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Schmucker v. Johnson Controls Inc.

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

October 28, 2019

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

          OPINION AND ORDER

          JON E. DEGUILIO JUDGE

         This 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 exhibits.

         I. MOTIONS IN LIMINE

         Johnson Controls filed a number of motions in limine, each of which the Court considers in turn.

         A. Chemicals other than TCE posing an endangerment

         Johnson 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.

         The two 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”)].

         The 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.

         Johnson 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.

         B. Dr. Keramida's November 2018 home inspections

         Johnson 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.

         The 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.

         At the 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.

         The 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.

         C. Goshen utilities info

         Johnson 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.

         Johnson 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 Court agrees.

         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.

         Moreover, 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.

         D. Dr. Keramida's testimony about what RCRA requires

         Next, 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.

         E. Dr. Orris' supplemental opinion about sewer lines

         Johnson 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 ...


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