General Rules • Cannot bring a Sect. 113 Contribution Claim unless previously sued under Sections 106 or 107 • If you voluntarily incurred Response Costs and Clean-up was not compelled by a 106/107 Claim, you are entitled to only a 107 Claim • But what happens if the Administrative Order is not approved by the Courts? 36
CERCLA Does Not define “Voluntary Clean - Up” • Courts look to the Language of the Administrative Order • Parties Negotiating a Government Consent Order want Contribution Protection and often file a Corresponding Complaint and Settlement to Provide Contribution Protection • Most Courts will find a way to limit Responsible Parties’ Rights to Contribution 37
Recent Trends From A Practitioner’s Perspective • Limiting parties’ rights to either a 107 Claim or a 113 Claim Simplifies CERCLA Litigation • The holdings in Cooper Industries and Aviall likely reduces the number of Parties brought into a CERCLA Suit • The impacts of the BNSF and Waldberger Decisions are legally significant but do not impact many CERCLA Suits 38
Issues that Remain to be Addressed • CERCLA Litigation Remains Complex and Often Takes Years to Resolve • There are No Provisions that Prioritize Cleanup of Groundwater and other Scarce Resources 39
The Driving Force for Future Groundwater Cleanup Litigation? 40
Drought Conditions Surface Water Storage No Longer Sufficient Lake Oroville from July 20, 2011 to August 19, 2014 41
Groundwater Buffer 42
Groundwater Is Not A Perfect Replacement For Surface Water . . . But we can make do. 43
We Can Continue To Swim Using Groundwater 44
Groundwater Has Some Recreational Use 45
Fishing With Groundwater Is Still Problematic 46
Groundwater Wells Can Be Attractive . . . 47
. . . If you are thirsty! 48
Groundwater Contamination Litigation: Proving And Defending Against Liability R. Trent Taylor – McGuireWoods LLP rtaylor@mcguirewoods.com www.mcguirewoo oods. s.com om
Targets • Fly/coal ash • Fracking • Uranium/Radioactive • Oil Spills • PFOA • MTBE • TCE • PCBs • Hexavalent chromium • sulfolane McGuireWoods LLP | 50 CONFIDENTIAL
Fracking McGuireWoods LLP | 51 CONFIDENTIAL
Recent Litigation • $752 millio ion – settlement amount in MDL MTBE against various corporate defendants alleging exposure to MTBE • $700 millio ion – settlement amount in a suit by a class of Alabama residents against Monsanto Co. alleging exposure to PCBs • $236 millio ion n – verdict in MTBE suit brought by New Hampshire against Exxon • $85 millio ion n – tentative settlement by JPMorgan to cleanup landfill and leachate treatment plant in CA McGuireWoods LLP | 52 CONFIDENTIAL
Common Law McGuireWoods LLP | 53 CONFIDENTIAL
Public Nuisance • “An offense against, or interference with the exercise of rights common to the public.” McGuireWoods LLP | 54 CONFIDENTIAL
Public Nuisance • “the interference must be both substantial and unreasonable ” • “it is ‘substantial ’ if it causes significant harm and ‘unreasonable’ if its social utility is outweighed by the gravity of the harm inflicted” McGuireWoods LLP | 55 CONFIDENTIAL
Private Nuisance Private Nuisance: “a nontrespassory invasion of another’s interest in the private use and enjoyment of land.” Restatement (Second) of Torts § 821D McGuireWoods LLP | 56 CONFIDENTIAL
Trespass • Trespass is generally defined as “an invasion of the interest in the exclusive possession of land, as by entry upon it.” • The key distinction between trespass and nuisance is that “[a] claim of trespass contemplates actual physical entry or invasion, whereas nuisance liability arises merely by virtue of an activity which falls short of tangible, concrete invasion by interferes with the use and enjoyment of land.” McGuireWoods LLP | 57 CONFIDENTIAL
Others • Infliction of Emotional Distress • Failure to Warn • Battery • Fraud • Conspiracy McGuireWoods LLP | 58 CONFIDENTIAL
Recent Litigation and Trends McGuireWoods LLP | 59 CONFIDENTIAL
Trend # 1 -- Lone Pine’s Popularity Sags McGuireWoods LLP | 60 CONFIDENTIAL
Scoreboard for Lone Pine Orders Granted Denied Baker v. Anschutz Exploration Corp. , No. 11-CV- Kamuck v. Shell Energy Holdings GP, LLC , (M.D. Pa. 6119 (W.D. N.Y.) Sept. 5, 2012) In re Fosamax Prods. Liab. Litig ., 2012 WL 5877418 Roth v. Cabot Oil & Gas Corp ., No. 12-CV-00898 (S.D.N.Y. Nov. 20, 2012) (M.D. Pa. Oct. 15, 2012) Pinares v. United Technologies Corp ., No. 9:10-cv- Hagy v. Equitable Production Co ., No. 2:10-cv- 80883 (S.D. Fla. 1/19/11) 01372, 2012 BL 60567 (S.D. W. Va. Mar. 5, 2012) McManaway v. KBR Inc ., 265 F.R.D. 384 (S.D. Ind. Strudley v. Antero Resources Corp ., 2013 COA 106 2009) (July 3, 2013) Avila v. Willits Environmental Remediation Trust , 633 In re Digitek Prod. Liab. Litig ., 264 F.R.D. 249, 255 F.3d 828 (9 th Cir. 2011) (S.D. W. Va. 2010) McGuireWoods LLP | 61 CONFIDENTIAL
More Denials • Russell v. Chesapeake Appalachia, LLC, No. 4:14-cv-00148 (M.D. Pa. Mar. 2, 2015) = denied motion for a line Pine order, holding that it could not issue a Lone Pine order without some discovery; found the order to be unjustified at the early stage of the lawsuit; Court set a high bar for issuing the order, explaining that it “should issue only in an exceptional case and after the defendant has made a showing of significant evidence calling into question plaintiff’s ability to bring forward” evidence of causation. • Antero Resources Corp. v. Strudley, 2015 WL 1813000 (Colo. Apr. 20, 2015) = affirmed a appellate court opinion holding that “lone Pine orders” are not permitted by Colorado law – held that “Colorado’s Rules of Civil Procedure do not allow a trial court to issue a modified case management order, such as a Lone Pine order, that requires a plaintiff to present prima facie evidence in support of a claim before a plaintiff can exercise its full rights of discovery under Colorado rules” McGuireWoods LLP | 62 CONFIDENTIAL
More Denials Adinolphe v. United Technologies, Inc., 768 F.3d 1161 (11 th Cir. 2014) = reversed a district • court’s Lone Pine order issued prior to motions to dismiss. = “As a general matter, we do not think that it is legally appropriate (or for that matter wise) for a district court to issue a Lone Pine order requiring factual support for the plaintiffs’ claims before it has determined that those claims survive a motion to dismiss.” • Hamilton v. Miller, 15 N.E.3d 1199, 1203-04 (N.Y. 2014) (under NY law, the trial court abused its discretion in requiring pltfs to provide medical evidence of each alleged injury and causation or be precluded from offering evidence at trial, on the basis that causation is appropriate for expert discovery and if warranted, SJ) • Manning v. Arch Wood Protection, Inc ., 40 F. Supp. 3d 861 (E.D. Ky. 2014) (denied Lone Pine order) • Smith v. Atrium Med. Corp., 2014 WL 5364823 (E.D. La. Oct. 2014) = denying Lone Pine order McGuireWoods LLP | 63 CONFIDENTIAL
Trend # 2 – Climate Change and Water McGuireWoods LLP | 64 CONFIDENTIAL
Trend # 2 – Climate Change and Water (cont.) • Attacking climate change through water • Recent suit by the Conservation Law Foundation based on NPDES requirements to allege CWA violations based on the potential for surface water impacts due to sea level rise associated with climate change • CLF Inc. v. Exxonmobil Corp ., No. 1:16-cv-11950 (D. Mass. Sept. 29, 2016) • Juliana et al. v. USA et al. , case number 6:15-cv-01517, in the U.S. District Court for the District of Oregon. McGuireWoods LLP | 65 CONFIDENTIAL
Trend # 3 – Presumption of Pollution • In certain states, operators of wells are presumed to have caused any contamination identified in water within a certain time period (typically between 6 and 30 months) after completion of drilling, well completion, and production and within a certain distance (typically between 1500 and 2500 feet) from drilling activities McGuireWoods LLP | 66 CONFIDENTIAL
Trend # 3 – Presumption of Pollution (cont.) • In PA and West VA, no pre-drill testing but must bear burden of rebutting the presumption that caused the contamination. • In CO and WY, both pre-drill and post-drill testing but no presumption of contamination. • NC and IL have both pre-drilling and post-drilling testing requirements and contamination presumptions. • In OH and CA, no pre or post drill testing and no presumption. McGuireWoods LLP | 67 CONFIDENTIAL
Trend # 4 – Class issues • McCormick v. Halliburton (W.D. Okla.) • “The court finds a trial on whether Halliburton released perchlorate into the groundwater, as well as the current and future scope and extent of that groundwater contamination, is unlikely to substantially aid resolution of the ultimate determination of Halliburton’s liability.” • “Simply put, the individual issues would dwarf whatever common issues there may be, such that a vast array of mini-trials would be required for each class member if certification were granted.” McGuireWoods LLP | 68 CONFIDENTIAL
Trend # 4 – Class issues (cont.) • Smith v. ConocoPhillips Pipe Line Co ., No. 14-2191 (8 th Cir.) • Reversed a district court’s decision to grant class certification to a group of property owners who alleged that a pipeline leak was never properly remediated and was thus a nuisance. • No common injury: “The presence on only one property of a petroleum pollutant not found at the leak site cannot prove that actual contamination exists on the class land.” • Physical injury was required. McGuireWoods LLP | 69 CONFIDENTIAL
Trend # 4 – Class issues (cont.) • Ebert v. General Mills , 823 F.3d 472 (8 th Cir. 2016) • Reversed class certification, holding that no predominance. • Landowners sued General Mills, alleging that the company caused trichloroethylene (TCE) to be released from its former industrial facility and that TCE vapors migrated into surrounding residential areas, threatening the landowners’ health and the value of their properties. • Illustrates that class action requirements, like predominance of common issues and cohesiveness of claims, can be difficult to establish in the environmental context because issues of liability, causation, and damages are individualized. Ebert may pose a significant obstacle for class certification in future environmental cases. McGuireWoods LLP | 70 CONFIDENTIAL
Early Daubert challenges in class actions • Comcast Corp. v. Behrend , No. 11-864, 2013 BL 80435 (U.S. March 27, 2013) (courts must look at the merits issues when deciding class certification) • Wal-Mart Stores v. Dukes , 132 S. Ct. 320 (2011) (held that prior to certifying a class action, the trial court should engage in a rigorous review of all relevant issues) • American Honda Motor Co. v. Allen , 600 F.3d 813, 815-16 (7 th Cir. 2010) (held that where it is “critical to class certification” a court “must perform a full Daubert analysis before certifying the class”) McGuireWoods LLP | 71 CONFIDENTIAL
Coleman v. Union Carbide , No. 110366 (S.D. W. Va.) • Refused to certify proposed Plaintiff classes in a toxic exposure case because it addressed Daubert challenges at the class certification stage and found the expert testimony on which plaintiffs relied to be inadmissible • Court found that the experts’ opinions were not based on sufficient facts or data and questioned their methodology McGuireWoods LLP | 72 CONFIDENTIAL
Parko v. Shell Oil Co ., 739 F.3d 1083 (7 th Cir.) • Reversed trial court’s certification of a class of Illinois residents who claimed a refinery leaked toxic chemicals into their water supply • Court found that the trial court had taken the plaintiffs’ promise of future evidence at face value and should have researched the soundness of their methodology. • “ Not othing ng is simpler er th than to to make a unsubstant bstantiated iated allega gation tion. . The judge e shou ould d have investigated the realism of the plaintiffs’ injury and damage model in light of the defendants’ counter arguments and to that end should have taken evidence.” McGuireWoods LLP | 73 CONFIDENTIAL
Parko v. Shell Oil Co ., 739 F.3d 1083 (7 th Cir.) • “For if the defendants are right, there is no common issue, only individual issues that will vary from homeowner to homeowner: is there benzene in the groundwater beneath his home at a level of concentration that if the groundwater were drunk would endanger health (and is there any possibility it would enter the water supply); what is the source of the benzene in the groundwater beneath a given home (that is, who is the polluter who caused the groundwater to become polluted); could the presence of the benzene in that concentration cause any other form of harm; has the presence of the benzene reduced the value of his property; if so, how great has the reduction been. It is difficult to see how these issues can be managed in the class action format. But in any event t they must be engag aged ed by the district strict judg dge e before re he can make a responsi onsible ble deter ermina mination tion of whether ther to certify tify a class ss .” McGuireWoods LLP | 74 CONFIDENTIAL
Trend # 5 – Science! McGuireWoods LLP | 75 CONFIDENTIAL
The harm alleged in environmental contamination suits is becoming more subjective and less tangible • Gates v. Rohm and Haas Co. (E.D. Pa.) – ruled that the presence of vinyl chloride in the air, even if below backgr grou ound nd levels , constitutes a physical injury to property under nuisance law. • Meyer v. Fluor Corp. (Mo.) – in nuisance class suit against lead smelter to recover prospective medical monitoring due to harmful emissions, MO S. Ct. certified the class and held that recovery very for medical l monitor toring ing is not contin ingen gent t upon the existence ce of a present t physical al injury • State of NC v. TVA – (1) numerous social and economic harms to North Carolinians, including lost school and work days, increased pressure on the health industry due to extra doctor visits, and the general loss of well-being that results from chronic health problems; (2) harm to the environment including killing local vegetation, removing nutrients necessary for healthy forest growth, and degrading water quality; and (3) significant effects on visibility due to creating haze in many pristine areas of wilderness in NC • Cook k et al. v. Rockwel well l and Dow – jury verdict of almost $1 billion based solely on decline ne in property ty values s for 13,000 00 plaintiff iffs McGuireWoods LLP | 76 CONFIDENTIAL
Science getting better • Can find contamination in ever lower levels • But such knowledge cuts both ways • Brings statute of limitations into play even earlier ( In re MTBE Products Liab. Litig ., No. 00-01898 (S.D. N.Y.) • Can pinpoint exact causes to a great extent, meaning alternative causes cab be found easier • See micro-seismic mapping McGuireWoods LLP | 77 CONFIDENTIAL
“Fear of” & Emotional Distress Damages McGuireWoods LLP | 78 CONFIDENTIAL
Berish v. Southwestern • “Plaintiffs' claims for Damages for Emotional Distress except as to Plaintiff C.S. will be dismissed. Plaintiffs' will be allowed to amend their Complaint to seek damages for inconvenience and discomfort.” • “ Under Pennsylva vania nia law, claims for emotiona nal l distress s require ire that the plaintif iff suffer fer an attendant t physica cal l injury ury. Houston v. Texaco, Inc., 538 A.2d 502, 505 (Pa. Super. Ct. 1988). Plaintiffs have only pled physical ailments as to Plaintiff C.S. Therefore, the emotional distress claims will be dismissed except as to Plaintiff C.S.” • “Plaintiffs have asked the Court for leave to amend their Complaint to add a claim for damages for inconvenience and discomfort. Pennsylvania law recognizes "a cause of action for inconvenience and discomfort caused by interference with another's peaceful possession of his or her real estate." Houston, 538 A.2d at 506. Plaintiffs have complied with Fed. R. Civ. P. 15(a) and Local Rule 15.1, and the Court will grant them leave to amend in order to add claims for damages for inconvenience and discomfort. This determination essentially comports with the agreement reached at oral argument.” McGuireWoods LLP | 79 CONFIDENTIAL
Reece v. AES Corp. • Reece v. AES Corp .,2016 WL 521247 (10 th Cir. 2015) • “[A] plaintiff in a toxic tort case must prove that he or she was exposed to and injured by a harmful substance . . . [a]lleging reasonable concern about an injury occurring in the future is not sufficient to allege an actual injury in fact … a cause of action does not accrue until an injury in fact occurs.” • Also held that pltfs’ allegations of present physical harm were insufficient because “the general statement that pltfs suffer ailments consistent with exposure to [the contaminants at issue] is nothing more than a formulaic recitation.” McGuireWoods LLP | 80 CONFIDENTIAL
• Smith v. ConocoPhillips Pipe Line Co ., No. 14-2191 (8 th Cir.) • “In light of the contemporary consensus reached by persuasive authority on the meaning of common law nuisance in the context of environmental contamination, we conclude that the putative class fear of contamination spreading from the West Alton leak site to harm their property is not a sufficient injury to support a claim for common law nuisance in the absence of proof.” McGuireWoods LLP | 81 CONFIDENTIAL
Cook et al. v. Rockwell and Dow 618 F.3d 1127 (10 th Cir.) • “While the resolution of these issues typically involves questions of fact, a scientifically unfounded risk cannot rise to the level of an unreasonable and substantial interference. To the extent nt Plai ainti tiffs fs rely on anxiety ety from an increas reased ed risk sk to their ir health th as an interferen rference ce with th the use and enjoyment yment of their ir properti erties, es, that anxiet ety y must t aris ise e from scien entifi tifica call lly y veri rifia fiable le evid iden ence ce regarding the risk and cannot be wholly irrational.” • We “ predict edict that the Colora rado Supreme reme Court rt would ld not permit mit recov overy ery premised emised on a findin ding g that t an n int nterferen rference, ce, in n the form of anx nxiet ety or fear of health th risks, ks, is "subs ubstant antia ial" l" and nd "unre reas asonab nable" e" unless ss that anxiety ety is supported orted by some e scien entific tific evid iden ence ce. The district court erred in concluding otherwise.” McGuireWoods LLP | 82 CONFIDENTIAL
Other Law • Plaintiffs are generally required to allege that they have suffered an “appreciable, substantial tangible injury.” • Courts have explained that this substantial harm must be one of “importance, involving more than slight inconvenience or petty annoyance.” Darney v. Dragon Prods. Co. , LLC, 640 F. Supp. 2d 117 (D. Me. 2009) (quoting Restatement (Second) of Torts § 821F, cmt. c)). • Furthermore, numerous courts have held that the harm must be more than “de minimis” and that if the alleged invasion relates to contamination, it must “rise to the level of toxicological concern.” Lamb v. Martin Marietta Energy Sys. , 835 F. Supp. 959 (W.D. Ky. 1993); Benesh v. Amphenol Corp. (In re Wildewood Litig.) , 52 F.3d 499 (4th Cir. 1995); Brooks v. E. I. du Pont de Nemours & Co. , 944 F. Supp. 448 (E.D. N.C. 1996); In re TVA Ash Spill Litig. , 805 F. Supp. 2d 468, 491 (E.D. Tenn 2011) (plaintiff must show constituents reached property in sufficient concentrations to cause actual damage). An invasion of small amounts of contaminants on plaintiffs’ land is not enough to state a claim for private nuisance. Bradley v. American Smelting & Refining Co. , 635 F. Supp. 1154, 1157-58 (W.D. Wash. 1986). McGuireWoods LLP | 83 CONFIDENTIAL
In re: Tennessee Valley Authority Ash Spill Litigation , Case No. 3:09-cv- 00009 (E.D. Tenn.) • “Although plaintiffs argue that exposure to the toxic constituents in the ash exists by virtue of the presence of ash in the environment, th the mere existenc stence e of of a to toxin n in th the environme ronment nt is insuff ufficient icient to to esta tabli lish sh causatio sation n with thou out t proo oof th that t th the indi divid idual ual was actu tual ally ly expos osed d to to th the to toxin and at t a level suffic ficient ient to to c cause e injury ury or or str tress .” McGuireWoods LLP | 84 CONFIDENTIAL
Case Study • City of New York v. Exxon Mobil Corp . (S.D. N.Y.) • Jury awarded city $105 million in compensatory damages. Court did not permit punitive damages. • The jury found that gasoline containing MTBE was a defective product and a public nuisance because Exxon Mobil gave no warnings about the product’s dangerous propensity to contaminate groundwater. • Jury decided against Exxon despite the fact that it found there was pre-existing contamination of the wells at issue (for which they subtracted $70 million). • The damages awarded were to compensate the city for building (in the future) a water treatment facility to treat the water for 40 years. • Damages were awarded even though the MTBE contamination will not peak until 2033 at levels 25% of what the EPA says is the maximum safe level. • Affirmed by Second Circuit McGuireWoods LLP | 85 CONFIDENTIAL
In re MTBE Prod. Liab. Litig ., 2013 WL 3863890 (2d Cir.) • “We agree with the district court that for standing purposes, the MCL does not define whether injury has occurred. It strikes us as illogical to conclude that a water provider suffers no injury-in-fact, and therefore cannot bring suit, until pollution becomes “so severe that it would be illegal to serve the water to the public.’ This is especially true in view of a NY water provider’s duty and common -sense obligation to protect or remediate groundwater before contamination reaches the applicable MCL. We decline to hold that the MCL constitutes a bar beneath which a water provider can never suffer injury-in- fact.” • Held that proper standard was whether “a reasonable water provider in the City’s position would treat the water to reduce the levels or minimize the effects of the MTBE in the combined outflow of the Station 6 wells” • Found that this strikes a proper balance, recognizing that “even clear, good -tasting water contains dozens of contaminants at low levels” and demanding more than a de minimus contribution before a water provider may establish injury McGuireWoods LLP | 86 CONFIDENTIAL
NRDC v. County of Los Angeles (9 th Cir. 2016) • Reversed motion to dismiss • Held that Los Angeles County may be liable for injunctive relief sought by environmental groups in a dispute over alleged water pollution. • Found that a new permit does not guarantee compliance. McGuireWoods LLP | 87 CONFIDENTIAL
Expert Issues McGuireWoods LLP | 88 CONFIDENTIAL
The Battlefield? Causation! McGuireWoods LLP | 89 CONFIDENTIAL
Success of Daubert Challenges • In a 2010 report of 6,141 Daubert challenges to witnesses from all fields in both federal and state courts, it concluded that the success rate of challenges was 45% for either complete or partial exclusion. • Attempts to completely preclude an expert were successful 25% of the time. • A trial court’s rulings on Daubert motions were affirmed 87% of the time. • There were more than three times as many Daubert challenges in 2010 as they were in 2000. McGuireWoods LLP | 90 CONFIDENTIAL
Daubert Empirical Findings • 71% of Daubert motions are filed by defendants • In almost half of cases, multiple Daubert motions are made. • 31% of Daubert motions target medical experts. • 24% target engineering/technical/environmental experts. • Defendants are more likely to win Daubert motions than pltfs. • Overall, parties win about 22% of Daubert motions in full. Defendants partially win 53%, while plaintiffs partially win 45%. • In tort cases, Defendants win 30% in full, and 52% in part. Plaintiffs however win in full only 16% and in part 37%. McGuireWoods LLP | 91 CONFIDENTIAL
Daubert Empirical Findings • When a Daubert motion is granted for a pltf, their overall win rate is 42% versus 29% when their motions are denied. • When a Daubert motion is granted for a defendant, then the defendants win 75% of the time, but only 69% of the time when their motions are denied. • Within 100 days of a Daubert ruling, more than half of the cases ended in settlement or summary judgment. • Source: Judicial Treatment of Daubert Motions: An Empirical Examination, by James C. Cooper (George Mason Law) McGuireWoods LLP | 92 CONFIDENTIAL
Fracking • Baker v. Anschutz Exploration Corp ., 2014 U.S. Dist. LEXIS 174442 (W.D. N.Y. Dec. 17, 2014), aff’d on reconsideration, 2016 U.S. Dist. LEXIS 33353 (W.D. N.Y. March 15, 2016) (excluded most of the testimony of expert; found expert not qualified and that even if he had been, would have been speculation) • Ely v. Cabot Oil & Gas Corp . = excluded nearly all of the opinions of one of pltfs’ causation experts McGuireWoods LLP | 93 CONFIDENTIAL
New Hampshire v. Exxon Mobil Corp . • New Hampshire Supreme Court upheld $236 million verdict against Exxon. • U.S. Supreme Court denied cert. earlier this year. • Plaintiff used statistics to extrapolate Exxon’s share of liability for MTBE contamination. • “In a perfect setting, the [state] would have the resources to test each individual well over a long period of time and precisely determine damages. However, if such a process were undertaken here, it would have to continue beyond all lives in being . . . Moreover, requiring the [state] to test each individual well undoubtedly and unfairly ‘tilts the scales’ in [defendants’] favor . . . [T]he necessary additional litigation costs the [state] would have to bear would consume much of any recovery, making continued pursuit of the litigation fruitless.” McGuireWoods LLP | 94 CONFIDENTIAL
People of the State of California v. Kinder Morgan Energy Partners LP • People of the State of California v. Kinder Morgan Energy Partners LP , (9 th Cir. 2015) • Reversed summary judgment and exclusion of Pltfs’ expert • Held that flaws with expert may go to weight, not admissibility. McGuireWoods LLP | 95 CONFIDENTIAL
Case Study – Expert issues in McCormick v. Halliburton McGuireWoods LLP | 96 CONFIDENTIAL
Sharp Split on Methodological Flaws • Three Courts of Appeals have recently held that minor methodological flaws go to the weight of the evidence, not the admissibility, and does not require exclusion of the opinions. • SQM North America Corp. v. City of Pomona , 750 F.3d 1035 (9 th Cir. 2014) – “A minor flaw in an expert’s reasoning or a slight modification of an otherwise reliable method does not render expert testimony inadmissible.” – “A more measured approach to an expert’s adherence to methodological protocol is consistent with the spirit of Daubert and the Federal Rules of Evidence: there is a strong emphasis on the role of the fact finder in assessing and weighing the evidence.” McGuireWoods LLP | 97 CONFIDENTIAL
Sharp Split on Methodological Flaws (cont.) • Johnson v. Mead Johnson & Co ., 754 F.3d 557 (8 th Cir. 2014) – Found that it was acceptable that the PFGE test at issue only used one enzyme rather than the CDC standard of two or three – Found that the district court went too far by weighing the experts’ conclusions instead of focusing only on methodology • Manpower Inc. v. Ins. of Penn ., 732 F.3d 796 (7 th Cir. 2013) McGuireWoods LLP | 98 CONFIDENTIAL
Courts focusing on differential etiologies • McMunn v. Babcock & Wilcox Power Generation Group, Inc . (W.D. Pa. 2014) = magistrate excluded pltfs ’ experts; trial court however permitted them • “Dr. Hu’s opinions have met the pedestrian standards required for reliability and fit as they are based on scientifically sound methods and procedures as opposed to subjective beliefs and unsupported speculation.” • court also held that differential diagnosis method does not require that he estimate the likelihood that radiation caused a particular cancer before he can conclude that radiation is the most likely cause among many, including those unknown McGuireWoods LLP | 99 CONFIDENTIAL
Trend # 2 – Courts focusing on differential etiologies C.W. v. Textron, Inc., (7 th Cir. Aug. 26, 2015) = district court excluded pltf’s 3 experts; COA • affirmed • District court found that expert’s reliance on differential etiology failed to meet Daubert because he “failed to connect the dots between the scientific studies he analyzed and the opinions that he offered” == the studies he relied upon failed to establish that vinyl chloride, at the dose and duration relevant to the case, could cause the problems that plaintiffs experienced or claimed they were likely to experience; COA said “This approach is not the stuff of science.” • “Without the benefit of analogous studies and an acceptable method of extrapolation, Dr. Byers . . . is forced to take a leap of faith in pointing to vinyl chloride as having the capacity to cause the injuries (and risk of injury) to [plaintiffs]. The district court ably performed its gatekeeper role in shielding the jury from this leap.” McGuireWoods LLP | 100 CONFIDENTIAL
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