Bryant v. Intercontinental Terminals Co.
| Docket Number | 4:19-cv-01708,4:19-cv-01460 |
| Decision Date | 21 June 2023 |
| Parties | BRYANT, et al., Plaintiffs, v. INTERCONTINENTAL TERMINALS COMPANY LLC, et al., Defendants. IN RE INTERCONTINENTAL TERMINALS COMPANY, LLC DEER PARK FIRE LITIGATION |
| Court | U.S. District Court — Southern District of Texas |
Pending before the Court are Plaintiffs' Motion for Class Certification, ECF No. 39; Plaintiffs' Motion to Exclude Opinions and Testimony of Defendants' Expert Paolo Zannetti, ECF No. 37; Defendants' Motion to Exclude Plaintiffs' Air Modeling Expert William Auberle, ECF No 41; and Defendants' Motion to Exclude Plaintiffs' Toxicology Expert S. Thomas Dydek, ECF No. 42.[1] The Court held two days of hearings on these motions.
In this case, proposed class representatives Amanda Bryant, Harn Lee Silver's Andy Nails, Veronica Cantu, and Stephanie Ochoa (collectively, “Plaintiffs”) seek economic damages from Intercontinental Terminals Company, LLC (“ITC”) and NSK Corporation (collectively “Defendants”) for harms allegedly suffered from a fire at the ITC Deer Park, Texas facility. Plaintiffs have asserted causes of action for trespass, negligence, nuisance manufacturing defect, design defect, and products liability. Plaintiffs ask the Court to certify a class “consist[ing] of the individuals residing in, and the businesses, governmental entities and schools located in, the isopleth[2] attached as Exhibit A2 during the ITC fires.”[3] ECF No. 40 at 6. The parties also ask the Court to exclude expert opinions submitted in support of and against class certification. ECF Nos. 37, 41, 42.
The primary issue before the Court is whether Plaintiffs' proposed class satisfies the requirements for certification under Rule 23 of the Federal Rules of Civil Procedure. The Daubert motions are relevant only to the extent Plaintiffs rely on an expert's report or testimony in support of the class certification motion. Based on the briefing, applicable law, counsel's arguments at the December 2nd and 13th, 2022 hearings, and the extensive evidence presented, the Court finds that, even assuming the Daubert motions were denied, Plaintiffs have failed to carry their burden of satisfying the Rule 23 requirements.[4] If the class were certified, the Court finds that individual issues would predominate over common questions because resolving Plaintiffs' claims would require individualized inquiries into causation and damages that would overwhelm common questions. Further, because Plaintiffs' motion for class certification is denied, the parties' motions to exclude expert testimony are also denied as moot.
This action concerns a fire at ITC's Deer Park, Texas facility that burned from March 17, 2019 to March 20, 2019 (the “ITC Fire”). Deer Park Fire Updates Excerpt, ECF No. 52-1. During the fire, fifteen storage tanks burned, containing a variety of chemicals, including naphtha (a flammable liquid hydrocarbon mixture), xylene (a solvent and cleaning agent), GBS (gas blend stock, a complex mixture of hydrocarbons), and lubricant oils (a complex mixture of low and high molecular weight hydrocarbons). Second Am. Compl., ECF No. 35 at ¶ 27.
In response to the fire, the cities of Deer Park and Galena Park issued shelterin-place orders. Deer Park issued two separate orders, one on March 17, 2019, and another on March 21, 2019. Deer Park Fire Updates Excerpt at 3-4, ECF No. 52-1. In relevant part, the March 21, 2019 Deer Park shelter-in-place order provided that there were reports of “action levels of benzene or other volatile organic compounds (VOCs) within city limits.” Id. at 3. It further directed Deer Park residents to go inside immediately, close all doors and windows, and take steps to prevent vapors from entering residents' homes. Id. Galena Park also issued a shelter-in-place order on March 21, 2019. March 21, 2019 Tweet from City of Galena Park, ECF No. 52-2.
Following the ITC Fire, Plaintiffs filed a class action complaint, asserting six causes of action: (1) trespass; (2) negligence; (3) nuisance; (4) manufacturing defect; (5) design defect; and (6) products liability (seller). ECF No. 35 at 1. Plaintiffs seek to recover use and enjoyment damages, property damages, annoyance and inconvenience damages, as well as lost profits and wages. Id. at 24. Plaintiffs do not seek any recovery for personal injury. ECF No. 40 at 7. Plaintiffs allege that particulate matter from the ITC Fire was deposited on their property-both dwellings and places of businesses-and that they suffered damages as a result.
Plaintiffs' motion asks the Court to certify a class consisting of all individuals residing in, and the businesses, governmental entities and schools located in, an area that they claim received a ground-level concentration of particles at a rate of one gram per square meter (the “Class Area”). ECF No. 40 at 6; Auberle Expert Rept. at 6, ECF No. 41-3. The Class Area is 83.86 square miles. Bergin & Mims Expert Rept. at 16, ECF No. 52-3. Approximately 190,000 individuals reside in, and between 2,500 and 3,500 businesses are located within, the Class Area. Gilbert Expert Rept. at 3, ECF No. 40-2. Less than 24% of individuals and 21% of businesses in the Class Area were subject to shelter in place orders. Bergin & Mims Expert Rept. at 18-19, ECF No. 52-3.
Individuals residing within the Class Area are employed in a variety of industries. The top three industries of employment are services, construction, and manufacturing. Bergin & Mims Expert Rept. at 27, ECF No. 52-3. There is also significant diversity among the businesses in the class area. Id. at 36.
Federal Rule of Evidence 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.
FED. R. EVID. 702. Under Rule 702, the Court must act as a gatekeeper, “ensur[ing] that proffered expert testimony is ‘not only relevant, but reliable.'” Brown v. Illinois Cent. R. Co., 705 F.3d 531, 535 (5th Cir. 2013) (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993)). To discharge this gatekeeping function, the Court “must make ‘a preliminary assessment of whether the reasoning or methodology underlying the testimony is . . . valid and of whether that reasoning or methodology properly can be applied to the facts in issue.'” Id. (quoting Daubert, 509 U.S. at 592-93). “In assessing the ‘reliability' of an expert's opinion, the trial court may consider a list of factors including: ‘whether a theory or technique . . . can be (and has been) tested,' ‘whether the theory or technique has been subjected to peer review and publication,' ‘the known or potential rate of error,' ‘the existence and maintenance of standards,' and ‘general acceptance' of a theory in the ‘relevant scientific community.'” Hinson v. Dorel Juvenile Group, Inc., 2016 WL 3199353, at *1 (E.D. Tex. June 9, 2016) (quoting Daubert, 509 U.S. at 593-94). Other relevant factors include whether the expert's theory came from litigation or independent research, whether there is a large analytical gap between the data and opinion such that the theory does not “fit” the case, and whether the expert considered alternative explanations. FED. R. EVID. 702 advisory committee's note to 2000 amendment.
District courts need not “‘admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.'” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 157 (1999) (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)). Still, courts must be careful not to use admissibility to improperly supplant a party's right to trial by jury. Earl v. Boeing Co., 2021 WL 3140545, at *2 (E.D. Tex. July 26, 2021) (citing United States v. 14.38 Acres of Land, 80 F.3d 1074, 1078 (5th Cir. 1996)). The party offering the expert must prove “‘by a preponderance of the evidence that the testimony is reliable,' not that it is correct.” Swanston v. City of Plano, Tex., 2021 WL 327588, at *2 (E.D. Tex. Feb. 1, 2021) (quoting Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998)). The trial judge's discretion “will not be disturbed on appeal unless manifestly erroneous.” Watkins v. Telsmith, Inc., 121 F.3d 984, 988 (5th Cir. 1997) (cleaned up).
Plaintiffs' air modeling expert William Auberle opines that one gram per square meter of particulate matter was deposited over an 84-square-mile area from the ITC Fire. See Auberle Expert Rept., ECF No. 41-3. Auberle, an environmental engineer with over fifty years of experience,[5] used AERMOD to model the deposition of particulate matter from the ITC Fire. Id. at 3-4. Defendants argue that Auberle's opinion is unreliable because he (1) used arbitrary inputs for his model; (2) did not undertake any sensitivity or uncertainty analyses; (3) ignored available data from other sources; and (4) the one gram per square meter of particulate matter threshold selected for the Class Area was arbitrary. ECF No. 41 at 6-7. Plaintiffs primarily respond that Defendants' complaints should go to weight and not admissibility. ECF No. 45 at 9. Although the Court denies Defendants'...
To continue reading
Request your trial