an express reference

in Rule 702 to the separate requirement in Rule 104(a)

that the proponent of evidence establish admissibility

by a preponderance of the evidence. See Fed. R. Evid.

104(a). As of December 1, 2023, therefore, the

amended Rule 702 provides that expert testimony is

admissible “if the proponent demonstrates to the court

that it is more likely than not that * * * the testimony

is based on sufficient facts or data.” Fed. R. Evid. 702

(emphasis added).

After that amendment, courts of appeals that had

previously required district courts to determine that

expert testimony more likely than not has a sufficient

factual basis before admitting it continued to enforce

14

that requirement. And some courts of appeals that

had not consistently approached admissibility that

way fell into line. But two courts of appeals—the

Fourth Circuit, which issued the decision below, and

the First Circuit—continued to hold fast to their position that questions about an expert’s factual basis go

only to the weight of the expert’s testimony and therefore must be decided by a jury. See Federal Rules of

Evidence—Expert Testimony—Judicial Conference

Amends Rule 702—Federal Rule of Evidence 702, 138

Harv. L. Rev. 899, 903 (2025).

Thus, despite the amendments to Rule 702, there

remains an intractable circuit split over whether a district court must determine whether it is more likely

than not that an expert has a sufficient factual basis

to support an opinion before allowing that opinion to

be admitted as evidence.

B. The Fifth, Sixth, Eighth, Ninth, and Federal

Circuits have hewed to the approach prescribed in the

Rule 702 advisory committee notes.

The Ninth Circuit’s decision in Engilis v. Monsanto, 151 F.4th 1040 (9th Cir. 2025), is illustrative.

That decision traces Rule 702’s history, including the

clarifying 2023 amendments, and holds that,

“[p]roperly applied, Rule 702 requires that challenges

to an expert’s opinion go to the weight of the evidence

only if a court first finds it more likely than not that

an expert has a sufficient basis to support an opinion.”

Id. at 1049 (emphasis added); see id. at 1051 (explaining that Rule 702 requires district courts “to screen expert testimony” to ensure, among other things, that it

is “‘based on sufficient facts or data’” (quoting Fed. R.

15

Evid. 702(b))). 5 Applying the more-likely-than-not test

reaffirmed in the 2023 amendments, the court of appeals upheld the district court’s decision to exclude the

expert testimony because the expert had insufficient

facts to conclude that the plaintiff was not obese,

which was a key premise of the expert’s opinion on the

causes of a medical condition. See ibid. The court of

appeals recognized that some evidence—a medical

“fact sheet” stating that the plaintiff was “negative” for

obesity—supported the expert’s premise, but nonetheless upheld the district court’s conclusion that the

plaintiff had not shown a sufficient factual basis by a

“preponderance of the evidence.” Id. at 1051-1052.

The other circuits’ decisions are of a piece. In In re

Onglyza (Saxagliptin) & Kombiglyze (Saxagliptin &

Metformin) Products Liability Litigation, 93 F.4th 339

(6th Cir. 2024), the Sixth Circuit affirmed the district

court’s exclusion of an expert’s testimony, holding

that, “[b]efore admitting expert testimony, the district

court needed to ensure that” the expert’s testimony

was “‘based on sufficient facts or data.’” 93 F.4th at

345 (quoting Fed. R. Evid. 702); see id. at 348 (“competing expert opinions present the classic battle of the

experts and it is up to a jury to evaluate what weight

and credibility each expert opinion deserves,” but “district courts may allow juries to evaluate and weigh

only relevant and reliable expert testimony” (citation

omitted)). The Sixth Circuit noted the clarifying 2023

amendments but explained that its decision “would be

the same under either version of the Rule.” Id. at 345

n.4. The court of appeals concluded that the district

court had not abused its discretion in finding that the

The Ninth Circuit noted that the applicable “version of the Rule”

did not make a difference, consistent with the fact that the 2023

amendments were merely clarifying. 151 F.4th at 1049 n.9.

5

16

expert’s testimony lacked sufficient factual support, as

his attempt to link defendants’ diabetes drug to patients’ heart failure relied on a single trial but set

aside “without an adequate explanation” subsequent

studies reaching the opposite conclusion. Id. at 346.

Notably, the court of appeals upheld the exclusion of

the testimony even though the expert had made some

effort to explain away the later studies, because the

preponderance of the evidence did not establish a sufficient basis for the expert’s opinion. Id. at 345.

The Sixth Circuit later applied the same rule in

Baker v. Blackhawk Mining, 141 F.4th 760 (6th Cir.

2025), which is factually similar to this case. The

Sixth Circuit held that the district court had not erred

in concluding that a causation expert’s report was “not

based upon sufficient facts or data” about the “specific

mining sites” that supposedly caused the plaintiffs’ injury, rendering it unreliable under Rule 702. Id. at

770 (citation omitted). The court of appeals was not

swayed by the fact that the expert looked to studies

about other mining sites nearby; that was not enough

to send the case to a jury to decide how heavily to

weigh the expert’s testimony. See id. at 763-765, 770.

The law is the same in the Federal Circuit. Most

recently, in EcoFactor v. Google, 137 F.4th 1333 (Fed.

Cir. 2025) (en banc), the en banc court concluded that

a lack of support for an expert’s damages opinion

meant that the expert’s testimony should have been

excluded, as there was not “a sufficient factual basis

for [the expert] to provide a reliable opinion” on an estimated reasonable royalty. Id. at 1344. The Federal

Circuit explained that it was not “usurp[ing] the province of the jury”; it was simply exercising “the gatekeeping function of the court to ensure that there are

17

sufficient facts or data” for the expert’s opinion, consistent with the 2023 amendments clarifying Rule 702.

Id. at 1339, 1343; see id. at 1339-1340 (noting the advisory committee’s statement that it is incorrect to

hold that “the critical question[] of the sufficiency of an

expert’s basis” is a “question[] of weight and not admissibility” and emphasizing that “[d]istinguishing

‘the gatekeeping role of the judge’ * * * from the fact

finder’s role” is “essential” (citation omitted)). Again,

the court reached that conclusion even though there

was some factual basis for the expert’s opinion, see id.

at 1343—because the evidence on which the expert relied did not satisfy Rule 702’s “more likely than not”

standard. Id. at 1341-1342, 1344-1346.

The Fifth Circuit similarly recognizes that Rule

702 requires district courts to evaluate whether an expert’s data is sufficiently sound before a jury may consider it. For example, in Nairne v. Landry, 151 F.4th

666 (5th Cir. 2025), the court of appeals affirmed a district court’s exclusion of an expert on the ground that

his testimony regarding voting patterns was not

“based on sufficient data,” as the expert had considered only some elections and inexplicably excluded

others. Id. at 698. In doing so, the Fifth Circuit cited

the 2023 amendments, on which the district court had

relied. See id. at 697-698; see also, e.g., Harris v.

FedEx Corp. Servs., 92 F.4th 286, 303-304 (5th Cir.

2024) (reversing a district court’s refusal to exclude expert testimony because the court “abdicated its role as

gatekeeper” by admitting testimony that was not

“based on sufficient facts or data”).

Finally, in Sprafka v. Medical Device Business Services, 139 F.4th 656 (8th Cir. 2025), the Eighth Circuit

applied the same rule in a design-defect case. See id.

at 661. “After Rule 702’s recent amendment,” the

18

Eighth Circuit stated, “courts continue to have a gatekeeping role” to “discern expert opinion evidence based

on ‘good grounds’ from subjective speculation.” Ibid.

(citation omitted). Applying that rule, the court of appeals concluded that the district court had not abused

its discretion in refusing to admit expert testimony

that a medical-device manufacturer was responsible

for a common side effect of a medical procedure that

the plaintiff had undergone. See id. at 659-661. That

conclusion was based on an examination of the expert’s factual basis, including the expert’s reliance on

only a few small studies and some anecdotal observations. Although those provided some basis for the expert’s opinion, that was not enough to justify putting

the expert’s testimony before a jury to determine its

weight. See id. at 661-662; see also, e.g., Bliv v. Charter Oak Fire Ins., 159 F.4th 539, 544 (8th Cir. 2025)

(affirming district court’s exclusion of expert testimony where there was “a reasoned basis to find” that

the expert “failed to consider or account for critical information when forming his opinions”).

C. The Fourth Circuit, along with the First Circuit,

applies a legal rule that is irreconcilable with the rule

applied by the circuits above. Despite the clear direction provided by the 2023 amendments to Rule 702,

those two circuits continue to treat questions about the

sufficiency of the factual basis for an expert’s testimony as going only to the weight of that evidence—

and thus, invariably, as a jury question rather than as

a threshold admissibility question that courts must

decide.

1. In the decision below, the Fourth Circuit categorically held that “‘questions regarding the factual

underpinnings of [an expert’s] opinion affect the

weight and credibility of the witness’ assessment, not

19

its admissibility.’” App., infra, at 20a-21a (quoting

Bresler v. Wilmington Tr. Co., 855 F.3d 178, 195 (4th

Cir. 2017)). On that basis, the court of appeals rejected

the district court’s many criticisms of the data on

which the expert relied—which included air-quality

data from locations and time periods that are not at

issue in this case—and ruled that the expert’s testimony was admissible. See id. at 20a-27a. But the

court of appeals did not determine whether it was

more likely than not that the expert’s testimony was

supported by sufficient facts or data. See ibid. The

court below thus took exactly the approach that the

advisory committee notes to the 2023 amendments

roundly criticize and that the circuits on the other side

of the split have firmly rejected.

The specific reasoning that the Fourth Circuit employed highlights that split in authority. For example,

the Fourth Circuit ruled that the district court abused

its discretion in holding that the expert used “unreliable” data, stating that the expert “provided reasons for

why” he “believe[d]” the data was accurate that a jury

should “weigh[].” App., infra, at 22a. But the circuits

on the other side of the split have repeatedly recognized that the existence of some factual basis for expert testimony is not enough to satisfy Rule 702; rather, the question is whether the preponderance of the

evidence establishes the likelihood that a sufficient basis exists. See, e.g., Engilis, 151 F.4th at 1050-1051

(Ninth Circuit deeming expert testimony inadmissible

for lack of sufficient factual basis even though expert

had a medical “fact sheet” supporting his factual assertion); Onglyza, 93 F.4th at 345 (Sixth Circuit deeming expert testimony inadmissible for lack of sufficient

factual basis even though the expert “provided reasons” for relying on one clinical trial and discounting

20

others). The decision below is peppered with such conflicts in reasoning, driven by the stark differences between the circuits’ legal rules. 6

2. The First Circuit has long taken the same approach as the Fourth Circuit. See Judicial Conference

Amends Rule 702, 138 Harv. L. Rev. at 903 (“The First

Circuit provides an example of a court that has not

acknowledged the impact the amendments ought to

have had on its approach to Rule 702 inquiries.”).

Milward v. Acuity Specialty Products Group, 639

F.3d 11 (1st Cir. 2011), exemplifies the First Circuit’s

approach. There, the court of appeals held that the

district court’s “challenge[s] [to] the factual underpinnings of [the expert’s] opinion” that exposure to a

chemical substance caused cancer “overstepped the

authorized bounds of its role as gatekeeper” because

“[t]he soundness of the factual underpinnings of the

expert’s analysis” is a “factual matter[] to be determined by the trier of fact.” Id. at 22 (citation omitted).

In the First Circuit’s view, even if—as the district

court had concluded—“the factual underpinning of

[the] expert’s opinion is weak,” that weakness affects

Compare App., infra, at 20a-21a (stating that the expert’s

“choice of which data to input into his model” goes only to “weight

and credibility” and that whether expert failed to validate data is

not relevant to admissibility), with Nairne, 151 F.4th at 698 (expert testimony properly excluded where expert failed to include

relevant data in his model); Harris, 92 F.4th at 303 (same); Onglyza, 93 F.4th at 346 (same); Baker, 141 F.4th at 770 (expert testimony properly excluded where expert relied on improper data);

EcoFactor, 137 F.4th at 1344 (expert testimony properly excluded

where expert did not validate his data but rather relied on only a

fact witness’s unsupported say-so); Engilis, 151 F.4th at 1052 (expert testimony properly excluded where expert relied on data that

the expert failed to validate by “undertak[ing] any evaluation” of

the underlying facts).

6

21

only “the weight and credibility of the testimony” and

is therefore “a question to be resolved by the jury.”

Ibid. (citation omitted); see id. at 23 (“The questions

that the [district] court posed were sensible ones, but

ones for the jury to resolve.”). In deeming the expert’s

testimony admissible, the First Circuit—like the

Fourth Circuit in this case—never asked the critical

question on which the other circuits’ admissibility

analysis rests: whether the plaintiff had established

that it was more likely than not that the expert’s testimony was based on sufficient facts or data. See ibid.

And the First Circuit has repeatedly applied Milward’s rule even after the 2023 amendments to Rule

702. See Rodriguez v. Hosp. San Cristobal, 91 F.4th

59, 70 (1st Cir. 2024); Doucette v. Jacobs, 106 F.4th

156, 169 (1st Cir. 2024).

In short, there is no way to square the rule applied

by the court below and the First Circuit with the rule

applied by the Fifth, Sixth, Eighth, Ninth, and Federal

Circuits. Action by this Court is urgently needed to

bring uniformity to this important area of the law.

II.

The Fourth Circuit’s Decision Is Incorrect

A. The rule that the Fourth Circuit applied below

is at odds with the plain text of Rule 702. Rule 702

assigns to trial court judges “a gatekeeping role” to

“ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.”

Daubert, 509 U.S. at 589, 597. The rule expressly provides that “[a] witness who is qualified as an expert

* * * 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 * * * the testimony is based

on sufficient facts or data” and that various other reliability requirements are satisfied. Fed. R. Evid.

702(b).

22

Accordingly, where a party challenges an expert’s

opinion as not “based on sufficient facts or data,” the

court must address such a challenge before it can admit the testimony. Fed. R. Evid. 702(b); see Daubert,

509 U.S. at 590. If the court concludes by a preponderance of the evidence that the testimony is not based

on sufficient facts or data—for example, because the

expert’s predicate facts are wrong, the expert failed to

account for important data, or the expert included irrelevant data—then the court must exclude the testimony. And if the court concludes by a preponderance

of the evidence that the expert’s testimony has a sufficient factual basis, then the court should admit the

testimony so that the jury can hear it and decide how

much weight to give it. That is the same preponderance-of-the-evidence test that courts apply when evaluating the other reliability factors listed in Rule 702,

such as whether “the testimony is the product of reliable principles and methods” and whether “the expert’s

opinion reflects a reliable application of the principles

and methods to the facts of the case.” Fed. R. Evid.

702(c)-(d); see generally Daubert, 509 U.S. at 592-593.

The Fourth Circuit’s approach is irreconcilable

with Rule 702 and with this Court’s explication of it.

The district court in this case excluded the expert’s testimony after identifying a host of reasons why his

opinion was not “based on sufficient facts or data.”

Fed. R. Evid. 702(b). Under Rule 702, reversal would

be appropriate only if the Fourth Circuit concluded

that respondent had “demonstrate[d] * * * that it is

more likely than not that” the expert’s report was

“based on sufficient facts or data.” Ibid. But the

Fourth Circuit never asked that question. To the contrary, it concluded that the district court abused its

discretion for having done so, holding that challenges

to the “factual underpinnings” of an expert’s testimony

23

are always for the jury, not the court, to resolve. App.,

infra, at 20a. And when the dissent challenged that

approach, the majority responded by quoting from the

Fourth Circuit’s earlier decision in Bresler v. Wilmington Trust, 855 F.3d 178 (4th Cir. 2017), articulating

the very same rule that the majority adopted: “questions regarding the factual underpinnings of the [expert witness’] opinion affect the weight and credibility

of the witness’ assessment, not its admissibility.” Id.

at 195 (citation omitted), quoted in App., infra, at 27a

n.7.

That approach is deeply problematic. It inexplicably treats one of the reliability factors in Rule 702—

whether “the testimony is based on sufficient facts or

data”—differently than the others, even though the

Rule uses exactly the same language as to each to describe how a court should conduct its admissibility

analysis. See Clark v. Martinez, 543 U.S. 371, 378

(2005) (“[t]o give these same [statutory] words a different meaning” when applied in different contexts

“would be to invent a statute rather than interpret

one”).

Even more to the point, that approach renders Rule

702’s intended “gatekeeping role” a nullity as to the

factual basis for expert testimony. Daubert, 509 U.S.

at 589, 597. The Fourth Circuit’s approach fails to

screen out expert testimony that lacks adequate rigor

because it is premised on insufficient facts or data, and

thereby creates exactly the risk that Rule 702 exists to

eliminate: that juries may well be swayed by such testimony because of the inherent force of any testimony

that is labeled “expert.” See, e.g., Peter Huber, Junk

Science and the Jury, 1990 U. Chi. Legal F. 273, 276277 (1990).

24

B. The 2023 amendments and accompanying Advisory Committee notes eliminate all doubt that the

decision below is fatally flawed. Those amendments

sought to “clarify and emphasize that expert testimony may not be admitted” unless its proponent can

show, by a preponderance of the evidence, that it satisfies each of the Rule’s admissibility requirements.

Fed. R. Evid. 702 advisory committee’s notes to 2023

amendments (emphasis added). As discussed, that

“clarif[ication]” was necessary because “many courts”

had “incorrect[ly]” “held that the critical question[] of

the sufficiency of an expert’s basis” is “always” a “question[] of weight and not admissibility.” Ibid. The Committee recognized that sometimes such questions could

go to the weight of evidence—but they could do so only

“once the court has found it more likely than not that

the admissibility requirement has been met.” Ibid.

There is no question that the Committee was referring to decisions like the one below. And to the extent

there were any doubt, Judge Schroeder, the Chair of

the Judicial Conference’s Subcommittee on Rule 702

that drafted the 2023 amendments, stated that the

amendments were directed at Bresler, the Fourth Circuit decision from 2017 that articulated the rule that

the court below applied to overturn the district court

in this case, and similar decisions. In cataloging decisions that “appear to be abdicating their charge under

the Federal Rules of Evidence and Daubert and its

progeny to make the hard call on admissibility,” Judge

Schroeder focused specifically on Bresler as “effectively vitiat[ing] the application of” the preponderance

test “to Rule 702(b).” Thomas D. Schroeder, Toward A

More Apparent Approach to Considering the Admission of Expert Testimony, 95 Notre Dame L. Rev. 2039,

2043, 2049-2050 (2020) (discussing Bresler’s holding

that “questions regarding the factual underpinnings”

25

affect “weight and credibility” and not “admissibility”);

see App., infra, at 21a-22a (repeatedly relying on and

quoting Bresler). And Judge Schroeder identified the

First Circuit’s opinion in Milward as “a prime example” of the same error. 95 Notre Dame L. Rev. at 2044.

C. Had the court of appeals properly applied Rule

702, it would have affirmed the district court’s exclusion of respondent’s expert—and that exclusion would

have ended the case, as it is indisputable that respondent’s claims cannot proceed without such expert testimony. See p. 7, supra. As Chief Judge Diaz’s dissent

explains, the district court’s many concerns with the

reliability of the expert’s data were not only well

grounded, but also “squarely within the district court’s

purview” in enforcing its “gatekeeping responsibility”—and the farthest thing from an abuse of discretion. App., infra, at 34a-37a (Diaz, C.J., dissenting). 7

III. The Question Presented Is Exceptionally

Important and Warrants Review in This

Case

A.

Resolution of the Question Presented Is

of Overriding Importance

1. Establishing that trial courts must determine

whether it is more likely than not that an expert’s testimony is supported by sufficient facts or data before

deeming that testimony admissible is a matter of

pressing importance. The issue recurs frequently. It

also is often outcome-determinative—or, at a minimum, powerfully influences how cases progress, what

In no event could the court of appeals properly have concluded

that the expert’s testimony was admissible without even considering whether it was more likely than not that the testimony had

a sufficient factual basis.

7

26

juries decide, and the parties’ incentives for settlement.

Expert testimony is of course ubiquitous in all

types of matters. It plays a particularly important role

in product-liability cases, patent cases, environmental

cases, and other cases in which science is central to

liability determinations. As jurists have observed,

“science in all its forms—hard science, soft science,

even so-called ‘junk’ science—has * * * invaded the

courtroom to an unparalleled extent.” Jed S. Rakoff,

Science and the Law: Uncomfortable Bedfellows, 38

Seton Hall L. Rev. 1379, 1379 (2008); see Stephen G.

Breyer, Introduction, in Federal Judicial Center, Reference Manual on Scientific Evidence 3 (3d ed. 2011)

(explaining that “[s]cientific issues” now “permeate

the law”); see also Joiner, 522 U.S. at 148-149 (Breyer,

J., concurring) (“modern life * * * depends upon the

use of artificial or manufactured substances,” making

it “particularly important * * * that judges fulfill

their Daubert gatekeeping function, so that they help

assure that the powerful engine of tort liability * * *

points toward the right substances and does not destroy the wrong ones”).

Expert testimony also is likely to have an outsized

impact, especially when it addresses complex scientific

issues. Often, as here, a plaintiff’s case rests entirely

on expert testimony. See App., infra, at 40a (expert’s

“model is the only evidence that, for example, indicates

that [respondent] was exposed to EtO emitted by [petitioners’] operations”). And even when that is not

true, expert testimony is likely to have a major effect

on a factfinder’s determination. As this Court previously put it, “[e]xpert evidence can be both powerful

and quite misleading.” Daubert, 509 U.S. at 595 (citation omitted). “[E]xpertise that is fausse and science

27

that is junky” is a very real problem. Kumho Tire v.

Carmichael, 526 U.S. 137, 158-159 (1999) (Scalia, J.,

concurring); see Victor E. Schwartz & Cary Silverman,

The Draining of Daubert and the Recidivism of Junk

Science in Federal and State Courts, 35 Hofstra L. Rev.

217, 224 (2006) (discussing “misleading junk science”).

The Rules “grant expert witnesses testimonial latitude

unavailable to other witnesses.” Kumho, 526 U.S. at

148-149. And expert “testimony often will rest upon

an experience confessedly foreign in kind to” a jury’s

“own,” ibid. (citation modified)—which means that jurors may well have difficulty, “due to lack of specialized knowledge,” in “evaluat[ing] meaningfully the reliability” of the expert’s data and methodology, Fed. R.

Evid. 702 advisory committee’s notes to 2023 amendments. Thus, even junk science, resting on purported

facts that are incorrect, misleadingly incomplete, or

simply irrelevant, may appear to jurors to “compellingly support[]” an “otherwise unsupportable claim.”

Huber, supra, 1990 U. Chi. Legal F. at 276-277.

Precisely because expert testimony can have such

a powerful effect, whether a court decides to admit an

expert’s testimony not only shapes the substantive decisions made within the litigation itself but also a defendant’s decision whether to settle. And when there

are serious doubts about the factual underpinnings of

an expert’s testimony but a court admits that testimony anyway on the ground that any such doubts go

only to the testimony’s weight, the defendant is often

pressured into a settlement to which it would not otherwise have agreed. See Margaret A. Berger, The Admissibility of Expert Testimony, in Federal Judicial

Center, Reference Manual on Scientific Evidence 19

(3d ed. 2011) (“[A]n inability by the defendant to exclude plaintiffs’ experts undoubtedly affects the willingness of the defendant to negotiate a settlement.”);

28

Rakoff, supra, at 1391 (noting that “shortly after” decision permitting plaintiffs to offer some expert testimony, “most of the 800 cases [in an MDL] settled”).

That problem is most acute in class actions and other

mass actions, where a court’s decision to admit the testimony of the plaintiffs’ expert often exerts “irresistible pressure” on a defendant “to settle the action rather than risk a battle of the experts at trial that, if

the defendant loses, can cost exponentially more than

the settlement.” Christopher R.J. Pace, Admitting

and Excluding General Expert Testimony: The Eleventh Circuit Construct, 37 Am. J. Trial Advoc. 47, 48

(2013).

2. The question presented arises with great frequency, as the many court of appeals decisions from

just the past few years demonstrate. See pp. 12-25,

supra. And scores of district-court decisions addressing that question never result in published appellate

decisions—often because an adverse ruling drives settlement.

In fact, the decision below has already influenced

district courts in the Fourth Circuit to admit expert

testimony without deciding whether it has a sufficient

factual basis, on the ground that any challenge to the

factual basis of an expert’s opinion goes only to weight

and therefore should be decided by a jury. For instance, immediately after the decision below, a Maryland district court invoked it to deny a motion to exclude a plaintiff’s expert testimony because “[q]uestions regarding the factual underpinnings of the [expert witness’] opinion, which are what Defendant

raises here, affect the weight and credibility of the witness’ assessment, not its admissibility.” Michael’s

Fabrics v. Donegal Mut. Ins., 2025 WL 2624280, at *4

(D. Md. Sept. 11, 2025) (citation modified). District

29

courts in North Carolina and South Carolina have recently done the same. In re Camp Lejeune Water

Litig., 2025 WL 3565850, at *15 (E.D.N.C. Dec. 12,

2025); Mincey v. Se. Farm Equip., 2025 WL 2450913,

at *10 (D.S.C. Aug. 26, 2025).

3. At this point, it is clear that this Court’s intervention is necessary to ensure that the courts of appeals uniformly apply Rule 702 correctly.

The 2023 amendments to Rule 702 were intended

to “clarify and emphasize that expert testimony may

not be admitted unless the proponent demonstrates to

the court that it is more likely than not that the proffered testimony” is supported by sufficient facts or

data. Fed. R. Evid. 702 advisory committee’s notes to

2023 amendments. Many courts of appeals have taken

that clarification to heart. See pp. 14-18, supra. But

the court below and the First Circuit have defiantly

“doubl[ed] down on” their insistence that factual-basis

questions about expert testimony are not part of the

admissibility analysis—“a sign that the challenge of

achieving consistency is greater than something that

clarifying amendments can fix.” Judicial Conference

Amends Rule 702, 138 Harv. L. Rev. at 899; see Lee

Mickus, Amended Rule 702 in 2025, Wash. Legal

Found. (Oct. 7, 2025), https://www.wlf.org/2025/10/07/

publishing/amended-rule-702-in-2025-circuit-courtsembrace-the-changed-standard/.

The decision below exemplifies that troubling development. As noted, in the run-up to the 2023

amendments, Judge Schroeder specifically critiqued

the Fourth Circuit’s holding in Bresler that “questions

regarding the factual underpinnings of the [expert witness’] opinion affect the weight and credibility of the

witness’ assessment, not its admissibility,” explaining

30

that such an approach “effectively vitiated the application of [the preponderance test] to Rule 702(b).”

Schroeder, 95 Notre Dame L. Rev. at 2049-2050 (citation modified). Yet despite that criticism and the clarity of the 2023 amendments, the decision below continued to hew to Bresler’s erroneous holding, App., infra, at 20a-21a—and, in doing so, rebuffed the arguments in petitioners’ merits brief about the significance of those amendments, see Defendants-Appellees’ Br. 17, 19-20, 23 n.7 (4th Cir.). The Fourth Circuit then refused to grant rehearing en banc to revisit

that holding, even though it quite obviously conflicts

with the rule applied in multiple other circuits.

It is thus plain that this deep fissure in the law over

a critical aspect of Rule 702 will not close on its own.

There is only one way to ensure uniformity and correct

the misapplication of Rule 702: action by this Court.

The secondary literature has recognized as much—for

instance, explaining that “more than twenty years after Daubert, the Supreme Court will need to take up

the issue directly if it wishes for lower courts to coalesce around one approach” to the role that challenges

to an expert’s underlying facts or data play in the admissibility analysis. Judicial Conference Amends Rule

702, 138 Harv. L. Rev. at 906. That guidance is especially necessary given that the Court has not decided

on the merits any issue relating to Daubert in more

than 25 years.

B.

This Case Is an Ideal Vehicle

1. This case squarely presents the legal question

whether challenges to the factual basis of expert testimony always go to the weight of the evidence and

never go to admissibility. The decision below emphatically holds that the district court’s decision was an

“abuse of discretion because questions regarding the

31

factual underpinnings of the [expert witness’] opinion

affect the weight and credibility of the witness’ assessment, not its admissibility.” App., infra, at 20a-21a

(citation omitted). The district-court decision in question carefully and thoroughly explains why, under the

correct legal rule, the expert’s testimony does not have

a sufficient factual basis to be admitted. And the majority and dissenting opinions in the court of appeals

thoroughly ventilated the question presented.

2. A ruling in petitioners’ favor also would end this

case—making it an unusually compelling vehicle to

consider the question presented.

As Chief Judge Diaz explained, “[w]ithout [the expert’s] opinion, [respondent] can’t carry her burden to

present evidence sufficient to demonstrate” that she

was injured in any way by petitioners’ alleged actions.

App., infra, at 40a. That conclusion does not turn on

disagreements below about whether medical-monitoring costs constitute a sufficient injury for Article III

standing. Rather, without the challenged expert opinion, respondent simply “can’t establish [an] injury in

fact,” whether based on alleged monitoring costs or

any other alleged harm. Ibid. That is because the expert’s “model is the only evidence that * * * indicates

that [respondent] was exposed to EtO emitted by [petitioners’] operations.” Ibid.; see id. at 103a-105a.

The Fourth Circuit’s mistaken understanding of

Rule 702 was the only basis it gave for displacing the

district court’s careful decision about the flaws in the

facts and data underlying the expert’s opinion. The

Fourth Circuit gave no other reason to conclude that

the district court exceeded its wide latitude under the

abuse-of-discretion standard to assess whether it is

32

likely that the expert’s opinion has a sufficient basis—

and no such reason exists. 8

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

JOHN L. EWALD

SUSANNA MOLDOVEANU

KIRKLAND & ELLIS LLP

601 Lexington Avenue

New York, NY 10022

(212) 446-4800

DAVID A. FUSCO

WESLEY A. PRICHARD

T. NATHAN TOWNSEND

K&L GATES LLP

210 Sixth Avenue

Pittsburgh, PA 15222

(412) 355-6500

DONALD B. VERRILLI, JR.

Counsel of Record

ELAINE J. GOLDENBERG

RACHEL G. MILLER-ZIEGLER

KYLE A. SCHNEIDER

MUNGER, TOLLES & OLSON LLP

601 Massachusetts Ave. NW

Suite 500E

Washington, DC 20001-5369

(202) 220-1100

Donald.Verrilli@mto.com

Counsel for Petitioners

February 2, 2026

Regardless, once the Fourth Circuit’s legal error about the scope

of Rule 702 is corrected, the court of appeals’ decision that the

expert’s testimony is admissible cannot survive, because that

court neither concluded itself “that it is more likely than not that

* * * the testimony is based on sufficient facts or data,” Fed. R.

Evid. 702(b), nor remanded to the district court to conduct that

analysis anew in light of some identified flaw. See n.7, supra.

8

APPENDICES

i

APPENDICES

Appendix A: Opinion of the United States

Court of Appeals for the Fourth Circuit

(August 18, 2025) ...................................................... 1a

Appendix B: Opinion of the United States

District Court for the Southern District of

West Virginia (March 20, 2024) ............................. 42a

Appendix C: Opinion of the United States

District Court for the Southern District of

West Virginia (May 13, 2024)................................. 89a

Appendix D: Order of the United States

Court of Appeals for the Fourth Circuit

Denying Rehearing (November 4, 2025) .............. 116a

Appendix E: Provisions Involved ........................ 117a

1a

APPENDIX A

No. 24-1491

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Lee Ann SOMMERVILLE, individually, and on

behalf of all others similarly situated,

Plaintiff – Appellant,

v.

UNION CARBIDE CORPORATION; Covestro LLC,

Defendants – Appellees.

American Tort Reform Association; Chamber of

Commerce of the United States of America,

Amici Supporting Appellee.

Argued: January 29, 2025

Decided: August 18, 2025

Opinion

Reversed and remanded by published opinion. Judge

Benjamin wrote the opinion in which Judge Wynn

joined. Chief Judge Diaz wrote a dissenting opinion.

DEANDREA GIST BENJAMIN, Circuit Judge:

Plaintiff Lee Ann Sommerville appeals the district

court’s exclusion of her proposed expert, Dr. Ranajit

Sahu, and its grant of summary judgment to Defendants Union Carbide Corporation and Covestro LLC

for lack of standing. We now reverse.

I.

Sommerville, on behalf of herself and others similarly situated, sued Defendants Union Carbide Corporation and Covestro LLC (collectively “the Plant

Owners”) for alleged exposure to ethylene oxide

(“EtO”), a gas that causes cancer. Sommerville’s law-

2a

suit concerns a plant in South Charleston, West Virginia (“the Plant”), which Union Carbide, and then

Covestro, operated between 1978 and 2019. Sommerville alleges that the Plant emitted EtO into the atmosphere, that she breathed this EtO, and that this

exposure increased her risk of developing specific diseases. Sommerville alleges that she has a present

need to manage this increased risk of illness through

medical monitoring and diagnostic testing, and that

the Plant Owners should foot the bill. Sommerville

brought a single claim for medical monitoring under

West Virginia common law.

Sommerville challenges two orders the district

court issued. The first is an order excluding the opinions of her proffered expert, Dr. Sahu. The second is

an order granting the Plant Owners summary judgment. Sommerville timely appealed and we have jurisdiction. 28 U.S.C. § 1291.

II.

The district court acknowledged that West Virginia law recognizes medical monitoring claims. Nevertheless, it held that because Sommerville lacked a

“manifest” physical injury, she did not have Article

III standing. If the district court is correct, then

whether Dr. Sahu’s testimony was erroneously excluded is beside the point. So we begin with standing.

Our review is de novo. White Tail Park, Inc. v. Stroube, 413 F.3d 451, 459 (4th Cir. 2005).

A.

In Bower v. Westinghouse Electric Corp., 206

W.Va. 133, 522 S.E.2d 424 (1999), the Supreme Court

of Appeals of West Virginia recognized common law

claims for medical monitoring. Id. at 431. Plaintiffs

bringing medical monitoring claims seek “to recover

the anticipated costs of long-term diagnostic testing

3a

necessary to detect latent diseases that may develop

as a result of tortious exposure to toxic substances.”

Id. at 429. The tort is a “well-grounded extension of

traditional common-law tort principles.” See id.; see

also id. (collecting cases). 1

Medical monitoring claims originate from the traditional common law principle that individuals have

“legally protected interest[s] in avoiding physical injury.” See Bourgeois v. A.P. Green Indus., Inc., 716 So.

2d 355, 359 (La. 1998); Bower, 522 S.E.2d at 429–30.

Medical monitoring claims apply this principle to injuries where there is no visible “impact.” Bourgeois,

716 So. 2d at 358 (noting that “modern environmental toxins[ ] affect[ ] the body in ways that often do

not become manifest for many years”) (citing Hansen

v. Mountain Fuel Supply, 858 P.2d 970, 977 (Utah

1993)). “[T]he exposure itself and the concomitant

need for medical testing constitute the injury.” Bower,

522 S.E.2d at 430 (cleaned up and emphasis added)

(citing Hansen, 858 P.2d at 977).

Medical monitoring claims concern exposure to

“hazardous substance[s]” like “asbestos” or, in this

case, EtO and, by their nature, occur “without impact.” See Bourgeois, 716 So. 2d at 358 (“Unlike a car

crash, asbestos exposure is an accident almost always

without impact.”). The fact that exposure to a contaminant happens invisibly—so to speak—does not

sever the tort from its common law roots. The exposure “is still an accident that can have consequences

every bit as real as those sustained in a head-on colliBecause Bower v. Westinghouse Electric Corp., 206 W.Va. 133,

522 S.E.2d 424 (1999), does not articulate explicitly the common

law principles from which West Virginia’s medical monitoring

claim grew, we rely on Bourgeois v. A.P. Green Industries., Inc.,

716 So. 2d 355 (La. 1998), one of the cases which Bower cited.

1

4a

sion. In fact, it is precisely because asbestos”—or

EtO—“can have such deadly consequences that plaintiffs, regardless of whether or not they are currently

suffering from a disease, are often encouraged to

submit to regular diagnostic testing.” See id. at 358–

59.

Put simply, “an individual has an interest in

avoiding expensive diagnostic examinations just as

he or she has an interest in avoiding physical injury.”

Friends for All Child., Inc. v. Lockheed Aircraft Corp.,

746 F.2d 816, 826 (D.C. Cir. 1984). “When a defendant negligently invades this interest, the injury to

which is neither speculative nor resistant to proof, it

is elementary that the defendant should make the

plaintiff whole by paying for the examinations.” Id.;

Bower, 522 S.E.2d at 430 (quoting Friends for All

Child., 746 F.2d at 826, for this proposition). Or in

Bower’s own words, “[a]lthough the physical manifestations of an injury may not appear for years, the reality is that many of those exposed have suffered [a]

legal detriment; the exposure itself and the concomitant need for medical testing constitute the injury.”

522 S.E.2d at 430 (quoting Hansen, 858 P.2d at 977).

Given the injury’s nature—tortious exposure to a

known hazardous substance whose effects won’t appear for years but for which expensive medical testing is required today—Bower “reject[ed] the contention that a claim for future medical expenses must

rest upon the existence of present physical harm.” Id.

Bower quoted at length from Friends for All Children

to support this conclusion. See 522 S.E.2d at 430–31.

We do too:

Jones is knocked down by a motorbike which

Smith is riding through a red light. Jones

lands on his head with some force. Understandably shaken, Jones enters a hospital

5a

where doctors recommend that he undergo a

battery of tests to determine whether he has

suffered any internal head injuries. The tests

prove negative, but Jones sues Smith solely for

what turns out to be the substantial cost of the

diagnostic examinations.

...

[In such circumstances] it is clear that even in

the absence of physical injury Jones ought to

be able to recover the cost for the various diagnostic examinations proximately caused by

Smith’s negligent action. A cause of action allowing recovery for the expense of diagnostic

examinations recommended by competent

physicians will, in theory, deter misconduct,

whether it be negligent motorbike riding or

negligent aircraft manufacture. The cause of

action also accords with commonly shared intuitions of normative justice which underlie

the common law of tort. The motorbike rider,

through his negligence, caused the plaintiff, in

the opinion of medical experts, to need specific

medical services—a cost that is neither inconsequential nor of a kind the community generally accepts as part of the wear and tear of daily life. Under these principles of tort law, the

motorbiker should pay.

Friends for All Child., 746 F.2d at 825. Bower explicitly adopted this logic. 522 S.E.2d at 430–31.

Last, Bower articulated the elements required to

state a medical monitoring claim. To succeed on a

medical monitoring claim, a plaintiff must prove

(1) he or she has, relative to the general population, been significantly exposed; (2) to a

proven hazardous substance; (3) through the

6a

tortious conduct of the defendant; (4) as a

proximate result of the exposure, plaintiff has

suffered an increased risk of contracting a serious latent disease; (5) the increased risk of

disease makes it reasonably necessary for the

plaintiff to undergo periodic diagnostic medical examinations different from what would be

prescribed in the absence of the exposure; and

(6) monitoring procedures exist that make the

early detection of a disease possible.

Id. at 432–33.

B.

We turn to the district court’s standing decision.

The district court correctly recognized that Sommerville sought monetary relief to pay for the future cost

of medical monitoring. And because Sommerville

sought damages—not injunctive relief—the district

court also correctly concluded that Sommerville must

show a “present injury.” See Sommerville v. Union

Carbide Corp., No. 2:19-CV-00878, 2024 WL 2139394,

at *6 (S.D.W. Va. May 13, 2024) (hereinafter Sommerville II); TransUnion LLC v. Ramirez, 594 U.S.

413, 441, 141 S.Ct. 2190, 210 L.Ed.2d 568 (2021)

(“[T]he risk of future harm on its own does not support Article III standing for the plaintiffs’ damages

claim.”).

At this point, however, and as we explain later,

the district court’s analysis went off course. It framed

Sommerville’s injury as an increased risk of “eventually getting cancer.” Sommerville II, 2024 WL

2139394, at *7 (“Here, [Sommerville] seeks monetary

damages based on the premise that because [the

Plant Owners] emit EtO into the air and she, in turn,

breathes that air, [the Plant Owners] have put her

and proposed class members at higher risk of eventu-

7a

ally getting cancer.”); id. at *8 (“[H]er claim is based

entirely on the unsubstantiated possibility of a future

cancer diagnosis.”). Then, relying on TransUnion

LLC v. Ramirez, 594 U.S. 413, 141 S.Ct. 2190, 210

L.Ed.2d 568 (2021), the district court concluded that

because the “possibility of [a] future cancer diagnosis”

was not “concrete,” and because Sommerville did not

have a present physical injury, Sommerville lacked

Article III standing. See id. at *7–8 (“The Supreme

Court’s holding in TransUnion makes clear to me

that claims for medical monitoring seeking damages

without a manifest injury do not satisfy the injury-infact requirement for Article III standing.”) (footnote

omitted). The district court likewise held that Sommerville’s claim was not “ripe” because “not one of

[her] experts can say with any level of certainty that

[Sommerville] ... will develop cancer from [the Plant

Owners’] actions.” Id. at *11.

C.

Article III of the Constitution limits the jurisdiction of federal courts to actual “cases” or “controversies.” U.S. Const. art. III, § 2. Thus, it is a jurisdictional requirement that litigants be parties to a live

case or controversy. This standing requirement “is an

essential and unchanging part of the case-orcontroversy requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130,

119 L.Ed.2d 351 (1992) (citing Allen v. Wright, 468

U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)).

To establish standing, a party must establish, as

“the irreducible constitutional minimum,” three elements: (1) that it has suffered an “injury in fact” that

is both “concrete and particularized” and “actual or

imminent, not conjectural or hypothetical”; (2) that

there is “a causal connection between the injury and

the conduct complained of,” i.e., the injury is “fairly

8a

traceable” to the challenged action; and (3) that it is

“likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. at

560–61, 112 S.Ct. 2130 (internal quotation marks and

citations omitted); Burke v. City of Charleston, 139

F.3d 401, 405 (4th Cir. 1998). As to ripeness, “[t]he

doctrine ... prevents judicial consideration of issues

until a controversy is presented in clean-cut and concrete form.” Scoggins v. Lee’s Crossing Homeowners

Ass’n, 718 F.3d 262, 270 (4th Cir. 2013) (noting a case

is ripe “when the action in controversy is final and

not dependent on future uncertainties”) (quoting Miller v. Brown, 462 F.3d 312, 319 (4th Cir. 2006)).

TransUnion addressed “the Article III requirement that the plaintiff’s injury in fact be concrete” in

the context of a class action. 594 U.S. at 424, 141

S.Ct. 2190 (cleaned up). The named plaintiff in that

case brought a class action, alleging that TransUnion,

a credit reporting agency, had violated the Fair Credit Reporting Act by failing to use reasonable procedures before placing a misleading alert in his credit

file that labeled him as a potential terrorist, drug

trafficker, or serious criminal. Id. at 419–21, 141

S.Ct. 2190. He also asserted two claims based on

TransUnion’s having sent him two mailings that did

not comply with certain formatting requirements imposed by the statute. Id. at 421–22, 141 S.Ct. 2190.

The district court certified a class of more than

8,000 people who had the same misleading alert added to their credit files and who had also received similar mailings during a certain time period. A jury then

awarded each class member statutory and punitive

damages, and the Ninth Circuit largely affirmed the

judgment. Id. at 422, 141 S.Ct. 2190.

The Supreme Court reversed and remanded, holding that only a subset of the class had established Ar-

9a

ticle III standing to sue TransUnion for its failure to

use reasonable procedures to ensure the accuracy of

their credit files—namely, the 1,853 class members

whose credit reports had been provided to third-party

businesses and who had suffered “concrete reputational harm” as a result. Id. at 417, 141 S.Ct. 2190.

With respect to the two claims relating to the formatting defects in the mailings, the Court held that no

class member other than the named plaintiff had

demonstrated any concrete harm caused by the formatting errors, such that only he had standing to recover on those claims. Id. at 418, 141 S.Ct. 2190.

In explaining its decision, the Court emphasized

that, “under Article III, an injury in law is not an injury in fact” and that “[o]nly those plaintiffs who have

been concretely harmed by a defendant’s statutory violation may sue that private defendant over that violation in federal court.” Id. at 427, 141 S.Ct. 2190.

Put simply, “[n]o concrete harm, no standing.” Id. at

417, 141 S.Ct. 2190. The Court explained that while

“[t]he most obvious” concrete injuries are “tangible

harms, such as physical harms and monetary harms,”

“[v]arious intangible harms can also be concrete,” depending on whether they have “a close relationship to

harms traditionally recognized as providing a basis

for lawsuits in American courts.” Id. at 425, 141 S.Ct.

2190.

Then, the Court applied those principles to class

actions, observing that “standing is not dispensed in

gross.” Id. at 431, 141 S.Ct. 2190. It emphasized that

federal courts lack “the power to order relief to any

uninjured plaintiff, class action or not.” Id. (quoting

Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 466,

136 S.Ct. 1036, 194 L.Ed.2d 124 (2016) (Roberts, C.J.,

concurring)). As a result, “[e]very class member must

have Article III standing in order to recover individu-

10a

al damages.” Id. Moreover, “plaintiffs must demonstrate standing for each claim that they press and for

each form of relief that they seek.” Id.

Finally, the Court also made clear that the form of

relief sought matters when assessing the sufficiency

of the alleged harm. Thus, while “a person exposed to

a risk of future harm may pursue forward-looking,

injunctive relief to prevent the harm from occurring,”

id. at 435, 141 S.Ct. 2190, “the risk of future harm on

its own does not support Article III standing for [a]

damages claim,” id. at 441, 141 S.Ct. 2190.

Applying these principles to the facts before it, the

Court held that the approximately 6,300 class members who failed to prove that the misleading alerts in

their credit reports were ever provided to a third party “did not suffer a concrete harm,” as necessary for

them to recover damages for the reasonable procedures claim. Id. at 439, 141 S.Ct. 2190. The Court rejected the argument that those class members had

“suffered a concrete injury for Article III purposes because the existence of misleading ... alerts in their internal credit files exposed them to a material risk

that the information would be disseminated in the

future to third parties and thereby cause them

harm.” Id. at 435, 141 S.Ct. 2190 (emphasis added)

(noting plaintiffs, despite seeking damages, tried to

demonstrate standing under the standard applicable

to injunctive relief).

And it was also unpersuaded by the plaintiffs’ argument that it could infer that those class members’

credit reports “were likely also sent to third parties ...

because all of the class members [had] requested copies of their reports, and consumers usually do not request copies unless they are contemplating a transaction that would trigger a credit check.” Id. at 438–39,

141 S.Ct. 2190. Rejecting that contention, the Court

11a

reasoned that “[t]he plaintiffs had the burden to

prove at trial that their reports were actually sent to

third-party businesses” and that “[t]he inferences on

which the argument rests are too weak to demonstrate that the reports of any particular [class member were] sent to third-party businesses.” Id. at 439,

141 S.Ct. 2190.

Finally, the Court concluded that, other than the

named plaintiff, none of the class members had

“demonstrated that the format of TransUnion’s mailings”—even if not in compliance with the statute—

caused them “any harm at all,” let alone “a harm

with a close relationship to a harm traditionally recognized as providing a basis for a lawsuit in American courts.” Id. at 440, 141 S.Ct. 2190.

In sum, TransUnion stands for the proposition

that “a plaintiff does not ‘automatically satisf[y] the

injury-in-fact requirement’ whenever a statute [or

state common law] ... ‘grants a person a [ ] right and

purports to authorize that person to sue to vindicate

that right.’ ” See Fernandez v. RentGrow, Inc., 116

F.4th 288, 294 (4th Cir. 2024) (quoting TransUnion,

594 U.S. at 426, 141 S.Ct. 2190). Article III requires a

“concrete injury.” Id. (quoting Spokeo, Inc. v. Robins,

578 U.S. 330, 341, 136 S.Ct. 1540, 194 L.Ed.2d 635

(2016)). “Accordingly, ‘[o]nly those plaintiffs who have

been concretely harmed by a defendant’s statutory violation [or tortious act] may sue that private defendant over that violation in federal court.’ ” See id.

(quoting TransUnion, 594 U.S. at 427, 141 S.Ct.

2190).

D.

i.

We reverse the district court’s order granting the

Plant Owners summary judgment. Sommerville has

12a

Article III standing.

To begin, the district court misstated the harm for

which medical monitoring plaintiffs like Sommerville

seek recovery. Sommerville’s alleged injury is not an

“increased risk of cancer development due to the alleged EtO emissions.” Sommerville II, 2024 WL

2139394, at *7. Sommerville’s injury is her “exposure

itself” to “environmental toxins” tortiously emitted by

the Plant Owners, “[which] affect the body in ways

that often do not become manifest for several years”

and “the concomitant need [to pay] for medical testing” today to mitigate an increased risk of illness

which Sommerville would not bear but for the Plant

Owners’ actions. See Bower, 522 S.E.2d at 430 (emphasis added); Bourgeois, 716 So. 2d at 358 (cleaned

up); Friends for All Child., 746 F.2d at 825 (“The

[tortfeasor], through his negligence, caused the plaintiff, in the opinion of medical experts, to need specific

medical services—a cost that is neither inconsequential nor of a kind the community generally accepts as

part of the wear and tear of daily life. Under these

principles of tort law, the [tortfeasor] should pay.”).

Framed properly, Sommerville’s injury is concrete

and ripe.

Sommerville alleges that the Plant Owners wrongfully exposed her to EtO in such great quantities that

her chance of contracting a serious latent disease increased to the point that she must, in a qualified physician’s opinion, pay for and undergo periodic diagnostic medical examinations now. See Bower, 522

S.E.2d at 433. West Virginia law permits Sommerville to seek recovery for this harm, which is grounded in the “traditional common-law principle[ ]” of

“avoiding physical injury.” Bourgeois, 716 So. 2d at

359; Bower, 522 S.E.2d at 429–30; see TransUnion,

594 U.S. at 424–25, 141 S.Ct. 2190. Sommerville

13a

might not have a visible injury like a broken arm, but

this does not make her injury any less actual, concrete, or serious. See Bourgeois, 716 So. 2d at 358 (observing that “asbestos exposure is an accident almost

always without impact. Nevertheless, it is still an accident that can have consequences every bit as real as

those sustained in a head-on collision”).

Lest there be any doubt that the injury requisite

to bring a medical monitoring claim is not merely

“conjectural,” Sommerville II, 2024 WL 2139394, at

*8, the Supreme Court of Appeals of West Virginia

has emphasized that the six Bower factors “establish[

] an extremely high bar for a plaintiff to overcome before there can be any recovery for medical monitoring.” In re Tobacco Litig., 215 W.Va. 476, 600 S.E.2d

188, 194 (2004). These factors require Sommerville to

demonstrate such significant exposure to a hazardous

substance as to render monitoring a present medical

necessity. This injury is actual and concrete. So,

Sommerville has Article III standing.

The Plant Owners’ principal argument for affirming the district court’s grant of summary judgment is

unconvincing. The Plant Owners contend that the

district court didn’t hold that medical monitoring

plaintiffs without a manifest physical injury always

lack Article III standing. Appellees’ Br. (ECF No. 24)

at 53 (“[Sommerville] argues against a strawman she

puts forth—that the District Court decided that no

medical-monitoring plaintiff could ever have Article

III standing at any stage of litigation.”). Instead, the

Plant Owners insist that the district court granted

them summary judgment because Sommerville

“lacked admissible evidence [of] her exposure.” Id. at

56 (arguing that the district court’s exclusion, by prior order, of Dr. Sahu’s testimony left Sommerville

without evidence of exposure to EtO). This argument

14a

is counterfactual. 2

The district court explicitly ruled that Sommerville lacked an actual injury because “[t]he Supreme

Court’s holding in TransUnion ma[d]e[ ] clear to [it]

that claims for medical monitoring seeking damages

without a manifest injury do not satisfy the ... requirement[s] for Article III standing.” See Sommerville II, 2024 WL 2139394, at *7. As explained above

and as we reiterate here, this conclusion—along with

the factual assertions on which it rested—was wrong.

Sommerville’s claim is not that the Plant Owners’

EtO emissions may have harmed her by putting her

“at a higher risk of eventually getting cancer.” Sommerville II, 2024 WL 2139394, at *7; see TransUnion,

594 U.S. at 435, 141 S.Ct. 2190 (rejecting argument

that roughly 6,300 class members had “suffered a

concrete injury for Article III purposes because the

existence of misleading ... alerts in their internal

credit files exposes them to a material risk that the

information w[ill] be disseminated in the future to

third parties and thereby cause them harm”). Rather,

Sommerville’s injury is that the Plant Owners exposed her to EtO in such quantities that she must, in

Having previously excluded Dr. Sahu’s testimony, the district

court could have granted the Plant Owners summary judgment

against Sommerville not for “lack of standing,” but for want of

necessary evidence. See Sommerville v. Union Carbide Corp.,

No. 2:19-CV-00878, 2024 WL 2139394, at *12 n.7 (S.D.W. Va.

May 13, 2024) (noting that “if [the district court] had to proceed

to the merits of the action,” it would have granted the Plant

Owners summary judgment due to Sommerville’s failure to meet

Bower’s first element). The district court, however, granted

summary judgment based on standing. Further, even if the district court had granted the Plant Owners summary judgment for

failure to meet Bower’s first element, that conclusion would

have been erroneous—as explained in Section III, Dr. Sahu’s

testimony was wrongfully excluded.

2

15a

a qualified physician’s opinion, pay for and undergo

periodic diagnostic medical examinations now. This

injury is no less concrete than the injury suffered by

the 1,853 class members in TransUnion whose credit

reports had actually been provided to third-party

businesses and who had suffered “concrete reputational harm.” See TransUnion, 594 U.S. at 417, 141

S.Ct. 2190.

ii.

The dissent frames Sommerville’s injury like the

district court—as an increased risk of “develop[ing]

cancer.” See Diss. Op. at 428 (“Sommerville claims

that she’s at an increased risk of developing cancer

and that the risk creates a present need for medical

monitoring. ...Though the future harm here—

cancer—is serious, it’s certainly not impending. The

record doesn’t show who in the putative class (if anyone) will develop cancer or when (if ever).”). Then, relying on Beck v. McDonald, 848 F.3d 262 (4th Cir.

2017), it concludes Sommerville’s injury is too speculative to establish Article III standing. Diss. Op. at

427 – 28.

In Beck, the plaintiffs sued Department of Veterans Affairs officials after their medical records were

stolen from a Veterans Affairs medical center. The

plaintiffs sought damages for two injuries: (1) the “increased risk of future identity theft” and (2) “credit

monitoring services.” Id. at 273, 276. The court held

that both injuries were “too speculative” to confer Article III standing. See id. at 274; id. at 276 (holding

second injury was “a repackaged version” of the first

and that plaintiffs could not establish standing by

seeking “costs they incurred in response to a speculative threat”) (cleaned up).

In holding that the plaintiffs’ claims were too

16a

speculative, Beck emphasized the “attenuated chain

of possibilities” that the plaintiffs relied on to establish their injury. Id. at 275 (quoting Clapper v. Amnesty Intern. USA, 568 U.S. 398, 410, 133 S.Ct. 1138,

185 L.Ed.2d 264 (2013)). This chain included “assum[ing] that the thief targeted the stolen items for

the personal information they contained. And ...

[that] the thieves select[ed], from thousands of others, the personal information of the named plaintiffs

and attempt[ed] successfully to use that information

to steal their identifies.” Id. (emphasis added).

Here, Beck is inapposite. Sommerville’s alleged injury does not rest on an “attenuated chain of possibilities.” Nor does it rest on an unknown third party’s

actions. It exists already. Her injury is a present

physical one—“exposure itself” to “environmental toxins” the Plant Owners tortiously emitted and “the

concomitant need [to submit to and pay] for medical

testing” today to mitigate an increased risk of illness.

See Bower, 522 S.E.2d at 430 (emphasis added). Put

differently, Sommerville is not suing about a “speculative threat” that depends on a third party’s future

acts. Beck, 848 F.3d at 277 (cleaned up). She is suing

about her current need for “specific medical services—a cost that is neither inconsequential nor of a

kind the community generally accepts as part of the

wear and tear of daily life.” Friends for All Child.,

746 F.2d at 825. At bottom then, like the district

court, the dissent misapprehends both the nature and

immediateness of the harm for which Sommerville

seeks redress.

***

For the reasons stated above, we hold that plaintiffs properly alleging the elements of West Virginia’s

medical monitoring tort have Article III standing.

Sommerville has done so, and we reverse the district

17a

court’s order granting the Plant Owners summary

judgment for lack of standing.

III.

We now address the district court’s exclusion of

Sommerville’s proposed expert Dr. Sahu.

A.

Under Fed. R. Evid. 702, trial judges act as gatekeepers to “ensure that any and all scientific testimony ... is not only relevant, but reliable.” Daubert v.

Merrell Dow Pharms., Inc., 509 U.S. 579, 588, 113

S.Ct. 2786, 125 L.Ed.2d 469 (1993). While “Rule 702

was intended to liberalize the introduction of relevant

expert evidence ... court[s] must recognize that due to

the difficulty of evaluating their testimony, expert

witnesses have the potential to ‘be both powerful and

quite misleading.’ ” Westberry v. Gislaved Gummi AB,

178 F.3d 257, 261 (4th Cir. 1999) (quoting Daubert,

509 U.S. at 595, 113 S.Ct. 2786) (internal citation

omitted). Therefore, a trial judge, faced with a proffer

of expert scientific testimony, must conduct “a preliminary assessment of whether the reasoning or

methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.”

Daubert, 509 U.S. at 592–93, 113 S.Ct. 2786. The

proponent of the testimony must establish its admissibility by a preponderance of proof. See id. at 592 n.

10, 113 S.Ct. 2786 (citing Bourjaily v. United States,

483 U.S. 171, 175–76, 107 S.Ct. 2775, 97 L.Ed.2d 144

(1987)); Fed. R. Evid. 702.

In Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993),

the Supreme Court identified several factors that

may bear on a judge’s determination of the reliability

of an expert’s testimony. See 509 U.S. at 592–94, 113

18a

S.Ct. 2786. Those factors include: (1) whether a theory or technique can be or has been tested; (2) whether

it has been subjected to peer review and publication;

(3) whether a technique has a high known or potential rate of error and whether there are standards

controlling its operation; and (4) whether the theory

or technique enjoys general acceptance within a relevant scientific community. See id at 592–94, 113 S.Ct.

2786.

In Kumho Tire Co. v. Carmichael, 526 U.S. 137,

119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), the Supreme

Court noted that the factors discussed in Daubert

were neither definitive, nor exhaustive. Id. at 150–

51, 119 S.Ct. 1167. The Court explained that particular factors may or may not be pertinent in assessing

reliability, “depending on the nature of the issue, the

expert’s particular expertise, and the subject of his

testimony.” See id. The Court further emphasized

that the objective of Daubert’s gatekeeping requirement is to “make certain that an expert ... employs in

the courtroom the same level of intellectual rigor that

characterizes the practice of an expert in the relevant

field.” See id. at 152, 119 S.Ct. 1167.

Courts of appeals apply an abuse of discretion

standard when reviewing a trial court’s decision to

admit or exclude expert testimony. See Gen. Elec. Co.

v. Joiner, 522 U.S. 136, 138–39, 118 S.Ct. 512, 139

L.Ed.2d 508 (1997). The Supreme Court also has emphasized that “the trial judge must have considerable

leeway in deciding in a particular case how to go

about determining whether particular expert testimony is reliable.” See Kumho Tire, 526 U.S. at 152,

119 S.Ct. 1167.

B.

To establish liability, Sommerville acknowledges

19a

that she must put forth admissible expert testimony

to establish Bower’s first element—that she was, relevant to the general population, “significantly exposed” to a proven hazardous substance. 522 S.E.2d

at 432– 33. Accordingly, Sommerville offered Dr. Sahu to testify about the fate and transport of the

Plant’s EtO emissions between 1984 and 2019. Dr.

Sahu sought to provide “technical expertise, analysis,

methodology, and opinions regarding various environmental and pollutant fate and transport issues

relating to emissions of [EtO] from [the Plant] ... to

ultimately determine the potential exposure levels of

[Sommerville] and the proposed class members.”

Sommerville v. Union Carbide Corp., No. 2:19-CV00878, 2024 WL 1204094, at *2 (S.D.W. Va. Mar. 20,

2024) (hereinafter Sommerville I).

Dr. Sahu modeled EtO emissions using the

“AERMOD” dispersion model, a computer program.

J.A. 524. Before running AERMOD, however, Dr. Sahu had to select the inputs AERMOD would use to

generate his EtO modeling. These inputs included

source data 3, receptor data 4, and meteorological data.

J.A. 524.

Source data means EtO “emissions sources” including “specification and locations of source units, historical emissions rates,

and source parameters.” J.A. 524. “Source parameters” are details describing the locations from which EtO was omitted. Id.

525. “Point source” or “stack emissions” are “air releases that

occur through identifiable confined air streams, such as stacks,

ducts or pipes.” Sommerville v. Union Carbide Corp., No. 2:19CV-00878, 2024 WL 1204094, at *10 n.5 (S.D.W. Va. Mar. 20,

2024) (cleaned up). And “fugitive emissions” are “releases to air

that don’t occur through a confined air stream” such as via

“equipment leaks.” Id.

3

“The AERMOD model allows the user to input a set of receptors, which are locations at which the model will predict hourly

concentrations due to the input source emissions.” J.A. 526.

4

20a

The district court excluded Dr. Sahu’s proposed

testimony. For a plethora of supposedly independently-sufficient reasons, the district court found Dr. Sahu’s testimony was unreliable. The district court did

not question AERMOD itself but took issue with Dr.

Sahu’s choice of source and meteorological data.

First, the district court found that Dr. Sahu’s

choice of source parameters rendered his report unreliable. Sommerville I, 2024 WL 1204094, at *10. To

set his source parameters, Dr. Sahu relied on data

the West Virginia Department of Environmental Protection created. Further, for the years 1985–1989, Dr.

Sahu modeled all emissions as fugitive. The district

court faulted Dr. Sahu for these choices, holding that

both decisions were based on “assumptions ... with

little to no scientific basis.” Id. at *11.

Excluding Dr. Sahu for these choices was an

abuse of discretion. Dr. Sahu presented detailed reasons for his challenged assumptions. See, e.g., id. (acknowledging Dr. Sahu’s assertion that the Plant

Owners’ lack of record keeping limited Dr. Sahu’s

choice of “site-specific data to base his model on”);

J.A. 514 (explaining why Dr. Sahu chose to model all

Plant emissions as fugitive for 1985–1989); id. 568

(further explaining Dr. Sahu’s modeling choices and

assumptions as to fugitive emissions). The district

court, however, simply ignored or discounted Dr. Sahu’s proffered explanations in favor of those that the

Plant Owners’ expert, Dr. Ranjit Machado, offered.

See Sommerville I, 2024 WL 1204094, at *10–11.

At bottom, the district court’s analysis was not a

true critique of Dr. Sahu’s “methodology,” but a veiled

credibility determination based on Dr. Sahu’s choice

of which data to input into his model. This was an

abuse of discretion because “questions regarding the

factual underpinnings of the [expert witness’] opinion

21a

affect the weight and credibility of the witness’ assessment, not its admissibility.” See Bresler v. Wilmington Tr. Co., 855 F.3d 178, 195 (4th Cir. 2017)

(cleaned up); Rappuhn v. Primal Vantage Co., No. 2310050, 2024 WL 2930448, at *4 (11th Cir. June 11,

2024) (“[C]rediting one expert over another ... misapplies Daubert and intrudes on the province of the jury.”).

Second, the district court found Dr. Sahu’s testimony was unreliable because he did not “validate”

Union Carbide’s self-reported emissions data before

inputting them into AERMOD. Sommerville I, 2024

WL 1204094, at *12–13 (Union Carbide self-reported

1984 data); id. at *13–14 (Union Carbide selfreported data 1990–2019). The district court did not

cite controlling case law imposing a “validation” requirement. Nor did it explain, in practical terms, how

Dr. Sahu was supposed to undertake “validation.”

Excluding Dr. Sahu for failing to “validate” his data was a glaring abuse of discretion. Nothing in Rule

702 requires an expert witness to “validate” data.

Fed. R. Evid. 702. The district court’s requirement

that Dr. Sahu do just that, however, was extratextual, an error of law, and thus an abuse of discretion

per se. See New York City Transit Auth. v. Express

Scripts, Inc., 588 F. Supp. 3d 424, 445 (S.D.N.Y.

2022) (rejecting argument that expert failed to validate data and noting “the [c]ourt has not found[ ]

precedent requiring experts to validate the data underlying each source on which they rely in order to

satisfy the reliability threshold for admissibility”); see

also Daubert, 509 U.S. at 596, 113 S.Ct. 2786 (“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.”).

22a

Said differently, the district court again disagreed

with Dr. Sahu’s choice of data and excluded Dr. Sahu’s testimony as a result, even though our caselaw

forbids as much. See Baxter v. Comm’r of I.R.S., 910

F.3d 150, 158 (4th Cir. 2018) (affirming admission of

expert and rejecting challenge to his selection of certain data finding that “to the extent that Taxpayers[ ]

disagree with Kolbe’s estimates of the costs of obtaining a ‘good’ or ‘normal’ loan, ‘such challenges ... affect

the weight and credibility of [Kolbe’s] assessment, not

its admissibility’ ”) (citing Bresler, 855 F.3d at 196).

The district court made further related errors concerning its critique of Dr. Sahu’s emissions data selections. For the year 1984, Dr. Sahu relied on data

Union Carbide reported to the West Virginia Air Pollution Control Commission. When Union Carbide reported this data to authorities, it included a letter

claiming its figures should not be taken at face value

because they were “drastically overstated.” Sommerville I, 2024 WL 1204094, at *12. In the district

court’s opinion, because Union Carbide had cast

doubt on its own data, Dr. Sahu’s use of the data rendered his opinion unreliable.

This conclusion was an abuse of discretion for two

reasons. First, Dr. Sahu provided reasons for why he

did not believe Union Carbide’s claim that its 1984

data were inaccurate. Second, and more fundamentally, excluding Dr. Sahu on this basis again violated

Bresler’s holding that “questions regarding the factual underpinnings of the [expert witness’] opinion affect the weight and credibility of the witness’ assessment, not its admissibility.” See Bresler, 855 F.3d at

195 (cleaned up).

The district court committed a similar error when

it held that Dr. Sahu’s report was unreliable because

of the data Dr. Sahu based emissions on for the years

23a

1985–1989. For this period, Dr. Sahu based EtO

emissions on the “Toxic Air Pollutant Facility Registration Summary Sheets” the Plant Owners provided

to regulatory authorities. The district court took issue

with this choice because it believed that the “values

listed [on the summary sheets were] estimates for

maximum toxic air pollutant emissions, not actual

emissions.” Sommerville I, 2024 WL 1204094, at *13

(cleaned up). The district court, however, ignored Dr.

Sahu’s testimony justifying his contrary interpretation of the summary sheets.

While Dr. Machado argued that the summary

sheets were only potential emissions, Dr. Sahu testified that the “substantial variation” over time in the

reported figures led him to infer Union Carbide was

reporting actual emissions. J.A. 261–62. Such a “factual dispute is best settled by a battle of the experts

before the fact finder, not by judicial fiat.” See City of

Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1048–

49 (9th Cir. 2014); see also Johnson v. Mead Johnson

& Co., LLC, 754 F.3d 557, 562 (8th Cir. 2014) (“The

district court in the instant case violated these liberal

admission standards by resolving doubts in favor of

keeping the testimony out and relying upon its own

assessment of the correctness of the expert opinions.”); Westberry, 178 F.3d at 261 (“[T]he court need

not determine that the expert testimony a litigant

seeks to offer into evidence is irrefutable or certainly

correct. As with all other admissible evidence, expert

testimony is subject to being tested by ‘[v]igorous

cross-examination, presentation of contrary evidence,

and careful instruction on the burden of proof.’ ”)

(quoting Daubert, 509 U.S. at 596, 113 S.Ct. 2786)

(alteration adopted); see also McCullock v. H.B. Fuller

Co., 61 F.3d 1038, 1044 (2d Cir. 1995) (noting that

perceived faults in doctor’s differential diagnosis were

24a

matters for cross-examination that did not affect admissibility).

Third, the district court took issue with Dr. Sahu’s

choice of meteorological inputs for AERMOD. To

model dispersion patterns around the Plant, Dr. Sahu

had to input wind speed and direction data. Dr. Sahu

inputted data from various sites and elevations to

create his model. The district court concluded Dr. Sahu’s testimony was unreliable because “[w]ind directions are highly variable ... [and] a single location—

such as [Sommerville’s] residence—cannot have multiple wind speeds coming from various directions at

one specific time.” Sommerville I, 2024 WL 1204094,

at *16. The district court further found Dr. Sahu’s

testimony unreliable because Dr. Sahu used 1985–

1986 onsite meteorological data from the Plant for

the years 1984–2019.

These conclusions were abuses of discretion. Beyond possibly misstating the science of wind 5—and

unnecessarily attempting to make scientific findings

to justify its exclusion of Dr. Sahu 6—the district court

Multiple wind speeds from different directions at the same

time at a single geographic location is not only possible but

widely accepted. See, e.g., What Causes Tornadoes?, NOAA (describing how tornadoes are created and noting that “[c]onditions

are ripe for tornadoes when the air becomes very unstable, with

winds at different altitudes blowing in different directions or at

different speeds—a condition called wind shear”) (emphasis added), https://perma.cc/9MYS-P7CK.

5

We agree with the dissent that the district court should not

have fashioned itself as an “amateur scientist[ ],” and excluded

Dr. Sahu’s testimony on the basis that “a single location ... cannot have multiple wind speeds coming from various directions at

one specific time.” Sommerville I, 2024 WL 1204094, at *16;

Diss. Op. at 432 n.9; cf. Daubert, 509 U.S. at 601, 113 S.Ct. 2786

(Rehnquist, C.J., concurring in part and dissenting in part)

(“[Rule 702] imposes on [courts] [n]either the obligation [n]or the

6

25a

again conflated admissibility with the weight a factfinder might attribute Dr. Sahu’s testimony based on

his choice of data. Simultaneously, the district court

ignored Dr. Sahu’s testimony as to why using wind

data from various altitudes was proper given South

Charleston’s mountainous geography and why Dr.

Sahu chose to use onsite data from 1985–1986 to

model 1984–2019. See J.A. 532–33 (explaining that

because of the “elevated point source[s]” of certain

“flare emissions,” Dr. Sahu used data from Yeager

Airport, roughly 285 meters elevation); id. 572 (explaining that the only onsite data available at the

Plant was from 1985–1986, that the Plant Owners

had supplied no other data and, in Dr. Sahu’s professional experience, any variation would not be significant); see also Daubert, 509 U.S. at 596, 113 S.Ct.

2786 (“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.”).

Fourth, the district court faulted Dr. Sahu for how

he chose to calculate “background” EtO levels. “Background” refers to exposure levels experienced by the

general population as opposed to the levels Sommerville alleges she was exposed to due to the Plant

Owners’ negligence. The district court found Dr. Sahu’s testimony was unreliable because Dr. Sahu used

data produced by the United States Environmental

Protection Agency (EPA) instead of data from the

West Virginia Department of Environmental Protection—data the district court described as being more

“local.” Sommerville I, 2024 WL 1204094, at *19. The

authority to become amateur scientists”). We include the information in the preceding footnote only to emphasize the danger

trial courts run when, as the district court did here, they attempt to exclude expert testimony in this fashion.

26a

district court found Dr. Sahu was “cherry-picking”

data. Id. at *18–19. This finding was an abuse of discretion.

Dr. Sahu didn’t “cherry-pick data.” Cherry-picking

data means engaging in a “[r]esult-driven analysis”

that “undermines principles of the scientific method.”

See In re Lipitor (Atorvastatin Calcium) Mktg., Sales

Pracs. & Prods. Liab. Litig. (No II) MDL 2502, 892

F.3d 624, 634 (4th Cir. 2018). In Lipitor, this court

affirmed the trial court’s exclusion of the plaintiffs’

expert where he “cho[se] to include in his report the

results of some tests he performed (which supported

the plaintiffs’ argument) but exclude the results of

another (which did not).” Id. at 634–35.

Dr. Sahu did nothing of the sort. Instead, Dr. Sahu chose to use the EPA’s data because he found it

more representative of Sommerville’s claims. True,

the EPA had reservations about aspects of its data

set. See J.A. 814 (stating that while the EPA was

“confident” in EtO data collected “downwind of facilities,” the EPA had also detected EtO levels close to

the detection limit, implying “greater uncertainty in

its measurement and ... less confiden[ce] in [its] accuracy”). But the West Virginia data the district court

held Dr. Sahu should have used came with disclaimers too. Id. 1786 (“The project involved four (4) 24hour sampling events. Four days of data cannot be

used to calculate risk over a 70-year period.”). Put

simply, the weight to give Dr. Sahu’s choice of EtO

background data had nothing to do with the admissibility of his testimony. Though framed as a “reliability” question, the district court again waded into

credibility determinations. Excluding Dr. Sahu on

this basis was an abuse of discretion.

Last, the district court abused its discretion when

it concluded that Dr. Sahu’s report was unreliable be-

27a

cause Dr. Sahu had wrongly maintained Covestro’s

emissions rates constant from 1984–2019 in AERMOD. To so find, the district court ignored Dr. Sahu’s

testimony that while he had erroneously held

Covestro’s emissions constant in his initial report, he

had corrected this error in his supplemental report.

Id. 1188–93 (“I ... reran the model using the varying

emission rates for the Covestro sources. In this supplemental report I show the results of this revised

modeling and also comparisons to the prior constant

emission rate results.”) (cleaned up). Therefore, the

district court’s exclusion of Dr. Sahu on this basis

was likewise an abuse of discretion.

In sum, none of the reasons for which the district

court excluded Dr. Sahu’s testimony were proper.

And in accordance with Federal Rules of Evidence

104(a) and 702, Sommerville has established by a

preponderance of evidence that Dr. Sahu’s testimony

is admissible. Therefore, Dr. Sahu’s exclusion was an

abuse of discretion. 7

The dissent is unclear “what line” we “intend to draw.” Diss.

Op. at 431. We do not question that a district court can decide

“that an expert’s opinion lacks sufficient support in the record”

or that “there is simply too great an analytical gap between [an

expert’s] data and the opinion proffered.” Id.; Gen. Elec. Co. v.

Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997).

Rather, we underscore that a district court may not exclude expert testimony based on (1) its mere disagreement with an expert’s choice of data or (2) its own assessment of the correctness

of an expert’s opinions. See Bresler v. Wilmington Tr. Co., 855

F.3d 178, 195 (4th Cir. 2017) (noting “questions regarding the

factual underpinnings of the [expert witness’] opinion affect the

weight and credibility of the witness’ assessment, not its admissibility”) (cleaned up); Rappuhn v. Primal Vantage Co., No. 2310050, 2024 WL 2930448, at *4 (11th Cir. June 11, 2024)

(“[C]rediting one expert over another ... misapplies Daubert and

intrudes on the province of the jury.”). These errors permeate

7

28a

IV.

For the reasons stated above, we reverse the district court’s grant of summary judgment to the Plant

Owners and its exclusion of Dr. Sahu.

REVERSED AND REMANDED

the district court’s order excluding Dr. Sahu and dictate reversal.

29a

DIAZ, Chief Judge, dissenting:

West Virginia courts have opened their doors to

claims for damages, like Sommerville’s, in which the

only claimed injury is a present need for medical

monitoring. In my view, Article III standing principles prevent us from doing the same. Because my colleagues conclude otherwise, I respectfully dissent.

I.

West Virginia allows plaintiffs to bring medical

monitoring claims “to recover the anticipated costs of

long-term diagnostic testing necessary to detect latent diseases that may develop as a result of tortious

exposure to toxic substances.” Bower v. Westinghouse

Elec. Corp., 206 W.Va. 133, 522 S.E.2d 424, 429

(1999). Plaintiffs must show—as relevant here—that

an exposure to a hazardous substance put them at a

“significantly increased risk of contracting a particular disease” that makes diagnostic testing “reasonably necessary.” Id. at 433. They don’t need to show

that they’ve experienced any physical harm, nor any

certainty (or even likelihood) that a disease will occur. Id.

But to get into federal court, a state law injury

isn’t enough. As my colleagues agree, Sommerville

(who alleges she was exposed to a carcinogen emitted

from Defendants’ operations at a manufacturing facility in South Charleston, West Virginia near her

home) must show that she’s suffered an injury in fact

sufficient for Article III.

Sommerville doesn’t claim that she’s been physically harmed. Nor does she claim that her injury in

fact is an increased risk of developing cancer. And for

good reason, because a “risk of future harm ... cannot,

by itself, establish concrete injury to have standing to

seek damages.” Penegar v. Liberty Mut. Ins. Co., 115

30a

F.4th 294, 302 (4th Cir. 2024) (citing TransUnion

LLC v. Ramirez, 594 U.S. 413, 436, 141 S.Ct. 2190,

210 L.Ed.2d 568 (2021)).

Instead, Sommerville’s asserted injury is the “necessary medical monitoring costs resulting from toxic

exposure.” Appellant’s Br at 12. For the majority,

that’s enough for standing. 1 I disagree and would instead hold that medical monitoring costs (incurred or

anticipated), without more, can’t confer standing to

seek damages in federal court.

Our decision in Beck v. McDonald, 848 F.3d 262

(4th Cir. 2017), explains why. There, plaintiffs sued

after their medical records were stolen from a Veterans Affairs medical center. Id. at 267–68. They

brought data privacy claims seeking damages and declaratory and injunctive relief. Id. They claimed two

injuries in fact: (1) “the increased risk of future identity theft,” id. at 273, and (2) “the cost of measures to

guard against identity theft, including the costs of

credit monitoring services,” that they had incurred or

would incur, id. at 276.

But we rejected the first because, under the circumstances of the data breaches, the risk that the

plaintiffs’ identities would be stolen was too speculaNeither the Bower court, in its assessment of the common-law

principles underlying medical monitoring claims, nor the majority, in its injury-in-fact analysis, disaggregate the exposure from

the costs of medical monitoring. Though both mention the exposure, both focus on the economic harm of medical monitoring

costs stemming from the exposure. So the asserted injury in fact

here appears to be the costs of medical monitoring, not the exposure that creates the need for those costs.

1

I don’t read the majority opinion to hold that exposure alone is

an injury in fact. Nor could I join such a novel holding without

substantially more analysis than what the majority offers.

31a

tive. 2 Id. at 274. And the second was “merely a repackaged version” of the first. Id. at 276 (cleaned up).

It too failed because “costs ... incurred in response to

a speculative threat” can’t confer standing. 3 Beck, 848

F.3d at 276–77 (quoting Clapper v. Amnesty Int’l

USA, 568 U.S. 398, 416, 133 S.Ct. 1138, 185 L.Ed.2d

264 (2013)); see also Remijas v. Neiman Marcus Grp.,

LLC, 794 F.3d 688, 694 (7th Cir. 2015) (“Mitigation

expenses do not qualify as actual injuries where the

harm is not imminent.”).

So too here. Sommerville claims that she’s at an

increased risk of developing cancer and that the risk

creates a present need for medical monitoring—the

costs of which are her injury in fact. But to confer Article III standing, these costs must be based on a future harm that is “certainly impending.” Clapper, 568

U.S. at 409, 416, 133 S.Ct. 1138.

Recall that Sommerville doesn’t press that her injury in fact is

an increased risk of developing cancer.

2

The plaintiffs in Clapper v. Amnesty International USA, 568

U.S. 398, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013), sought injunctive relief, and Sommerville seeks damages. Still, Clapper’s reasoning with respect to the mitigation injury asserted there applies here. Id. at 415, 133 S.Ct. 1138 (costs incurred to protect

confidentiality of communications based on risk of surveillance).

3

In each case, plaintiffs claimed to be suffering “present injury”

because the risk of a harm in the future created the need to incur certain costs now and in the future (and, in Clapper, it had

forced them to incur such costs already). Id. at 401, 133 S.Ct.

1138. That type of injury can be addressed by eliminating the

risk that the future harm will occur (via injunction) or by shifting the costs to the defendant (via damages). A plaintiff who

lacks standing to seek an injunction because the underlying “future harm ... is not impending” shouldn’t have standing to seek

damages for costs incurred based on that same speculative

harm. Id.

32a

Though the future harm here—cancer—is serious,

it’s not certainly impending. The record doesn’t show

who in the putative class (if anyone) will develop cancer or when (if ever). Because the risk of this harm

coming to pass, even if heightened, is uncertain, monitoring costs based on such a risk aren’t enough for

Article III standing.

According to the majority, I “misapprehend[ ]” the

injury it recognizes. Majority Opinion at 421. I think

not.

I don’t rely on Beck because I see here a similarly

“attenuated chain of possibilities.” Id. (quoting Beck,

848 F.3d at 275). Nor is that alone what Beck relied

on to decide the case. And I would know—I wrote it!

Beck instructs that for costs stemming from a potential future harm to be an injury in fact, the underlying future harm must be a non-speculative one. The

future harm underlying the credit-monitoring-cost

injury asserted in Beck was not that the plaintiffs’

medical records had been stolen—it was the risk of

identity theft. Similarly, the future harm underlying

the medical-monitoring-cost injury asserted here is

not the EtO exposure—it’s the risk of developing cancer. In each case, plaintiffs seek to “monitor” something that may occur, not the event that’s already occurred.

Here and in Beck, the future harm underlying the

monitoring-cost injury is speculative. It doesn’t matter that the future harm in Beck isn’t speculative in

precisely the same manner as here. Because the underlying future harm is speculative, costs needed or

incurred based on that harm can’t be an injury in

fact.

33a

II.

There’s yet another reason Sommerville lacks

standing. The district court, in my view, correctly excluded Dr. Ranajit Sahu’s expert testimony. And

without Sahu’s testimony, Sommerville can’t meet

her burden at summary judgment to demonstrate an

injury in fact.

A.

Sommerville hired Dr. Sahu to reconstruct ethylene oxide, or “EtO,” 4 emissions from the Defendants’ South Charleston industrial facility between

1984 and 2019 and to create an air dispersion model 5

to estimate cumulative EtO exposure levels at points

near the facility.

According to Sahu, this model could estimate an

individual’s cumulative EtO exposure based on where

they lived and the years they lived there. Sommerville’s other experts would use these cumulative exposure estimates and background EtO levels—which

Dr. Sahu also estimated—to calculate each class

EtO is a human carcinogen. Our Current Understanding of

Ethylene Oxide (EtO), EPA, https://www.epa.gov/hazardous-airpollutants-ethylene-oxide/our-current-understanding-ethyleneoxide-eto [https://perma.cc/F53C-JPUV]. Long-term exposure to

EtO increases the risk of certain cancers, while “[s]hort-term

inhalation exposure to high amounts of EtO can cause headache,

dizziness, nausea, fatigue, respiratory irritation[,] ... and, in

some cases, ... gastrointestinal distress.” Id.

4

Air dispersion modeling uses mathematical formulas to simulate “the atmospheric processes that disperse [an air] pollutant

emitted by a source.” Air Quality Dispersion Modeling, EPA

(Nov.

21,

2024),

https://www.epa.gov/scram/air-qualitydispersion-modeling [https://perma.cc/F7C6-L6C6]. An air dispersion model “can be used to predict concentrations” of an air

pollutant at locations around the source. Id.

5

34a

member’s relative risk of developing certain cancers.

When faced with expert testimony, the district

court’s gatekeeping responsibility is to “ensur[e] that

[the] testimony both rests on a reliable foundation

and is relevant to the task at hand.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597, 113 S.Ct.

2786, 125 L.Ed.2d 469 (1993) (emphases added). To

be reliable, an expert’s opinion must be “based on scientific, technical, or other specialized knowledge and

not on belief or speculation,” and any “inferences

must be derived using scientific or other valid methods.” Nease v. Ford Motor Co., 848 F.3d 219, 229 (4th

Cir. 2017) (emphasis omitted) (quoting Oglesby v.

Gen. Motors Corp., 190 F.3d 244, 250 (4th Cir. 1999)).

The question isn’t whether we would have admitted Dr. Sahu’s testimony in the first instance, but

whether the district court abused its discretion in excluding it. The Supreme Court has cautioned us

against being “overly stringent” in answering this

question. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 143,

118 S.Ct. 512, 139 L.Ed.2d 508 (1997). After all, “[i]t

is very much a matter of discretion with the court

whether to receive or exclude the evidence,” so we

should not reverse “unless the ruling is manifestly

erroneous.” McKiver v. Murphy-Brown, LLC, 980

F.3d 937, 962 (4th Cir. 2020) (quoting Gen. Elec. Co.,

522 U.S. at 142, 118 S.Ct. 512).

Here, the district court concluded that Sahu’s expert testimony wasn’t well-grounded in the facts and

data available and was thus unreliable. Sommerville

v. Union Carbide Corp., No. 19-CV-00878, 2024 WL

1204094, at *1 (S.D. W. Va. Mar. 20, 2024). The district court didn’t abuse its discretion. In fact, the

court was right.

1.

35a

The majority faults the district court for focusing

on Dr. Sahu’s justifications for his inputs into the

“AERMOD” modeling system, rather than on the system itself. According to the majority, this flouts

Daubert, which directs courts to focus on methodology. Not so.

The AERMOD modeling system and Sahu’s model

aren’t the same. The fact that the AERMOD modeling system could (in theory) produce a sufficiently reliable dispersion model 6 doesn’t settle whether Sahu’s

dispersion model was sufficiently reliable. Instead,

the reliability of Sahu’s model depends on the reliability of the inputs, as Dr. Sahu himself agreed. 7 E.g.,

J.A. 219 (agreeing that “the accuracy of the model

bears a strong positive relationship to the correct inputs being used ... that represent the actual condition

in the facilities in its emissions sources”).

True, Daubert directs us to focus on “principles

and methodology, not on the conclusions that they

generate.” 509 U.S. at 595, 113 S.Ct. 2786. But an

expert who constructs a model based on faulty assumptions and irrelevant data shouldn’t be handed a

“get-out-of-Daubert-free card” simply because he uses

an otherwise reliable modeling system. In re Lipitor

(Atorvastatin Calcium) Mktg., Sales Pracs. & Prods.

Liab. Litig. (No II) MDL 2502, 892 F.3d 624, 641 (4th

Cir. 2018); see also id. at 643–44.

A modeling expert’s methodology doesn’t end with

selecting a modeling system. The expert must also

develop the inputs and assumptions used to create

The Defendants don’t challenge the reliability of the AERMOD

modeling system. So I assume that the system doesn’t introduce

any separate Daubert concerns here.

6

7

Put more bluntly, garbage in, garbage out.

36a

the model. 8 Here, the district court had to consider

whether those inputs and assumptions are supported

by “scientifically valid” “reasoning or methodology,”

Daubert, 509 U.S. at 592–93, 113 S.Ct. 2786, such

that the resulting model is “based on sufficient facts

or data,” Fed. R. Evid. 702(b). And that’s precisely

what the district court did.

But, says the majority, “questions regarding the

factual underpinnings of the expert witness’[s] opinion affect the weight and credibility of the witness’[s]

assessment, not its admissibility.” Majority Opinion

at 423, 424 (cleaned up) (quoting Bresler v. Wilmington Tr. Co., 855 F.3d 178, 195 (4th Cir. 2017)).

I can’t tell what line my colleagues intend to draw

here, especially because Daubert inquiries are inherently “tied to the facts of a particular case.” Kumho

Tire Co. v. Carmichael, 526 U.S. 137, 150, 119 S.Ct.

1167, 143 L.Ed.2d 238 (1999) (cleaned up). Yet they

can’t possibly mean that district courts may not decide that an expert’s opinion lacks sufficient support

in the record, cf. Fed. R. Evid. 702(b), or conclude

“that there is simply too great an analytical gap between [an expert’s] data and the opinion proffered,”

Gen. Elec. Co., 522 U.S. at 146, 118 S.Ct. 512.

We’ve faulted district courts for “abdicat[ing]

[their] responsibility” with respect to expert testimony based on the belief “that the question of whether

an expert’s opinion had an adequate basis in fact

should be handled by opposing counsel through cross

examination and in jury argument.” Tyger Constr. Co.

Even Dr. Sahu considered developing these inputs to be his

methodology. The “Methodology” section of his expert report focuses exclusively on how he “reconstruct[ed] operations and

identif[ied] emission and waste sources.” J.A. 467–68; see also

J.A. 494.

8

37a

v. Pensacola Constr. Co., 29 F.3d 137, 143 (4th Cir.

1994); see also Sardis v. Overhead Door Corp., 10

F.4th 268, 281–82 (4th Cir. 2021).

The district court recognized its duty here and

honored it. We should commend the court, not reverse its ruling.

2.

Nor can I agree with the majority that the district

court’s concern about a lack of validation was misplaced. See Sommerville, 2024 WL 1204094, at *12,

*14. Validation (as in “data validation”) can refer to

specific protocols used to confirm data quality. But I

take the district court to have used “validate” in a

more colloquial sense—as in “substantiate” or “support.”

The district court had good reason to be concerned

about Dr. Sahu’s failure to justify the assumptions he

made in creating the inputs for the dispersion model.

See Daubert, 509 U.S. at 590, 113 S.Ct. 2786 (“Proposed testimony must be supported by appropriate

validation—i.e., ‘good grounds,’ based on what is

known.” (emphases added)). Here again, the district

court was simply doing its job as the “gatekeeper[ ] of

expert testimony.” Sardis, 10 F.4th at 275 (cleaned

up).

3.

What’s left are a series of concerns squarely within the district court’s purview—that the inputs were

“speculative” and “premised on assumptions that

[did] not accurately represent the Defendants’ operations in South Charleston.” Sommerville, 2024 WL

1204094, at *1; see, e.g., In re Lipitor, 892 F.3d at

633–35 (unrepresentative data set, flawed logic, unsound assumptions); EEOC v. Freeman, 778 F.3d 463,

38a

466–67 (4th Cir. 2015) (unexplained discrepancies in

data set, analytical fallacies); Belville v. Ford Motor

Co., 919 F.3d 224, 229 (4th Cir. 2019) (unsupported

assumptions). I can’t agree with the majority’s attempt to recast these problems as a “mere disagreement with [Sahu’s] choice of data” or an “assessment

of the correctness” of his ultimate opinions. Majority

Opinion at 427 n.7 (emphases omitted).

Sahu’s model purports to estimate actual emissions. Yet he relied on values that expressly didn’t

represent actual emissions. Sommerville, 2024 WL

1204094, at *13. Sahu himself “identified inconsistencies in [the] reported EtO emissions,” J.A. 1188,

but he “[n]onetheless ... used [those] emissions for ...

various years in updating [his] modeling,” J.A. 1190.

And Sahu ignored telltale signs that there might

be a problem with the emissions values he used. For

example, his model shows that in 1984 the cumulative EtO exposure at a point a half mile from the

South Charleston facility was 100 times greater than

in other years, J.A. 535, yet that outlier raised no red

flags for Sahu—at least none that warranted an explanation.

The model also required meteorological inputs. To

develop them, Sahu combined meteorological data

from three locations—one year of hourly wind speed

and wind direction data from near the South Charleston facility (which he supplemented with data from

an airport five miles away); twice-daily upper air data from a town fifty miles away; and other meteorological parameters also from the airport. But Sahu

never explained why the data from some distance

away was representative of the conditions near the

39a

facility. 9 See Tyger Constr. Co., 29 F.3d at 143.

Sahu filled in gaps in the emissions and meteorological data with assumptions. That isn’t problematic

on its own. “Trained experts commonly extrapolate

from existing data.” Gen. Elec. Co., 522 U.S. at 146,

118 S.Ct. 512. But those assumptions must be “connected to existing data” by more than just “the ipse

dixit of the expert.” Id.

Sahu justified some of his assumptions in his initial report, but he simply identified others. And his

rebuttal report and deposition testimony provided little support beyond his say-so.

In many instances, Sahu held a value (e.g., emissions, operations) from one year constant over several

years (or, for the meteorological data, for the entire

thirty-year period at issue). But as the district court

correctly recognized, he failed to explain why such

values were unlikely to change significantly from

year to year.

The district court “identified and articulated clear

... concerns it had about the manner in which [Dr.

Sahu] reached his conclusions.” In re Lipitor, 892

F.3d at 638. I’m not left with “a definite and firm conIt strikes me as unwise for courts to opine on “the science of

wind”—whatever that entails—unless absolutely necessary. Majority Opinion at 425 & n.5; cf. Daubert, 509 U.S. at 601, 113

S.Ct. 2786 (Rehnquist, C.J., concurring in part and dissenting in

part) (“[Rule 702] imposes on [courts] [n]either the obligation

[n]or the authority to become amateur scientists.”). That’s especially true here, where we’re unaided by briefing or record evidence. Whatever direction the science of wind blows, Dr. Sahu

failed to support his meteorological assumptions. And whatever

the district court’s “scientific finding[s],” Majority Opinion at

425, it acted well within its discretion to conclude as much,

Sommerville, 2024 WL 1204094, at *17.

9

40a

viction that the [district] court ... committed a clear

error of judgment” in carrying out its gatekeeping responsibility. Freeman, 778 F.3d at 466. To the contrary, the district court’s decision to exclude Dr. Sahu’s

opinion is right on the merits.

In holding otherwise, the majority wrongly invites

district courts to “delegate [their] gatekeeping responsibility to the jury.” Nease, 848 F.3d at 231.

B.

Without Dr. Sahu’s opinion, Sommerville can’t

carry her burden to present evidence sufficient to

demonstrate Article III standing.

At summary judgment, Sommerville “cannot rest

on mere allegations but must set forth evidence

which ... would establish the elements of Article III

standing.” Fernandez v. RentGrow, Inc., 116 F.4th

288, 295 (4th Cir. 2024). Though we view the evidence in Sommerville’s favor, id., we “may not consider inadmissible evidence” at summary judgment,

Giles v. Nat’l R.R. Passenger Corp., 59 F.4th 696, 704

(4th Cir. 2023).

So even if the need for and costs of medical monitoring is an injury in fact, Sommerville can’t establish

that injury in fact without Dr. Sahu’s opinion. His

model is the only evidence that, for example, indicates that Sommerville was exposed to EtO emitted

by the Defendants’ operations. And without Sahu’s

estimates of her cumulative exposure, Sommerville’s

other experts couldn’t calculate her relative risk of

developing certain cancers, or opine on the significance of that risk, or her need for medical monitoring.

III.

I have no quarrel with the West Virginia Supreme

Court of Appeals’ reasons for recognizing a medical

41a

monitoring cause of action, which the majority aptly

recounts. But the need for and costs of medical monitoring—without more—isn’t an injury in fact sufficient for Article III standing. Even if it were, Sommerville can’t demonstrate such an injury without

Dr. Sahu’s expert testimony, which the district court

properly excluded.

Because the majority holds otherwise, I dissent.

42a

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF

WEST VIRGINIA

CHARLESTON DIVISION.

Lee Ann SOMMERVILLE, et al., Plaintiffs,

v.

UNION CARBIDE CORPORATION, Defendant.

CIVIL ACTION NO. 2:19-cv-00878

Signed March 20, 2024

MEMORANDUM OPINION AND ORDER

JOSEPH R. GOODWIN,

DISTRICT JUDGE

UNITED

STATES

Pending before the court are two motions to limit

the opinions and testimony of Dr. Ranajit (Ron) Sahu

filed by Defendants Union Carbide Corporation

(“UCC”), [ECF No. 309], and Covestro LLC

(“Covestro”), [ECF No. 327], respectively. Plaintiff

Lee Ann Sommerville (“Plaintiff”) filed a response to

UCC’s motion, [ECF No. 343], and a response to

Covestro’s motion, [ECF No. 342], on July 10, 2023.

For the reasons discussed below, I GRANT both motions, [ECF Nos. 309, 327], and ORDER that the testimony and reports of Dr. Ranajit Sahu be excluded

as unreliable.

Upon detailed review of the expert reports, I find

that the opinions of Dr. Sahu are not based upon sufficient facts or data because the inputs he uses in the

air model are speculative and are premised on assumptions that do not accurately represent the Defendants’ operations in South Charleston. As such,

there are serious doubts about whether such opinions

43a

are the product of reliable principles and methods,

which have also not been reliably applied to the facts

of this case. For these reasons, which I discuss in

greater detail below, I GRANT both motions, [ECF

Nos. 309, 327], and ORDER that the testimony and

reports of Dr. Ranajit Sahu be excluded as unreliable.

I. Background

The named Plaintiff brought this proposed medical monitoring class action against Defendants UCC

and Covestro, as owners and operators of a manufacturing facility located in South Charleston, West Virginia, for their alleged “dangerous and reckless emission of ethylene oxide (“EtO”),” a known human carcinogen, between 1984 and 2019. [ECF No. 85, ¶¶ 1–

2].

A. Ethylene Oxide Exposure

EtO is a colorless, odorless gas produced in large

volumes at some chemical manufacturing facilities.

See Our Current Understanding of Ethylene Oxide

(EtO), U.S. Env’t Prot. Agency, https://www.epa.gov/

hazardous-air-pollutants-ethylene-oxide/our-currentunderstanding-ethylene-oxide-eto#what (last visited

Mar. 11, 2024). According to the Environmental Protection Agency (“EPA”), EtO is a known human carcinogen, and regular, long-term exposure to EtO can

cause certain cancers of the white blood cells, including non-Hodgkin lymphoma, myeloma, and lymphocytic leukemia. Id. Because the primary way EtO enters the environment is by release into the air, individuals who live near facilities that release EtO into

the outdoor air may be exposed to EtO. Id.

According to Plaintiff, UCC is “the world’s leading

producer of EtO,” and “the South Charleston Plant is

one of the only facilities in the [United States] that

manufactures EtO.” [ECF No. 85, ¶ 28]. UCC has

44a

“owned and operated the South Charleston Plant

since at least 1978,” and in 2015, Covestro began “operat[ing] polyols facilities” at the South Charleston

plant. Id. ¶¶ 41, 44. Plaintiff claims that UCC and

Covestro “operated without sufficient pollution controls to limit and/or eliminate the emissions of toxic

EtO and, as a result, exposed thousands of residents

in neighboring areas” to the carcinogen “for at least

41 years.” Id. ¶¶ 48, 53. As a result of the allegedly

“negligent and tortious” emissions of EtO, Plaintiff

claims that she and the proposed class members

“have suffered significant exposure to hazardous EtO

gases relative to the general population in the [United States],” id. ¶ 59, and are, therefore, “at an increased risk of developing cancer,” making “periodic

diagnostic medical examinations [ ] reasonably necessary,” id. ¶ 62. Plaintiff seeks an award of “the quantifiable costs” of medical monitoring for the benefit of

all proposed class members due to their alleged exposure. Id. ¶¶ 84–86.

B. Expert Opinion of Dr. Ranajit Sahu

Plaintiff relies upon a number of expert opinions

in seeking to establish the elements of her claim. One

such opinion is offered by Dr. Ranajit Sahu, a mechanical engineer, who was engaged to provide “technical expertise, analysis, methodology, and opinions

regarding various environmental and pollutant fate

and transport issues relating to emissions of [EtO]

from Union Carbide’s Institute and [the] South

Charleston facilities” (collectively, the “Facilities”) to

ultimately determine the potential exposure levels of

Plaintiff and the proposed class members. [ECF No.

309-3, at 6]. Dr. Sahu provided his Expert Report on

February 17, 2023. [ECF No. 309-3]. Defendants seek

to exclude the opinions in this report, as well as Dr.

Sahu’s related testimony.

45a

1. Dr. Sahu’s Background and Experience

Dr. Sahu is “a mechanical engineer with over thirty years of experience in the fields of environmental,

mechanical, and chemical engineering.” Id. After obtaining a Bachelor of Technology in mechanical engineering from the Indian Institute of Technology in

Kharagpur, India in 1983, Dr. Sahu attended the California Institute of Technology in Pasadena, California from 1984 to 1988, where he received a Master of

Science and Doctorate degree in mechanical engineering. Id. at 7. Dr. Sahu also has over twenty-seven

years of “project management experience” and has

“provided consulting services to numerous private

sector, public sector, and public interest group clients” over the past twenty-five years. Id. His experiences include “design and specification of pollution

control equipment for a wide range of emissions

sources,” “multimedia environmental regulatory

compliance,” “transportation air quality impact analysis,” “air quality ... permitting,” “multimedia/multipathway human health risk assessment for toxics,”

and “air dispersion modeling.” Id. at 6–7. Dr. Sahu

has also taught numerous university courses in air

pollution, process hazard analysis, air pollution controls, transportation and air quality, and engineering.

Id. at 7.

2. Dr. Sahu’s Summary of Opinions

In his February 17, 2023, report, Dr. Sahu outlines his findings related to the EtO emissions from

operations at the Facilities. His summary of opinions

is listed below:

(i) There were numerous sources of EtO air

emissions from Union Carbide’s West Virginia

Operations (WVO). EtO was used extensively

in various production processes. EtO was

46a

brought into the [Facilities] from elsewhere,

and subsequently distributed, stored, and processed. This handling and use of EtO created

significant opportunities for EtO releases into

the ambient air. Examples include: EtO emissions from various storage tanks, where EtO

was present in the materials being stored, and

therefore emitted from such tanks; EtO emissions from various fugitive components—such

as valves, pump seals, connectors, flanges, and

others—which were present throughout the

[Facilities], including in all handling, storage,

distribution, and processing areas; EtO emissions from so-called extended cookout operations at the reactors; and EtO emissions from

flaring of waste gases containing EtO.

(ii) In spite of the many sources of EtO at the

[Facilities], there was no direct testing of EtO

mass emissions to the ambient air from any of

the sources under representative conditions

over the many years of EtO-related operations.

While direct monitoring of the open-flame

stack flares at the [Facilities] would have been

problematic, no efforts were made to use other

types of thermal combustion devices (such as

enclosed stack flares, thermal oxidizers, etc.)

for waste gas disposal, which could have been

tested and monitored.

There was no direct testing of the many fugitive components that emitted EtO. The Leak

Detection and Repair (LDAR) program that

was used for some period of time relied on assumed emission factors and effectiveness of

the program with no verification.

47a

There was no testing of EtO emissions from

any of the tanks that stored EtO containing

materials.

There was little direct testing of EtO from extended cookout operations, which were

claimed to be appropriate regulatory controls

for various hazardous air pollutants, including

EtO.

(iii) Since there was no direct testing of EtO

emissions from the many sources of EtO, and

certainly therefore no testing under representative conditions, all emissions of EtO developed and/or reported by Defendants used

engineering estimates. However, for engineering estimates to be proper, they needed to be

grounded by site specific data.

Site specific data is not constant at chemical

manufacturing operations such as at the operations in question. Union Carbide’s estimates

of EtO emissions relied on sporadic and unsupported assumptions; and, crucially, in the

case of flares, on “surrogate” parameters that

bore no relation to actual operating conditions

or actual emissions.

As such it is my opinion that EtO emissions

were underestimated significantly from all

sources. In this report, I have highlighted the

example of underestimation of the EtO emissions from the flares, via the use of an unrealistically high flare control efficiency, which did

not and could not have represented every-day

operations of the flares.

(iv) The few verification tests that were conducted at the facilities in order to meet regulatory requirements showed that actual opera-

48a

tions deviated considerably from regulatory

requirements. In the case of the flares, preliminary tests conducted prior to the required

compliance tests, showed significant failures.

Due to the lack of prior testing at the facilities,

these significant failures indicate that inadequate conditions existed for persistent periods

of time prior to the failed tests. This is supported by internal discussions among Union

Carbide managers explicitly acknowledging

that the control efficiencies they reported to

regulators rarely matched reality.

(v) Failed tests were remedied for regulatory

compliance demonstrations in order to make

them “pass.” However, the failed tests were

never reported to regulators as required. Once

a “passing” test was obtained, there is no record that Union Carbide monitored subsequent

flare operating conditions, or had any policies

or procedures to ensure that necessary passing

conditions were maintained. Thus, the compliance tests were unrepresentative of usual or

normal operations and were meaningless.

Worse, it is my opinion, that by conducting

sham compliance tests, Defendants were in violation of applicable regulatory requirements,

such as the need to conduct testing under representative conditions and to keep proper records demonstrating continuous compliance.

(vi) Based on conservative (i.e., still likely underestimated emissions) recalculation of emissions and by modeling such emissions using

appropriate and standard air dispersion modeling, it is my opinion that persons in the surrounding community were exposed to significant concentrations of EtO.

49a

(vii) Collectively, it is my opinion that Defendants’ conduct relating to the emissions of EtO

was irresponsible and exhibited a knowing and

willful disregard of both their regulatory requirements and the health and safety of persons in the surrounding community.

Id. at 8–10.

C. Defendant UCC’s Motion to Exclude [ECF

No. 309]

UCC asserts that Dr. Sahu should be excluded as

a witness for four primary reasons. First, UCC argues that Dr. Sahu’s air modeling opinions do not

“fit” the facts of the case. [ECF No. 310, at 3–4]. 1 Second, UCC asserts that Dr. Sahu’s air modeling opinions suffer from “serious methodological flaws” which

render them unreliable because they do not rely on

an accurate historical reconstruction and were formulated using “patently unreliable emissions data” that

Dr. Sahu failed to validate. Id. at 11, 13, 15. Third,

UCC contends that Dr. Sahu’s source configurations

do not reliably represent historical conditions. Id. at

19. Finally, UCC claims that Dr. Sahu did not employ

a reliable method to estimate background levels of

EtO in the community and combined contradictory

meteorological data that leads to impossible results.

Id. at 20. For these reasons, UCC argues that “Dr.

Sahu’s work ... falls far short of the standard set by

this [c]ourt,” id. at 3, and should be excluded pursuant to Rule 702 of the Federal Rules of Evidence and

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579

(1993).

Unless otherwise stated, the page numbers cited correspond to

CM/ECF page numbers.

1

50a

Plaintiff rebuts these arguments, arguing that

UCC “does not mount a true Daubert challenge.”

[ECF No. 343, at 3 (quoting TWFS, Inc. v. Shaefer,

325 F.3d 234, 240 (4th Cir. 2003))]. Rather, Plaintiff

claims that UCC “mounts an attack on the data inputs to Dr. Sahu’s air model by disputing the accuracy of the data and the assumptions that are required

to fill gaps in the data, while failing to offer any different conclusions that might be reached with different data.” Id. She argues that the court should deny

UCC’s motion because “questions regarding the factual underpinnings of an expert’s opinion affect the

weight and credibility of the opinion, not admissibility.” Id. (citing Bresler v. Wilmington Tr. Co., 855

F.3d 178, 195 (4th Cir. 2017)).

D. Defendant Covestro’s Motion to Exclude

[ECF No. 327]

Likewise, Defendant Covestro asserts that the

court should exclude the testimony and reports of Dr.

Sahu because they are irrelevant to Plaintiff’s claims

against Covestro and are also fatally unreliable. [ECF

No. 327, at 1]. Specifically, Covestro contends that (1)

the opinions are “irrelevant as to Covestro” because

Dr. Sahu is “unfamiliar” with Covestro’s operations in

South Charleston; (2) the air model is “irrelevant and

unreliable as to Covestro because its inputs do not

reflect the reality” of its operations in South Charleston; (3) the figures produced by Dr. Sahu’s air model

are “irrelevant and unreliable because they do not

represent exposure or dose;” and (4) the opinions “regarding the exposure of the general population” are

“irrelevant and unreliable because Dr. Sahu does not

know the background levels of [EtO] in the air.” Id.

In response, Plaintiff argues that Covestro, too,

fails to “mount a true Daubert challenge,” but instead, “challenges the factual underpinnings, data

51a

inputs, and relevancy of Dr. Sahu’s opinions.” [ECF

No. 342, at 3]. She claims that Dr. Sahu had properly

considered Covestro’s South Charleston operations

and that his opinions are based on those operations.

Id. She also argues that Dr. Sahu’s opinions on “significant EtO exposure are relevant,” that the “meteorological inputs are reliable,” and that the EPA’s

National Air Toxics Assessment (“NATA”) database—

which Dr. Sahu used as a data source—“provides the

most appropriate background level.” Id. Further,

while Plaintiff concedes that there was a “minor error

with a data input” related to Covestro’s operations,

she asserts that “Dr. Sahu properly updated his expert report” to correct the issue, 2 and that regardless,

the “minor error” was not sufficient grounds to exclude his opinions. Id. For these reasons, Plaintiff

asks the court to deny Covestro’s motion. Id. at 12.

II. Legal Standard

Under Federal Rule of Evidence 702, expert testimony is admissible if it (1) will “help the trier of fact

to understand the evidence or to determine a fact in

issue” (2) is “based upon sufficient facts or data,” and

(3) is “the product of reliable principles and methods,”

which (4) have been “reliably appli[ed] ... to the facts

of the case.” Fed. R. Evid. 702. A two-part test governs the admissibility of expert testimony: evidence is

admissible if “it rests on a reliable foundation and is

relevant.” Daubert, 509 U.S. at 597 (1993). The proponent of expert testimony does not have the burden

to “prove” anything. He must, however, “come forward with evidence from which the court can determine that the proffered testimony is properly admisThere is currently pending a motion filed by Covestro to strike

this supplemental expert report as untimely under Federal Rule

of Civil Procedure 26(e). See [ECF No. 300].

2

52a

sible.” Md. Cas. Co. v. Therm-O-Disc., Inc., 137 F.3d

780, 783 (4th Cir. 1998).

The district court has an important role as the

gatekeeper of expert opinions and testimony. Because

“expert witnesses have the potential to be both powerful and quite misleading,” the court must “ensure

that any and all scientific testimony ... is not only relevant, but reliable.” Cooper v. Smith & Nephew, Inc.,

259 F.3d 194, 199 (4th Cir. 2001) (internal markings

omitted) (citing Westberry v. Gislaved Gummi AB,

178 F.3d 257, 261 (4th Cir. 1999) and Daubert, 509

U.S. at 588, 595). I “need not determine that the proffered expert testimony is irrefutable or certainly correct”—“[a]s with all other admissible evidence, expert

testimony is subject to testing by ‘[v]igorous crossexamination, presentation of contrary evidence, and

careful instruction on the burden of proof.’ ” United

States v. Moreland, 437 F.3d 424, 431 (4th Cir. 2006)

(quoting Daubert, 509 U.S. at 596) (alteration in original); see also Md. Cas. Co., 137 F.3d at 783 (noting

that “[a]ll Daubert demands is that the trial judge

make a ‘preliminary assessment’ of whether the proffered testimony is both reliable ... and helpful”).

Daubert outlines specific factors to guide the overall relevance and reliability determinations that apply to all expert evidence. They include “(1) whether

the particular scientific theory can ‘be (and has been)

tested’; (2) whether the theory ‘has been subjected to

peer review and publication’; (3) the ‘known or potential rate of error’; (4) the ‘existence and maintenance

of standards controlling the technique’s operation’;

and (5) whether the technique has achieved ‘general

acceptance’ in the relevant scientific or expert community.” United States v. Crisp, 324 F.3d 261, 266

(4th Cir. 2003) (quoting Daubert, 509 U.S. at 593–94).

With respect to relevancy, Daubert explains:

53a

Expert testimony which does not relate to any

issue in the case is not relevant and, ergo, nonhelpful. The consideration has been aptly described by Judge Becker as one of “fit.” “Fit” is

not always obvious, and scientific validity for

one purpose is not necessarily scientific validity for other, unrelated purposes....Rule 702‘s

“helpfulness” standard requires a valid scientific connection to the pertinent inquiry as a

precondition to admissibility.

Id. at 591–92 (internal citations omitted).

Despite these factors, “[t]he inquiry to be undertaken by the district court is ‘a flexible one’ focusing

on the ‘principles and methodology’ employed by the

expert, not on the conclusions reached.” Westberry,

178 F.3d at 261 (quoting Daubert, 509 U.S. at 594–

95); see also Kumho Tire Co. v. Carmichael, 526 U.S.

137, 150 (1999) (“We agree with the Solicitor General

that ‘[t]he factors identified in Daubert may or may

not be pertinent in assessing reliability, depending on

the nature of the issue, the expert’s particular expertise, and the subject of his testimony.’ ”) (citation

omitted); see also Crisp, 324 F.3d at 266 (citing Kumho for the proposition “that testing of reliability

should be flexible and that Daubert’s five factors neither necessarily nor exclusively apply to every expert”). However, “conclusions and methodology are

not entirely distinct from one another.” Gen. Elec. Co.

v. Joiner, 522 U.S. 136, 146 (1997).

Additionally, some scholars have opined that

“[Daubert] has proven especially inappropriate and

inadequate in evaluating model reliability. The problems that plague all models—namely uncertainty and

a lack of transparency—are exacerbated in environmental-tort litigation.” Matthew W. Swinehart, Remedying Daubert’s Inadequacy in Evaluating the Ad-

54a

missibility of Scientific Models Used in Environmental-Tort Litigation, 86 Tex. L. Rev. 1281, 1283 (2008)

[hereinafter Remedying Daubert’s Inadequacy]; see

also Wendy Wagner et al., Misunderstanding Models

in Environmental and Public Health Regulation, 18

N.Y.U. Envt’l L.J. 293, 324 (2010) [hereinafter Misunderstanding Models] (“There are significant conflicts between the Supreme Court’s deterministic test

for admissibility of expert testimony (embodied in

Daubert v. Merrell Dow Pharmaceuticals) and the

true nature of models.”). Ultimately, a district court

has broad discretion in determining whether to admit

or exclude expert testimony, and “the trial judge

must have considerable leeway in deciding in a particular case how to go about determining whether

particular expert testimony is reliable.” Cooper, 259

F.3d at 200 (quoting Kumho Tire, 526 U.S. at 152);

see also United States v. Hankey, 203 F.3d 1160, 1167

(9th Cir. 2000) (“A trial court not only has broad latitude in determining whether an expert’s testimony is

reliable, but also in deciding how to determine the

testimony’s reliability.”) (internal quotation marks

and citations omitted).

III. Discussion

Before reaching the analysis of Dr. Sahu’s expert

opinions, I will first address Plaintiff’s contention

that the instant motions raise questions affecting the

weight and credibility of Dr. Sahu’s opinions rather

than their admissibility and the inference that the

issues are, thus, a matter for the jury, not the court.

See [ECF No. 343, at 3].

As part of its “gatekeeping function,” the court

must “ensure[ ] that expert evidence is sufficiently

relevant and reliable when it is submitted to the jury.” Nease v. Ford Motor Co., 848 F.3d 219, 231 (4th

Cir. 2017) (emphasis in original). “Thus, the trial

55a

court must probe the reliability and relevance of expert testimony any time ‘such testimony’s factual basis, data, principles, methods, or their application are

sufficiently called into question.’ ” EEOC v. Freeman,

778 F.3d 463, 472 (4th Cir. 2015) (Agee, J., concurring) (quoting Kumho, 526 U.S. at 149). “[T]he fact

that an expert witness [is] ‘subject to a thorough and

extensive examination’ does not ensure the reliability

of the expert’s testimony; such testimony must still

be assessed before it is presented to the jury.” Nease,

848 F.3d at 231 (quoting McClain v. Metabolife Int’l,

Inc., 401 F.3d 1233, 1238 (11th Cir. 2005) (emphasis

added)). Therefore, “[a]lthough 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.” Daniel D. Blinka,

Expert Testimony and the Relevancy Rule in the Age

of Daubert, 90 Marq. L. Rev. 173, 191 (2006). Here,

the issues presented to the court deal not only with

the validity of the underlying data used by Dr. Sahu

but also with Dr. Sahu’s methods in applying that data to the facts of the case. I will now proceed to Defendants’ arguments regarding relevance and reliability.

A. Relevance Challenge: The “Fit” of Dr. Sahu’s Opinions to the Facts of the Case

First, both UCC and Covestro argue that Dr. Sahu’s opinions are irrelevant or do not “fit” the facts of

the case, because this case deals solely with EtO

emissions from the Defendants’ operations at South

Charleston, and Dr. Sahu’s model consists of combined emissions sources from operations at both Institute and South Charleston. See [ECF No. 310, at

12]; [ECF No. 328, at 4]. According to UCC, this failure to disaggregate the emissions sources and resulting exposure estimates makes it “impossible to dis-

56a

cern the impacts of EtO emissions” from just the

South Charleston facility. [ECF No. 310, at 3]. And

Defendants argue that this same issue plagues the

jury’s ability to discern the alleged impacts from each

of their separate operations at that facility. As a result, Defendants claim that Dr. Sahu’s model and

opinions are irrelevant and should be excluded. Id. at

12; see [ECF No. 328 at 13 (“Dr. Sahu’s opinions are

irrelevant and unreliable because he does not ... separate alleged impacts between the defendants.”)].

Plaintiff, conversely, argues that while Dr. Sahu’s

model presents combined results from both Institute

and South Charleston, it is “entirely capable of

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Petition for Writ of Certiorari — Union Carbide Corporation, et al., Petitioners v. Lee Ann Sommerville | Frix