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Schmucker v. Johnson Controls, Inc.

United States District Court, N.D. Indiana, South Bend Division

February 19, 2019

RONALD SCHMUCKER, et al., Plaintiffs,
v.
JOHNSON CONTROLS, INC., et al. Defendants.

          OPINION AND ORDER

          JON E. DEGUILIO JUDGE

         This is 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.

         The 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.

         I. FACTUAL BACKGROUND

         The 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. Id.

         Because 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 hazardous waste.

         Johnson 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.

         While 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.

         In the 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.

         After 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.

         Throughout 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.

         Substantial 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.

         Another 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:

         (Image Omitted)

         The 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 fully briefed.

         II. ANCILLARY MOTIONS

         Before resolving the motions for summary judgment, the Court addresses a number of other pending motions.

         A. Motion to Exclude Dr. Keramida's Opinions

         Johnson 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 regulations.

         As 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 environment.[1]

         Johnson 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 methods; 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).

         There 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.

         That 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).

         Given 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.

         In 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.[2]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 not working.

         Of 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.[3] 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.

         Johnson 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).

         Dr. 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.[4] 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.

         Finally, 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.

         Accordingly, the Court denies Johnson Controls' motion in those respects, and will consider the admissibility of Dr. Keramida's remaining opinions in conjunction with trial.

         B. Motions to Strike Dr. Keramida's Supplemental Reports

         Johnson 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.

         Johnson 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.

         Johnson 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).

         The 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).

         The 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.

         Under 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.[5] 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.

         Dr. 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.[6] 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.

         The 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 now.[7] 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 new opinions.

         The 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.

         Allowing 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.

         In each 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.

         Moreover, 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.

         And 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.

         C. 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.

         D. Motion to Exclude Johnson Controls' ...


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