Arrowood Indemnity Co. v. R and L Business Mgt. ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 ARROWOOD INDEMNITY COMPANY, a No. 2:21-cv-00397 WBS JDP Delaware corporation, formerly 13 known as ROYAL INSURANCE COMPANY OF AMERICA, and successor to 14 ROYAL GLOBE INSURANCE COMPANY, ORDER RE: DEFENDANT CITY OF WEST SACRAMENTO’S MOTION IN 15 Plaintiff, LIMINE TO EXCLUDE PLAINTIFF’S EXPERT WITNESS 16 v. 17 CITY OF WEST SACRAMENTO; and ROES 1-50, inclusive, 18 Defendants. 19 20 ----oo0oo---- 21 22 Defendant City of West Sacramento (“City”) has moved to 23 exclude the testimony of plaintiff Arrowood’s expert witness, 24 Thomas Delfino, both in connection with the pending cross motions 25 for summary judgment and at trial. (See Mot. (Docket No. 47-1).) 26 On December 13, 2021, the court held a hearing on the motion. As 27 stated there, and as explained below, the court will deny the 28 City’s motion. 1 I. Qualifications 2 Expert opinion evidence is admissible if, among other 3 things, “the witness is sufficiently qualified as an expert by 4 knowledge, skill, experience, training, or education.” City of 5 Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1043 (9th Cir. 2014). 6 Arrowood seeks to offer Delfino’s expert testimony on the amounts 7 of metal released during events the City argues constituted 8 “sudden and accidental” releases, whether those releases were 9 indeed sudden or rather were regular and gradual, and whether the 10 amounts released were substantial compared with background levels 11 of those metals in the surrounding environment. 12 Delfino is plainly qualified to testify as an expert on 13 those subjects. As noted in his CV and at the hearing, he has 14 two degrees in chemical engineering, his areas of expertise 15 include hazardous waste management and treatment system design, 16 and his experience includes analyses of (1) system failures 17 resulting in discharges of metals and other pollutants into soil, 18 groundwater, and air, and (2) the presence and flows of 19 pollutants within soil and groundwater and plans for remediation 20 thereof. (See Stone Decl., Ex. F, at 21-24 (Docket No. 49-2).) 21 Although the City notes that Delfino has not previously 22 testified on sudden and accidental releases, (see Mot. at 5 23 (Docket No. 47-1); Reply at 2 (Docket No. 59)), he has testified 24 on closely related issues. Moreover, the City concedes that “an 25 expert need not have testified as to a topic before giving an 26 expert opinion on that topic.” (Id. at 3.) The City also notes 27 that he has not identified himself as an expert on what it claims 28 to be “the key issue in this case: the transport of the various 1 contaminants into the soil and groundwater and their fate 2 therein.” (Mot. at 5 (Docket No. 47-1).) However, his testimony 3 is about the quantities of metals released from the plating 4 facility into the environment and the nature of those releases, 5 not the subsequent fate or transport of those metals within the 6 environment. 7 The remainder of the City’s arguments about Delfino’s 8 qualifications primarily bear on the weight his testimony should 9 be accorded by a factfinder. A district court’s role in 10 determining admissibility, however, is as “a gatekeeper, not a 11 fact finder.” Primiano v. Cook, 698 F.3d 558, 565 (9th Cir. 12 2010). It is “supposed to screen the jury from unreliable 13 nonsense opinions, but not exclude opinions merely because they 14 are impeachable.” Alaska Rent-A-Car, Inc. v. Avis Budget Grp., 15 Inc., 738 F.3d 960, 969 (9th Cir. 2013). Accordingly, these 16 arguments do not impact the court’s conclusion that Delfino is 17 qualified to testify as an expert in this case. 18 II. Reliable Principles and Methods 19 To the extent that the City challenges the principles 20 and methods Delfino used in formulating his opinions, the court 21 disagrees. At the hearing, Delfino explained that to estimate 22 the amount of metal waste that likely escaped into the 23 environment through channels the City identified, he relied in 24 part on prior testimony, the City’s expert’s opinions, and 25 interviews to calculate the number of bumpers processed each day, 26 the thickness of metal plated onto those bumpers, the amount of 27 dust released through grinding and buffing, the volume of 28 wastewater generated through electroplating, the amount 1 wastewater released, and the concentrations of metals in that 2 wastewater. (See also Decl. of Stone, Ex. F, at 12-13 (Docket 3 No. 49-2) (explaining calculations).) 4 He stated that he identified background concentrations 5 of the metals already in the ground and compared those to 6 measurements of metal contaminants at the former plant site, and 7 he measured the volume of the individual releases the City 8 contends were “sudden and accidental” against the overall 9 pollution from the plant to determine those releases’ 10 significance. (See also id. at 13-14; Decl. of Stone, Ex. E 11 (Docket No. 47-6) (detailing data relied upon and results).) 12 When questioned by the court, he confirmed that these methods are 13 commonly relied upon in his field when performing such analyses. 14 Based on the foregoing, the court is satisfied that 15 Delfino’s opinions are based on “reliable principles and methods” 16 and do not merit exclusion. See Fed. R. Evid. 702(c)-(d); City 17 of Pomona, 750 F.3d at 1043; Daubert v. Merrell Dow Pharm., Inc., 18 509 U.S. 579, 589-90 (1993) (in determining admissibility of 19 expert evidence under Federal Rule of Evidence 702, courts must 20 evaluate method’s reliability). 21 III. Chiang’s Role 22 The City also argues Delfino should be excluded because 23 the opinions in his report are primarily those of his colleague, 24 Ken Chiang, or excessively rely on work Chiang performed. (See 25 Mot. at 3, 5 (Docket No. 47-1).) 26 “An expert may base an opinion on facts or data . . . 27 [he] has been made aware of or personally observed.” Fed. R. 28 Evid. 703. An expert may receive assistance in preparing an 1 expert report but “must also substantially participate in [its] 2 preparation”; he “cannot simply peruse the work product of 3 someone else and sign the bottom of the report.” BladeRoom Grp. 4 Ltd. v. Facebook, Inc., 5:15-cv-01370-EJD, 2018 WL 1611835, at *4 5 (N.D. Cal. Apr. 3, 2018) (citations omitted). He may base his 6 opinion on data collected by colleagues and collaborate with them 7 before reaching an opinion. See Wolkowitz v. Lerner, SA CV 07- 8 777-CAS, 2008 WL 1885770, at *4 (C.D. Cal. Apr. 21, 2008) (citing 9 Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1142 (9th 10 Cir. 1997); Scott v. Ross, 140 F.3d 1275, 1286 (9th Cir. 1998)). 11 Chiang assisted Delfino by taking notes during 12 interviews, improving the report’s writing, creating interview 13 questions, creating release scenario spreadsheets, and completing 14 calculations. (Decl. of Stone, Ex. A, Dep. of Delfino (“Delfino 15 Dep.”) at 24:24-25:1-4; 23:24-25; 25:24; 139:24-140:1; 112:19.) 16 This is not a case where the expert “peruse[d] the work product 17 of someone else and sign[ed] the bottom.” BladeRoom, 2018 WL 18 1611835, at *4. 19 The extent of Chiang’s involvement did not exceed the 20 scope of outside involvement other courts have allowed. See id.; 21 Accentra Inc. v. Staples, Inc., CV 07-5862 ABC (RZx), 2010 WL 22 11459205, at *4-5 (C.D. Cal. Oct. 7, 2010). Delfino is permitted 23 to use information Chiang provided, which the court is satisfied 24 “was of the type reasonably relied upon by experts” under similar 25 circumstances. See U.S. v. Golden, 532 F.2d 1244, 1248 (9th Cir. 26 1976); Wolkowitz, 2008 WL 1885770, at *4. 27 IT IS THEREFORE ORDERED that the City’s motion in limine to 28 exclude the testimony of Thomas Delvino from consideration on the eee RI IRE EOE RII NE OI OE OO EO 1 pending motions for summary judgment or at trial be, and the same 2 | hereby is, DENIED. dh blew (hi.t~E— 3 Dated: December 17, 2021 Pi ble VS oh 4 UNITED STATES DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28