United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
an environmental action arising out of contamination from a
former Johnson Controls manufacturing facility. Five
individuals who own or live in property next to the facility
sued Johnson Controls under the Resource Conservation and
Recovery Act. They first allege that Johnson Controls is
violating its obligations under that Act because it
hasn't finished remediating the contamination. They also
allege that the contamination, which has spread into their
neighborhood and beyond, threatens health and the
environment. Exhaustive discovery ensued and has now closed,
and both sides moved for summary judgment. The parties also
filed numerous related motions, including five motions to
strike or exclude expert testimony.
Court finds that summary judgment is warranted in Johnson
Controls' favor on the claim that it is in violation of
the Act. Johnson Controls has complied with the requirements
imposed by the regulations and the implementing agency, and
the Plaintiffs' arguments to the contrary fail as a
matter of law. However, the Court finds that factual disputes
preclude summary judgment for either side on the claim that
the contamination may present an imminent and substantial
endangerment. The Court also resolves the expert motions in
part, but reserves ruling in part until trial.
Resource Conservation and Recovery Act was passed in 1976,
and enacted a broad range of policies and procedures to
control the disposal of solid and hazardous waste.
Meghrig v. KFC W., Inc., 516 U.S. 479, 483 (1996);
Adkins v. VIM Recycling, 644 F.3d 483, 486 (7th Cir.
2011). Subchapter III of the Act addresses hazardous wastes
in particular, and empowers the environmental agencies
“to regulate hazardous wastes from cradle to
grave[.]” City of Chicago v. Envtl. Def. Fund,
511 U.S. 328, 331-32 (1994). As relevant here, the Act
required all facilities involved in treating, storing, or
disposing of hazardous wastes to obtain permits, and
subjected those facilities to stringent regulation.
Id. Facilities that only generated hazardous wastes
were regulated as well, but not nearly as stringently.
the permits for treatment, storage, and disposal facilities
would take years to process, the statute and regulations
created a two-step process for existing facilities to become
permitted. First, the facility would submit a Part A
application. Upon submitting that application, the facility
is deemed an “interim status” facility. 42 U.S.C.
§ 6925(e). The facility could then either submit a Part
B application in order to receive a permit to continue
operating as a treatment, storage, and disposal facility, or
it could stop its treatment, storage, and disposal activities
and undergo closure. Roughly speaking, closure is a process
defined by the regulations by which a facility shuts down
each hazardous waste management unit at the facility, removes
hazardous waste from the units, and decontaminates the units
to the extent necessary to prevent post-closure releases of
Controls operated a manufacturing facility in Goshen, Indiana
for many years, making parts for thermostats and building
controls systems. Its manufacturing process included the use
of chlorinated solvents, including trichloroethylene (TCE),
in the degreasing of metal parts. Due to its use of those
chemicals, the facility's operations qualified it as a
treatment, storage, or disposal facility under the Act. Thus,
in October 1980, Johnson Controls filed its Part A
application. The United States Environmental Protection
Agency later confirmed that the facility qualified as an
interim status facility. In 1988, Johnson Controls notified
the Indiana Department of Environmental Management (which had
since been authorized to implement the Act in Indiana) that
it intended to undergo closure instead of submitting a Part B
application and seeking a permit. In February 1991, it
submitted a closure plan in which it identified four
hazardous waste management units that would have to undergo
closure, and outlined the steps that it would take to
complete closure. In March 1991, after a period for public
comment, IDEM approved Johnson Controls' closure plan.
conducting sampling pursuant to the approved closure plan,
Johnson Controls discovered contamination of TCE and other
chlorinated Volatile Organic Compounds in onsite soil and
groundwater. It then discovered that a plume of contamination
extended off the site to the northwest, into a neighborhood
that was immediately adjacent to the facility. High levels of
TCE were found in well water in some of those homes'
private wells, so Johnson Controls arranged for each of those
homes to be connected to the municipal water supply.
meantime, Johnson Controls completed closure of one of its
hazardous waste management units and submitted a
certification to that effect, which IDEM accepted in April
1992. It then continued to investigate the remaining
contamination under IDEM's oversight. In August 1996,
Johnson Controls entered an agreement with IDEM to
participate in its Voluntary Remediation Program in order to
investigate and remediate the existing contamination. In
August 1998, Johnson Controls submitted a revised closure
plan for its three remaining hazardous waste management
units. As agreed to during a previous meeting with IDEM, that
plan defined the scope of the units as the boundaries of the
units or their buildings, to a depth of one foot. Thus
defined, two of the units contained no contamination and
required no further closure activities. For a third unit,
Johnson Controls proposed removing the concrete floor,
excavating the underlying soil to a depth of 1.5 feet,
inserting a plastic liner, filling it with gravel, and then
replacing the concrete floor. As also previously discussed
with IDEM, the closure plan specified that the remaining
contamination outside of those units would be addressed
through the Voluntary Remediation Program instead of as part
of the closure process.
allowing a period for public comment, IDEM approved Johnson
Controls' closure plan in February 1999. Johnson Controls
thereafter completed each of the activities set forth in the
approved closure plan. In March 2000, Johnson Controls
submitted a certification that each of the waste management
units at the facility had been closed in accordance with the
approved closure plan, and that no further closure activities
were required. In an August 2000 letter, IDEM accepted
Johnson Controls' certification of closure and stated
that “total closure is completed.” [DE 294-25].
The letter noted, though, that IDEM's acceptance of
closure was “conditional with the expectation that
Johnson Controls Inc. will address the remaining
contamination beneath the closed hazardous waste management
units via the Voluntary Remediation Program.”
Id. Johnson Controls ceased its operations at the
site in 2006, after which it sold to the property to Tocon
Holdings, LLC. Tocon later tore down each of the buildings at
the site, which now sits vacant.
this time, Johnson Controls continued to participate in the
Voluntary Remediation Program under IDEM's oversight and
has engaged in various remediation and mitigation activities.
From 2000 to 2012, Johnson Controls operated a groundwater
“pump and treat” system that removed several tons
of contaminants from the groundwater. Johnson Controls also
performed other remediation activities at the site, including
excavating 31 tons of contaminated soil from the site in
2001. More recently, in 2015, Johnson Controls used
“emulsified zero-valent iron” remediation to
address contamination in the soil at two small areas at the
site. And most recently, in 2017, Johnson Controls
implemented a pilot program intended to remediate shallow
groundwater. It used “in-situ enhanced reductive
dechlorination, ” in which substances are injected to
the groundwater in order to break down the TCE.
contamination still exists both on and off the site, though.
The soil at the site still contains contamination. A plume of
contamination is also present in the shallow groundwater,
which is about fifteen feet below ground. The plume extends
to the west and northwest of the site, through the
Plaintiffs' neighborhood and under the Plaintiffs'
homes. As the contamination moves farther from the site, it
also extends deeper into the ground. While the shallow
groundwater contamination consists mostly of TCE, the deeper
contamination consists more of TCE's breakdown products,
including vinyl chloride. The contamination in the deep
groundwater is of concern because the city's wellfield
draws water from that aquifer. The parties' experts
disagree on whether contamination from the Johnson Controls
site may ever reach the wellfield, though. The city wells are
about a mile to the northwest of the Johnson Controls site,
but they draw water predominantly from the northeast, as that
is the direction from which the groundwater generally flows.
concern presented by the contamination is vapor intrusion.
Contamination in the shallow groundwater can volatize into
vapor and can migrate up to the surface, where it can enter
indoor air. In 2011, Johnson Controls began testing area
homes for vapor intrusion. In fifteen homes, TCE was detected
above IDEM's indoor air screening level. Accordingly,
Johnson Controls had vapor mitigation systems installed in
each of those homes. Johnson Controls tested those homes
again after the systems were installed to make sure they were
working, but most of those homes were not tested again until
2018. At that time, TCE was detected in two of the homes, but
below IDEM's screening level. Johnson Controls has tested
various other homes and commercial buildings over the years,
but does not believe any structures other than those fifteen
homes require mitigation systems. The map below shows the
Johnson Controls site, the Plaintiffs' neighborhood, the
plume of shallow groundwater contamination as identified by
Johnson Controls' expert, the area of vapor intrusion
impact as identified by the Plaintiffs' expert, and the
properties with vapor mitigation systems:
Plaintiffs here are five individuals associated with three
properties near the site, each of which have vapor mitigation
systems due to the previous detections of TCE. Richard
Stewart owns and is the landlord of a house immediately
adjacent to the Johnson Controls site. Stephen and Lori
VanDiepenbos live in the house next door. Ronald and Sonya
Schmucker own and are the landlords of the house across the
street from them. In May 2004, the Plaintiffs sued Johnson
Controls, asserting claims under the Resource Conservation
and Recovery Act. (They also sued Tocon, but Tocon has not
participated in this action in some time.) Extensive
discovery ensued, for which the magistrate judge appointed a
special master. That entailed extensive expert discovery,
with two retained experts for the Plaintiffs and six retained
experts for Johnson Controls. Discovery has now closed, and
both sides have filed motions for summary judgment, which are
resolving the motions for summary judgment, the Court
addresses a number of other pending motions.
Motion to Exclude Dr. Keramida's Opinions
Controls moves to exclude opinions by Dr. Vasiliki Keramida,
a retained expert for the Plaintiffs. Dr. Keramida has
advanced degrees in environmental engineering. She has taught
courses in environmental engineering; she spent six years
leading environmental programs for the City of Indianapolis;
and for the last thirty years, she has led her own firm that
provides sustainability, environmental, remediation, and
health and safety services. She has served as project manager
for hundreds of projects involving the assessment and
remediation of industrial and commercial properties. She has
also served on various regulatory advisory committees,
assisting the EPA and IDEM in developing guidelines and
relevant here, Dr. Keramida opined that contamination from
the Johnson Controls facility present an imminent and
substantial endangerment to human health and the environment.
She first opined that the contamination presents an
endangerment through the threat of vapor intrusion, as shown
by the high concentrations of TCE in the groundwater and
soil, and tests showing that TCE was present in the indoor
air of homes in the neighborhood. She also opined that the
vapor mitigation systems installed in those homes are not
sufficient to abate the endangerment. She next opined that
the contamination presents an endangerment due to its
presence in the groundwater, from which private wells might
draw water for drinking or irrigation. She also concluded
that the contamination presents an endangerment to the
environment because it may reach the city's wellfield.
She contended that these risks are substantial because the
contamination exceeds levels developed by the EPA to protect
human health. Finally, Dr. Keramida outlined the remedial
actions that she believes need to occur to reduce the
contamination to levels protective of health and the
Controls moves to exclude all of those opinions. Rule 702
governs the admission of testimony by expert witnesses. Under
that rule, a witness “who is qualified as an expert by
knowledge, skill, experience, training, or education”
may offer an opinion if the following criteria are met:
(a) 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;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Fed. R. Evid. 702. A court has a gatekeeping role to ensure
that expert testimony meets these criteria. Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579 (1993); C.W.
ex rel. Wood v. Textron, Inc., 807 F.3d 827, 834-35 (7th
Cir. 2015). As the Seventh Circuit has emphasized, though, a
court does not assess “‘the ultimate correctness
of the expert's conclusions.'”
Textron, 807 F.3d at 834 (quoting Schultz v.
Akzo Nobel Paints, LLC, 721 F.3d 426, 431 (7th Cir.
2013)). Rather, a court must focus “solely on
principles and methodology, not on the conclusions they
generate.” Schultz, 721 F.3d at 432 (quoting
Daubert, 509 U.S. at 595). “So long as the
principles and methodology reflect reliable scientific
practice, ‘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.'” Id.
(quoting Daubert, 509 U.S. at 596).
is another consideration to take into account in addressing
the Daubert motions, in that the case will be tried
in a bench trial. Though the Plaintiffs' complaint
demands a jury trial, the basis for that demand was the
availability of civil penalties as a remedy for their claim
under § 6972(a)(1)(A). [DE 61]. As explained below, the
Court grants summary judgment in Johnson Controls' favor
on that claim for reasons unaffected by any expert testimony.
The remaining claim, under § 6972(a)(1)(B), permits only
injunctive relief. 42 U.S.C. § 6972(a) (authorizing
“any appropriate civil penalties under section 6928(a)
and (g), ” each of which require a violation); City
of Evanston v. N. Ill. Gas Co., 229 F.Supp.3d 714, 724
(N.D. Ill. 2017) (holding that civil penalties are not
available for subsection (a)(1)(B) claims, and collecting
cases to that effect). Therefore, the remaining claim will be
tried in a bench trial.
does not change the standard of review-the testimony must
still satisfy Rule 702. Metavante Corp. v. Emigrant Sav.
Bank, 619 F.3d 748, 760 (7th Cir. 2010). It does,
however, impact when the Court needs to make that finding.
“Where the gatekeeper and the factfinder are one and
the same-that is, the judge-the need to make such decisions
prior to hearing the testimony is lessened.” In re
Salem, 465 F.3d 767, 777 (7th Cir. 2006). The Seventh
Circuit has thus held that when “a trial judge conducts
a bench trial, the judge need not conduct a Daubert
(or Rule 702) analysis before presentation of the
evidence[.]” Kansas City S. Ry. Co. v. Sny Island
Levee Drainage Dist., 831 F.3d 892, 900 (7th Cir. 2016).
the scope of Dr. Keramida's opinions and the complexity
of the underlying issues, the Court takes that approach here
in part. As discussed below, the Court denies summary
judgment on the endangerment claim on the basis of the threat
of vapor intrusion. The Court therefore limits its analysis
at this time to Dr. Keramida's opinions on that topic,
specifically the threat of vapor intrusion by TCE at
properties that have previously had TCE detected in their
indoor air. The Court also addresses her opinions as to the
appropriate remedy, as Johnson Controls seeks summary
judgment in that regard as well. As to the rest of her
opinions, the Court dismisses the motion to exclude and will
allow the parties to address the opinions' admissibility
in conjunction with trial.
moving to exclude Dr. Keramida's opinions as to vapor
intrusion, Johnson Controls first argues that Dr. Keramida
improperly relied on past data reflecting the presence of TCE
in indoor air, instead of more recent data since the vapor
mitigation systems were installed.Johnson Controls is correct
that the focus of an endangerment claim is the present risk,
not purely past risks. Meghrig, 516 U.S. at 488.
However, the past data upon which Dr. Keramida relied is
probative of the present risk for several reasons. First, it
shows that the levels of TCE in the ground are sufficient to
cause vapor intrusion in these homes, and that pathways are
present to allow the TCE to enter the homes. Second, the
groundwater in the Plaintiffs' neighborhood has not been
remediated, and Dr. Keramida opined that the vapor levels in
the soil remain high. This evidence thus provides Dr.
Keramida a basis to conclude that the vapors are capable of
entering the homes in similar amounts today. In fact, even
one of Johnson Controls' experts could not say that no
endangerment would exist if the vapor mitigation systems were
course, mitigation systems have been installed, and
subsequent tests have not detected TCE at the same amounts as
before. However, those tests do not prove conclusively that
vapor intrusion is neither occurring nor threatened. As Dr.
Keramida discussed, those tests are fallible, due in part to
the spatial and temporal variability of vapor intrusion. In
addition, Dr. Keramida offers reasons to doubt whether the
mitigation systems are sufficient to obviate the risk. Dr.
Keramida notes that environmental agencies generally view
mitigation systems as interim measures, in part because they
are subject to failure. She also notes that the systems here
have experienced interruptions on multiple occasions, and she
opines that they were not designed or installed
properly. If the systems are not working, the
existing threat of vapor intrusion may still present an
endangerment. Johnson Controls is free to argue at trial that
the Court should not credit Dr. Keramida's opinion, but
she has adequately explained why she concludes that an
endangerment still exists even in light of subsequent testing
and mitigation, so the Court declines to exclude her opinion
on that basis.
Controls next argues that Dr. Keramida offers no basis to
evaluate whether the risk is substantial, as she relied on
regulatory guidelines for acceptable levels of contaminants.
Johnson Controls argues that her conclusions were flawed
because agency screening levels are not probative of human
health risk. The Court declines to exclude Dr. Keramida's
opinion on that basis. It is true that regulatory screening
levels do not govern endangerment claims, meaning that
exceeding a screening level does not conclusively establish a
substantial endangerment, just as complying with screening
levels does not foreclose such a finding. Interfaith
Cmty. Org. v. Honeywell Int'l, Inc., 399 F.3d 248,
261 n.6 (3d Cir. 2005) (holding that agency “standards
do not define a party's federal liability under
RCRA”); Simsbury-Avon Pres. Club, Inc. v. Metacon
Gun Club, Inc., 575 F.3d 199, 212-13 (2d Cir. 2009).
That is not to say, however, that they are irrelevant.
Indeed, courts have often considered agency screening levels
in deciding whether a substantial endangerment exists.
E.g., Burlington N. & Santa Fe Ry. Co. v.
Grant, 505 F.3d 1013, 1022 (10th Cir. 2007);
Interfaith, 399 F.3d at 261 (“Proof of
contamination in excess of state standards may support a
finding of liability, and may alone suffice for liability in
some cases, but its required use is without justification in
the statute.”); Raymond K. Hoxsie Real Estate Tr.
v. Exxon Educ. Found., 81 F.Supp.2d 359, 366 (D.R.I.
2000) (collecting cases).
Keramida explains based on her experience that the agencies
consult toxicological literature in order to set screening
levels at concentrations that are not expected to produce
unacceptable risks of cancer and other health conditions. She
concludes that because contamination here greatly exceeds
those levels, the contamination may present a substantial
endangerment to health. That those screening levels are not
conclusive as to an endangerment claim does not mean that
they are not relevant. And more to the point, that does not mean
that an expert cannot reasonably rely on them as probative of
whether certain levels of contamination may present an
imminent and substantial endangerment. Johnson Controls is
free to argue that the agencies' analysis is unsound,
that the levels are based on conservative assumptions not
applicable here, or that they are otherwise flawed or
inapplicable, but the Court declines to exclude Dr.
Keramida's opinion on that basis.
Johnson Controls moves to exclude Dr. Keramida's opinions
about the remedy the Court should impose should it conclude
that an endangerment exists. The sole basis for Johnson
Controls' motion is that Dr. Keramida failed to take into
account certain factors that the EPA considers in selecting a
RCRA remedy. Johnson Controls cites no authority that the
Court is bound by those factors in ordering relief under a
subsection (a)(1)(B) claim, though, so it has not shown why
Dr. Keramida's opinions should be excluded on that basis.
Upon a finding that contamination may present an imminent and
substantial endangerment, the Act authorizes the Court to
order any “action as may be necessary.” 42 U.S.C.
§ 6972(a). Courts also consider the factors that govern
permanent injunctions. See LAJIM, LLC v. Gen'l Elec.
Co., No. 13 CV 50348, 2017 WL 392139, at *2 (N.D. Ill.
Sept. 7, 2018). Johnson Controls cites no authority that
requires a Court to consider the factors that the EPA might
consider in implementing corrective actions, so even if Dr.
Keramida failed to consider all of those factors, that would
not render her opinions inadmissible.
the Court denies Johnson Controls' motion in those
respects, and will consider the admissibility of Dr.
Keramida's remaining opinions in conjunction with trial.
Motions to Strike Dr. Keramida's Supplemental
Controls also filed two motions to strike supplemental
reports by Dr. Keramida on the basis that they are untimely
attempts to bolster her previous opinions and offer new
opinions. Dr. Keramida signed her initial report in March
2017, and wrote a short supplement the following month, after
which she sat for a deposition in November 2017. Johnson
Controls' experts responded to the opinions Dr. Keramida
expressed in those materials, and discovery closed in
December 2017. The parties filed their Daubert
motions in January 2018, and those motions were ripe by
April. In the meantime, the parties also filed their motions
for summary judgment. In their response to Johnson
Controls' motion for summary judgment, the Plaintiffs
attached a new, 30-page report by Dr. Keramida. This third
report purports to supplement Dr. Keramida's initial
opinions in light of new data, and to rebut supplemental
opinions by one of Johnson Controls' experts.
Controls' response to the Plaintiffs' motion for
summary judgment also included a declaration from one of its
environmental consultants. The declaration primarily
presented data showing the results of a pilot test that
Johnson Controls had conducted to remediate shallow
groundwater at the site. Johnson Controls cited that
declaration numerous times in its statement of facts,
asserting that the pilot test had reduced TCE concentrations
in some areas by over 99 percent. Thus, in their reply brief,
the Plaintiffs attached another new report by Dr. Keramida-
her fourth report-in which she offered rebuttal opinions in
response to that declaration.
Controls moves to strike Dr. Keramida's third and fourth
reports, contending that they untimely disclose new opinions
and are not proper supplements or rebuttal reports. Under
Rule 26(a)(2), a retained expert witness must provide a
written report that contains, among other items, “a
complete statement of all opinions the witness will express
and the basis and reasons for them[.]” Fed.R.Civ.P.
26(a)(2)(B)(i). The rules also require a party to
“supplement or correct” this disclosure “in
a timely manner if the party learns that in some material
respect the disclosure . . . is incomplete or
incorrect[.]” Id. R. 26(e)(1)(A). However,
“‘the purpose of supplementary disclosures is
just that-to supplement. Such disclosures are not intended to
provide an extension of the expert designation and report
production deadline.'” In re Ready-Mixed
Concrete Antitrust Litig., 261 F.R.D. 154, 159 (S.D.
Ind. 2009) (quoting Metro Ford Truck Sales, Inc. v. Ford
Motor Co., 145 F.3d 320, 324 (5th Cir. 1998)).
“‘Although [Rule] 26(e) requires a party to
‘supplement or correct' [a] disclosure upon
information later acquired, that provision does not give
license to sandbag one's opponent with claims and issues
which should have been included in the expert witness'
report[.]'” Allgood v. Gen'l Motors
Corp., No. 1:02-cv-1077-DFH, 2007 WL 647496, at *3 (S.D.
Ind. Feb. 2, 2007) (quoting Beller v. United States,
221 F.R.D. 689, 695 (D.N.M. 2003)). If a party fails to
timely disclose or supplement expert opinions, those opinions
cannot be used “unless the failure was substantially
justified or is harmless.” Fed.R.Civ.P. 37(c)(1).
rules also contemplate that experts may prepare rebuttal
reports that are “intended solely to contradict or
rebut evidence on the same subject matter” by an
opposing expert. Fed.R.Civ.P. 26(a)(2)(D). “‘The
proper function of rebuttal evidence is to contradict,
impeach or defuse the impact of the evidence offered by an
adverse party.'” Peals v. Terre Haute Police
Dep't, 535 F.3d 621, 630 (7th Cir. 2008) (quoting
United States v. Grintjes, 237 F.3d 876, 879 (7th
Cir. 2001)). “A rebuttal expert report cannot be used
to advance new arguments or new evidence to support
plaintiff's expert's initial opinions.”
Lowe v. CVS Pharmacy, Inc., No. 14 C 3687, 2017 WL
2152385, at *2 (N.D. Ill. May 17, 2017) (quotation omitted).
Court begins with the second motion to strike, which attacks
Dr. Keramida's fourth report. That report primarily
addressed data collected to assess the impact of a pilot test
Johnson Controls conducted to remediate shallow groundwater.
Johnson Controls presented that data in response to the
motion for summary judgment through a declaration by Mr.
Fenelon, an employee of its environmental consulting firm.
Johnson Controls relied extensively on Mr. Fenelon's
declaration and the underlying data in opposing summary
judgment, arguing that it shows that the pilot test
successfully removed the vast majority of TCE from the
groundwater in the areas it was deployed. Johnson Controls
argued that this data further demonstrated that no imminent
and substantial endangerment exists.
those circumstances, it is fair for Dr. Keramida to offer a
supplemental report responding to that data. As Johnson
Controls insists throughout its filings, the focus of an
endangerment claim is the present condition of the
contamination, not its past condition. Meghrig, 516
U.S. at 486. The new data addressed the effect of the pilot
test at the site, which represented an intervening event that
Dr. Keramida could not have addressed earlier. Whether Mr.
Fenelon's declaration qualifies as expert testimony or
not, it presented new data upon which Johnson Controls relied
to argue that no endangerment currently exists. Johnson
Controls in fact relied heavily on that data in opposing
summary judgment, citing Mr. Fenelon's declaration dozens
of times in its statement of facts. [DE 310]. It would be
unfair to allow Johnson Controls to use that new information
to its benefit, without allowing the Plaintiffs to respond to
it through their expert. Though the statements in this report
may warrant some narrow follow-up discovery prior to trial,
even Johnson Controls acknowledges that limited discovery of
that nature is appropriate. Thus, the Court finds that Dr.
Keramida's fourth report was appropriate, so the Court
denies the second motion to strike.
Keramida's third report-the subject of the first motion
to strike-is different in kind, though. This report addressed
newly collected information, but for the most part, not new
developments. The new information primarily consisted of
records of vapor sampling performed in early 2018 and
maintenance performed on the vapor mitigation systems, and
Johnson Controls' March 2018 groundwater monitoring
report (reflecting samples taken in late 2017), which it
submits twice a year to IDEM. The only intervening event that
is addressed in this report was that sewer connections to the
site were severed, to reduce the possibility that those lines
would transport vapors from the site. Dr. Keramida's report
offered a total of fifteen pages of supplemental opinions,
only two of which addressed the severed sewer lines. The
report also offered an extensive rebuttal to a supplemental
report on the vapor sampling and mitigation systems by Dr.
Dawson, one of Johnson Controls' experts. Johnson
Controls moves to strike Dr. Keramida's supplemental
report, arguing that it merely uses the information as a
pretext to bolster old opinions and offer new opinions that
could have been disclosed before.
Court begins with the opinions Dr. Keramida offers about
compounds other than TCE presenting an endangerment. In her
initial report, Dr. Keramida referred in passing to other
volatile organic compounds, including perchloroethylene
(PCE), and vinyl chloride. She stated, though, that
“[g]iven the predominant presence of TCE in all
polluted media, ” she would refer only to TCE
“for brevity purposes.” [DE 275-3 p.13].
Thereafter she referred a number of times to TCE “and
other cVOCs” (chlorinated Volatile Organic Compounds),
but never offered or developed any opinion that any other
contaminants in particular create an imminent and substantial
endangerment. The only testing data she cited in her report
was for TCE, and the only screening levels she identified as
a baseline for establishing dangerous levels were for TCE.
She referenced “other cVOCs” in that discussion
only to explain the effect they have on the applicable
screening levels for TCE. She did not compare the
sampling data against any appropriate benchmarks for any
other contaminants or explain whether and how they present an
endangerment in their own right, as she attempts to do
In contrast, Dr. Keramida's third report focuses heavily
on the presence of vinyl chloride in groundwater and of PCE
in indoor air, arguing that those compounds present a danger
in their own right. Given the absence of any similar
discussion in Dr. Keramida's initial report, these are
recent data does not justify these new opinions. The parties
have long known that these compounds are present in the
contamination, and Dr. Keramida could have offered opinions
on these subjects in her initial report. For example, in
asserting in her supplemental report that PCE and vinyl
chloride are present in the groundwater in dangerous levels,
Dr. Keramida cites a sample of PCE from November 2015, and a
sample of vinyl chloride from May 2016. She could have
addressed those issues in her March 2017 report or prior to
her November 2017 deposition. Dr. Keramida's third report
likewise focuses extensively on the presence of PCE in the
recent vapor intrusion sampling. However, even though they
knew that PCE was present in the contamination, and that the
initial vapor intrusion sampling had not screened for PCE,
the Plaintiffs conducted no sampling to determine whether PCE
was entering indoor air. Rather than conducting any
investigation of their own-even in their own homes-the
Plaintiffs essentially chose to free-ride on the sampling
that Johnson Controls conducted pursuant to its ongoing
oversight by IDEM. That is an acceptable choice, but it does
not free them of the consequences of failing to timely
disclose their opinions if they failed to develop the support
for those opinions during discovery. In other words, the only
reason this information is new is that the Plaintiffs failed
to develop it during discovery, when they had ample
opportunity to do so- the information was not unavailable
during discovery, it just wasn't developed. Thus, the
recent data does not permit the Plaintiffs to offer new
opinions on these compounds.
the Plaintiffs to offer those new opinions at this point
would create substantial prejudice, as it would require
extensive follow-up discovery with new expert reports. During
discovery, both sides retained expert witnesses to opine as
to whether the contamination posed a danger to human health.
Given that Dr. Keramida's report focused on TCE, those
experts did likewise: Johnson Controls retained an
epidemiologist and a medical doctor to address whether TCE
presented a substantial endangerment, and the Plaintiffs
retained a toxicology expert, who likewise focused
exclusively on TCE. None of those experts addressed the
dangers of other compounds. Permitting Dr. Keramida to opine
now that other compounds present a substantial endangerment
themselves would require Johnson Controls to have their
experts prepare brand new reports (or to retain new experts)
addressing the dangers associated with these other compounds,
presumably followed by depositions on those new opinions.
Since there is no reason Dr. Keramida could not have
addressed these compounds in her initial report, there is no
reason the Court should countenance the cost and delay that
would entail. Therefore, the Court grants the motion to
strike as to Dr. Keramida's opinions that compounds other
than TCE present a danger in their own right.
of the other respects, though, the Court denies the motion to
strike. The other supplemental opinions arise out of and
address matters that Dr. Keramida explored in her initial
report (albeit in less detail in some instances), and her
rebuttal opinions appropriately respond to opinions that Dr.
Dawson offered in her own supplemental report. For example,
Dr. Keramida supplemented her report to address the data on
vapors in the sewer lines after they were severed. That is an
appropriate supplement, as her initial opinion likewise
discussed the threat of vapor intrusion through sewer lines
as preferential pathways, and the severing of the sewer lines
was a new development at the site. Dr. Keramida also opined
in her supplement that the new data further supports her
previous opinion that the contamination was traveling in the
direction of the city wellfield. The analysis in her
supplemental report largely parallels the analysis in her
initial report and in her deposition as to similar data.
Johnson Controls also objects to Dr. Keramida's
supplemental opinion that the contamination is getting worse,
since she previously opined based on much of the same data
that it would remain at similar levels. However, that is more
of a basis for impeaching her supplemental opinion than for
excluding it. If, for example, Dr. Keramida opined that the
new data showed that the contamination was getting better,
Johnson Controls would surely view that as a proper
supplement. Last, the Court believes that the rebuttal
portion of Dr. Keramida's report was appropriate. Though
Dr. Keramida's rebuttal is considerably longer than the
brief report it rebutted, it is generally responsive to that
report and attempts to “contradict, impeach or defuse
the impact” of Dr. Dawson's supplemental opinions.
Peals, 535 F.3d at 630.
to the extent this report may stray beyond the appropriate
limits of supplemental or rebuttal reports, the Court finds
that the prejudice is limited and curable. Johnson Controls
expresses concern that the parties would have to refile their
motions for summary judgment, which had already been
extensively briefed. However, the Court's resolution of
those motions does not depend on any of these materials, nor
do these materials warrant another round of summary judgment
motions, so that concern is unfounded. Johnson Controls also
notes that it had already briefed its Daubert motion
in which it moved to exclude Dr. Keramida's opinions. As
discussed above, though, the Court has deferred its
resolution of those objections in large part until trial.
Johnson Controls will have the opportunity to object to any
of Dr. Keramida's opinions in these latest reports in
that context as well.
finally, the parties can address these new reports with
limited follow-up discovery prior to trial. Even Johnson
Controls has acknowledged that narrow discovery would be
warranted as new information and new developments arise. [DE
330 p. 3 (“[Johnson Controls] anticipated, in light of
the 2018 vapor sampling data, that the parties' experts
may supplement their reports, [and] that the parties may want
to take depositions on these supplements[.]”); DE 344
p. 11 (“[Johnson Controls] is amenable to [its
consultants] sitting for supplemental depositions to give
Plaintiffs an opportunity to probe subject matter that has
developed since their 2016 depositions.”)]. As Johnson
Controls explained in another filing, “[a]fter all, as
remediation work progresses at the Site, regardless of any
expert discovery issues, narrow discovery may need to [be]
conducted regarding the remedial advances being made . . .
.” [DE 344 p. 11-12]. Since the focus of an
endangerment claim is the present condition of the
contamination, the Court agrees that narrow discovery of that
sort is warranted as new information becomes available and
new developments occur. That discovery will alleviate any
prejudice Johnson Controls may have otherwise experienced
from Dr. Keramida's supplemental reports. Thus, except as
to the opinions as to other compounds, addressed above, the
Court denies the motion to strike.
Motion to Exclude Dr. Orris' Opinions
Johnson Controls also filed a motion to exclude expert
opinions by Dr. Peter Orris. Dr. Orris is a medical doctor
who opined that the concentrations of TCE found at the site
and in the neighborhood pose a substantial danger to public
health. In moving to exclude that opinion, Johnson Controls
argues that Dr. Orris is unqualified, that his opinions are
not based on a reliable methodology or sufficient facts, and
that they are not helpful. As discussed above, the Court
believes that it can better evaluate the admissibility of Dr.
Orris' opinions at trial. Therefore, the Court dismisses
Johnson Controls' motion, but with leave to renew its
objections at trial.
Motion to Exclude Johnson Controls' ...