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Von Duprin LLC v. Moran Electric Service, Inc.

United States District Court, S.D. Indiana, Indianapolis Division

June 14, 2019

VON DUPRIN LLC, Plaintiff,
v.
MORAN ELECTRIC SERVICE, INC., MAJOR HOLDINGS, LLC, MAJOR TOOL AND MACHINE, INC., ZIMMER PAPER PRODUCTS INCORPORATED, Defaulted on 7/24/2017, Defendants. MAJOR HOLDINGS, LLC, MORAN ELECTRIC SERVICE, INC., MAJOR HOLDINGS, LLC, MORAN ELECTRIC SERVICE, INC., MAJOR TOOL AND MACHINE, INC., MORAN ELECTRIC SERVICE, INC., Counter Claimants,
v.
VON DUPRIN LLC, MAJOR HOLDINGS, LLC, VON DUPRIN LLC, VON DUPRIN LLC, MAJOR HOLDINGS, LLC, VON DUPRIN LLC, VON DUPRIN LLC, MAJOR TOOL AND MACHINE, INC., Counter Defendants. MAJOR HOLDINGS, LLC, MAJOR HOLDINGS, LLC, MAJOR TOOL AND MACHINE, INC., Cross Claimants,
v.
MORAN ELECTRIC SERVICE, INC., MORAN ELECTRIC SERVICE, INC., VON DUPRIN LLC, Cross Defendants.

          ENTRY ON PENDING MOTIONS

          TANYA WALTON PRATT, JUDGE

         This litigation seeks to determine the responsibility of various parties for the release of hazardous substances at several properties located on the northeast side of downtown Indianapolis, Indiana. Plaintiff Von Duprin, LLC (“Von Duprin”) brought suit against Moran Electric Service, Inc. (“Moran”) and Major Holdings, LLC and Major Tool and Machine, Inc. (collectively, the “Major Defendants”) in an attempt to get them to contribute to the costs of cleaning up the contaminated properties. This matter is scheduled for final pretrial conference on June 26, 2019 and trial on July 22, 2019.

         There are nine pending motions: (1) Major Defendants' Motion to Limit Expert Testimony at Trial (Filing No. 166); (2) Moran's Motion in Limine to Exclude Expert Opinions of Sam Williams (Filing No. 168); (3) Von Duprin's Motion in Limine to Exclude Opinions of Adam H. Love, Ph.D. (Filing No. 169); (4) Moran's Motion for Leave to File Sur-Reply in Opposition to Von Duprin's Motion to Exclude the Opinions of Adam H. Love, Ph.D. (Filing No. 191); (5) Von Duprin's Motion in Limine (Filing No. 186); (6) Major Defendants' Motion for Separation of Witnesses (Filing No. 194); (7) Von Duprin's Motion to Exclude or Limit Major Defendants' Designation of Deposition Testimony (Filing No. 195); (8) Von Duprin's Motion to Exclude Certain Exhibits Proposed by Major Defendants (Filing No. 196); and (9) Von Duprin's Motion to Exclude Certain Exhibits Proposed by Moran (Filing No. 197).

         The factual background of this case is recited in detail in the Court's Entry on the Parties' Cross-Motions for Summary Judgment (Filing No. 203) and are addressed only sparingly in this Entry.

         I. MAJOR DEFENDANTS' MOTION TO LIMIT EXPERT TESTIMONY AT TRIAL (Filing No. 166) AND MORAN'S MOTION IN LIMINE TO EXCLUDE EXPERT OPINIONS OF SAM WILLIAMS (Filing No. 168)

         Major Defendants and Moran move to limit or exclude the expert testimony of Sam Williams. They assert “Williams' opinions are deficient or incorrect in several respects, ” Major Defendants “seek to limit the opinions offered by Williams that lack required evidentiary support or that would otherwise be unhelpful to the Court at trial.” (Filing No. 166.) Moran also seeks to limit Williams' testimony. (Filing No. 168.) The motions overlap substantially.

         Federal Rule of Evidence 702 permits expert testimony-defined as testimony regarding scientific, technical, or other specialized knowledge-if the testimony (a) is given by a person qualified as an expert by his knowledge, skill, experience, training, or education; (b) will assist the trier of fact to understand evidence or determine a fact at issue in the case; and (c) is sufficiently reliable-that is, it is based on “sufficient facts or data, ” “is the product of reliable principles and methods, ” and “the witness has applied the principles and methods reliably to the facts of the case.”

         The Court serves as gatekeeper to weed out expert testimony that is not sufficiently reliable or relevant to issues in the case or testimony offered by a person not sufficiently expert in the field of study that his testimony concerns. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993). Determining whether expert testimony is sufficiently reliable for the fact-finder to consider requires a flexible approach, and the Court has “great latitude in determining not only how to measure the reliability of the proposed expert testimony but also whether the testimony is, in fact, reliable.” United States v. Pansier, 576 F.3d 726, 737 (7th Cir. 2009) (emphasis in original). The Court's gatekeeping role is thus focused on whether the expert testimony pertains to an issue in the case and whether the methodology underlying the testimony is sound. Smith v. Ford Motor Co., 215 F.3d 713, 719 (7th Cir. 2000) (citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 159 (1999)).

         Major Defendants argue that all three conclusions that Williams' report reaches should be excluded for lack of evidentiary support. Williams' first conclusion is that “Von Duprin has incurred necessary response costs for site investigation and remediation activities associated with the release and threatened release of hazardous substances on the Defendants' properties.” (Filing No. 167-1 at 12.) Major Defendants argue that Williams' conclusion lacks evidentiary support because he merely asserts that the Indiana Department of Environmental Management (“IDEM”) has directed Von Duprin to perform investigation and remedial response actions, but IDEM's direction is irrelevant to which response costs are necessary under the Comprehensive Environmental Response, Compensation, and Liability Act. (Filing No. 167 at 3-4.) Second, Williams opines that “Site investigation activities performed at the Property and Study Area have been performed in substantial compliance with the National Contingency Plan.” (Filing No. 167-1 at 14.) Major Defendants contend this opinion should be excluded because investigative costs need not comply with the National Contingency Plan (“NCP”), so the opinion is irrelevant. Additionally, Major Defendants argue that Williams' testimony should be excluded because he “intends to testify that multiple environmental consultants have incurred costs consistent with the NCP, ” even though “when asked whether he had performed a specific analysis to support an opinion that any consultant complied with the NCP, Mr. Williams expressly conceded that he had not done so.” (Filing No. 167 at 5-6) (emphasis deleted). Third, Williams opined that “Remedy selection and remediation within the Study Area has been performed in substantial compliance with the NCP.” (Filing No. 167-1 at 25.) Major Defendants argue this opinion should be excluded as well because Williams' report only discusses removal action, not remedial action or remedy selection. (Filing No. 167 at 8.)

         Moran's objections follow largely the same logic. It argues that Williams admitted that he performed no NCP compliance analysis for any consultants other than Geosyntec, Von Duprin's consulting firm, and yet Von Duprin is seeking to recover costs incurred by other consultants. (Filing No. 168 at 3.) Moran also complains that Williams' report does not provide any “analysis or explanation of how Von Duprin's response actions satisfied the NCP's public participation requirement.” Id. at 6.

         Von Duprin responds that Williams is qualified to testify as an expert on NCP compliance, that he need not opine that Von Duprin was in total compliance with the NCP, and that his opinions that Von Duprin incurred necessary response costs and that it complied with the NCP are reliable and based on sufficient facts. (Filing No. 175 at 3-4.) Von Duprin argues the Defendants “simply misconstrue[] the nature of the opinion and testimony Williams was proffered to provide.” Id. at 12. He was not hired to create an itemized list of Von Duprin's response costs and determine if each complied with the NCP, he was hired to “look at the response as a whole and determine whether it substantially complied with the NCP.” Id. Von Duprin also contends that Geosyntec reports and IDEM documents provide a sufficient factual basis for Williams' opinion that removal costs were NCP-compliant. Id. at 12-15.

         Defendants do not allege that Williams has insufficient knowledge, skill, experience, training or education to serve as an expert witness. Rather, they argue that his testimony is not based on sufficient facts or data and that, even if it were, much of it would not be helpful to the trier of fact. The Court disagrees. Williams' report is based on sufficient data to qualify him as an expert witness, and Defendants' qualms with the report are a matter for cross-examination, not a motion in limine.

         Major Defendants dispute that the report contains a sufficient factual basis to form the opinion that Von Duprin undertook necessary response costs. However, Williams' report lists the consultant reports that he reviewed to come to the conclusion that Von Duprin did take response actions and it discusses the costs of those actions. (Filing No. 167-1 at 16-17.) Major Defendants also questions Williams' ability to speak to the reports of consultants other than Geosyntec because “when asked whether he had performed a specific analysis to support an opinion that any consultant complied with the NCP, Williams expressly conceded that he had not done so.” (Filing No. 167 at 5-6) (emphasis deleted). Importantly, Williams reviewed the reports written by those other consultants, and as an expert in the field his testimony will be useful in helping the factfinder make sense of those reports. His report details his opinion that Von Duprin incurred remedial costs that were substantially in compliance with the NCP.

         The Defendants make valid arguments that cast doubt on Williams' report and expected testimony. But those arguments do not go to the admissibility of his testimony under Federal Rule of Evidence 702. They only go to his credibility-whether the factfinder should credit certain conclusions he reached. As such, they are appropriate questions for cross-examination, but not enough to limit his testimony. Thus, Major Defendants' Motion to Limit Expert Testimony at Trial (Filing No. 166), and Moran's Motion in Limine to Exclude Expert Opinions of Sam Williams (Filing No. 168) are denied.

         II. Von Duprin's Motion in Limine to Exclude Opinions of Dr. Love (Filing No. 169)

         Von Duprin moves to exclude the opinions of Moran's expert Adam H. Love, Ph.D. (“Dr. Love”). The legal standard applied to this motion is the same standard recited in Section I of this Order: Federal Rule of Evidence 702 permits expert testimony-defined as testimony regarding scientific, technical, or other specialized knowledge-if the testimony (a) is given by a person qualified as an expert by his knowledge, skill, experience, training, or education; (b) will assist the trier of fact to understand evidence or determine a fact at issue in the case; and (c) is sufficiently reliable-that is, it is based on “sufficient facts or data, ” “is the product of reliable principles and methods, ” and “the witness has applied the principles and methods reliably to the facts of the case.”

         Von Duprin does not challenge Dr. Love's qualifications, rather, it argues that his report and testimony rely “on insufficient, selectively chosen data, ” rendering them “unreliable and not adequately related to the facts at issue in the litigation.” (Filing No. 170 at 4.) Von Duprin contends that Dr. Love's report is inaccurate because, in an effort to determine the contribution of Moran's properties to the contaminant plume, he analyzed soil samples from Moran's property that had possibly contaminated soil removed and replaced with clean soil. Id. at 5. Moran responds that Dr. Love's data comes from soil samples taken either pre-excavation or during excavation. (Filing No. 173 at 7.) Because Dr. Love has declared that “only 1 soil samples [sic] (SME-2) among approximately 470 unique soil samples (0.2% of all soil data) utilized in the soil database was collected from a location that may have marginally overlapped a ...


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