MEMORANDUM DECISION RE: BAC DEFENDANTS' MOTION FOR JUDGMENT AS A MATTER OF LAW, OR IN THE ALTERNATIVE MOTION FOR NEW TRIAL. (PHASE 1)

OLIVER W. WANGER, District Judge.

INTRODUCTION

Defendants Merck & Co., Inc. Amsted Industries Inc., and Baltimore Aircoil Company, Inc. (collectively, "BAC Defendants") bring this motion for judgment as a matter of law ("JMOL"), or in the alternative, motion for new trial following jury verdicts in the first phase ("Phase 1") of this multi-party, multi-phase toxic tort case.

According to Defendants, Plaintiffs either failed to present or presented insufficient evidence of exposure to contaminants which allegedly originated from a now-closed cooling tower manufacturing facility (the "BAC site") operated by entities that were formerly owned by BAC Defendants. Specifically, Defendants assert that Plaintiffs' burden of proof (preponderance of the evidence) was not met regarding the surface water and air pathways, as required under the Phase 1 Court Order Modifying Scheduling Conference Order ("Phase 1 Pretrial Order"). (Doc. 540.) BAC Defendants further contend that Plaintiffs did not present sufficient evidence regarding Defendants legal responsibility for release of contaminates at the BAC Site, i.e., to what extent, and when did Defendants, Merck, Amsted and BAC own, direct actions, remediate, and/or operate the BAC Site to cause contaminant releases that could be actionable.

The first phase of discovery was focused on "whether contaminants from the former [] BAC Site, Franklin County Water District or the April 2006 Flood have ever reached any location where plaintiffs could have been exposed to them, and if so, when such contaminants arrived, how such contaminants arrived at the location, how long they were present, and at what levels they were present." (Doc. 540 at 1:14-1:28.)

Plaintiffs oppose the motion. Plaintiffs' rejoin that they presented "substantial evidence" at trial in the form of expert opinion and analysis to show that contaminants migrated from the BAC facility to Plaintiffs' homes and/or properties through the various pathways. Plaintiffs further argue that BAC Defendants' criticisms regarding certain expert testimony go to the weight, not admissibility of the opinion. Finally, Plaintiffs assert that corporate liability was not an issue for determination in Phase 1 and as such JMOL cannot be granted for Defendants on this issue.1

1. PROCEDURAL HISTORY.

On March 8, 2007, Plaintiffs commenced this civil action against the current public entity defendants, alleging property damage caused by an April 2006 flood. (Doc. 1.) On September 13, 2007, in the second amended complaint, Plaintiffs named Merck & Co., Inc., Amsted Industries, Inc., Baltimore Aircoil Company, and Track Four, Inc. as Defendants in this action. (Doc. 35.) The eighth amended complaint2 was filed by Plaintiffs on March 26, 2010. (Doc. 633.) The eighth amended complaint alleges ten claims against the BAC Defendants: (1) violation of 42 U.S.C. 6972(a)(1) [RCRA]; (2) violation of 42 U.S.C. 6972(a)(1)(B) [RCRA]; (3) violation of 33 U.S.C. 1311(a) [CWA]; (4) violation of 33 U.S.C. 1342(a) and (b) [CWA]; (5) negligence; (6) trespass; (7) nuisance; (8) wrongful death; (9) fraud and deceit; and (10) civil conspiracy.

On March 23, 2009, BAC Defendants filed a "Motion for Case Management Order Re: Exposure" ("Cottel motion") to "compel plaintiffs to make a prima facie showing of exposure." (Doc. 355.) The motion was denied on July 6, 2009; however, on August 12, 2009, the Court established a multi-phase trial plan in which case-wide contaminant exposure issues were to be tried first ("Phase 1"), before general medical causation ("Phase 2") and plaintiff-specific exposure and causation ("Phase 3").3 The August 12, 2009 Phase I Pretrial Order provides, in relevant part:

(Doc. 540 at 1:14-1:28.)

On June 1, 2010, BAC Defendants moved for partial summary judgment on Plaintiffs' state law tort claims for personal injury and property damages. Defendants' motion was denied in part and granted in part. (Doc. 982.)

The Phase 1 trial began on February 2, 2011. The jury returned verdicts on March 31, 2011. (Doc. 1226.) Defendants filed their JMOL on April 28, 2011, asserting that Plaintiffs had not met their burden of proof regarding: (1) general exposure to contamination via the surface water pathways, including contamination via the El Capitan canal (the "canal") and water from a 2006 flood ("flood water"); (2) general exposure to contamination via the air pathway; and (3) the Plaintiffs' failed to present evidence regarding corporate liability of the Defendants for the relevant time-periods. (Doc. 1259.)

2. BACKGROUND.

The facts underlying this case are summarized in the Court's previous Memorandum Decisions in this case, filed on May 18, 2009, July 15, 2009, and January 5, 2011.4 In brief: approximately 2,100 Plaintiffs seek damages relating to two occurrences: (1) an April 2006 flood; and (2) alleged long-term contamination comprised of hexavalent chromium (CR 6) and arsenic released from the BAC Site operated by entities formerly owned by the BAC Defendants. The BAC Site is the alleged source of contamination. Plaintiffs contend, relevant to this JMOL, that BAC Defendants caused and/or contributed to Plaintiffs' exposure to carcinogens and/or toxins released from contamination in the soil, air, a storm water pond (the "pond") and the El Capitan irrigation canal (the "canal") located on or connected to the BAC Site which reached Plaintiffs' residence (the "Beachwood neighborhood.")

Phase 1 of this multi-phase trial lasted nearly two months. Substantial evidence was presented and over thirty witnesses testified, approximately a third of whom were expert witnesses. At the close of trial, the jury was asked to determine whether contaminants from the BAC Site reached a location where Plaintiffs could have been exposed to them, and if so, when and in what amount contaminants arrived, how long they were present, and their concentrations. The jury's verdict found, in relevant parts: (1) hexavalent chromium was present in the canal from 1969 to 2006 at a concentration of 87 ppb; (2) hexavalent chromium was present in the flood water from 2006 to the "present" at a concentration of 87 ppb; and (3) hexavalent chromium reached the Beachwood neighborhood via the air in 1969 and was present for twenty-five years until 1994 at the concentrations described in trial exhibit 893, a series of maps (isopleths) prepared by Plaintiffs' expert Camille Sears.

3. LEGAL STANDARDS.

a. Judgment as a Matter of Law.

Fed. R. Civ. Pro. 50(a) provides:

The standards governing a motion for judgment as a matter of law pursuant to Rule 50 are reiterated in Gibson v. City of Cranston, 37 F.3d 731, 735 (9th Cir.1994):

b. Motion for New Trial

A motion for new trial "may be granted to all or any of the parties and on all or part of the issues . . . for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States." Fed. R. Civ. Pro. 59(a). "The grant of a new trial is `confided almost entirely to the exercise of discretion on the part of the trial court.'" Murphy v. City of Long Beach, 914 F.2d 183, 186 (9th Cir.1990).

A new trial is necessary when the court, upon reviewing the evidence presented at trial and considering the jury's verdict, "is left with the definite and firm conviction that a mistake has been committed." Tortu v. Las Vegas Metro. Police Dept., 556 F.3d 1075, 1087-88 (9th Cir.2009) (quoting Landes Constr. Co. v. Royal Bank of Canada, 833 F.2d 1365, 1371-72 (9th Cir.1987)). A motion for new trial may also be granted to correct an erroneous evidentiary ruling that results in substantial prejudice to a party. Ruvalcaba v. City of Los Angeles, 64 F.3d 1323, 1328 (9th Cir.1995).

The grounds upon which a new trial has been granted are: (1) where the jury's verdict is so contrary to the clear weight of the evidence; (2) if the verdict is based on false evidence; or (3) if there would otherwise be a miscarriage of justice. Roy v. Volkswagen of America, Inc., 896 F.2d 1174, 1176 (9th Cir.1990).

"While the trial court may weigh the evidence and credibility of the witnesses, the court is not justified in granting a new trial `merely because it might have come to a different result from that reached by the jury.'" Id. quoting Wilhelm v. Associated Container Transp. (Australia) Ltd., 648 F.2d 1197, 1198 (9th Cir.1981); Wallace v. City of San Diego, 479 F.3d 616, 630 (9th Cir.2007).

4. DISCUSSION

A. Exposure Via Surface Water.

The jury found that Plaintiffs could have been exposed to hexavalent chromium at a concentration of 87 ppb in the El Capitan Canal from 1969 to 2006 and in flood waters in the Beachwood neighborhood from April 2006 to the present:

----------------------------------------------------------------------------------------------------------------------------
                                           Year of      How Long Chemical
 Pathway       Chemical     Location       Arrival      was Present         Concentrations
----------------------------------------------------------------------------------------------------------------------------
 Flood Water       CR6        Beachwood       April 2006              to Present           87 ppb
                           Neighbor-hood
----------------------------------------------------------------------------------------------------------------------------
 Canal Water     CR6          Canal         196             1969-2006           87 ppb
----------------------------------------------------------------------------------------------------------------------------

(Verdicts of Trial Jury at 3) (recreation.)

1. El Capitan Canal.

Defendants assert that the jury's finding of 87 ppb of hexavalent chromium in the canal throughout the period of 1969 to 2006 is unreasonable, or alternatively, the only reasonable time span the jury could find that 87 ppb hexavalent chromium existed in the canal is from 1969 to no later than 1991.

Facts on which these findings are based, include: Most of the data evidence presented were samples which reflected total chromium values. Evidence presented is uncontradicted that hexavalent chromium is a percentage of total chromium. It is undisputed that water from the pond flowed to the canal through a connecting pipe. It is further undisputed that the pond was the source of alleged contamination; i.e., no evidence was presented that, with regard to the canal surface water pathway, any other contamination source existed.5 The dispute centers on whether and when above-standard levels ("MCL") of hexavalent chromium were present in the pond and/or canal.

a. Jury's Verdict Re: Canal Contamination From 1969-1991.

Over the period of 1969-1991, sampling of the pond was conducted only in January and March of 1989. These samples tested positive for both hexavalent and total chromium, which was recorded in a report by Dames & Moore titled, Phase II Soil and Surface Characterization Report ("Dames & Moore Report"). No sampling of the canal was done during this time. No other data or test evidence regarding the pond or canal was presented at trial for this time period. The absence of testing or sampling prevents any finding where contamination was present in the canal. Plaintiffs have strenuously argued that Defendants cannot benefit from their failure to test by asserting that negative inferences should be drawn against Defendants. This contention, however, does not substitute for evidence.

Defendants argue that Plaintiffs' have not met their burden of proof as to whether hexavalent chromium was in the canal during the period of 1969 to 1991 because no canal water sampling exists for that time period and Plaintiffs' expert, Dr. Laton, "admitted that samples collected at the outlet of the pond show non-detect-to-low detect concentrations of hexavalent chromium," citing Dr. Laton's testimony regarding the Dames & Moore Report's March 1989 sample results. (Doc. 1259 at 10:24-11:1.)

Plaintiffs' theory is significantly different and rests on a series of inferences. Plaintiffs rejoin that Dr. Laton conditioned his testimony regarding the March 1989 samples by opining that the January 1989 samples were representative, and these included a hexavalent chromium measurement of as high as 630 parts per billion ("ppb").

Dr. Laton further testified that surface soil measurements at the BAC Site were above-standard levels for hexavalent chromium in 2006. (See Declaration of Michael G. Marderosian ["Decl. Marderosian"], Ex. G, Rough Trial Transcript ["RT"] at 209:22-210:3, Feb. 9, 2011) [testifying to an 800 ppb hexavalent chromium surface soil sample when the remediation goal was 10 ppb.]. Plaintiffs argue that since remediation at the BAC Site was not started until 1991 and this soil sample was found even after remediation began, Dr. Laton made a reasonable scientific assumption that the soil at the BAC Site has been contaminated for the last forty years. The argument continues that, combined with Dr. Laton's testimony that the contaminated soil was being washed into the pond from 1969 on and, construing the evidence in the light most favorable to Plaintiffs, a jury could reasonably find that re-contamination of the pond and canal was constantly occurring during this time period before clean-closure of the pond. Dr. Laton opined as follows:

(Declaration of Stephen C. Lewis ["Decl. Lewis"], Ex. 5, RT at 33:1-9, Feb. 10, 2011.)

(Decl. Lewis, Ex. 4, RT at 222:7-22, Feb. 9, 2011; and see Decl. Lewis, Ex. 25) (reporting the concentration value of 630 ppb hexavalent chromium in January 1989 and low-to-non-detect in March of 1989).

(RT at 1155:16-1156:16, Feb. 9, 2011.)

Plaintiffs further argue that the jury's verdict was reasonable based on Dr. Laton's testimony that, pursuant to the Dames & Moore Report's 1989 sampling, an average of 581.8 ppb total chromium was flowing from the pond to the canal from 1969-1991. Dr. Laton opined as follows:

(Id. at 1154:16-22.)

Because evidence was presented that hexavalent chromium is included in the total chromium value, Plaintiffs argue the jury could reasonably infer that 87 ppb of hexavalent chromium existed throughout the canal as part of the 581.8 ppb total chromium value over the entire 1969-1991 time period.

Dr. Laton further opined that this 581.8 ppb total chromium concentration was flowing unimpeded into the canal from 1969 to 1991:

(Id. at 1154:7-15) (emphasis added). From this, Plaintiffs argue, a reasonable jury could find that 87 ppb hexavalent chromium existed in the canal from 1969-1991 based on Dr. Laton's testimony.

Defendants rejoin that the jury's canal finding cannot be justified because Dr. Fendorf's "unrebutted" testimony concerning chromium valance conversion defeats Plaintiffs' argument and Dr. Laton had no basis to estimate that from one year of data observation, twenty-two years of contamination was present. Defendants assert that Dr. Fendorf's analysis proves that no above-standard levels of hexavalent chromium could have reached the canal, particularly because Dr. Laton refused to consider the degree of valance reduction of the chromium leaving the pond. Plaintiffs respond first, that Dr. Fendorf's testimony was successfully challenged—i.e., Dr. Fendorf's theory was not presented or established as a matter of law.

Dr. Fendorf's direct examination established:

(RT at 105:15-17, Feb. 10, 2011.)

(Id. at 107:21-23.)

Dr. Fendorf's cross-examination, in relevant part, shows:

I can't say that. (Decl. Marderosian, Ex. U, RT at 173:25-174:8; 175:18-21; 196:13-16, Feb. 10, 2011.) Plaintiffs' question on cross-examination was "where" the chemicals were "used" in the retort, not where the chemicals were "released," which includes the drop pad, pond (sump) and its connection to the canal. This misdirection in the question negates any meaningful effect to the Fendorf answer, which is not impeaching about the anaerobic effects in the pond and canal. Dr. Fendorf's testimony invokes an indisputable scientific principle applicable to valance reduction of chromium.

Plaintiffs argue the jury was instructed that they may reject the testimony of an expert like Dr. Fendorf. (See Decl. Marderosian, Ex. I [jury instruction no. 13].) Jury instruction number 13 states:

Id.

Nevertheless, Plaintiffs argue that it appears the jury did weigh each expert opinion. The jury found 87 ppb of hexavalent chromium, which Plaintiffs argue could have taken Dr. Fendorf's conversion theory into account since Plaintiffs' expert, Dr. Laton, testified to a hexavalent chromium level in the pond of 630 ppb and an average total chromium level of 581.8 ppb. In other words, because Dr. Laton testified to 630 ppb hexavalent chromium and 581.8 ppb total chromium and the jury's verdict of 87 ppb hexavalent chromium is significantly lower then either of these values, the jury must have taken Defendants' conversion theory into account.

Plaintiffs finally argue that Defendants' witness Ms. Kretsinger and Regional Board representative Mr. Austin admitted the pond was contaminated prior to 1991:

(RT at 79:8-10, Testimony of Ms. Kretsinger, Mar. 15, 2011.)

(RT at 192:13-193:6, Testimony of Mr. Austin, Feb. 18, 2011; see also Decl. Marderosian, Ex. E, Briefing for Senator Dianne Feinstein Former Baltimore Aircoil Company Cleanup Site, Jan. 15, 2009 ["Feinstein Report"] ["From the early 1960s to mid 1991, wood treatment operations at the BAC site discharged hexavalent chromium. This hexavalent chromium. . . was released off-site through storm water discharges to an adjacent irrigation canal."].)

Plaintiffs' evidence includes scientific inferences based on an extremely small amount of data, but it is still "tied to the facts of the case." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Plaintiffs' mantra throughout trial was that BAC Defendants' failure to sample and test through the years "hid" the historical concentrations in the pond and canal. Based on the only sampling evidence presented, Dr. Laton opined that re-contamination was occurring via surface soil washing into the pond which flowed unimpeded into the canal at an average concentration of 581.8 ppb total chromium. The jury was told that part of this total chromium value could contain hexavalent chromium. Plaintiffs correctly argue that Dr. Fendorf's conversion theory was not proved as a matter of law and, nonetheless, the jury could have given some weight to Dr. Fendorf's theory based on the verdict.

Construing the evidence in the light most favorable to Plaintiffs, a reasonable conclusion is one which is consistent with the jury's verdict. Some evidence supports Dr. Laton's opinion that hexavalent chromium was being released from the pond into the canal. This evidence supports the jury's verdict on the canal water pathway for 1969-1991. The extent of aerobic reduction of hexavalent chromium remains a mystery. The parties had four years and approximately six days of Daubert hearings to prepare for these issues. Plaintiffs' evidence on canal waters through 1991 meets the sufficient evidence requirement based on the totality of the BAC Site operation from 1969-1991. Defendants' motion is DENIED as to the finding that hexavalent chromium in the canal from 1969-1991.

Defendants' motion for new trial is also DENIED. Although a very limited amount of quantitative evidence was presented "[d]oubts about the correctness of the verdict are not sufficient grounds for a new trial." Landes Constr. Co., 833 F.2d at 1372. The court must be "left with the definite and firm conviction that a mistake has been committed". Id. (citing Tennant v. Peoria & Pekin Union Ry., 321 U.S. 29, 35, 64 S.Ct. 409, 88 L.Ed. 520 (1944)). To justify a new trial, the errors must be "so prejudicial as to require a new trial which would be likely to produce a different result." O'Dell v. Hercules Inc., 904 F.2d 1194, 1200 (9th Cir.1990); see also Fed. R.Civ.P. 61. For the 1969-1991 time period, taking all Plaintiffs' evidence into account, including Defendants' own expert witness who admitted she believed the pond was or could be contaminated during that time period, the court would simply be substituting a different view of the evidence for that of the jury. The record does not create a "firm conviction" that the jury was mistaken.

b. Jury's Verdict Re: Canal Contamination From 1992-2006.

Defendants argue that there is no evidentiary basis for the jury's finding that 87 ppb hexavalent chromium existed in the canal after 1991 for the following reasons: First, the pond was "clean closed" and any contaminates it may or may not have emitted would have ceased. (See RT at 135:18-21, Feb. 18, 2011; Decl. Lewis, Ex. 7 ["[A]s far as the Water Board was concerned, the contaminated sediments in the pond had been adequately excavated and disposed of properly."]; Decl. Lewis, Ex. 21 [1992 Letter from Regional Water Quality Control Board ("RWQCB") stating "BAC-Pritchard has complied with its environmental remediation obligations with respect to the storm water pond."]).

Second, the only pond sampling data presented demonstrates only below-standard levels of total chromium from 1992-2007, aside from one above-standard sample, in January 1994:

---------------------------------------------------------------------
             Storm Water              Storm Water
 Date of     Discharge Total          Entering Site
 Sample      Chromium (µ/L)     Total Chromium (µ/L)
---------------------------------------------------------------------
 07-Dec-92            20
---------------------------------------------------------------------
 24-Jan-94            87
---------------------------------------------------------------------
 09-Apr-94            20
---------------------------------------------------------------------
 06-Dec-94            24
---------------------------------------------------------------------
 20-Mar-95            26.4
---------------------------------------------------------------------
 18-Dec-95            28.2
---------------------------------------------------------------------
 05-Mar-96            30.7
---------------------------------------------------------------------
 02-Jan-97            23.8
---------------------------------------------------------------------
 10-Dec-97            13.4
---------------------------------------------------------------------
 12-Jan-98            19.8
---------------------------------------------------------------------
 23-Feb-98            10.6
---------------------------------------------------------------------
 19-Jan-99            35.2
---------------------------------------------------------------------
 08-Feb-99            13.8
---------------------------------------------------------------------
 09-Mar-99            28.5
---------------------------------------------------------------------
 18-Jan-00            24.1
---------------------------------------------------------------------
 14-Feb-00            11.85
---------------------------------------------------------------------
 11-Jan-01            24.8
---------------------------------------------------------------------
 05-Mar-01            3.8
---------------------------------------------------------------------
 02-Jan-02            16.2                      15
---------------------------------------------------------------------
 20-Feb-02            37.2                     39.3
---------------------------------------------------------------------
 20-Feb-03            4.5                      10.4
---------------------------------------------------------------------
 14-May-03            4.6                       51
---------------------------------------------------------------------
 11-Oct-07            <10
---------------------------------------------------------------------

(Decl. Lewis, Ex. 23 at 3) [Recreation of chart in Feinstein Report] (highlight added.)

Third, Dr. Laton admitted that after 1991 the average total chromium detected in the pond was below MCL standard at 22.3 ppb. (Decl. Lewis, Ex. 4, RT at 212:20-213:4, Feb. 9, 2011.)

Fourth, Ms. Kretsinger opined regarding over 50 surface water samples collected by IT Corporation and the Regional Water Quality Control Board in 1992, 1995, 1998, and 1999 from various locations along the canal, none of which detected chromium at concentrations above MCL standard:

(RT at 33:20-36:6, Mar. 15, 2011.)

Plaintiffs' counsel briefly cross-examined Ms. Kretsinger on this subject, but the cross-examination predominantly focused on the pre-1992 time-period:

(RT at 81:13-21, Mar. 15, 2011.)

(RT at 91:15-21, Mar. 15, 2011.)

Plaintiffs' counsel attempted to challenge the 1992 canal sample value:

(RT at 81:22-82:10, Mar. 15, 2011.)

(RT at 92:3-93:19, Mar. 15, 2011.)

Ms. Kretsinger did not admit that the 1992 sample was invalid and Plaintiffs' cross-examination did not illicit testimony that any post-1991 canal water samples were above MCL standard for total or hexavalent chromium.

Dr. Daniel B. Stephens testified similarly to Ms. Kretsinger that samples were taken of the canal water between 1995-2009 and there were no detections of hexavalent chromium. Dr. Stephens testified as follows:

(RT at 97:10-23, Mar. 3, 2011; and see Decl. Lewis, Ex. 27 [showing low-to-non-detect for hexavalent chromium in the El Capitan canal from 1995-2009]; Decl. Lewis, Ex. 28, [Dr. Stephens & Associates, Inc. Report showing no hexavalent chromium detected in El Capitan canal between 1998-2009].)6

Plaintiffs ignore this overwhelming and uncontradicted evidence and an attorney's questions and/or arguments are not evidence. (See Doc. 1224, Jury Instructions ["Arguments and statements by lawyers are not evidence . . . Questions and objections by lawyers are not evidence."].) Plaintiffs' argument rests solely the totally unsupported and argumentative testimony of Dr. Laton who opined that re-contamination was occurring in the canal throughout 1969-2006 based on the 1989 Dames & Moore Report pond water samples and the 2006 surface soil samples. For the 1992-2006 time period, however, this theory is not supported by a scintilla of evidence and directly conflicts with all the scientific and sampling evidence presented. Dr. Laton acknowledged and did not dispute the Feinstein Report's findings. (See Decl. Lewis, Ex. 4, RT at 212:25-213:4, Feb. 9, 2011) ["By reviewing the storm water reports presented by the defense, I was able to go through and look at all the chemical concentrations within the pond in the water. And the average of those, over that time frame [1992-2007], was only 22.3 micrograms per liter [of total chromium]."]. Dr. Laton never testified regarding the 1992-2009 canal sampling evidence, and made no effort to refute this undisputed evidence.7 Neither he nor any other witness presented evidence to explain, e.g., why all the testing samples taken measured below MCL standard levels of total and hexavalent chromium, despite the alleged "continual re-contamination" of the pond. This is because, Defendants' point out, there cannot be recontamination when remediation has removed the source.

There is a total absence of evidence to provide a foundation for an opinion that re-contamination was occurring after 1991. Dr. Laton's unsupported, unscientific opinion is pure speculation. The testimony suggests a complete lack of scientific objectivity and the assumption of an advocate's role. An experts' opinion need not be accepted uncritically simply because his credentials render him qualified to testify. "When an expert opinion is not supported by sufficient facts to validate it in the eyes of the law, or when indisputable record facts contradict or otherwise render the opinion unreasonable, it cannot support a jury's verdict." Brooke Group Ltd., 509 U.S. at 242, 113 S.Ct. 2578 (finding that expert testimony was not sufficient to defeat JMOL because expert's opinion was not based on sufficient facts to support jury verdict); see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 157, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) ("`[N]othing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.'"); Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) ("A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered."). Here, Dr. Laton's re-contamination testimony is based on no evidence. It is simply ipse dixit, which creates an unbridgeable analytical gap between the data and the opinion proffered.

Although not specifically argued by Defendants, even taking the January 24, 1994 sample into account, the jury's verdict is unreasonable for a further reason.8 The measurement on January 24th is 87 ppb total chromium. The jury was instructed that hexavalent chromium is a fraction of the total chromium value. (See e.g., Doc. 1288 at 27:25-28:2 ["the jury had been provided ample testimony during trial as to the fact that total chromium included hexavalent chromium."]) (emphasis in original). This was proved by all the evidence presented and is indisputable. (See e.g., Decl. Lewis, Ex. 25, [Dames & Moore Report demonstrating that for each sample in which total chromium was detected in the pond, hexavalent chromium was detected at a fraction of the total chromium value; i.e., hexavalent chromium detections were never higher than 46% of the total chromium value]). The jury was never told by any expert that hexavalent chromium could encompass the entirety of or exceed a total chromium sample value.9 The jury, nonetheless, found that 87 ppb hexavalent chromium was continuously present in the canal after 1991. Because the jury had no evidence whatsoever that hexavalent chromium could encompass and/or exceed the entire total chromium value in any sample, the jury could not reasonably find that 87 ppb hexavalent chromium was in the canal for approximately fourteen years after clean closure and remediation, based on the single 87 ppb total chromium, January 24th sample.

An absence of any evidence to support an opinion or finding of the continuous presence of 87 ppb hexavalent chromium existed in the canal is overreaching. And, an expert cannot provide opinions that are without factual and scientific basis. Defendants' motion for judgment as a matter of law is GRANTED as to the canal pathway from the time period 1992-2006.10 There is no evidence of hexavalent chromium over the MCL for that time period.

(1) Flood water

The jury found that 87 ppb hexavalent chromium reached the Beachwood neighborhood during a flood which occurred in April of 2006 and remains in the neighborhood to the "present." The uncontradicted testimony is that flood waters subsided within two days. The canal is the sole source of alleged "contaminated flood waters"; i.e., no evidence was presented that flood water contamination occurred from any other source.11

Defendants assert that Plaintiffs have not met their burden to prove hexavalent chromium was in the flood water because the flood water emanated from the canal and the unchallenged evidence proves the canal was not contaminated during the relevant time period. It follows, Defendants assert, that since the flood water emanated from the canal, none of the flood water could have been contaminated.12

Plaintiffs assert their previously described argument, that the canal water was contaminated from 1969-1991 by the unimpeded flow of hexavalent chromium from the pond through the connecting pipe, which caused the canal water to remain contaminated until it was swept into the Beachwood neighborhood by the April 2006 flood. Dr. Laton testified:

(RT at 41:25-42:5, Feb. 10, 2011.)

Dr. Laton's opinion about canal contamination after 1991 is not based on evidence. Sampling and test results show no detects above MCL and it is speculation that any flood water which emanated from the canal during the relevant time period, 2006 to present, could have been contaminated in light of the remediation, clean closure of the BAC Site, and testing evidence.

Defendants supplement this contention with three other undisputed facts to demonstrate that the jury's finding is unsupported by the evidence. First, the flood water was never tested. Plaintiffs concede this, but argue that they were not in a position to test the flood water as they were not notified by Defendants that the water could be contaminated and Defendants did "no testing." Plaintiffs' assertions are of little value, as Plaintiffs had the burden to present evidence of exposure and Plaintiffs present no case law that supports their assertion that absence of testing permits projections based on non-existent samples from facilities which had been remediated in conjunction with regulatory agency directives and Defendants' compliance with these regulatory requirements.

Second, any total chromium that existed in the canal had to be diluted by other contributing flood waters. Dr. Laton admitted:

(RT at 10:16-21, Feb. 10, 2011.) Defendants expert, Dr. Haltiner, quantified the extent of dilution: "Our estimate [of dilution] in our report was about 1500 to 1." (RT at 160:7-8, Mar. 15, 2011.) Although the existence of dilution was undisputed, the jury did not take dilution into account. After 1991 the only evidence to base a finding that hexavalent chromium was present in the canal, is the 87 ppb test sample of total chromium found in the pond in January 1994. Even assuming, arguendo, the 87 ppb sample of total chromium was comprised entirely of hexavalent chromium, a reasonable jury should have reduced such hexavalent value to less than 87 ppb hexavalent chromium to account for dilution.

Third, the 2008-2009 soil samples taken in the Beachwood neighborhood show low-to-non-detect levels of hexavalent chromium. Plaintiffs argue that there were two areas of the Beachwood neighborhood that the soils were sampled; one area that was immersed by the flood water, and another area, the Gospel Defender Church, that was not. The total chromium levels in the Gospel Defender Church soils were lower than the areas that were flooded. Plaintiffs argue this is circumstantial evidence that above MCL standard levels of hexavalent chromium reached the Beachwood neighborhood via the flood.

Defendants correctly rejoin that no evidence was presented and no expert testified in support of Plaintiffs' theory. Plaintiffs cite Defendants' expert, Ms. Kretsinger, who opined that even though the total chromium amount was higher in the flooded area, neither area tested at above-standard background levels.

(Decl. Marderosian, Ex. C, RT at 101:5-16, Mar. 15, 2011.)

Finally, Plaintiffs' expert witness, Dr. James Schaaf, who modeled the migration of flood waters for Plaintiffs, testified that a "hydraulic connection" existed between the pond and Plaintiffs' neighborhood, but that he had no opinion whether chemicals from the BAC Site ever reached the Beachwood neighborhood:

(RT at 158:2-4, Feb. 9, 2011.)

(Final Trial Transcript ("FT") at 1110:12-14, Feb. 9, 2011.)

(RT at 181:9-17, Feb. 9, 2011.)

There is no underlying evidence to base an expert opinion or finding that above-standard levels of hexavalent chromium existed in the Beachwood neighborhood from 2006 to present from the 2006 flood waters which receded after two days. (See RT at 80:9-11, Mar. 22, 2011.) Defendants' motion for judgment as a matter of law regarding the flood waters pathway after April 2006 is GRANTED.

B. Air Pathway.

The jury found that Plaintiffs in the Beachwood neighborhood could have been exposed to hexavalent chromium in air at the concentrations depicted in exhibit 893, a series of isopleth maps prepared by Plaintiffs' expert Camille Sears.

Defendants' continue to challenge Ms. Sears' qualifications and expertise in chemistry and her ability to perform chemical testing, but the challenge remains unpersuasive. Ms. Sears testified in the Daubert hearings that she has taken college level courses in chemistry; has taught chemistry through an extension program at the University of California at Santa Barbara; uses chemistry on a weekly basis in her job; and has calculated air emissions in a number of environmental contamination cases, beginning in 1983 when Ms. Sears was hired by the Santa Barbara county air pollution control district as an air pollution engineer. (See Doc. 982 at 28:22-33:27.) Further, Dr. Cowherd, the court's Fed.R.Evid. 706 expert, deemed Ms. Sears a "well-qualified" air modeler:

(RT at 113:12-14, Mar. 9, 2011.)

As the Memorandum Decision on Partial Summary Judgment ("Summary Judgment Order") analyzed and decided:

(Doc. 982 at 34:1-12.)

Defendants argue that the following nine "errors and baseless assumptions" in Ms. Sears' expert opinions renders her testimony an insufficient basis for the jury's verdict:

(Doc. 1259 at 20-23.)

Plaintiffs correctly rejoin that these identical criticisms were advanced and extensively analyzed and ruled on in Defendants' motion for partial summary judgment and the Daubert challenges to Ms. Sears' testimony and opinions made over six days of evidentiary hearings covered by the court. The Summary Judgment Order found that "[t]he comparison between the relevant expert opinions demonstrates that a reasonable scientific disagreement exists among the experts . . . Such a dispute goes [to] the credibility and the weight of the opinions, not admissibility." (Doc. 982 at 52:6-7.) "Having observed the experts at the Daubert hearing under intensive cross-examination by counsel, it is clear that the current dispute over Ms. Sears' calculations should be determined by the trier of fact, not by the Court on a motion to exclude." (Id. at 53:25-54:1.) These differing opinions were presented at trial. Under vigorous cross-examination, Ms. Sears responded with scientific explanations to each of Defendants' criticisms and explained her alleged volumetric overestimations.

Because these criticisms were extensively examined in the Summary Judgment Order and Daubert ruling, it is not necessary to revisit every detail. However, a prime example of a scientific factual dispute presented by Defendants' summary judgment motion and again at trial is Ms. Sears' emission calculations based on a 100 percent hexavalent chromium value. Defendants argue that Ms. Sears' values are unreasonable because Dr. Cowherd and Dr. Fendorf testified at trial that "there would be some conversion of Chromium 6 to Chromium 3 in the drippage." (Decl. Lewis, Ex. 12, RT at 115:5-6, Mar. 10, 2011; and see Decl. Lewis, Ex. 11, RT at 83:20-21, Mar. 9, 2011) ("Based on my general knowledge of this area, 100 percent would not be the appropriate number.").

Ms. Sears rejoined that her value conformed to scientific values:

(Decl. Marderosian, Ex. B, RT at 104: 17-106:10, Feb. 10, 2011.)

In the scientific community, experts reach different conclusions from each other, however, reasonable differences in scientific evaluation are not a basis for granting JMOL. See Tennant, 321 U.S. at 35, 64 S.Ct. 409 ("Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.").

The following testimony by 706 expert Dr. Cowherd corroborates that Defendants' objections regarding Ms. Sears' opinions are factual scientific disputes going to weight rather than admissibility, which were properly decided by the trier of fact. First, while Dr. Cowherd did not agree with all of Ms. Sears' input values, he recognized that she was a "well-qualified" air-modeler and her methodology was correct:

(Decl. Marderosian, Ex. O, RT at 112:5-113:14, Mar. 9, 2011.)

Dr. Cowherd also recognized and agreed that hexavalent chromium reached the Beachwood neighborhood:

(Id. at 111:12-112:4.)

Finally, unlike, e.g., the evidence presented regarding the canal water pathway from 1992-2006, there was not a total absence of conclusive, unchallenged underlying evidence to demonstrate that Ms. Sears' opinions were wrong as a matter of law:

(Decl. Marderosian, Ex. O, RT at 114:21-119:1, Mar. 9, 2011.) Some data was available regarding the air pathway. Based on this data, the experts made scientific assumptions based on recognized air modeling principles which formed the basis for their opinions.

Defendants' motion for JMOL regarding the air pathway simply seeks to relitigate the probative value and persuasive effect of the evidence introduced at trial. The motion is replete with inferences Defendants asked the jury to draw and theories for reduction of the weight and value that they wish the jury had applied to Ms. Sears' opinions. Each party submitted substantial evidence, bolstered by expert testimony, in support of their positions on air modeling. The jury found Plaintiffs' showing more persuasive. The jury reasonably could have concluded, based upon the record as a whole that Ms. Sears' scientific estimations were correct, but should have been substantially reduced based on evidence and expert opinions that supported Defendants' position that Ms. Sears' input amounts were gross overestimations of hexavalent chromium reaching and present in the Beachwood neighborhood. However, such conflicts in the evidence, reasoned by the jury as trier of fact, do not provide a sufficient basis for setting aside the verdict. See Tennant, 321 U.S. at 35, 64 S.Ct. 409 ("Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.").

Defendants' trial strategy took an all or nothing approach, arguing that Ms. Sears' testimony had to be entirely rejected. They ignored that Dr. Cowherd opined that some hexavalent chromium reached the Beachwood neighborhood. They did not, e.g., present competing calculations or offer specific valuations that reduced any amount of hexavalent chromium level which arrived through the air to Plaintiffs' neighborhood. Nor did Defendants ask Dr. Cowherd or any other air modeling defense expert to break down Ms. Sears' model and reduce all concentrations to the substantially reduced to non-existent levels they believed existed. This was a trial strategy and Defendants must abide by the consequences of this choice made by highly experienced and competent counsel. Defendants' motion for JMOL regarding the air pathway is DENIED. Because substantial evidence was presented by Plaintiffs' regarding this issue, Defendants' motion for new trial is also DENIED.

C. Entity Responsibility.

Defendants argue that the Phase 1 jury was asked to identify the entities that caused the release of contaminants at the former BAC Site and that Plaintiffs introduced no evidence at trial suggesting that any of the Defendants engaged in any activities that released contaminants as part of wood treating process. Plaintiffs rejoin that corporate liability was not an issue for determination in Phase 1.

The relevant facts are as follows: The Phase 1 Final Pretrial Order pertains only to Phase 1 of this multi-phase action. The Phase 1 Pretrial Order focused on containment exposure, i.e., whether contaminates of concern "reached any location where plaintiffs could have been exposed to them, and if so, when such contaminants arrived, how such contaminants arrived at the location, how long they were present, and at what levels they were present." (Doc. 540 at 1.) Discovery in Phase 1 was limited to "the issues relevant to exposure" including:

(Phase 1 Pretrial Order at 2:14-16).

Defendants filed a Cottel motion on March 23, 2009 which caused a predominant shift of discovery focus to the complex and time consuming scientific evidence regarding release of contaminants. From the time of the first case management conference, Defendants strenuously argued there was not and Plaintiffs could not find and/or produce any evidence of contamination. The Cottel motion was followed by a limitation on and stay of discovery in or around August of 2009 which discontinued discovery on corporate liability issues.

Significant confusion and dispute arose regarding the exact evidence to be presented at trial. The parties and the Court were not in agreement about whether evidence of corporate liability—e.g., theories of vicarious liability, principal/agency, piercing the corporate veil, and related theories, would be tried and determined in Phase 1, or corporate responsibility for exposure—e.g., a basic jury decision regarding who owned and/or operated the BAC Site during the relevant time period.

Defendants argue "they understood" that the Phase 1 jury would be asked to identify the entities that caused the release of contaminants at the BAC Site and assign legal responsibility. Defendants filed a trial brief, which they believe was "clearly framed . . . in accordance with the [Phase One Pretrial Order]," that "contain[s] a detailed discussion of the relationships among Merck, Amsted, Baltimore Aircoil, and the various facility owners and operators [and] discusse[s] controlling California case law." (Doc. 1259 at 30:19-31:9.)

The Court understood, as Defendants themselves point out, that Phase 1 would not "assign legal responsibility." (Doc. 1259 at 33:9-11.) "[T]here is no suggestion in the [Phase 1 Pretrial Order] that we are going to determine liability by party in this phase of the case." (Doc. 1259 at 32:2-3.) What Phase 1 would include, the Court stated, was a basic jury decision as to: "who owned, who operated [the BAC Site], what was done through the period that the lawsuit encompasses." (Doc. 1259 at 33:9-11.)

Plaintiffs acknowledge that corporate liability and/or exposure responsibility was an issue for one of the trial phases and at certain times Plaintiffs represented that they would be able to present sufficient evidence on the subject during Phase 1. Yet once Phase 1 began, Plaintiffs had not completed discovery on corporate liability and did not present evidence on the subject. (Doc. 1288 at 38:12-14.) Plaintiffs argue that discovery was not complete and a case was not presented because they understood that corporate liability was not an issue for Phase 1.

During the jury instructions conference after Phase 1 trial evidence closed, the Court determined that, due to confusion about the specifics and extent of corporate liability/ responsibility evidence was to be presented, in combination with the discovery stay sought by Defendants and the Cottel motion, such evidence was not presented for a jury determination on the subject in that Phase of trial. U.S. v. Dang, 488 F.3d 1135, 1143 (9th Cir.2007) ("the district court is given broad discretion in supervising the pretrial phase of litigation."); and see Fed. R. Civ. Pro. 42(b). In light of this totality of circumstances, judgment as a matter of law cannot be entered regarding corporate liability. (See also, Doc. 1442, Memorandum Decision Granting Plaintiffs' Motion for Leave to Amend Complaint, filed August 10, 2011, 2011 WL 3503096.) Defendants' JMOL is DENIED on this issue.

CONCLUSION.

For the reasons cited above, Defendants' JMOL is GRANTED in part and DENIED in part and Defendants' motion for new trial is DENIED in its entirety. The record unequivocally establishes that after clean-up and site remediation, there was no chromium of any valance at above MCL standards in the canal or surface water which could have reached Plaintiffs' properties.

Defendants shall submit an order in conformity with this decision within five (5) calendar days following electronic service of this order.

SO ORDERED.