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Ebert v. General Mills, Inc.

United States District Court, D. Minnesota

February 27, 2015

Karl Ebert, Carol Krauze, and Jackie Milbrandt, individually and on behalf of all persons similarly situated, Plaintiffs,
General Mills, Inc., Defendant.

Edward J. Manzke, Esq., and Shawn M. Collins., Esq., The Collins Law Firm PC; Michael D. Hayes, Esq., and Norman B. Berger, Esq., Varga Berger Ledsky Hayes & Casey; and Anne T. Regan, Esq., and J. Gordon Rudd, Jr., Esq., Zimmerman Reed, PLLP; and Mark H. Thieroff, Esq., Siegel Brill, P.A., counsel for Plaintiffs.

Benjamin W. Hulse, Esq., Corey Lee Gordon, Esq., Emily A. Ambrose, Esq., and Jerry W. Blackwell, Esq., Blackwell Burke PA; and Jeffrey Fowler, Esq., O'Melveny & Myers LLP; and Mark J. Carpenter, Esq., Carpenter Law Firm PLLC, counsel for Defendant.


DONOVAN W. FRANK, District Judge.


This matter is before the Court on the following motions: (1) Plaintiffs Karl Ebert ("Ebert"), Carol Krauze ("Krauze"), and Jackie Millbrandt's ("Millbrandt"), all individually and on behalf of all persons similarly situated (together, "Plaintiffs"), Amended Motion to Certify Class[1] (Doc. No. 93); (2) Defendant General Mills, Inc.'s ("GMI" or "Defendant") Motion to Exclude Expert Testimony and Opinions of Dr. David Ozonoff (Doc. No. 119); and (3) GMI's Motion to Exclude Expert Testimony and Opinions of Dr. Lorne G. Everett (Doc. No. 124). For the reasons set forth below, the Court grants Plaintiffs' motion and denies Defendant's motions.


This dispute is a putative class action brought by Plaintiffs alleging that GMI caused the chemical substance trichloroethylene ("TCE") to be released into the area surrounding a former GMI facility (the "Facility") in the Como neighborhood in Minneapolis, Minnesota. Plaintiffs allege that the TCE, in the form of vapors, is threatening home and business owners in that area. Much of the background for this case is set forth in detail in the Court's recent Memorandum Opinion and Order relating to GMI's motion to dismiss. (Doc. No. 151.) The Court incorporates the factual background from that Memorandum Opinion and Order by reference here. The parties have also provided the following additional background for purposes of this motion.

The Como neighborhood implicated by this suit is primarily residential, but was historically industrial and is currently surrounded by various industrial uses. ( See Doc. No. 118 ("Hulse Decl.") ¶ 4, Ex. B ("McHugh Report & Decl.") at 13-18.) GMI points to a number of nearby facilities that were likely users of solvents, including TCE. (McHugh Report & Decl. at 15.) GMI's experts, Mr. McHugh and Mr. Mercer, state that these other sources have also caused contamination in the groundwater in Como. ( See McHugh Decl. at 18-21; Hulse Decl. ¶ 5, Ex. C ("Mercer Decl.") at 32, 34, 37.) Mr. McHugh also states that household products can account for the presence of TCE vapors inside a household. (McHugh Decl. at 19-20.) Plaintiffs allege that GMI's history with respect to the area surrounding the facility shows that GMI was the substantial cause of the neighborhood's TCE contamination via the approximately 15, 000 gallons of disposal of certain solvents into the groundwater between 1947 and 1962. For example, in 1984 Barr Engineering outlined the geographic boundaries of the TCE contamination associated with the Facility. ( See Doc. No. 136-4; see also Doc. No. 136-6 (GMI correspondence relating to the contamination); Doc. No. 136-7 (court testimony regarding the source of the contamination).) Plaintiffs also refer to a number of state agency documents reflecting the same. ( See, e.g., Doc. Nos. 136-12, 136-13, 136-14, 136-15, 136-16.) One of Plaintiffs' experts, Dr. Lorne G. Everett ("Dr. Everett"), states that GMI's disposal of "large quantities of toxic chemicals, including TCE, at the Facility, has resulted in widespread soil vapor contamination, " and that he bases his opinion on a review of scientific data. (Doc. No. 136-18 at 11-16.)

In or around 1981, GMI conducted an investigation of the soil and groundwater around the Facility. (McHugh Report & Decl. at 3.) Levels of TCE differ between the soil and the groundwater in the Como area. (McHugh Report & Decl. at 3, 9-11.) In 1984, GMI signed an agreement formalizing their arrangement to conduct remedial action to address TCE in the groundwater around the Facility, including the implementation of a pump-and-treat system. ( Id. at 3-4.) The pump-and-treat system was shut down in 2010. ( Id. )

In 2013, an evaluation of the area around the Facility showed the presence of TCE vapors. (McHugh Decl. at 20-21.) GMI then agreed to a program whereby soil beneath building foundations would be tested and Vapor Mitigation Systems ("VMSs") would be installed where TCE soil vapors are reported at levels above 12 micrograms per cubic meter (µg/m3). GMI has installed such VMSs and has also installed VMSs in certain homes with less than 20 µg/m3where adjacent properties exceed that amount. (McHugh Decl. at 40; Hulse Decl. ¶ 3, Ex. A ("Borak Decl.") ¶ 15.) According to Mr. McHugh, 327 homes in the Como neighborhood have had soil vapor testing and do not have detectable TCE concentrations. (McHugh Decl. at 41.) VMSs have been installed in 118 homes. (Hulse Decl. ¶ 10, Ex. H at 3.) The named Plaintiffs have received customized VMSs. ( See Doc. No. 100-3; see also Hulse Decl. ¶ 11, Ex. I ("Krauze Dep.") at 113-17.) GMI's expert, Mr. Borak, states that the VMSs are "highly protective" for residents. (Borak Decl. ¶ 21.) Plaintiffs point to evidence that vapors persist. ( See, e.g., Doc. No. 136-18 at 19, 26-28.)

Plaintiffs assert five legal claims on a class basis: (1) violation of the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA"); (2) common law negligence; (3) private nuisance; (4) willful and wanton misconduct; and (5) violation of the Resource Conservation and Recovery Act ("RCRA"). (Doc. No. 87, Second Am. Compl. ("SAC") at ¶¶ 26-61.) Plaintiffs appear to seek certification of only the following narrow issues: (1) whether GMI is liable to owners of the properties in the defined Class Area; and (2) whether injunctive relief is warranted to compel comprehensive remediation. ( See Doc. Nos. 15, 135.)


Plaintiffs seek class certification, and Defendant has moved to exclude the testimony of two of Plaintiffs' experts, Dr. Everett and Dr. David Ozonoff ("Dr. Ozonoff"), under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). The Court will address Defendant's Daubert motions first because the evidence presented by these experts is relevant to the Court's determination on whether class certification should be granted.

I. Motions to Exclude Expert Testimony

A. Legal Standard

Before accepting the testimony of an expert witness, the trial court is charged with a "gatekeeper" function of determining whether an opinion is both relevant and reliable. Daubert, 509 U.S. at 589-90. Under Federal Rule of Evidence 702, which governs the admission of expert testimony, an expert may testify if: (1) the expert's scientific, technical, or other specialized knowledge will help the fact-finder to understand the evidence or determine a fact in issue; (2) the testimony is based on sufficient facts or data; (3) the testimony is the product of reliable principles and methods; and (4) the expert has reliably applied those principles and methods to the facts of the case. See also Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001).

The Court's focus should be on a preliminary assessment of "whether the reasoning or methodology underlying the testimony is scientifically valid" and "whether that reasoning or methodology properly can be applied to the facts in issue." Daubert, 509 U.S. at 592-93; see also United States v. Dico, Inc., 266 F.3d 864, 869 (8th Cir. 2001). In determining whether the proposed expert testimony is reliable, the Court can consider: (1) whether the theory or technique can be and has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known rate of potential error; and (4) whether the theory has been generally accepted. Daubert, 509 U.S. at 593-94.

When examining an expert opinion, a court applies a general rule that "the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination." Bonner v. ISP Techs., Inc., 259 F.3d 924, 929 (8th Cir. 2001) (citation and quotation omitted). However, "if the expert's opinion is so fundamentally unsupported that it can offer no assistance to the jury, " then it must be excluded. Id. at 30. In Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the Supreme Court concluded that "the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable." 526 U.S. at 152.

The application of the Daubert test, however, is somewhat limited at the stage of class certification. See In re Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d 604, 610-14 (8th Cir. 2011) (holding that district courts may properly apply a "focused" or "tailored" Daubert inquiry at the class certification stage). Daubert is helpful at the class certification stage in guarding against certification of a class that is based on expert opinion from a methodology so apparently flawed that it is inadmissible as a matter of law. See In re Visa Check/Mastermoney Antitrust Litig., 192 F.R.D. 68, 76-77 (E.D.N.Y 2000); In re Potash Antitrust Litig., 159 F.R.D. 682, 695-98 (D. Minn. 1995) (finding that plaintiffs are required only to make a "threshold showing" of whether proof will be "sufficiently generalized"). The Daubert inquiry at this procedural stage, therefore, only scrutinizes the reliability of expert testimony in light of the criteria for class certification and the current state of the evidence. Zurn Pex, 644 F.3d at 614.

While "[t]he main purpose of Daubert exclusion is to protect juries from being swayed by dubious scientific testimony, " at the class certification stage, the Court, not a jury, is the decision maker, and therefore a less stringent analysis is required. Id. at 613. Thus, expert disputes at class certification are resolved only to the extent necessary to determine the nature of the evidence that would be sufficient, if the plaintiff's general allegations were true, to make out a prima facie case of class liability. Id. at 611 (quoting Blades v. Monsanto Co., 400 F.3d 562, 567 (8th Cir. 2010)). It would be inappropriate to evaluate expert opinions on the conclusions they generate and a court should rather "focus... solely on principles and methodology." Id. at 615 (quoting Daubert, 509 U.S. at 595). A party and its experts should not be expected to have fully evaluated all data at the preliminary stage of class certification. Id. at 611-612. Furthermore, class certification is a "tentative, " "preliminary, " and "limited" determination. Id. at 613 (internal citations omitted).

B. Dr. Everett

1. Background

Dr. Everett has practiced Environmental Science for more than 40 years, specifically focusing on contaminant migration in groundwater, soil, and vapor intrusion located in the vadose zone (the area between the water table and land surface).[2] (Doc. No. 126 ("Gordon Decl.") ¶ 4, Ex. 1 ("Dr. Everett Report") at 2 (improperly labeled as Exhibit 2).) Dr. Everett has received awards for his work in the field of environmental sciences. ( Id. at 61.)

Currently, Dr. Everett is the Chief Scientist, President, and CEO of L. Everett & Associates. ( Id. at 5, 61.) For the past 18 years, Dr. Everett also served as the Charter Chairman for the American Society for Testing and Materials International task committee on Vadose Zone Monitoring in which he developed eleven national ASTM Vadose Zone Monitoring standards, with four being related to soil gas monitoring and vapor intrusion. ( Id. at 5-6.) Dr. Everett has presented before Congress on numerous occasions and holds many positions on different panels related to environmental sciences. ( Id. at 61.) Dr. Everett has worked with a number of federal agencies and in multiple capacities. ( Id. at 7-9.) Dr. Everett writes extensively on the topic of the vadose zone and the migration of hazardous waste. ( See Id. at 6-8, 61.)

In his expert report, Dr. Everett essentially opines that GMI's past disposal of toxic chemicals at its the Facility is the source of TCE groundwater and soil vapor problems in the proposed Class Area, which poses an imminent and substantial endangerment to human health and the environment. ( Id. at 9-12.) More specifically, Dr. Everett opines that the evidence is consistent with GMI as the source of contamination. ( See generally id. )

2. Analysis

Dr. Everett was asked to opine on conditions relating to potential soil, groundwater, and air contamination in and around the Facility. ( See generally Dr. Everett Report.) Defendant argues Dr. Everett failed to reliably apply proper principles and methods in developing his opinions. Defendant asserts that Dr. Everett derived his opinions that "substantially all of this groundwater contamination originates from the General Mills Facility, " and that "there is no other known source of vapor contamination in the proposed class area" by using a flawed application of his own methodology and by relying on incomplete data and therefore, that those opinions should be excluded. (Doc. No. 125 at 14.) Specifically, GMI asserts that this flawed application resulted in Dr. Everett using an area that was too small and wrongly centered when identifying possible sources causing contamination. This includes his alleged disregard for certain upgradient sites that could be possible contributors to TCE in the Proposed Class Area. According to Defendants, absent this testimony, Plaintiffs fail to adequately establish a common source of the contaminant and therefore cannot meet requirements for class certification. The Court disagrees.

First, although not in dispute, the Court notes Dr. Everett's substantial qualifications and expertise to opine on issues of soil and groundwater contamination at the General Mills site. Second, the parties agree that the Court is tasked with examining the soundness of Dr. Everett's methodology, not with evaluating his conclusions or the correctness of his opinions. Zurn Pex, 644 F.3d at 615. Dr. Everett's Expert Report and Rebuttal Affidavit show that Dr. Everett employed the "multiple lines of evidence methodology." As Plaintiffs note, courts have determined that that methodology is reliable and it is similarly reliable here. (Doc. No. 137 at 17-18 (citing Abrams v. Ciba Specialty Chem. Corp., Civ. No. 08-68, 2010 WL 779276, at *9 n.15 (S.D. Ala. Mar. 2, 2010)).) Dr. Everett did not fail to follow his own methodology. Instead, he considered a number of factors and scientific data consistent with the multiple lines of evidence methodology. Further, Dr. Everett did not fail to follow his own methodology when centering this search radius on the plume as the site of interest rather than the General Mills facility. Dr. Everett thoroughly explained the reasons for, and applicable standards behind, his methodology of focusing on the plume. The same is true of his search radius which was consistent with accepted standards and methodologies in the field. (Doc. No. 134, Everett Rebuttal at 6.)

Finally, Dr. Everett also did not fail to follow his own methodology when he examined Frank's Auto Repair and Anne Gendein Trust as possible additional sources of contaminant. Based on the data available to him at the time, Dr. Everett fully considered and excluded these two possible sources consistent with his methodology of appropriately assessing other potential sites. Additionally, Dr. Everett considered these sites a second time with the additional data which Defendant argues Dr. Everett failed to consider. Consistent with the methodology applied in the field, Dr. Everett fully considered other possible and reasonable sources of contamination and did not fail to reliably apply his own, well accepted methodology.

If Defendant wishes to show that there are other sites that impact the plume, they may do so with their own experts and in cross-examining Dr. Everett, but this does not change the fact that Dr. Everett properly applied his methodology. At its essence, Defendant's dispute lies with Dr. Everett's scientific conclusions, not his adherence to his own methodology. Defendant here fails to establish that there is too great of an analytical gap between the data and the opinion proffered. Junk, 628 F.3d at 448. Instead, Defendant's concerns with Dr. Everett's testimony go directly to the credibility of his testimony, and not its admissibility. Defendant will have to examine the factual basis for his opinion on cross examination. See Bonner, 259 F.3d at 929.

In sum, the Court cannot conclude that Dr. Everett's opinion is so flawed that it is inadmissible as a matter of law. In re Visa Check/Mastermoney, 192 F.R.D. at 76-77. Dr. Everett's opinions are therefore appropriately considered by this Court in its examination of class ...

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