United States District Court, D. Alaska
ORDER AND OPINION [RE: MOTION AT DOCKET [71]
JOHN
W. SEDWICK SENIOR JUDGE, UNITED STATES DISTRICT COURT
I.
MOTION PRESENTED
At
docket 71, Defendant Baker Hughes Oilfield Operations, Inc.
(“Defendant”) filed a motion in limine
to strike the expert testimony of Barbra Belluomini and Dr.
R. Lynn Carlson and the expert report of Tauriainen
Engineering and SGS Laboratories (“SGS”);
Plaintiffs Kenneth Baker and Jennifer Baker
(“Plaintiffs”) filed a response at docket 79.
Defendant filed a reply at docket 83.
II.
BACKGROUND
Defendant
owns and operates a cement blending plant in Nikiski and
accepted legal responsibility for any discharge of hazardous
waste by its predecessor at the site, BJ Services Company
U.S.A. LLC.[1] Defendant held a blended dry cement
consisting of Portland Cement and other materials in large
silos on the cement blending plant property.[2] Defendant
required additional space to accommodate a new customer's
order, so Defendant's personnel decided to empty one or
more of its storage silos by using a pressure operated system
to blow the product onto the back of the Defendant's
property.[3]
Plaintiffs
own a house on the south side of the Defendant's cement
blending property. Plaintiffs seek damages for diminution of
the value of their property and the health problems of
Jennifer Baker resulting from Trespass, Landowner
Liability/Negligence, Strict Liability pursuant to
Alaska's pollution statute, AS 46.03.822, .824 (which
provides for strict liability for damage to property or
person due to pollution, AS 46.03.824) and Nuisance, all
stemming from the discharge from the storage silos.
Plaintiffs have also requested an award of punitive damages.
III.
DISCUSSION
A.
Barbra Belluomini may testify as an expert on diminution of
value based on stigma associated with contamination of a
property or the perception of contamination.
The
thrust of Defendant's complaint about Barbra
Belluomini's testimony is that her expert report is not
so well developed as the MacSawin Associates, LLC expert
report.[4] Assessing the significance of a difference
between the specificity and depth of the expert reports and
the conclusions therein is the responsibility of the jury.
The court is responsible for determining if the evidence is
admissible.
Defendant
relies on United States v. 87.98 Acres of Land More or
Less in the Cty. of Merced, [5] for the proposition that the
impact of certain activities on the market value of real
estate must be specific to the area analyzed. But, this was
not the basis for rejection of expert testimony in 87.98
Acres. The case dealt with the construction of a
powerline across then agricultural property that was
evaluated for residential development. In particular, the
case concerned electromagnetic fields (“EMFs”)
associated with power lines. The property owner hired
“an environmental planner with extensive experience
advising developers regarding the impact of EMFs from power
transmission lines on the use and development of
property.”[6] The environmental planner “proposed
to testify to the following: (1) public perceptions of the
effects of EMFs among residential homeowners and home buyers,
(2) the extent and level of EMFs from the Path 15 line that
reach beyond the easement into the rest of Campion's
property, and (3) the types of studies concerning EMFs for
which developers routinely engage her.” The court only
permitted testimony on public perceptions. Importantly, the
environmental planner “was not an expert
appraiser.”[7] In fact, the court noted, “Wholly
apart from evidence of actual health risks, evidence of
public perceptions of health risks-even irrational public
perceptions-may properly establish an impact on market value.
‘[I]f fear of a hazard would affect the price a
knowledgeable and prudent buyer would pay to a similarly
well- informed seller, diminution in value caused by the fear
may be recoverable as part of just
compensation.'”[8]
Ms.
Belluomini is a resident of Soldotna.[9] She worked at Derry &
Associates in Kenai from 2005 to 2016 where she was trained
and worked as a real estate appraiser.[10] She has been
a member of the Appraisal Institute since 2005[11] and became a
certified real estate appraiser in 2008.[12] She has
worked at Reliant, LLC since February 2017.[13] Unlike the
environmental planner in 87.98 Acres, Ms. Belluomini
is an expert appraiser.
Ms.
Belluomini did some research on stigma in the Kenai
Peninsula, [14]reviewed research by three associates
based on contaminated properties in the Seattle area,
[15]
reviewed an analysis of a contaminated property in Anchorage,
[16]
reviewed the Appraisal of Real Estate 14th
Edition, [17] and researched deed
restrictions.[18] The scope of the expert report she
helped produce was limited to “any property that has
past contamination or [ ] remediat[ion] may have a diminution
in value associated with it regardless of
location.”[19] Ms. Belluomini then conducted additional
research specific to Alaska, determining that contaminated
and remediated properties have a wide range of diminution of
value.[20] Her testimony speaks specifically to the
diminution of value from public perceptions of health risks
and stigma associated with potentially contaminated land and
thus is admissible. Whether the evidence is sufficient to
demonstrate the market value of the Plaintiffs' home is a
different question entirely.[21]
B.
Dr. Carlson may testify as a hybrid fact and expert witness
and specifically as to differential diagnosis and contact
toxicity
Dr.
Carlson is a hybrid fact and expert witness. As a preliminary
matter, it is important to categorize Dr. Carlson's
testimony. Traditionally, treating physicians have been
treated as fact witnesses. “They are a species of
percipient witness * * * not specially hired to provide
expert testimony; rather, they are hired to treat the patient
and may testify to and opine on what they saw and did . . .
.”[22] But, when a “treating physicians
[is hired] to render expert testimony beyond the scope of the
treatment rendered, ” the witness is a hybrid fact and
expert witness.[23]
The
distinction between which portion of hybrid testimony is fact
and which is expert is not clearly delineated by the Ninth
Circuit, but District Courts within the Circuit have opined
on the distinction. These courts have found that treating
physicians “testify as percipient witnesses regarding
the treatment they rendered to plaintiff, including the
plaintiff's presentment of symptoms, their diagnoses, the
treatment they provided to plaintiff, and the medical bills
incurred for their treatment.”[24] The treating physicians
testify as experts regarding “causation, and the
plaintiff's future medical condition, the reasonableness
of the medical expenses incurred, the expenses for future
medical treatment, and any other opinions beyond the
treatment they rendered to plaintiff.”[25] Dr. Carlson
was Mrs. Baker's treating physician, but he is also
providing testimony regarding causation and medical expenses,
thus, he is a hybrid witness.
Dr.
Carlson is qualified to testify regarding the treatment
rendered, including Mrs. Baker's presentment of symptoms,
diagnoses, treatment provided, and the medical bills incurred
for the treatment. Defendant challenges Dr. Carlson's
ability to testify as to causation. In large part, the
challenge is based on Defendant's assessment that its own
expert, Dr. Roberts, is better equipped than Dr. Carlson to
provide expert testimony on toxicology. But, this comparative
analysis is the job of the jury.
The
admissibility of expert witness testimony is left to the
district court's discretion.[26] Federal Rule of Evidence
702 governs the admissibility of scientific evidence. In
Daubert v. Merrell Dow Pharmaceuticals, Inc.,
[27]
the “Supreme Court charged district courts with the
responsibility of ensuring that proffered scientific evidence
is both relevant and reliable.”[28]
“Scientific evidence is deemed reliable if the
principles and methodology used by an expert are grounded in
the methods of science.”[29] A non-exhaustive list of
Daubert factors includes: “(1) whether the
scientific theory or technique can be tested; (2) whether the
theory or technique has been subjected to peer review and
publication; (3) whether there is a known or potential error
rate; and (4) whether the theory or technique is generally
accepted in the scientific community.”[30]
Reliability
and admissibility of differential diagnosis is a “whole
sub-body of Daubert law.”[31]
“Differential diagnosis is ‘the determination of
which of two or more diseases with similar symptoms is the
one from which the patient is suffering, by a systematic
comparison and contrasting of the clinical
findings.'”[32] Differential diagnosis generally
involves a comprehensive list of “competing causes
[that] are generally capable of causing the
patient's symptoms or mortality.”[33] Including a
potential cause that is “not so capable”
or “neglect[ing] to consider a hypothesis that might
explain the clinical findings under consideration” is
unreliable.[34] “A district court is justified in
excluding evidence if an expert ‘utterly fails ... to
offer an explanation for why the proffered alternative
cause' was ruled out.”[35]
A
hypothesis involving “contact toxicity” may be
included as part of a differential diagnosis.[36] The proximity
of contact between an individual and a potentially toxic
substance is a relevant factor in assessing contact toxicity.
“While the mere fact that two events correspond in time
and space does not necessarily mean they are
causally related, ‘a temporal relationship between
exposure to a substance and the onset of a disease ... can
provide compelling evidence of
causation.'”[37]
Assessing
toxicity does not necessarily require precision. “While
‘precise information concerning the exposure necessary
to cause specific harm [is] beneficial, such evidence is not
always available, or necessary, to demonstrate that a
substance is toxic ... and need not invariably provide the
basis for an expert's opinion on
causation.'”[38] Even the “lack of specific
scholarly support does not prevent the admission of
differential diagnosis testimony: ‘The fact that a
cause-effect relationship ... has not been conclusively
established does not render [the expert's] testimony
inadmissible.'”[39]
Dr.
Carlson is certified in “functional medicine, ”
which includes training in toxicology.[40] Dr. Carlson
started seeing Jennifer Baker on May 17, 2016.[41] He took a
history and did an examination.[42] He examined a chemical
analysis performed by SGS for Tauriainen Engineering of the
contaminated discharge located behind Defendant's plant
and spoke with an SGS engineer about soil and water
testing.[43] He also examined the MSDS sheets for
Portland Cement.[44] Dr. Carlson reviewed a National
Institute for Occupational Safety and Health paper on
identifying health effects of exposure to crystalline silica,
an ingredient of Class G cement.[45] Dr. Carlson indicated
that Class G cement contains “five different substances
that can cause harm” and Mrs. Baker “was setup to
react to substances in the environment.”[46] Dr. Carlson
has identified a number of Mrs. Baker's medical problems
and offers to “explain the pathology of any or all of
these problems, and how they were caused or exasperated by
her toxicant exposure.”[47] Dr. Carlson explained that
some of the symptoms Mrs. Baker experiences were related to
the hazardous nature of the cement product.[48]
Dr.
Carlson's testimony as a treating physician and hybrid
fact and expert witness based on differential diagnosis of
contact toxicity is sufficiently relevant and reliable. The
strength of Dr. Carlson's testimony, both in fact and
relative to Dr. Robert's testimony, is a question for the
jury.
C.
Tauriainen Engineering and SGS testing is admissible evidence
...