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Chitayat v. Vanderbilt Associates

September 27, 2007

ANWAR CHITAYAT, PLAINTIFF,
v.
VANDERBILT ASSOCIATES, A PARTNERSHIP, AND BARBARA GROSS AS EXECUTRIX OF THE ESTATE OF WALTER GROSS, DEFENDANTS.
BARBARA GROSS AS EXECUTRIX OF THE ESTATE OF WALTER GROSS, THIRD-PARTY PLAINTIFF,
v.
THOMAS F. MANNO REVOCABLE TRUST U/A 13TH DAY OF FEBRUARY 1990, WILDORO ASSOCIATES, CHARLES ROSE, AND ELIZABETH BOINOTT, AS ADMINISTRATORS OF THE ESTATE OF HOWARD ROSE, THIRD-PARTY DEFENDANTS.
BARBARA GROSS AS EXECUTRIX OF THE ESTATE OF WALTER GROSS, THIRD-PARTY PLAINTIFF,
v.
PALL CORPORATION, VANDERBILT GENERATION L.P. AND VANDERBILT GENERATION II CORP., THIRD-PARTY DEFENDANTS



The opinion of the court was delivered by: Hurley, Senior District Judge

MEMORANDUM & ORDER

Plaintiff Anwar Chitayat ("Plaintiff" or "Chitayat") commenced this action in 2003 pursuant to the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq., as well as state law*fn1, seeking to recover response costs incurred in the remediation of tetrachloroethene ("PCE")and other contaminants at 100 Oser Avenue, Hauppauge, New York (the "Oser Site"). The Oser Site is located within the Hauppauge Industrial Park and occupies approximately two acres of land.

Presently before the Court are two motions in limine by Third-Party Defendant Pall Corporation ("Pall") who is the owner of the property at 225 Marcus Boulevard, Hauppauge (the "Pall Site"), which is also located in the Hauppauge Industrial Park. The Pall Site is approximately 200-300 feet southwest hydrogeologically and immediately upgradient of the Oser Site. One motion seeks to preclude the testimony of Dan C. Buzea ("Buzea"), an expert retained by Defendant/Third-Party Plaintiff Barbara Gross, as Executrix of the Estate of Walter Gross ("Gross"). Gross intends to call Buzea at trial to testify concerning the relative responsibility of the parties for contamination at the Oser Site and the appropriate allocation of liability for the response costs at issue. The other motion seeks to preclude the testimony of Dr. Thomas E. Pease, PE ("Pease") an expert retained by Chitayat. Chitayat intends to call Pease to testify at trial concerning, inter alia, Pall's contribution to the contamination in groundwater at the Oser Site and whether or not the response costs in remediating the Oser Site were reasonable, necessary, and consistent with the National Contingency Plan ("NCP"), 40 C.F.R. § 300 et seq., as required by CERCLA. For the reasons set forth below, the motion as to Buzea is granted in part and denied in part and the motion as to Pease is granted in part and denied in part.

I. Relevant Legal Principles

Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony. It provides:

If 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.

Fed. R. Evid. 702. Rule 702 "embodies a liberal standard of admissibility for expert opinions . . . ." Nimely v. City of New York, 414 F.3d 381, 395 (2d Cir. 2005). The Supreme Court has made clear that a district court has a "gatekeeping" function under Rule 702 and must "ensur[e] that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993). "In gauging reliability, the district court should consider the indicia of reliability identified in Rule 702 . . . ." Willis v. Amerada Hess Corp.,379 F.3d 32, 48 (2d Cir. 2004). The three indicia of reliability set forth in Rule 702 are not, however, exhaustive. "The district court may consider a number of other factors . . . including: (1) whether a theory or technique had been or can be tested; (2) 'whether the theory or technique had been subjected to peer review and publication;' (3) 'the technique's known or potential rate of error' and 'the existence and maintenance of standards controlling the technique's operation;' and (4) whether a particular technique or theory has gained general acceptance in the relevant scientific community." Id. (citing Daubert, 509 U.S. at 593-94). "Although expert testimony should be excluded if it is speculative or conjectural, . . . or if it is based on assumptions that are so unrealistic and contradictory as to suggest bad faith, or to be in essence an apples and oranges comparison, . . . other contentions that the assumptions are unfounded go to the weight, not the admissibility of the testimony." Boucher v. United States Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir. 1996) (internal citations and quotations omitted). Accord McCullock v. H.B. Fuller Co.,61 F.3d 1038, 1044 (2d Cir. 1995).

A district court has broad discretion with respect to the admissibility or exclusion of expert evidence. McCullock,61 F.3d at 1044. That the court will be the trier of fact affects both its discretion and its gatekeeping function. Greater deference is granted to a court's determination of relevance in a bench trial because the court is "presumed to be able to exclude improper inferences from its own decisional analysis." George v. Celotex Corp., 914 F.2d 26, 28 (2d Cir. 1990). Similarly, a court has greater flexibility in satisfying its gatekeeping function vis a vis expert testimony where it is the trier of fact given the absence of the need to protect juries from dubious expert evidence. See, e.g., New York v. Solvent Chem. Co., 2006 WL 2640647, at *1 (W.D.N.Y. Sept. 14, 2006); American Home Assur. Co. v. Masters' Ships Mgmt., S.A.,2005 WL 159592, *1 (S.D.N.Y. Jan. 25, 2005). Cf. Gonzales v. Nat'l Bd. of Med. Exam'rs, 225 F.3d 620, 635 (6th Cir. 2000) (explaining that where district court is the trier of fact, it has greater flexibility in admitting proffered expert testimony and then deciding during the course of the trial whether the evidence meets the requirements of Daubert and deserves to be credited).

With these principles in mind, the Court shall now discuss the proposed expert testimony and the proposed bases for exclusion.

II. The Buzea Testimony

A. Buzea's Qualifications

According to his curriculum vitae, Buzea holds a Masters of Science degree in geology and is certified as a Professional Geologist by the American Institute of Professional Geologists. He is a member of the Geological Society of America, the American Institute of Professional Geologists and the Association of Ground-Water Scientists and Engineers. He has extensive experience in the fields of hydrogeology and environmental remediation, including a number of projects involving ground water contamination and remediation on Long Island.

B. The Nature of Buzea's Testimony

Buzea begins his report with a description of the Oser Site and its use history, including its lease to Sands Textile, a textile manufacturer which used PCE to dry clean finished textile products, and its use by Anorad, a company owned by Plaintiff, which manufactured technical rotational positioning equipment. Next, he discusses the geology and hydrogeology of the Oser Site and its immediate vicinity and sets forth the hydrogeologic parameters relied on in his report.*fn2

The report then turns to contaminant characterization and source evaluation. The primary contaminants of concern consist of PCE, carbon tetrachloride, methylene chloride, and toluene, all of which are volatile chemical compounds ("VOCs"). As described in the report, PCE is a manufactured chemical compound widely used for dry cleaning of fabrics and for metal degreasing; carbon tetrachloride is a synthetic chemical compound whose industrial uses include the production of chlorofluorocarbons used in refrigeration and as a degreasing solvent; methylene chloride is a chemical compound used as a solvent in paint removers, degreasing agents, and aerosol propellants; and toluene is a chemical compound widely used as an industrial feedstock and as a solvent. Of the four compounds, carbon tetrachloride is the most toxic with a health hazard rating of severe; the other three compounds have a moderate health hazard rating. With the exception of toluene, the compounds have carcinogenic health effects associated with them. The water solubility of all four compounds indicates that they are readily absorbed into the groundwater table. Based on their chemical properties, methylene chloride and carbon tetrachloride are more difficult to remove from soil and ground water using a soil vapor extraction or other similar remedial technologies. With respect to source evaluation, the report examines both on-site and off-site sources.

In evaluating on-site sources, Buzea examined various reports and documents and concluded that sufficient documentation existed to conclude that Sands Textile used PCE during its operations. However, the absence of documentation of the use of carbon tetrachloride and methylene chloride and/or toluene by Sands Textile led Buzea to conclude that Sands Textile was not the source of these contaminants.

Turning to off-site sources, Buzea evaluated the Pall Site, as well as six industries located upgradient of the Oser Site in the Hauppauge Industrial Park. The report specifies that the various documents analyzed indicate that (1) Pall used hazardous materials in conjunction with its operations including PCE, carbon tetrachloride, methylene chloride and toluene; (2) Pall repeatedly discharged these contaminants through leaking underground storage tanks as well as several onsite leaching pools; and (3) the existence of two contaminated groundwater plumes on the Pall Site consisting primarily of the four above-mentioned contaminants. Buzea opines that based on the predominant direction of groundwater flow, these contaminated plumes have been migrating to the northeast directly onto the Oser Site and commingling with the PCE plume originating from the Oser Site, providing significant contribution to the Oser Site contamination. With respect to the six other industries examined, Buzea concludes, based on various reports and documents, that these companies are a major contributor to the groundwater contamination in the area and to the contamination detected beneath the Oser Site but because of the lapse of time, a precise allocation of responsibility for these other off site contaminants is not possible.

Buzea uses two groundwater models to assist in estimating the contaminant contribution from the Pall Site to the Oser Site. First, Buzea uses the Quick Domenico fate and transport model ("QD model")*fn3 and concludes that Pall contributed twenty percent of the contamination on-site. He then uses contaminant mass calculations and concludes that Pall's contaminant contribution to the Oser Site was twenty-two percent.

The QD model evaluates the spatial distribution and concentrations of contaminants over time based on a series of values and parameters. According to Buzea, a wide range of data and factors were used to select the values including historical data for both sites, Oser Site specific factors such as soil porosity and composition, and, in the absence of site-specific data, standard literature sources and government guidance documents wherein parameter values are published. In using the QD model, Buzea did not calibrate it because, he explains, there was insufficient data to do so. Calibration is the adjustment of parameters of a model's geometry or input parameter values in an effort to match model outputs to observed conditions. Buzea maintains that the model remains an important tool to evaluate the fate ...


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