Admissibility of One Expert Testimony in Coal Ash Waste Litigation Partially Allowed; Other Testimony is Allowed

Plaintiffs sued for unlawful dumping of toxic industrial waste in the Dominican Republic.  19 combined Daubert motions have been filed by the parties.  Two of them have been decided recently.

Facts: This case (Anajai Calcano Pallano, et al., v The AES Corportation, et al.) involves the alleged illegal dumping of industrial waste in the Dominican Republic by the Defendant (AES).  The Plaintiffs allege that they were exposed to dangerous levels of solid waste, comprised of Coal Ash Waste, which is a byproduct of AES’s coal-fired power plants.  The Plaintiff’s maintain that that it is “well known” that arsenic, nickel, beryllium, and other substances that are contained in Coal Ash Waste, cause numerous maladies such as birth defects, lung, kidney, and bladder cancer, and certain respiratory disorders.  In order to assist in proving their case, the Plaintiffs hired Scott D. Reynolds, an industrial engineer expert witness and Sohail Khattak, an environmental toxicology expert witness.  AES has filed Daubert motions to exclude the testimony of both experts.  The court issued two separate opinions (here and here).

Discussion:  We first turn to the expert testimony of Mr. Reynolds.  For twenty years he has specialized in creating models of air flow, has expertise in Computational Fluid Dynamics (CFD), and has published numerous articles on air flow dynamics.  Reynolds created CFD models to track the concentration and dispersion of Coal Ash Waste from a site in Arroyo Barrill.

The Defendants maintain that Reynolds’ CFD models are not relevant or reliable because he did not model the correct material and did so in an environment which is not representative of Arroyo Barril.  In addition, they argue that Reynolds modeled emissions from fly ash, rather than Coal Ash Waste.  Last, they argue that Reynolds’ hypothetical environment is not representative of Arroyo Barrill.  The court disagreed, stating that Reynolds’ models are based on sufficient data and that the challenge can be brought up during the trial.

Also, the defendants argue that Reynolds’ models rely on data produced at other power plants and not specifically from the AES Puerto Rico plant.  The court disagreed, stating that Reynolds’ data is the product of  reliable principles and will me allowed.  Last, the defendants allege that Reynolds relied on incorrect calculations of polycyclic aromatic hydrocarbons (PAHs) as he utilized numbers from an older report filed by another one of Plaintiff’s experts.  The court agreed and disallowed that part of his testimony.

We now move to the motion to exclude the expert witness report of Sohail Khattak, M.D.   Dr. Khattak opined to a reasonable degree of certainty that the exposure to the Coal Ash Waste was a substantial factor of the cause of the birth defects and deleterious reproductive outcomes.  The court finds that Dr. Khattuk used reliable methods (weight-of-the-evidence analysis and differential diagnosis) to form his conclusions and that his testimony is based on adequate facts and data.  Thus, his expert testimony was allowed.

Held: The expert witness testimony of Scott D. Reynolds is granted in part and denied in part.  The expert witness testimony of Sohail Khattak, M.D. is allowed.