Chemical Engineering Expert Witness’ Testimony About the Harms Surrounding PFOA Limited
Posted on September 16, 2024 by Expert Witness Profiler
This case involves a dispute concerning the contamination of the drinking water in Hoosick Falls, New York by perfluorooctanoic acid, a chemical commonly referred to as PFOA. Following multiple settlement agreements with certain Defendants, DuPont is the only remaining Defendant. Plaintiffs alleged that DuPont is liable for producing the PFOA that ultimately contaminated the water supply in Hoosick Falls. To bolster those allegations, Plaintiffs retained Dr. Michael Hickner to testify about the harms surrounding PFOA and DuPont’s knowledge thereof.
DuPont sought to preclude Hickner from offering the following opinions:
(1) The Barr Processor Mass Balance Study released in 2005 definitively demonstrated that PFOA was not destroyed during AFD processing and that IR heated ovens released into the air . . . PFOA vapor during processing;
(2) DuPont was aware since the 1980s that when AFD was heated to temperatures above 150 [degrees Celsius] APFO in the AFD would sublime to form PFOA vapors;
(3) DuPont was aware at least since the mid-1990s that PFOA was stable at 250 [degrees Celsius] and had a half-life of 31.5 minutes when heated to 300 [degrees Celsius];
(4) DuPont was aware since the 1970s that [released] PFOA . . . would not reach 300 [degrees Celsius] for more than a few minutes; and
(5) DuPont recognized in the 1980s that PFOA released from heating AFD could contaminate drinking water and began a program to capture and recycle PFOA released from its fine powder dryers using scrubbers and other technologies.
Chemical Engineering Expert Witness
Michael Hickner has a Ph.D. in chemical engineering and is a researcher and professor in materials engineering and materials sciences. At the time he completed his report, he was a professor of Materials Science and Engineering at Penn State University. In 2023, he became an endowed professor in the Department of Chemical Engineering at Michigan State University. Since 1998, he has conducted research regarding polymers and has worked with fluoropolymers such as those contained in AFD, which are the focus of this case Hickner has taught classes in chemistry, polymers, and materials science.
Discussion by the Court
Opinion # 1
DuPont first sought to exclude Hickner’s opinion that the Barr Study definitively demonstrated that PFOA was not destroyed during AFD processing but instead was released into the air. DuPont does so on the basis that Hickner “offer[ed] nothing more than an interpretive narration of documents” to arrive at his conclusion.”
In formulating his opinion, Hickner summarized the findings of the Barr Processor Mass Balance Study “performed in response to EPA’s concerns about PFOA in the environment.” He stated that the “study demonstrated that 39-54% of [chemicals were] released through the air to the environment as PFOA through the [infrared] oven process.” He goes on to state a number of statistics detailed in the Barr Study. Hickner uses these statistics and other chemical data to support his ultimate finding that the Barr Study demonstrates that PFOA was released into the air rather than destroyed during processing.
DuPont takes issue with this method, arguing that the ultimate opinion is a “factual narrative based on nothing more than a review of documents and testimony.” The Court believed that the Barr Study summarized by Hickner is sixty-seven pages of highly technical and scientific data regarding AFD processing, infrared ovens, PFOA vapor release, and other scientific data. In other words, Hickner’s testimony would “streamline the presentation of that data to the jury, saving the jury time and avoiding unnecessary confusion.”
Opinions ## 2-5
Opinions two through five all concern what DuPont was “aware” of and “recognized” and when. Black’s Law Dictionary defines to “become aware of” as to have “specific knowledge of something.” The Court held that Hickner’s opinions all concern what DuPont knew and when. To allow such testimony would be to wrongly supplant the role of the jury. This is especially true because Hickner has no expertise in the field of corporate governance from which he could offer opinions about how knowledge held by some individuals in a corporation could be imputed to the corporation itself.
The Court added that Hickner may offer testimony on the scientific data supporting his ultimate conclusions provided he does not opine on DuPont’s knowledge.
Held
The Court granted in part and denied in part the Defendant’s motion to exclude expert testimony from Dr. Michael Hickner. Hickner’s testimony was limited to his opinion on the Barr Study, the general science behind chemical processing and PFOA, and what information was available about that science to individuals associated with DuPont.
Key Takeaway:
If expert testimony is permitted to aid a jury in understanding business practices, the Court is comfortable finding that expert testimony would aid the jury here where the scientific data at issue is dense, complex, and difficult to understand without specialized knowledge.
Case Details:
| Case Caption: | Baker Et Al V. Saint-Gobain Performance Plastics Corp. Et Al |
| Docket Number: | 1:16cv917 |
| Court: | United States District Court, New York Northern |
| Order Date: | September 12, 2024 |
