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Town of Westport v. Monsanto Co.

United States District Court, D. Massachusetts

April 7, 2017

TOWN OF WESTPORT, Plaintiff,
v.
MONSANTO COMPANY et al. Defendants.

          MEMORANDUM AND ORDER

          Denise J. Casper United States District Judge.

         I. Introduction

         Plaintiff 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.

         II. Factual Background

         Unless 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 ¶ 14.

         Some 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.

         In 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 ¶ 48.

         III. Procedural History

         Westport 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.

         IV. Motions to Exclude Expert Testimony

         Pursuant 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.

         The 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 Cir. 2002).

         Pharmacia 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, 7.

         Westport 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.

         Having 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 mind-reader”).

         To the 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 trial.

         For 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.

         V. Summary Judgment Standard

         Summary 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).

         After 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).

         VI. Discussion

         A. Breach of the Implied Warranty of Merchantability ...


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