The opinion of the court was delivered by: Scullin, Senior Judge
MEMORANDUM-DECISION AND ORDER
Currently before the Court are the following motions: (1) Defendants' motion to strike the affidavit of William R. Sawyer, sworn to March 25, 2005, and the undated affirmation of Michael A. Wolfson, both of which the Green Plaintiffs submitted, pursuant to Rules 26(a)(2)(B) and 37(c)(1) of the Federal Rules of Civil Procedure; (2) Defendants' motion to preclude, Sawyer, Wolfson, and Joseph M. Wittington from offering expert testimony on Plaintiffs' behalf, pursuant to Rule 702 of the Federal Rules of Evidence and the Daubert line of cases;*fn1 (3) Defendants' motion for summary judgment with respect to the complaints in both of these consolidated actions; and (4) the cross-motion of Plaintiffs Karen M. Green and Jeffrey A. Green (the "Green Plaintiffs") for partial summary judgment (a) declaring Defendants liable on Plaintiff Karen M. Green's claim pursuant to 42 U.S.C. § 9607(a)(3), (4) for response costs (second cause of action) and (b) dismissing Defendants' counterclaims that seek to hold her liable for CERCLA response costs.
Plaintiffs allege that wastes that the Cowles Chemical Company ("Cowles") of Skaneateles Falls, New York, disposed of on the Old Taylor Farm Site ("Site") in Sennett, New York, have injured their persons and property. In 1967, Cowles merged with the Stauffer Chemical Company ("SCC"). Defendant Aventis is the corporate successor to SCC. Defendant Stauffer Management Company ("SMC") has contractually agreed to indemnify Defendant Aventis with respect to certain liabilities associated with the former SCC, including any liabilities associated with the Site.
As early as 1960, and continuing until March 1966, Cowles illegally dumped tarry residue from its production of toluic acid into a pit located at the Site. Cowles' employees also frequently burned the residue in the pit. After a nearby resident became ill and complained about her well water, the Cayuga County Department of Health conducted an investigation of the Site. Subsequently, Cowles contracted with Skaneateles Excavation Service to excavate the tarry residue waste from the pit.
In mid-1998, Plaintiff Karen M. Green, who had purchased the Site on June 27, 1977, raised concerns about her drinking water with the Cayuga County Health Department and the New York State Department of Health ("NYSDOH").*fn3 Sampling indicated the presence of extremely high levels of acetaone, MEK, ethylbenzene, 2-methyl 2-pentatone, toluene, -xylene, m&p xylene, butyl benzyl phthalate, 2,4 dimethylphenol, bis (2-ethylhexyl) phthalate, and 2-methylphenol. Subsequently, NYSDOH requested that the New York State Department of Environmental Conservation ("NYSDEC") investigate the Site. In May 1999, NYSDEC and Defendant SMC entered into an interim remedial measures program order ("Consent Order"), which required Defendant SMC to develop an interim remedial measures program ("IRM") for the Site, including the installation of carbon filter water purification systems for the drinking water supplies for the four residences in the vicinity of the Site. The IRM also required Defendant SMC to conduct a preliminary site assessment ("PSA"), which included soil and groundwater sampling, that Defendant SMC conducted between October and November 2000.
Following the PSA, Defendant SMC implemented a source area removal interim remedial measure, pursuant to which it removed approximately 9,500 cubic yards of soil and 1,322,100 gallons of water from the Site. On June 20, 2001, the Director of NYSDEC's Division of Environmental Remediation wrote to Plaintiffs' counsel that
[i]nformation received to date indicates that all contaminated soils were removed from the site during the Interim Remedial Measure (IRM). The considerable amount of on-site and off-site soil data generated by SMC before, during, and after the removal action indicates that there is no source soil contamination remaining. The NYSDEC's split sampling data is consistent with their findings.
See Dkt. No. 30 at Pt. 9 at 2.
Furthermore, on December 3, 2001, NYSDOH's Regional Toxics Coordinator wrote to the Sennett Town Supervisor that
[f]irst, is there a widespread general problem with residential wells being impacted by industrial waste disposed of in the 60's by Cowles Chemical, and recently remediated by Stauffer Management Company at the so-called Old Taylor Farm site? There is no evidence that there is. Extensive private well sampling in the area surrounding the site has not shown any site-related contaminants in any private drinking water supplies.
The Green Plaintiffs filed their original complaint on November 14, 2000, see 5:00-CV-1736 at Dkt. No. 1, and their amended complaint on January 17, 2001, see id. at Dkt. No. 3. Plaintiffs James Major, Kathleen Major, Colleen Major, Cassandra Keim, Paul Tanner, Trudi Tanner, and Elijha Tanner ("Major Plaintiffs") filed their complaint on April 26, 2001. See Dkt. No. 1.
On September 20, 2001, Magistrate Judge DiBianco issued a Uniform Pretrial Scheduling Order that applied to both cases. See Dkt. No. 10. That Order set a discovery deadline of September 30, 2002. See id. at 2. The Order also required Plaintiffs to disclose their experts no later than 150 days prior to September 30, 2002. See id.
On September 21, 2001, Magistrate Judge DiBianco issued an Order consolidating the two actions for purposes of discovery and motions only. See Dkt. No. 11.
On May 6, 2002, after the date that their expert disclosures were originally due, Plaintiffs asked Magistrate Judge DiBianco to extend the discovery and expert disclosure deadlines. See Dkt. No. 14 at 1. Specifically, they "requested that these deadlines be extended until a date after completion of a remedial investigation and feasability study ("RIFS") at the [Site] that may be required by the New York State Department of Environmental Conservation . . . ." See id. After hearing oral argument, Magistrate Judge DiBianco reset the discovery deadline to February 28, 2003, and Plaintiffs' expert disclosure deadline to October 30, 2002. See id. at 2.
On September 8, 2003, Magistrate Judge DiBianco granted Plaintiffs' request to extend the discovery deadline to December 31, 2003. See Dkt. No. 22 at 1.
On July 2, 2004, Magistrate Judge DiBianco once again extended the discovery deadline, this time to September 30, 2004. See Dkt. No. 27 at 4. He also permitted Plaintiffs to serve their Second Request for Production of Documents, dated June 9, 2004, on all Defendants. See id. at 3.
A. Defendants' Motions to Preclude
Plaintiffs' experts' testimony and to strike Sawyer's and Wolfson's affidavits Defendants argue (1) that Wolfson's, Millspaugh's and Sawyer's expert reports do not satisfy Rule 702 of the Federal Rules of Evidence; (2) that Sawyer is not qualified as an expert in the areas necessary to form the opinions that he sets forth in his new affidavit; (3) that Sawyer's opinions do not rest on reliable data; (4) that Sawyer's opinions do not fit the facts of this case; (5) that the methodology and techniques that Sawyer applied to the data are not generally accepted in the relevant field; (6) that Sawyer's opinions are not the product of a reliable methodology; (7) that Sawyer's opinions fail to rule out various alternative sources of contamination that he himself disclosed; (8) that Sawyer's and Wolfson's opinions are irrelevant to Plaintiffs' case because Plaintiffs' theories of causation, exposure, and liability are based solely upon exposure to contaminated water and not exposure to dust particles; and (9) that Whittington's appraisal of Plaintiffs' houses is not based upon a reliable methodology.
In order for the Court to assess Defendants' motions to preclude these reports, it must consider the rules governing the disclosure and supplementation of expert reports, the qualifications of a witness to offer expert testimony, and the amendment of pleadings to conform to the evidence.
Pursuant to the Court's Uniform Pretrial Scheduling Order, Plaintiffs were required to serve their experts' reports on or before October 30, 2002. See Dkt. No. 14 at 2. An expert's report "shall contain [among other things] a complete statement of all opinions to be expressed, the basis and reasons therefor [and] the data or other information considered by the witness in forming the opinions . . . ." Fed. R. Civ. P. 26(a)(2)(B). Plaintiffs also had a duty to supplement their required disclosures insofar as they learned that those disclosures were incomplete or inaccurate, unless Defendants had already become aware of the new or correct information. See Fed. R. Civ. P. 26(e)(1). Furthermore, Rule 37(c)(1) of the Federal Rules of Civil Procedure provides, in pertinent part, that "[a] party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1) . . . is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed." Fed. R. Civ. P. 37(c)(1).
Finally, Rule 702 of the Federal Rules of Evidence provides that,
[i]f scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
To determine whether a proposed expert witness is qualified to testify, a court must make "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 v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93 (1993). Among the factors that a court may consider in making this assessment are
-- Whether a "theory or technique . . . can be (and has been) tested";
-- Whether it "has been subjected to peer review and publication";
-- Whether, in respect to a particular technique, there is a high "known or potential rate of error" and whether there are "standards controlling the technique's operation"; and
-- Whether the theory or technique enjoys "'general acceptance'" within a "'relevant scientific community.'" . . .
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 149-50 (1999) (internal quotation omitted).
The goal of this assessment "is to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Id. at 152.
Finally, Rule 15(b) of the Federal Rules of Civil Procedure provides that
[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time . . . . If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party's action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.
1. Plaintiffs' Theory of the Case
In their amended complaint, the Green Plaintiffs alleged, in pertinent part, that
44. Upon information and belief, the solid and/or hazardous waste, hazardous substances and petroleum compounds have remained on the Site and have migrated throughout the Site and Property.
45. Upon information and belief, the solid and/or hazardous waste, hazardous substances and other wastes and petroleum compounds disposed on the Site and Property have migrated into the drinking water well utilized by Plaintiffs.
See The Green Plaintiffs' Amended Complaint at ¶¶ 44-45.
The Major Plaintiffs' complaint contained essentially identical allegations. See The Major Plaintiffs' Complaint at ¶¶ 42-43. Neither complaint contained any specific allegations that Plaintiffs had been exposed to air-borne contamination from the Site.
On March 26, 2001, the Green Plaintiffs and Defendants submitted their proposed joint civil case management plan, which stated that "[t]he factual basis for Plaintiffs' claims include the acts or omissions of Defendants, whole or in part, for the contamination of Plaintiffs' real property and exposure to Plaintiff Karen Green." See No. 00-CV-1736 at Dkt. No. 9. On August 31, 2001, the Major Plaintiffs and Defendants submitted their proposed joint civil management plan, which stated that "[t]he factual basis for Plaintiffs' claims include the acts or omissions of Defendants, in whole or in part, for the contamination of Plaintiffs' real properties and toxic exposures to Plaintiffs." See Dkt. No. 5. Neither plan indicated that Plaintiffs' claims of exposure were limited to their drinking water.
As noted, on September 20, 2001, Magistrate Judge DiBianco issued a Uniform Pretrial Scheduling Order that required Plaintiffs to disclose their expert witnesses not later than 150 days prior to September 30, 2002. See Dkt. No. 10 at 2. On May 6, 2002, Plaintiffs requested that the Court extend this deadline until after NYSDEC conducted a remedial investigation and feasibility study at the Site. See Dkt. No. 14 at 1. Magistrate Judge DiBianco did not grant Plaintiffs' request in full but did issue an amended scheduling Order that set October 30, 2002, as the deadline for Plaintiffs' disclosure of their experts. See Dkt. No. 14 at 2. Plaintiffs did, in fact, make their expert disclosures on October 30, 2002. See Dkt. No. 49 at Pt. 7 at 2.
2. Plaintiffs' Medical Expert -- Wolfson
In his report, dated October 29, 2002, Wolfson sets out his qualifications, a summary of the allegations in the case, and a list of the items that he reviewed. See Dkt. No. 49 at Pt. 9 at 49- 50. He then presents the following conclusions:
Review of some of the documents noted above indicates that chemical wastes from the Cowles Chemical Company (Cowles) Skaneateles Falls plant dumped and burned on the Old Taylor Farm property contained a number of organic solvents including xylene and toluene. In addition, the chlorinated solvent perchloroethylene was also apparently dumped and burned. Perchloroethylene is an animal carcinogen and human carcinogen. In addition, the burning of chlorinated hydrocarbons such as perchloroethylene results in the formation of dioxins, which are highly potent, multi-organ system carcinogens in humans.
My future assessment of the facts in this case will include a detailed review of the medical records of the plaintiffs as well as available records of other individuals who resided on the contaminated property since the dumping and burning of chemical waste began in 1962. In addition, I will review in detail the current and future test results characterizing the environmental contamination of the plaintiffs' property, water supply, and residences. Finally, I will evaluate any past and current or potential future health risks posed by the property contamination in order to develop an ongoing medical surveillance protocol for the individuals exposed to the toxic contaminants.
Only one portion of Wolfson's report might be understood as a statement of his opinions: "Perchloroethylene is an animal carcinogen and human carcinogen. In addition, the burning of chlorinated hydrocarbons such as perchloroethylene results in the formation of dioxins, which are highly potent, multi-organ system carcinogens in humans." See id. However, he does not provide any indication of the bases for these opinions. Accordingly, the Court concludes that Wolfson's report does not satisfy Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure.
Twice in his report, Wolfson notes that he will have to supplement it in the future. See id. at 49-50. The record indicates that Plaintiffs did not supplement Wolfson's report until the Green Plaintiffs submitted his affirmation on March 30, 2005, in support of their cross-motion for summary judgment. See Dkt. No. 35 at Pt. 27. Therefore, Wolfson's wholly inadequate report remained unsupplemented for almost two and one-half years. Furthermore, since discovery in this case closed on September 30, 2004, see Dkt. No. 27 at 4, Plaintiffs did not supplement Wolfson's report until after the time that Defendants could have effectively responded to it.
Finally, the Wolfson "Affirmation" that the Green Plaintiffs filed in support of their cross-motion for summary judgment is not proper summary judgment evidence. See Dkt. No. 35 at Pt. 27. A party must support a summary judgment motion with affidavits. See Fed. R. Civ. P. 56(e). However, since Wolfson's affirmation is not notarized, it is not an affidavit; and, since it is not dated, it is not admissible as an unsworn declaration, 28 U.S.C. § 1746.
Accordingly, because Wolfson's report does not satisfy Rule 26(a)(2)(B), Plaintiffs failed to supplement his report as Rule 26(e)(1) requires and the report is otherwise not proper summary judgment evidence, the Court grants Defendants' motion to strike Wolfson's affirmation. Moreover, because Defendants would certainly be prejudiced if, without further discovery, the Court permitted Wolfson to testify as to his newly disclosed opinions, the Court grants Defendants' motion to preclude Wolfson from providing expert testimony at trial.
3. Plaintiffs' Toxicology Expert -- Sawyer
In his expert report, dated October 30, 2002, see Dkt. No. 49 at Pt. 9 at 29, Sawyer reaches the following conclusions:
It is my opinion, to within a high degree of toxicological certainty that the source of the residential well water contaminants detected originated from the Cowles Chemical plant toxic dumping at the Taylor Road site. . . . The results of analyses conducted to date reveal that Plaintiffs' [sic] have been exposed to chemicals which pose a certain level of toxicological risk.
It is my opinion, based upon the specific chemical properties identified by Cowles Chemical Company and Stauffer Management Co. that open pit pyrolysis of the historical chemical including phthlates, phenols, toluic acid, toluene, xylenes, MEK, tar residue and other chemicals identified reacted with "miscellaneous dry cleaning chemicals", perchloroethylene, sulfuric acid and acetic acid would produce substantial levels of highly toxic semivolatile polynuclear aromatic hydrocarbons (PAHs) and certain chlorinated hydrocarbons. . . .
It is my firm opinion, to within a reasonable degree of toxicological certainty that the plaintiffs' [sic] have been exposed to significant environmental contaminants originating from the Cowles Chemical Company processes and subsequent dumping and burning of wastes at the Taylor Farm. Pyrolosis of the chemical constituents identified to date provide the basic nucleus for the formation of semivolatile polynuclear aromatic hydrocarbons (PAHs) and certain chlorinated hydrocarbons consistent with highly significant long-term human health effects which require specific medical monitoring. . . .
With respect to air-borne contamination, Sawyer made the following comments:
The previous production via open pit pyrolysis of highly potent human carcinogens including certain PAHs and chlorinated hydrocarbons of this toxicity is currently being evaluated. Previous production of these compounds by pyrolysis with an open smoke plume in the very close proximity of the predominant downwind residential locations would have resulted in direct air impact via smoke and accumulation of contaminated soils and dusts into the homes. Contaminated soils and dust impacted the homes primarily through truck tracking of soils onto the immediate residential roadways with subsequent dust generation. The longevity of these semivolatile contaminates are of specific concern to residents due to the normal rates of ingestion of household dust. Using valid methods of science, analytical testing will be performed to further evaluate these hazards.
. . . . The extent of PAH contamination and potential of ongoing exposures via ingestion of household dust is currently being evaluated. Additional documentation from the defendants including all prior health and safety plans developed for contractor's use is required for review. Additionally, further disclosure of the historical processes used at the plant including all purchased chemical reagents is needed. I also intend to evaluate all future health risks posed by previous and current property contamination to aid in the development of an ongoing medical monitoring (surveillance) protocol for residents who have sustained significant chronic toxic exposures.
See id. at 36-37 (emphasis added).
Despite Sawyer's statements about the work that he was still performing and would yet perform, the record contains no indication that he ever supplemented his report.
On March 30, 2005, Plaintiffs submitted Sawyer's affidavit dated March 25, 2005. See Dkt. No. 36 at Pt. 10. In this affidavit, Sawyer states that he "recently [in February and March 2005] assessed the attic dust of the plaintiff's [sic] homes . . . for evidence of 'the possible formation of secondary combustion products'. Attempted burning of an aromatic enriched tar as described in Exhibit 2 would be expected to release and generate substantial quantities of PAHs." See id. at ¶¶ 13-14.*fn4 He further states that
[t]he analyses reveal hazardous levels of PAHs within the attic dust. . . . No exogenous PAH sources were identified within the rural environment. The heat source for each home was inspected along with a history of local events. . . .
15. An extended list of 40 PAHs was analyzed by Maxxam/PSC Analytical Services, Inc. . . . The objective analytical results reveal a highly distinct pattern of specific PAHs common to all 3-homes [sic] . . . . Based upon the unique signature of PAHs within the attic dust at significantly elevated levels, I am certain to within a very high degree of scientific certainty that the contaminants identified are not from independent event [sic] that occurred within each house such as smoking cigarettes, burning wood, coal, food cooking smoke [sic].
Sawyer's affidavit ends with the following conclusions:
32. It is my opinion, based upon the specific properties identified by Cowles Chemical Company and Stauffer Management Co. that open pit pyrolysis of the historical chemicals including toluic acid water tar, asphaltic tar, phthalates, phenols, toluic acid, toluene, xylenes, MEK, tar residue and other chemicals identified reacted with "miscellaneous dry cleaning chemicals", perchloroethylene, sulfuric acid and acetic acid substantially released carcinogenic PAHs and aromatic hydrocarbons into the environment. Analytical testing of residential wells performed by NYSDEC during 1998 revealed the presence of certain PAHs.
33. It is my firm opinion, to within a reasonable degree of toxicological certainty, that all of the named plaintiffs' [sic] have been exposed to significant environmental contaminants originating from the Cowles Chemical Company processes and subsequent dumping and burning of wastes at the Taylor Farm. Pyrolysis of the chemical constituents identified to date provide the basic nucleus for the formation of PAHs and certain chlorinated hydrocarbons consistent with highly significant long-term human health effects which require specific medical monitoring. The Plaintiffs' well water has previously revealed the presence of PAHs consistent with the formation of toxic PAHs. Future health risks posed by previous and current property contamination require immediate and ongoing medical monitoring (surveillance). The current level of contaminates measured within the plaintiffs' homes requires professional abatement to prevent further chronic toxic exposures.
Contrary to Defendants' characterization of Sawyer's affidavit, it neither abandons the theory of water contamination nor expresses a completely new theory of air-borne contamination. However, the problem with Sawyer's affidavit is that it contains opinions based upon new evidence, i.e., Sawyer's attic dust collection. Rule 26(a)(2)(B) requires that Sawyer's expert report contain "the basis and reasons" for his opinions and "the data or other information" that he considered in forming those opinions. Fed. R. Civ. P. 26(a)(2)(B). However, Sawyer's expert report contains no information about attic-dust testing. Furthermore, Sawyer did not disclose the results of his attic-dust testing until six months after the close of discovery. See Dkt. Nos. 27, 36 at Pt. 10. Indeed, Sawyer did not even conduct this testing until after Defendants had filed their summary judgment motion.
Defendants contend, based upon their characterization of Plaintiffs' theory of the case, Sawyer's expert report, and Sawyer's affidavit, that the Court should strike Sawyer's affidavit and preclude him from offering expert testimony. To which Plaintiffs respond candidly that
[t]he plain truth is that Plaintiffs have been relying on the DEC to thoroughly and competently do their job in protecting the public, including the Plaintiffs, from polluters such as the Cowles Chemical Company. . . . The Defendants are correct in arguing to the Court that the Plaintiffs have been waiting for the Record of Decision ("ROD") from the DEC. . . .
It thus became clear to Plaintiffs that the expensive testing, which prior to that point had been delayed in anticipation that the DEC would conduct a RI/FS, would have to be done by them alone. Plaintiffs, all folks of rural and modest means, were and are completely disadvantaged to hire the magnum of experts required to do the necessary environmental testing in this matter. . . .
Having been forced to confront the reality that the DEC was not going to conduct the necessary testing, Plaintiffs banded together, pooled their monies, and paid Dr. William Sawyer to ...