Affholter, et. al. vs. Franklin County Water District, et.al., No. 1:2007cv00388 - Document 983 (E.D. Cal. 2011)
Court Description: MEMORANDUM DECISION AND ORDER RE: DEFENDANT MEADOWBROOK WATER COMPANY'S MOTION FOR SUMMARY JUGDMENT ON GROUNDWATER PATHWAY; DAUBERT MOTION TO EXCLUDE THE TESTIMONY OF DOUGLAS BARTLETT; signed by Judge Oliver W. Wanger on 1/5/2011.(Uriarte, R)
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Affholter, et. al. vs. Franklin County Water District, et.al. Doc. 983 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 ABARCA, RAUL VALENCIA, et al., 1:07-CV-0388-OWW-DLB Plaintiffs, 8 MEMORANDUM DECISION AND ORDER RE: DEFENDANT MEADOWBROOK WATER COMPANY’S MOTIONS FOR SUMMARY JUDGMENT ON GROUNDWATER PATHWAY (Doc. 671); DAUBERT MOTION TO EXCLUDE THE TESTIMONY OF DOUGLAS BARTLETT (Doc. 685) v. 9 10 FRANKLIN COUNTY WATER DISTRICT, 11 Defendants. 12 13 14 15 16 17 18 19 20 21 22 23 24 I. INTRODUCTION. Plaintiffs allege that Meadowbrook Water Company (“Meadowbrook) delivered contaminated water from the BAC Site to the Plaintiffs’ homes and properties. The present motion concerns Plaintiffs’ negligence, trespass, and nuisance claims that allege that Meadowbrook failed to exercise due care with regard to its water delivery operations and that those operations discharged pollutants from Meadowbrook Well No. 2 (“MWC-2").1 Plaintiffs’ claims against Meadowbrook concern only the groundwater pathway. It is undisputed that Meadowbrook had no ownership or control over the alleged source of contamination, the BAC site. 25 26 27 28 1 Plaintiffs’ opposition includes multiple incorrect citations to the record. Many citations were to evidence that did not exist. Such errors burdened a court managing a docket of over 1,200 criminal and civil cases. 1 Dockets.Justia.com 1 Before the court for decision is Meadowbrook’s motion to 2 summarily adjudicate Plaintiffs’ negligence, trespass, and nuisance 3 claims. 4 grounds that Hartwell Corporation v. Superior Court, 27 Cal.4th 256 5 (2002) and In re Groundwater Cases, 154 Cal. App. 4th 659 (2007) 6 bar the claims as a matter of state law. According to Meadowbrook, 7 these two cases stand for the proposition that a public water 8 utility is only liable for third party damages in narrow and 9 specific circumstances, none of which are established here. Defendant Meadowbrook moves to dismiss these claims on 10 Meadowbrook also files a Daubert motion to exclude Bartlett’s 11 groundwater 12 hexavelant chromium in MWC-2. 13 those contained in the BAC Defendants’ motion, i.e., it argues that 14 the model is scientifically unreliable and not relevant to the 15 issue of Meadowbrook’s liability for damages as a state regulated 16 water supplier. model predicting elevated concentrations Meadowbrook’s of arguments mirror II. FACTUAL AND PROCEDURAL BACKGROUND.2 17 18 flow This lawsuit relates to a now-closed cooling tower 19 manufacturing facility (the “BAC site”) that was operated by 20 entities formerly owned by the BAC Defendants.3 Plaintiffs, 21 22 23 2 24 25 26 27 28 The background of this case is covered in Valencia v. Merck & Co., 2009 WL 2136384 (E.D. Cal. July 15, 2009), Abarca v. Franklin County Water Dist., 2009 WL 1393511 (E.D. Cal. May 18, 2009), and Affholter v. Franklin County Water Dist., 2008 WL 4911406 (E.D. Cal. Nov. 13, 2008). 3 Four separate entities comprise the BAC Defendants: (1) Merck & Co; (2) Amsted Industries, Inc.; (3) Baltimore Aircoil Company, Inc.; and (4) Track Four, Inc. 2 1 current or former residents of neighborhoods near the BAC Site,4 2 allege that two contaminants from the BAC Site migrated from the 3 facility via groundwater, surface water, and air pathways to 4 locations where plaintiffs were exposed to them. 5 defendants 6 developers, including the Franklin County Water District, Merced 7 Irrigation District, the City and County of Merced, and the 8 Meadowbrook Water District. are various municipalities, water Also named as districts, and 9 Plaintiffs commenced this civil action on March 8, 2007. In 10 August 2009, in response to the alleged lack of admissible evidence 11 of general exposure to contaminants from the BAC site, the Court 12 issued 13 establishing a first phase of discovery to focus on “whether 14 contaminants from the former [] BAC Site, Franklin County Water 15 District or the April 2006 Flood have ever reached any location 16 where plaintiffs could have been exposed to them, and if so, when 17 such contaminants arrived, how such contaminants arrived at the 18 location, how long they were present, and at what levels they were 19 present.” 20 have failed to meet their “Phase 1” or “general exposure” burden, 21 entitling it to summary judgment. 22 an “Order Modifying (Id. at 1:14-1:28.) Scheduling Conference Order,” Meadowbrook argues that Plaintiffs On May 28, 2010, Meadowbrook filed its motion for summary 23 judgment on Plaintiffs’ negligence, trespass, and nuisance claims. 24 (Doc. 678.) 25 Plaintiffs’ claims are jurisdictionally barred under Hartwell and The substance of Meadowbrook’s Rule 56 motion is that 26 27 4 28 The former BAC Site is located at 3058 Beachwood Drive, Merced, California. 3 1 In re Groundwater Cases. 2 On June 1, 2010, Meadowbrook moved to exclude the testimony of 3 Douglas Bartlett, Plaintiff’s groundwater modeler, pursuant to 4 Federal Rule of Evidence 702 and two United States Supreme Court 5 cases, Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 and Kumho 6 Tire Co. v. Carmichael, 526 U.S. 137 (1999). 7 particular, 8 testimony on grounds that it cannot pass Daubert’s “gatekeeping” 9 requirement. Defendants challenge Bartlett and (Doc. 685) Sears’ In expert See Cooper v. Brown, 510 F.3d 870, 942 (9th Cir. 10 2007) (“The trial court acts as a ‘gatekeeper’ to exclude expert 11 testimony 12 threshold requirements.”) (citation omitted). 13 that does not meet the relevancy and Plaintiffs opposed the motions on July 1, 2010. reliability Plaintiffs 14 first argue that the Hartwell and In re Groundwater Cases are 15 inapplicable under the Phase 1 Order; 16 considered, Meadowbrook’s misconduct distinguishes both cases. 17 to the Daubert motion, which is relevant to the Rule 56 analysis, 18 Plaintiffs argue that Meadowbrook’s motion to exclude certain 19 expert testimony fails because their criticisms go to the weight of 20 the testimony, not its admissibility. arguendo, if they are As 21 22 A. The BAC Defendants’ Related Motions 23 On June 1, 2010, the BAC Defendants filed motions for partial 24 summary judgment and to exclude the testimony/model of Douglas 25 Bartlett.5 According to the BAC Defendants, Bartlett’s testimony 26 27 28 5 The motions were nearly identical with respect to the groundwater pathway issue and the alleged inadequacies of the Bartlett groundwater model. Plaintiffs’ claims against Meadowbrook 4 1 and groundwater model are inadmissible for a number of reasons but 2 primarily because he excludes 46 years of sampling data (49 tests) 3 from the MWC-2 and 16 years of sampling data from monitoring wells 4 surrounding the BAC Site. 5 “contradicting reality,” the BAC Defendants claim that Plaintiffs 6 “have produced no data, documents, or percipient witness testimony 7 that could establish exposure to hexavelant chromium or arsenic 8 from the BAC Site through MWC-2 water, and the results of analyses 9 of water from MWC-2 refute plaintiffs’ claims that such exposure Characterizing Bartlett’s model as 10 occurred.” The BAC Defendants asserted that the actual testing 11 data that 12 exceeded 12 ug/l, less than one quarter of the MCL for total 13 chromium. The BAC Defendants also argued that MWC-2 never captured 14 hexavelant chromium beyond background levels. shows total chromium concentration at MWC-2 never 15 Meadowbrook's arguments mirror those advanced by the BAC 16 Defendants in their motions for partial summary judgment and to 17 exclude 18 exclude, 19 hydrogeologist and groundwater modeling expert. 20 Bartlett's model is not calibrated to any well water sampling data 21 from the network of monitoring and extraction wells installed Bartlett's testimony.6 Meadowbrook submits In the support of its motion testimony of David Bean, to a He opines that 22 23 relate only to its ownership and operation of MWC-2, not the owner of the contaminant source. 24 6 25 26 27 28 Bartlett's model is the only evidence supporting Plaintiffs' claim that MWC-2 was contaminated with hexavelant chromium. Specifically, Bartlett's model attempts to simulate groundwater flow and the transport of dissolved chromium from the BAC facility to areas off-site during the period 1969-2008. This includes MWC-2, as well as other monitoring wells near the BAC site and the Beachwood neighborhood. 5 1 during the remediation of the BAC Site, nor from Meadowbrook wells, 2 including MWC-2. There is little correlation between simulated and 3 observed 4 predictions). 5 simulations to demonstrate the extent of the disparity, i.e., to 6 demonstrate its unreliability. 7 complete "disconnect" between the actual data and Bartlett's model, 8 and discusses the number of scientific processes that are excluded 9 from Bartlett's model (adsorption, diffusion, etc.) 10 chromium Bean concentrations provides a (actual number of data vs. model scattergrams and Bean opines that there is a Plaintiffs' response to Meadowbrook’s motion is identical to 11 their opposition to the BAC Defendants' motion. They argue that 12 the existing sampling data is unreliable and therefore should be 13 excluded. 14 "co-exist," i.e., that the issue should go to a jury to determine 15 “the credibility of the evidence.” They also argue that the data and expert opinion can 16 By a separate decision, it has been determined that the degree 17 of variance between Bartlett's model and the well data requires a 18 factual foundation to decide the truth and efficacy of Bartlett's 19 grounds for minimizing most of the observed test data. The BAC 20 Defendants’ Daubert express 21 reservation to 22 concerning the model at trial. That subject of the BAC Defendants’ 23 motion for partial summary judgment on groundwater contamination 24 was also denied without prejudice. 25 motion exclude the was denied model subject after to hearing an all evidence That Memorandum Decision is incorporated by reference and 26 applies with equal force to Meadowbrook’s current motions for 27 summary judgment and to exclude the testimony of Douglas Bartlett. 28 A scientific factual dispute remains as to the admissibility of the 6 1 Bartlett model, which was proffered to demonstrate chromium 2 contamination via the groundwater pathway (specifically, in MWC-2 3 from 1969 to present). Those portions of Meadowbrook’s motions are 4 for the same reasons DENIED without prejudice. 5 6 B. 7 Hartwell and In re Groundwater Cases - A Jurisdictional Bar? 8 It is undisputed that Meadowbrook is a public utility as 9 defined by Article XII, Section 3, of the California Constitution. 10 Meadowbrook argues that Hartwell and In re Groundwater Cases bar 11 claims for damages against a public utility unless Plaintiffs are 12 able to establish “continuing violations of water quality standards 13 to provide water to their customers.” 14 Hartwell and In re Groundwater Cases analyze whether section 15 1759 of the Public Utilities Code limits the jurisdiction of 16 judicial review of the Public Utility Commission’s regulatory 17 authority and decisions. 18 Section 1759 provides in relevant part:7 No court of this state, except the Supreme Court and the court of appeal, to the extent specified in this article, shall have jurisdiction to review, reverse, correct, or annul any order or decision of the commission or to suspend or delay the execution or operation thereof, or to enjoin, restrain, or interfere with the commission in the performance of its official duties, as provided by law and the rules of court. 19 20 21 22 23 24 In Hartwell, 27 Cal. 4th 256, plaintiffs sued water companies regulated by the Public Utilities Commission (“PUC” or 25 7 26 27 28 The California Constitution also confers plenary power on the Legislature to “establish the manner and scope of review of commission action in a court of record....” (Cal. Const., art. XII, § 5.) In the exercise of that power, the Legislature has chosen to limit the jurisdiction of judicial review of the PUC's decisions. 7 1 “Commission”), alleging that they had provided contaminated well 2 water to the plaintiffs.8 3 Department of Health Services (“DHS”) standards for water safety 4 and followed those standards in determining what measures the water 5 companies should undertake to maintain water purity. 6 276. 7 legislative and regulatory history and concluded that the trial 8 court 9 regulatory standards. However, the court held that the trial court The Commission had adopted California The California Supreme Court reviewed § 1759 in light of its did have jurisdiction 11 violations of regulatory standards. 14 15 16 17 18 19 20 21 22 23 24 The jurisdiction California to hear to did 13 have not 10 12 Id. at 272, Supreme hear damage Court a challenge suits summarized arising its to the out of ruling in Hartwell: Hartwell found some claims alleged in the civil action to be barred because their adjudication would interfere with the regulatory authority of the PUC, but that other claims would not result in such interference and therefore were not precluded by section 1759. The decision concluded, for example, that because the PUC relied upon certain water quality standards as a benchmark in approving water rates charged by public utilities, challenges in the civil action to the adequacy of those standards, and claims for damages allegedly caused by unhealthy water permitted by the standards, would interfere with broad and continuing regulatory programs of the PUC such as ratemaking for public utilities. In addition, the PUC had provided a safe harbor for utilities meeting these water quality standards, and our decision observed that a determination by the superior court that the existing standards were inadequate would undermine this policy of the PUC by holding the utilities liable for damages caused by their failure to undertake action that the PUC repeatedly had determined was not required. Similarly, claims in the civil action seeking injunctive relief for current 25 26 27 28 8 In Hartwell, Plaintiffs specifically alleged that: (1) several water utilities met regulatory standards but plaintiffs were injured nonetheless; and (2) that the water utilities violated regulatory standards. 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 violations of water quality standards were precluded by section 1759, because an injunction predicated upon a finding of such violations would conflict with the decision of the PUC that the defendant utilities presently were in compliance with the standards, and that no further inquiries or evidentiary hearings regarding compliance were required. In contrast, the decision in Hartwell concluded that claims in the civil action for damages allegedly caused by water that did not satisfy applicable water standards were not preempted by section 1759-even though the PUC had issued a decision including a finding that, for the previous 25 years, water provided by the defendant utilities substantially did comply with the water standards. In concluding that this prior PUC pronouncement regarding past compliance with water quality standards did not prelude these particular civil claims, our decision relied upon the following circumstances: (1) the investigation by the PUC that led to the decision was characterized by the commission as a process designed to gather information, rather than as a rulemaking proceeding; (2) even though information gathered in the investigation and reported in the decision might have resulted in a rulemaking or enforcement proceeding against the utilities, the finding by the PUC that the utilities had complied with water quality standards did not constitute “part of a broad and continuing program to regulate ... water quality” and thus the program “was not part of an identifiable ‘broad and continuing supervisory or regulatory program of the commission’ [citation] related to such routine PUC proceedings as ratemaking [citation] or approval of water quality treatment facilities”; and (3) the civil action sought damages for injuries caused by water that had failed to meet water standards in prior years, whereas any finding by the PUC regarding past compliance would be relevant only to a future remedial program designed to halt current and ongoing violations, rather than to redress injuries for past violations, because the PUC could not provide such relief for past violations. In sum, we determined in Hartwell that the claims for damages in the civil action might result in a jury award based upon a finding that public water utilities violated water quality standards, and that although such a finding would be contrary to a pronouncement in a single prior PUC decision, such a finding or damage award would not hinder or frustrate the declared supervisory and regulatory policies of the PUC. 26 People ex rel. Thomas J. Orloff v. Pac. Bell, 31 Cal. 4th 1132, 27 1147-48 (2003)(internal citations and footnotes omitted)(emphasis 28 9 1 added). In essence, Orloff explains that claims are barred under 2 Hartwell only if they would hinder or frustrate the supervisory 3 and/or regulatory policies of the PUC. 4 Consistent with this approach, the California Appellate Court 5 in In re Groundwater Cases, 154 Cal. App. 4th 659, rejected the 6 contention that evidence of any exceedence of a numerical standard 7 would constitute a “violation”: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 [T]he touchstone for determining whether there has been a “violation” within the meaning of Hartwell is whether the PUC-Regulated Defendants have failed to comply with the regulatory standards and policies set by DHS and the PUC. When viewed in these terms, it becomes apparent that plaintiffs are mistaken in their contention that any exceedance of an MCL, AL, or other numerical standard constitutes a “violation” as that word was used in Hartwell [...] Imposing liability on water suppliers for isolated exceedances of numerical standards would conflict with the regulatory system established to deal with drinking water quality. That scheme expressly permits DHS to allow water suppliers to continue to deliver water even after an MCL exceedance has been detected. Under Health and Safety Code section 116655, if DHS determines that any person has violated or is violating the SDWA, DHS has discretion to issue an order that may include a number of requirements [...] In addition, MCLs are not rigid requirements. DHS has the authority to exempt public water systems from compliance with an MCL if the agency makes certain required findings. (See Health & Saf.Code, ¤ 116425, subd. (a).) One of those findings is that “granting of the exemption will not result in an unreasonable risk to health.” (Health & Saf.Code, ¤ 116425, subd. (a)(3).) In such circumstances, DHS may permit a public water system to continue delivery of drinking water despite its noncompliance with an MCL. Thus, a mere exceedance of or noncompliance with a given MCL does not constitute a “violation” of the regulatory scheme. 24 25 26 27 28 DHS's regulations also expressly permit the continued delivery of water after detection of an MCL exceedance. For organic chemicals, if the detected level exceeds the applicable MCL, the water supplier is required to report the exceedance to DHS and to conduct further sampling. (Cal.Code Regs., tit. 22, § 64445.1, subd. (c)(5).) If an organic chemical is detected and the concentration exceeds ten times the MCL, the water supplier must 10 1 notify DHS and conduct resampling within 48 hours to confirm the result. (Cal.Code Regs., tit. 22, § 64445.1, subd. (c)(7).) Only if the average concentration in the original and confirmation samples exceeds ten times the MCL is the supplier required to cease delivery of water. (Cal.Code Regs., tit. 22, § 64445.1(c)(7)(B).) 2 3 4 Thus, both the California SDWA and DHS's regulations contemplate that water suppliers may continue to deliver water despite isolated exceedances of MCLs. Were we to permit the imposition of liability on water suppliers based upon individual exceedances of MCLs or ALs, we would expose water suppliers to damage awards for doing something that is expressly permitted by both the Health and Safety Code and by DHS and PUC regulations. Such a holding would plainly conflict with the PUC regulatory program that “provide[s] a safe harbor for public utilities if they comply with the DHS standards,” and would directly contravene Hartwell. [citation] 5 6 7 8 9 10 11 Id. at 685-86 (emphasis added). While the decision in In re 12 Groundwater Cases explains that imposing liability for isolated 13 exceedences of numeric standards would hinder or frustrate the 14 intentionally flexible regulatory scheme established to deal with 15 drinking water quality, it does not clearly circumscribe the range 16 of evidence that meets Hartwell’s exception to the general rules 17 protecting the regulatory schemes. 18 According to Meadowbrook, the California Department of Health 19 Services inspected its operations from 1964-2009 and, during this 20 time period, approved Meadowbrook’s water system operations. 21 Meadowbrook has never been ordered to cease operations.9 But, 22 23 9 24 25 26 27 28 Plaintiffs maintain that Meadowbrook concealed sampling records, sampled infrequently, and only sampled in times of “low production.” Plaintiffs suggest that "any lack of corrective action taken against Meadowbrook by a regulatory agency for distributing contaminated water should not be considered dispositive of claims against the Company but instead, should be considered further evidence of the effectiveness of Meadowbrook's concealment.” Without addressing Plaintiffs’ alegation of concealment, Orloff establishes that the prior findings of a regulatory agency are not 11 1 Orloff explains that a damages claim is not barred by Hartwell 2 simply because it might result in a jury verdict “contrary to a 3 pronouncement in a single prior PUC decision.” 4 Plaintiffs seek to present evidence that would support a finding of 5 persistent violations of the relevant numeric standards.10 6 31 Cal. 4th at 48. The entirety of this alleged evidence to avoid the regulatory 7 scheme comes from Mr. Bartlett and Dr. Laton. If their testimony 8 is accepted by the trier of fact that there is hexavalent chromium 9 and/or arsenic persistently present in the Meadowbrook Well levels 10 above the relevant numeric standards, this would not interfere with 11 or derogate any policy or objective of the PUC or the regulatory 12 scheme to assure the safe operation of privately owned public 13 entity water suppliers under rules and regulations formulated and 14 enforced by the PUC. 15 16 C. Conclusion 17 For all these reasons the quasi-immunity of the PUC’s 18 regulatory scheme is not at risk and will remain intact to protect 19 its policies and objectives unless plaintiffs prove the fraudulent 20 21 dispositive of the viability of a damages claim under Hartwell. 10 22 23 24 25 26 27 Plaintiffs focus on the alleged reliability of the existing data in their opposition. Plaintiffs argue that the data provided by Meadowbrook to the DHS is “unreliable and specious” and that there “is no quality assurance/quality control information for any of these so called samples.” If proved, this would potentially establish for purposes of Hartwell, a pattern of non-compliance and violations of water quality standards by fraud, conduct not protected by and not devisive of the regulatory scheme. Such evidence is offered to demonstrate persistent violations of numeric pollutant standards to support damages claims under Hartwell and In Re Groundwater Cases. 28 12 1 2 violations of water quality standards they allege. The motions to: (1) exclude Bartlett’s testimony is DENIED 3 WITHOUT PREJUDICE; (2) the motion for summary judgment on 4 groundwater contamination is DENIED; and (3) the motion for summary 5 judgment under Hartwell and In re Groundwater Cases is DENIED. 6 7 8 IT IS SO ORDERED. 9 Dated January 5, 2011 /s/ OLIVER W. WANGER United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13
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