Saint-Gobain motion to exclude expert testimony is denied

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RUTLAND — The judge in a proposed class-action suit over PFOA contamination of wells around former ChemFab Corp. plants in Bennington has rejected a bid by Saint-Gobain Performance Plastics to exclude the testimony of several experts for the plaintiffs.

U.S. District Court Judge Geoffrey Crawford, who is presiding over the suit pressed by town residents whose wells were contaminated by PFOA (perfluorooctanoic acid) believed to have emanated from exhaust stacks of two former factories, allowed the testimony in a ruling issued Tuesday.

The testimony of experts for the plaintiffs is expected to focus on the spread of the toxic chemical through groundwater and the air, long-term medical monitoring and other aspects of the suit.

"We are very pleased with the court's decision," said attorney David Silver, of BarrSternberg, one of several lawyers from four firms representing the multiple plaintiffs. "St. Gobain went to great lengths to prevent all seven of our experts from testifying at trial. The court ruled in our favor on all of our experts, permitting each to testify, finding that each of them were highly qualified experts in their field and that their proposed testimony met the legal standard for admissibility."

He added, "It is a very important decision, as it permits us to present our case to the jury in a way that is understandable and compelling."

Another pending ruling in the suit, which was filed in the Rutland court in May 2016, will determine whether the suit can be considered a class-action, meaning that multiple plaintiffs can press their claims jointly, rather than through individual lawsuits.

"The court's Daubert ruling was thoughtful and comprehensive," said Emily Joselson, of Langrock Sperry & Wool, of Middlebury, also representing the plaintiffs group. "We were gratified Judge Crawford rejected the defendant's Daubert motions, which sought to exclude each and every one of our expert witnesses."

The reference refers to case law defining rules of evidence on admissibility of expert witnesses in federal courts, providing the so-called Daubert standard for determining admissibility.

"As the court recognized, our experts are eminently qualified to testify to the opinions they've offered in this case, the methodologies they used to reach their opinions were sound and well-documented, and their opinions clearly 'fit' the needs of this putative class action/environmental contamination case," Joselson said in email. "Thus, this was not the sort of case in which any of our experts should have been excluded. We look forward to the Court's next decision, on the Plaintiffs' motion to certify the case as a class action."

"Judge Crawford did deny most of the company's Daubert motion regarding the exclusion of expert testimony," said Lia LoBello, senior communications manager at Saint-Gobain in an email. "However, Judge Crawford's decision was about the admissibility of proposed expert testimony, and does not go to the accuracy, credibility, or merits of the testimony being offered, which will be subject to cross examination."

She added, "Judge Crawford has not yet ruled on the question of class certification. However, he did grant Saint-Gobain leave to submit supplemental information concerning the state of Vermont's recent filings against manufacturers of PFOA and PFOA-containing products. The company has provided this information, as we believe it reinforces the individual issues at play in Vermont and further supports Saint-Gobain's opposition of class certification."

The suit on behalf of town residents in a state-identified contamination zone was filed after PFOA was detected in soils and private wells and soil in a wide swath around two former ChemFab factories in Bennington.

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From 1968 through 2002 those factories coated fiberglass and other fabrics with Teflon, first at a building on Northside Drive and later in a newly constructed factory on Water Street in North Bennington. Saint-Gobain acquired ChemFab in 2000 and shifted the Bennington operations to a Merrimack, N.H. site two years later.

PFOA was used in the manufacture of Teflon, with which the company coated fiberglass and other fabrics, drying them at high temperature. Vermont environmental officials determined that the chemical spread through emissions from the factory stacks, settling in soils and working its way into groundwater.

After PFOA pollution was found in drinking water around industrial operations in nearby Hoosick Falls, N.Y., wells in Bennington were tested and hundreds tested positive for the chemical.

Levels of concentration in wells tested ranged from non-detectable to nearly 3,000 parts per trillion. Vermont soon after the initial testing set an advisory standard for drinking water of 20 parts per trillion.

In blood testing of hundreds of residents, elevated levels of PFOA also were found. The chemical has been associated with testicular, kidney and other cancers; hypertension, thyroid disease, liver disease and ulcerated colitis.

The levels are known to go down slowly over a number of years after the exposure to PFOA ends, which is a factor in the plaintiffs demands for long-term medical monitoring for associated diseases and conditions.

Saint-Gobain has separately reached two content agreements with the state Agency of Natural Resources under which the firm will provide more than $40 million to extend municipal water lines to properties with wells affected by the contaminant and to cover other expenses incurred by the state in responding to the pollution.

In his ruling, Crawford decided that the plaintiff's expert witnesses met the Daubert admissibility standard and would be allowed to testify at trial on the areas of expertise.

Saint-Gobain had sought to exclude testimony of three experts concerning the source of the contamination, two others concerning the proposed remedy of medical monitoring for those exposed to PFOA, primarily through drinking water; an expert to testify on alleged environmental regulatory violations and one on economic losses because of the pollution.

The judge did, however, say he wouldn't permit an expert on economic losses to testify to the total amounts of financial loss sustained as calculated in one instance by the expert.

"It's critical to note that Judge Crawford also significantly limited the testimony of plaintiffs' expert on a large component of the damages plaintiffs sought in this case," LoBello said of that partial exclusion.        

Jim Therrien writes for New England Newspapers in Southern Vermont, including the Bennington Banner, Brattleboro Reformer and Manchester Journal. Twitter: @BB_therrien     


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