United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
case is set for a bench trial. In this order, the Court
addresses a number of evidentiary disputes, including motions
in limine, objections to expert testimony, and objections to
MOTIONS IN LIMINE
Controls filed a number of motions in limine, each of which
the Court considers in turn.
Chemicals other than TCE posing an endangerment
Controls first moves to exclude any evidence that chemicals
other than TCE may pose an endangerment. To begin with, the
Court already made such a ruling at summary judgment, holding
that the Plaintiffs could not present evidence “that
compounds other than TCE present a danger in their own right,
” as the Plaintiffs did not develop that evidence
during discovery. [DE 351 p. 20]. To the extent the
Plaintiffs offer evidence of other chemicals posing an
endangerment, the Court will disregard that evidence
accordingly, but the Plaintiffs represent that they have no
intent to do so.
specific objections that Johnson Controls raises on this
topic are misplaced, though. Johnson Controls first objects
that Dr. Keramida is opining that the presence of other
chemicals makes TCE more dangerous, which it characterizes as
a back-door way of arguing the health effects of those other
chemicals. However, Johnson Controls' argument rests on
mischaracterizations of her testimony. Dr. Keramida relies on
the other chemicals solely to determine the applicable
screening levels to use for TCE. She explains in her most
recent supplemental report that, due to the presence of other
chemicals, a Hazard Quotient of 0.1 rather than 1 is
appropriate. [DE 382-1 p. 6 (opining that, because of the
presence of other chemicals, “the USEPA advises the use
of a Hazard Quotient of 0.1, rather than 1, which is
applicable when only one chemical is present”)]. That
is exactly the same thing she said in her initial report, as
the Court even noted when it excluded her opinion on the
effects of other chemicals. [DE 351 p. 18 (noting that Dr.
Keramida referenced other chemicals “to explain the
effect they have on the applicable screening levels for
TCE”)]; 275-3 p. 31 (identifying the applicable
screening level as 0.21 µg/m3, based on a Hazard
Quotient of 0.1, and explaining that that “is the
recommended [Hazard Quotient] when an individual may be
exposed to more than one chemical”)].
Plaintiffs confirmed at the final pretrial conference that
Dr. Keramida's opinion in this regard is limited to
identifying the applicable screening levels for TCE. Johnson
Controls also explained how its own expert has responded
directly to that opinion and has discussed why Dr.
Keramida's reliance on that Hazard Quotient is unfounded.
Because Dr. Keramida's opinion in this regard is not new,
and because Johnson Controls has already addressed it through
its own experts, there is no reason to exclude this opinion.
Should Dr. Keramida (or any other expert) offer additional
opinions or explanations at trial not contained in her
reports, the Court will not consider those new materials, but
the Court construes her supplement as referencing the effects
of other chemicals solely for the purpose of identifying the
applicable screening level for TCE. Her opinion in that
regard complies with the Court's prior order, so the
Court declines to strike that opinion.
Controls next objects to Dr. Keramida's consideration of
other chemicals for the purpose of establishing the course of
the migration from the Johnson Controls site. It suffices to
say on this point, though, that Johnson Controls'
objection has nothing to do with whether those other
chemicals pose an endangerment in their own right, which is
the reason Johnson Controls moves to exclude this evidence.
The relevance of this line of evidence is to show that a
pathway exists for exposure to TCE. Again, if the Plaintiffs
were to argue that exposure to the other chemicals may pose
an endangerment, the Court would not consider the evidence
for that purpose, but the Plaintiffs have confirmed they have
no intent to do so. Because Dr. Keramida's supplemental
report addresses the most recent testing data and does not
transgress the Court's prior order, the Court declines to
strike her opinions on this basis.
Dr. Keramida's November 2018 home inspections
Controls next moves to strike evidence of home inspections
that Dr. Keramida conducted in November 2018, after discovery
had already closed and the motions for summary judgment were
already ripe. Dr. Keramida visited certain homes in the
neighborhood to assess the presence of vapor intrusion
through utilities. Most notably, she used a photoionization
detector to identify potential vapor entry points into a
home. Johnson Controls argues that this was an untimely
investigation and should be excluded.
Court agrees. There is no reason this investigation could not
or should not have been done during discovery. Vapor
intrusion through preferential pathways has always been at
issue in this case, and Dr. Keramida addressed it in her
initial report. Whatever insight these home inspections and
photoionization detector readings may have to offer into the
threat of vapor intrusion through utilities, the Plaintiffs
had every reason to develop that evidence during discovery.
The Plaintiffs argue that these inspections permissibly
respond to maintenance performed on the vapor mitigations
systems in 2018, but that maintenance is a red herring. As
Dr. Keramida herself has repeatedly opined, including in her
recent supplement, vapor mitigation systems do not address
vapor intrusion through utilities. [DE 382-1 p. 6
(“Vapor entry points directly into homes from sewer
lines bypass the sub-slab of a home and, therefore, are not
addressed by a vapor mitigation system applied to the
sub-slab.”)]. The maintenance on those vapor mitigation
systems thus cannot justify this untimely investigation into
vapor intrusion through utility lines.
final pretrial conference, the Plaintiffs argued that these
inspections were also justified by the severance of a utility
line running through the former site, and that the
inspections were meant to assess the effect, if any, of that
new development. Again, the Court is unconvinced, and finds
that to be another attempt to bootstrap this untimely
investigation. The Plaintiffs did not conduct a similar
investigation prior to that work, so they have no baseline to
compare the recent inspections against to determine the
effect of that work. The Plaintiffs also acknowledge that the
photoionization detector cannot identify what compounds are
present or where they came from. Having failed to show how
these readings could determine the effect of the sewer work,
they cannot argue that these inspections were justified by
that development. Moreover, the Plaintiffs acknowledge that
the purpose of the photoionization detector readings was to
show that a pathway exists for the subsurface migration for
volatile compounds. [DE 417 p. 17]. That was equally relevant
during discovery and has little connection to the severance
of the sewer lines at the site.
Court therefore grants the motion to exclude evidence of Dr.
Keramida's November 2018 home inspections, subject to one
exception. During her inspections, Dr. Keramida also observed
the vapor mitigation systems that had recently been serviced,
and some of her opinions address the effect of that
maintenance. Her opinions in that regard largely reiterate
her previous criticisms of the vapor mitigation systems, and
it would be unfair to allow Johnson Controls to invoke the
maintenance performed on the systems without allowing the
Plaintiffs to address the effect of that work. Thus, the
Court will permit Dr. Keramida to testify about her
observations of the vapor mitigations systems from these
inspections, to address the effect of the recent maintenance
on her opinions about the effectiveness of those systems.
Goshen utilities info
Controls next raises a similar objection to utilities
information that Dr. Keramida recently obtained from the City
of Goshen. First, it objects to “water and sewer
cards” that Dr. Keramida obtained. Those materials date
back to the 1980s, and the Plaintiffs offer no reason why
they could not have obtained them during discovery. In fact,
the Plaintiffs do not acknowledge these materials in response
to the motion or attempt to defend their late disclosure. The
Court thus grants the motion to exclude the newly obtained
water and sewer cards.
Controls also objects to recent information Dr. Keramida
gathered relating to the status of a water line that runs
through the site. In her most recent supplement, Dr. Keramida
noted that it has come to her attention that a waterline
adjacent to the site may still be active. The Plaintiffs
represent that they, Johnson Controls, and the City of Goshen
had all previously believed the line had been taken out of
service. At her deposition, Dr. Keramida testified about
additional information she obtained subsequent to her report.
She noted that she spoke to a Goshen employee, who revealed
that a recent test showed that some water was still reaching
a fire hydrant on the line, suggesting that the line was not
completely sealed and raising the possibility that the line
was still carrying water into homes in the neighborhood.
Johnson Controls objects to this information as untimely. The
Plaintiffs respond that the possibility that the water line
is active is a new fact that did not come to light until
recently. This may well be a “new fact.” The
problem is that it shouldn't be. The Plaintiffs had an
extensive discovery period in which to conduct an
investigation into any conditions that could pose an
endangerment-an issue on which they bear the burden. They
could have determined during that time the status of any
water lines that could contribute to an endangerment. They
haven't offered an adequate explanation for why they did
not do so. They cite new documents that came to light that
triggered this inquiry, but haven't shown either that the
documents are so different from documents they had during
discovery that they justify this untimely inquiry, or that
the timing of the production of those documents was improper.
this new, untimely information is plainly prejudicial. Even
by the Plaintiffs' own description of this new evidence,
it is tentative and would require further investigation to
assess what amount of water is actually traveling through the
line and whether and in what amount it may carry TCE to the
Plaintiffs' homes. Johnson Controls has no ability to
conduct follow-up discovery into what exactly the City of
Goshen determined about the water line, either. The Court
therefore grants this motion and excludes the information
obtained by Dr. Keramida about the water line after August
26, 2019 and any opinion based on that information.
Dr. Keramida's testimony about what RCRA
Johnson Controls moves to exclude any testimony by Dr.
Keramida about what RCRA “requires.” The Court
agrees that such testimony would be irrelevant; the question
at trial is not whether Johnson Controls is in violation of
any RCRA requirements, nor is the content of legal
requirements subject to expert testimony. The Court thus
grants the motion to that extent. The Plaintiffs clarified,
however, that Dr. Keramida's testimony in this regard
will be limited to identifying applicable screening or
cleanup levels. If limited in that manner, this testimony
would be acceptable.
Dr. Orris' supplemental opinion about sewer
Controls also moves to exclude a supplemental opinion by Dr.
Orris, a medical doctor who opines about the health effects
of TCE. In his initial report, Dr. Orris opined that TCE may
pose an endangerment to human health in the Plaintiffs'
neighborhood by inhalation of TCE vapors. After summary
judgment, the Court reopened discovery for the narrow purpose
of considering the most recent testing data and developments
in the area. That testing data included sewer vapor sampling.
Dr. Orris reviewed that data and addressed it in his
supplemental report: “My concern over the threat of TCE
exposure is also confirmed by sewer vapor sampling . . .
within the sewer line along Monroe Street. Dr. Keramida's
testing showed levels of TCE as high as 270 µg/m3
within this sewer line . . . . These TCE vapors within the
public sewer, which are connected to 1008 E. Monroe and other
homes in the ...