The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM-DECISION and ORDER
John Lambrinos ("plaintiff" or "Lambrinos"), owner of Gus' Red Hots, Inc, and Norman Landry, owner of The Rip Van Winkle Motel, brought suit pursuant to the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901, against defendants Exxon Mobil Corporation ("defendant" or "Exxon") and Donald Gagnier for conduct related to the contamination of their real property.*fn1
It was determined at summary judgment that defendants are liable pursuant to §181 of New York State's Navigation Law ("N.Y. NAV. LAW") and thus the remaining issue in this action is the amount of damages to be awarded to cover the cost of the cleanup of the Lambrinos' property.*fn2 Logically, the damages correlate with the scope of the cleanup required, which is an issue for a jury.
Pursuant to Fed. R. Evid. 702 ("Rule 702"), both Lambrinos and Exxon have filed Daubert motions regarding the other's experts as they are expected to testify at the trial for damages. Both motions were opposed. Defendant also filed motions in limine to bifurcate the trial of plaintiff's claim for punitive damages and to bar certain evidence it concludes is irrelevant.
While these motions were pending, defendant's motion for a Daubert hearing regarding plaintiff's expert, Alan Liptak ("Liptak"), was granted and a hearing was held in Utica, New York on May 9, 2006. Decision was reserved. The parties were granted leave to file Proposed Findings of Fact and Conclusions of Law relative to the hearing. Both parties filed submissions which were received and considered in the disposition of the Daubert motion.*fn3
The factual background relating the circumstances of contamination at Gus' Red Hots Restaurant (the "restaurant") on the Lambrinos' property was related in Lambrinos v. Exxon Mobil Corp., No. 00-CV-1734, 2004 U.S. Dist. LEXIS 19598, at *2 (N.D.N.Y. September 29, 2004.) Familiarity with those facts is presumed and only the additional facts which are relevant to the Daubert hearing are related here.
As noted above, in determining that the defendant was liable under N.Y. NAV. LAW § 181, it was also determined that "the appropriate remedy and the amount and allocation of damages under state law remain for trial." Id. at *23. Liptak, a certified and licensed geologist then employed by Griffin International, prepared a Corrective Action Plan ("CAP") for the cleanup of the plaintiff's property.*fn4 The CAP's stated objective is to set forth the most suitable methodology "to return the soil and groundwater quality to uncontaminated condition to the degree possible." (Plaintiff's Daubert Hearing Ex. 2, Liptak's CAP, p. 1.) The CAP has a "target threshold of non-detectable volatile organic compounds." Id. at 18. At the Daubert hearing, Liptak explained that he consulted several resources in formulating his CAP. (Docket No. 31, Transcript of Daubert Hearing, May 9, 2006, 21-24) ("Tr. ___").
The Division of Environmental Remediation of New York Department of Environmental Conservation (NYDEC) issues Technical and Administrative Guidelines ("TAGMs") articulating the agency's policies in order to provide its staff with guidance for identification, investigation and remediation of contaminated waste sites. Liptak reviewed two TAGMs, TAGM: #4030 - Selection of Remedial Actions at Inactive Hazardous Wastes Sites ("TAGM 4030") and TAGM #4046: Determination of Soil Cleanup Objectives and Cleanup Levels ("TAGM 4046"). TAGM 4046 explains: "The cleanup goal of the Department is to restore inactive hazardous waste sites to predisposal conditions to the extent feasible and authorized by law. However, it is recognized that restoration to predisposal conditions will not always be feasible." (TAGM 4046, 1.) "This TAGM provides a basis and procedure to determine soil cleanup levels [at various site classifications], when the Director of the DHWR determines that cleanup of a site to predisposal conditions is not possible or feasible." Id.
Liptak also explained that he assessed the various remedial options in light of the Federal Remediation Technologies Roundtable Remediation Technology Screening Matrix and Reference Guide Version 4.0 ("Federal Matrix"). The matrix was developed with input from a variety of technical experts, including site remediation technology researchers, technology developers, and technology users from federal agencies, state governments, universities, and the private sector.*fn5 The matrix addresses more than forty-eight remediation technologies, which are evaluated in relation to thirteen factors ranging from performance to cost.
In his CAP, Liptak discusses six remediation alternatives, discounts five of them and then recommends excavating the property.*fn6 Actually, the parties have agreed to substantial excavation of the site. Unlike the defendant however, Liptak has concluded that the soil underneath the restaurant must be excavated. (CAP 9.) This recommendation is based on his interpretation of the soil boring data and some limited testing conducted at the site. Liptak interpolated the soil sampling data measured around the building and concluded that the soil beneath the building is contaminated.
There are no data point s on t he map w ithin the outlines of the buildings, so the standard geological practice is to int erpolate the data bet w een t he data points. . . .
You look at the numbers of tw o adjacent data points. In this case w e do have some dat a point s t hat are located around the buildings. So w e are able to make an educated judgment as to w hat is underneath the buildings by looking at the relevant values of the data point s located on either side. (Liptak, Tr. 28.)
Also, KAS, Inc.("KAS") , Liptak's present employer, conducted testing under the restaurant to determine whether contaminants were present. (Docket No. 100, KAS December 7, 2004, Report; Tr. 34.) KAS concluded that the soil contained benzene concentration in excess of NYDEC standards and there was a detectable impact of gasoline releases in the building foundation. Id. at 3.
Liptak opines that the alternative methods for addressing the contamination under the building would not be successful in restoring the soil to pre-spill condition. He concluded that enhanced natural attenuation may only work right where oxygen is injected but not over the whole area. (Tr. 64.) He rejects the defendant's proposed method of horizontal drilling and injecting peroxide because it would generate heat and gas under the building with uncertain consequences. (Tr. 62-63.)
In sum, with the understanding that the property must be restored to pre-spill levels, and that alternative methods would not be effective in attaining that goal, Liptak concluded that the soil beneath the building must be removed. (Tr. 43, 45-46, 76-77.) He did not express a preference or expert opinion as to how this is would be accomplished. (Tr. 66.)
"In Daubert, the Supreme Court made clear that the district court has a 'gatekeeping' function under Rule 702, and is charged with 'the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." Wills v. Amerada Hess Corp., 379 F.3d 32, 48 (2d Cir. 2004) cert. denied, 126 S.Ct. 355 (2005) (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993)). The district court 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.'" Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999).
Rule 702 requires that expert testimony be: (1) based upon sufficient facts or data, (2) the product of reliable principles and methods, and (3) applied reliably to the facts of the case. Fed. R. Evid. 702. "Although Rule 702 sets forth specific criteria for the district court's consideration, the Daubert inquiry is fluid and will necessarily vary from case to case." Amorgianos v. Amtrak, 303 F.3d 256, 266 (2d Cir. 2002).
Factors for consideration in assessing reliability include, but are not limited to: "(1) whether a theory or technique can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) whether it has a high known or potential rate of error; and (4) whether it is generally accepted in the relevant scientific community." Wills, 379 F.3d at 48 (citing Daubert, 509 U.S. at 592-94). In addition, "reliability within the meaning of Rule 702 requires a sufficiently rigorous analytical connection between that methodology and the expert's conclusions." Nimely v. City of New York, 414 F.3d 381, 396-397 (2d Cir. 2005).
"In undertaking this flexible inquiry, the district court must focus on the principles and methodology employed by the expert, without regard to the conclusions the expert has reached or the district court's belief as to the ...