United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. Casper United States District Judge.
Town of Westport (“Westport”) has filed this
lawsuit against Defendants Monsanto Company, Pharmacia
Corporation and Solutia, Inc. (collectively
“Pharmacia”) alleging that one of its school
buildings, Westport Middle School (“WMS”), was
contaminated with polychlorinated biphenyls
(“PCBs”) that originated from plasticizers
produced by Pharmacia. D. 1. Pharmacia has moved for summary
judgment as to Westport's claims of breach of the implied
warranty of merchantability for defective design (Count I),
breach of the implied warranty of merchantability for failure
to warn (Count II) and negligence (Count III). D. 205.
Alternatively, Pharmacia has moved for partial summary
judgment on Westport's claim of damages, asking that the
Court limit Westport's damages to no more than the fair
market value of WMS. D. 201. Lastly, both parties have filed
numerous motions to exclude the expert reports and
anticipated testimony of a number of proposed experts. D.
153; D. 155; D. 157; D. 158; D. 159; D. 164; D. 167; D. 170;
D. 173. For the reasons stated below, the Court ALLOWS the
motion for summary judgment, D. 205, and DENIES the motion
for partial summary judgment, D. 201, as moot. Furthermore,
the Court DENIES the motions to exclude expert testimony as
moot, D. 153; D. 155; D. 157; D. 158; D. 159; D. 164; D. 167;
D. 170; D. 173.
otherwise noted, the following undisputed material facts are
drawn from the parties' statements of material facts and
their responses. WMS was built in or about 1970. D. 207
¶ 38; D. 212-1 ¶ 38. The construction
specifications of WMS called for the use of caulk. D. 207
¶¶ 38-39; D. 212-1 ¶¶ 38-39. While
Pharmacia did not manufacture, formulate, sell or market
caulk, it did sell chemical additives-called
plasticizers-that were then used by intermediary distributors
and product manufacturers (or “formulators”) in
their caulk formulations. D. 207 ¶ 9; D. 212-1 ¶ 9.
One such formulator, Product Research & Chemical
Corporation (“PRC”), supplied caulk to the
contractors hired by Westport for the construction of WMS. D.
207 ¶¶ 15, 39; D. 212-1 ¶¶ 15, 39.
Pharmacia did not determine the caulk formulation; this was
instead determined exclusively by the formulators. D. 207
¶ 10; D. 212-1 ¶ 10. Thus, while Pharmacia played a
role in suggesting particular chemical compositions to
formulators based on Pharmacia's own studies, the
formulators ultimately determined the composition of the
various interacting components that would make up the
caulk-such as the base resin, fillers, plasticizers and other
additives. Id. As such, caulk formulations-like the
one supplied to the WMS contractors by PRC-were proprietary
to their manufacturer. Id. ¶ 14; D. 212-1
Pharmacia plasticizers consisted of mixtures of PCBs, which
are a class of 209 nonpolar chlorinated hydrocarbons with a
biphenyl nucleus on which one to ten of the hydrogens have
been replaced by chlorine. D. 207 ¶¶ 1, 3; D. 212-1
¶¶ 1, 3. Commercial PCBs, like those manufactured
by Pharmacia, were sold as complex mixtures containing
multiple PCB isomers (congeners) at different degrees of
chlorination. D. 207 ¶ 1; D. 212-1 ¶ 1. The
Pharmacia PCB-containing Aroclor numbers included but were
not limited to 1248 and 1254. D. 207 ¶ 3; D. 212-1
¶ 3. In 1970, in response to growing information
regarding PCBs' environmental presence, Pharmacia began
voluntarily phasing out the sale of PCBs for various
applications, but continued to sell certain PCB-containing
plasticizers after this date. D. 207 ¶ 7; D. 212-1
¶ 7. Pharmacia ended the manufacture and sale of PCBs
for all uses by 1977. D. 207 ¶ 8; D. 212-1 ¶ 8.
2010, Westport planned to replace multiple windows at WMS as
a part of the Massachusetts State Building Authority's
Green Repair Program. D. 207 ¶ 44; D. 212-1 ¶ 44.
In furtherance of this project, Westport tested the WMS
facility for potentially hazardous materials, including PCBs,
on May 11, 2011. D. 207 ¶¶ 45-46, 48; D. 212-1
¶¶ 45-46, 48. These tests identified PCBs in window
glazing, exterior window caulking and interior door caulking
throughout WMS. D. 207 ¶ 48; D. 212-1 ¶ 48. These
PCBs were identified as Aroclor 1248 and Aroclor 1254. D.
212-1 ¶ 1; D. 229 ¶ 1. Westport then began a
multimillion dollar PCB remediation project to remove all
material containing PCBs from WMS. D. 207 ¶ 48; D. 212-1
instituted this action on May 7, 2014. D. 1. Pharmacia filed
a partial motion to dismiss on July 3, 2014. D. 22. The Court
granted the motion and dismissed the claims alleging public
nuisance (Count IV), private nuisance (Count V), trespass
(Count VI) and violation of the Massachusetts Oil and
Hazardous Material Release Prevention and Response Act, Mass.
Gen. L. c. 21E §§ 5(a)(3)-(5) (Count VII). D. 44.
After the Court denied the motion to dismiss, the parties
proceeded with discovery. The claims for breach of warranty
and negligence (Counts I-III) remain. The Court heard the
parties on the pending motions on March 8, 2017 and took
these matters under advisement. D. 233.
Motions to Exclude Expert Testimony
to Federal Rule of Evidence 702, expert opinion is admissible
if 1) “scientific, technical, or other specialized
knowledge will help the trier of fact, ” 2) the expert
is qualified “by knowledge, skill, experience,
training, or education” to testify on that subject, 3)
the expert's proposed testimony is based upon
“sufficient facts or data, ” 4) that testimony is
the product of “reliable principles and methods”
and 5) the expert “reliably appl[ies] the principles
and methods to the facts of the case.” Fed.R.Evid. 702.
trial judge is required to “ensur[e] that an
expert's testimony both rests on a reliable foundation
and is relevant to the task at hand.” Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993). The
trial judge has broad discretion to determine the reliability
and relevance of an expert's proposed testimony.
Hochen v. Bobst Grp., Inc., 290 F.3d 446, 452 (1st
challenges the admissibility of seven of Westport's
proposed experts. Robert May, the president of Fuss &
O'Neill EnviroScience, LLC-lead environmental consultant
on the WMS PCBs remediation project-would opine that Westport
followed a reasonable standard of care in its response to the
discovery of PCBs at the WMS, including reasonably testing
for PCBs and following reasonable and necessary steps in
response to its discovery of PCB-containing building
materials. D. 165-1 at 3-9. Ross Hartman, who previously
worked for Triumvirate Environmental-a company responsible
scraping and disposing of PCB-containing building material at
WMS-would render an opinion as to the reasonableness of
Westport's future estimated costs. D. 172-1 at 14-15.
Michael Duarte, the head of maintenance and facilities for
Westport Schools, would speak to the maintenance and repair
of WMS and explain that the maintenance of WMS was reasonable
and all actions undertaken relating to cleaning, maintenance,
renovations or repairs at WMS were properly and reasonably
performed. D. 161-3. Dr. Jack Matson, an environmental and
chemical engineer, would testify that: (1) Pharmacia knew
that PCBs were known to cause systemic toxic effects
resulting in physiological harm; (2) Pharmacia should have
conducted tests to determine the PCB exposures likely to
occur from the extended release of PCBs from polysulfide
sealants and other building materials and toxic effects prior
to producing and selling PCB-containing Aroclors as
plasticizers for building materials; (3) Pharmacia should not
have sold PCB-containing Aroclors as plasticizers for
polysulfide sealants and other materials used in buildings;
and (4) Pharmacia did not meet its corporate responsibilities
to protect consumers, communities and the environment from
dangers associated with exposure to PCBs. D. 156-1 at 13-14,
15, 25. Dr. James Olson, a former reviewer and consultant
both to the Environmental Protection Agency and to the U.S.
Public Health Service in evaluating the human health effects
of PCBs, would testify that testify that: (1) PCBs pose a
significant threat to human health; (2) Pharmacia knew from
the 1930s that PCBs were toxic to humans and laboratory
animals; (3) Pharmacia should have conducted more
comprehensive, long-term studies of the toxicological effects
of PCBs; and (4) had Pharmacia conducted these additional
studies in the 1930's-60's, they would have found a
wide range of cancer and non-cancer effects. D. 541-1 at 4.
Robert Herrick, a certified industrial hygienist, would opine
that Westport was reasonable in its decision to take actions
to remove or otherwise remediate PCB contamination at WMS to
provide maximum protection for those inside the school
building. D. 160-1 at 5-6. He would also testify that
Westport acted reasonable in deciding to remove or otherwise
remediate sources of PCB contamination from WMS. Id.
Finally, Franklin Dorman, an expert in gas chromatography,
gas chromatography-mass spectrometry and analytical
methodology for environmental forensics and persistent
organics analysis, would opine that Pharmacia had the ability
to detect PCB volatilization from PCB products in the 1940s
and 50s, even at low levels of concentration. D. 187-1 at 3,
challenges the admissibility of two of Defendants'
experts. D. 157, 173. Maureen Reitman, a polymer scientist,
would opine as to the chemical and physical properties of
PCBs, the use of PCBs as plasticizers, the plasticizer
business, the manufacturing process of formulators and the
choices that formulators made with respect to choosing a
suitable plasticizer. D. 173-2 at 17-24. Martin Barry, a
certified industrial hygienist who provided an environmental
and safety assessment of WMS and a review of the PCB sampling
and analysis performed at WMS, would testify that the PCBs
found in products at WMS were most likely not manufactured by
Pharmacia. D. 157-2 at 5.
considered the motions to exclude, as well as the oppositions
to same, the Court excludes Dr. Matson's opinions in its
consideration of the summary judgment motion to the extent he
opines that Pharmacia knew both that PCBs were toxic and that
the volatilization of PCBs would contaminate indoor air. D.
156-1 at 13, 25. The Court does rely on the expert opinion of
Westport's toxicologist Dr. James Olson regarding similar
subjects. D. 154-1 at 6-13. Unlike Dr. Matson, however, Dr.
Olson addresses what was known industry-wide regarding PCBs
as opposed to what Pharmacia, itself, specifically knew at
the time. For example, while Dr. Olson offers the opinion
that “PCBs were known to cause adverse health effects
as early as the 1930s and 1940s.” D. 154-1 at 6, Dr.
Matson's opinion concludes that “Monsanto produced
and sold PCB-containing Aroclors as plasticizers for
polysulfide sealants and other building materials . . .
knowing that volatilization of PCBs would result in PCB
contamination in indoor air, and did not inform its customers
or the public of the dangers associated with products
containing PCBs as plasticizers.” D. 156-1 at 13. Such
testimony about Pharmacia's specific knowledge would not
be admissible at trial. See In re Toyota Motor Corp.
Unintended Acceleration Mktg., Sales Practices & Prods.
Liab. Litig., 978 F.Supp.2d 1053, 1087 (C.D. Cal. 2013)
(explaining that “[Defendant's] knowledge (or lack
thereof) is not a proper subject for expert testimony, and it
must be established (if at all) by other evidence”).
Similarly, Dr. Matson's opinions regarding
Pharmacia's motivations, intentions and awareness of
various issues are not a proper subject for expert testimony.
Holmes Grp., Inc. v. RPS Prods., Inc., Civil Action
No. 03-40146-FDS, 2010 WL 7867756, at *5 (D. Mass. June 25,
2010) (noting that “[a]n expert witness may not testify
as to another person's intent . . . [n]o level of
experience or expertise will make an expert witness a
extent that Westport seeks to introduce Duarte's
testimony to suggest that the maintenance provided met a
uniform standard of care, such testimony is excluded.
Duarte's opinions regarding the reasonableness of
Westport's actions do not appear to be based on any
industry standards or state or federal regulations concerning
PCBs or building maintenance. D. 190-1. Furthermore, Duarte
acknowledged that he had not received training on certain
state or federal regulations. Id. at 10. Without a
specific standard, Duarte's testimony “could only
be a subjective opinion on what [he] believed Defendants
could have done rather than what industry or governmental
standards require them to do.” In re Prempro Prods.
Liab. Litig., No. MDL C01507-WRW, 2010 WL 5663003, at *2
(E.D. Ark. Sep. 16, 2010). To the extent that the record
contains Duarte's percipient testimony, rather than
Duarte's expert opinion, such would not be excluded at
those reasons, the Court's summary judgment analysis
below does not rely on the portions of Matson's and
Duarte's opinions outlined above. Finally, the Court
notes that while it sees no reason to exclude any portion of
Reitman or Barry's expert opinions-as requested by
Westport in its motions to exclude-the Court's summary
judgment analysis and conclusion do not meaningfully rely
upon either expert and, therefore, the Court's outcome
would remain the same even if exclusion, as urged by
Westport, was warranted.
Summary Judgment Standard
judgment is appropriate when “the pleadings,
depositions, answers to interrogatories and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(c). Pursuant to the language of
the rule, the moving party bears the two-fold burden of
showing that “no genuine issue exists as to any
material fact, ” and that he is “entitled to
judgment as a matter of law.” Vega-Rodríguez
v. P.R. Tel. Co., 110 F.3d 174, 178 (1st Cir. 1997).
the moving party has satisfied this burden, the onus shifts
to the resisting party to show that there still exists
“a trialworthy issue as to some material fact.”
Cortés-Irizarry v. Corporación Insular De
Seguros, 111 F.3d 184, 187 (1st Cir. 1997). A fact is
deemed “material” if it potentially could affect
the outcome of the suit. Id. Moreover, there will
only be a “genuine” or “trialworthy”
issue as to such a “material fact, ” “if a
reasonable fact-finder, examining the evidence and drawing
all reasonable inferences helpful to the party resisting
summary judgment, could resolve the dispute in that
party's favor.” Id. At all times during
the consideration of a motion for summary judgment, the Court
must examine the entire record “in the light most
flattering to the nonmovant and indulg[e] all reasonable
inferences in the party's favor.”
Maldonado-Denis v. Castillo-Rodríguez, 23
F.3d 576, 581 (1st Cir. 1994).
Breach of the Implied Warranty of Merchantability ...