Forensic Accounting Expert Witness’ Opinion About Defendant’s Potential Contribution of APFOs Admitted
Posted on September 18, 2024 by Expert Witness Profiler
The case involves allegations concerning the contamination of drinking water in Hoosick Falls, New York, by perfluorooctanoic acid (PFOA), a chemical commonly referred to as PFOA. Plaintiffs claim that the primary source of this contamination was a fabric coating facility located on McCaffrey Street. According to their allegations, DuPont manufactured and sold aqueous fluoropolymer dispersions (AFD) containing ammonium perfluorooctanoate (APFO) to Saint-Gobain and Allied Signal, who used these products at the facility. APFO, when dissociated in water, forms perfluorooctanoate (PFO) and, under acidic conditions, transforms into PFOA, which contributed to the contamination.
Plaintiffs allege that DuPont supplied PFOA-containing AFD products to these companies from the 1950s through 2015, despite being aware of the health hazards associated with PFOA exposure by 1984. They further assert that DuPont was also aware of technologies that could have reduced or eliminated PFOA emissions but chose not to advise its customers or recommend testing for PFOA in groundwater near their facilities. Instead, DuPont allegedly prioritized profits over safety, continuing to sell these products without warning about the risks.
DuPont, in its defense, denied many of the allegations and disputed its role as a direct and proximate cause of the contamination. It argued that it was not a significant contributor to the contamination of the Hoosick Falls water supply. To support this, DuPont submitted expert reports from Adam Love and David Duffus, suggesting that the company contributed only around 15% of the total AFDs delivered to the McCaffrey Street facility between 1991 and 2003. Plaintiffs, however, sought to exclude their expert testimony, arguing that they were not relevant to the case.
Environment Engineering Expert Witness
Dr. Adam Love earned a Bachelor of Arts in Geosciences from Franklin & Marshall College in 1996, followed by a Master of Science in Material Science and Mineral Engineering in 1998, and a Doctor of Philosophy in Civil and Environmental Engineering in 2002, both from the University of California, Berkeley. He accumulated over 20 years of experience in environmental forensics, site characterization, remediation, exposure assessment, human health risk, and contamination transport analysis.
From 1996 to 2002, Love worked as a graduate student researcher at UC Berkeley, contributing to contaminant transport and environmental forensic evaluations. He developed new techniques for environmental pollution reconstruction and allocation. From 2002 to 2009, he served as a scientist at the Forensic Science Center at Lawrence Livermore National Laboratory.
Forensic Accounting Expert Witness
David Duffus is a forensic accountant with over 25 years of experience across diverse industries. He earned a BA in Economics and Political Science, an MBA in Accounting and Finance, and held several professional designations, including CPA, ABV, CFE, and CFF.
Throughout his career, Duffus served as an expert on more than 100 occasions, testifying over 90 times in depositions, trials, and alternative dispute settings. He handled disputes involving values up to $275 million and project values exceeding $300 million. Additionally, he acted as an arbitrator and neutral accountant in post-acquisition and valuation-related disputes.
Since 1992, Duffus specialized in complex litigation services, forensic accounting, and valuation assignments for a wide range of businesses, from start-ups to Fortune 100 companies. He collaborated extensively with legal counsel through all phases of litigation, providing expert witness and deposition testimony in both state and federal courts, as well as in alternative dispute settings. Before joining HKA, Duffus dedicated nearly 17 years to Baker Tilly’s Global Forensics & Litigation Services practice, including 15 years as a partner.
Discussion by the Court
Adam Love
Plaintiffs sought to exclude Love’s testimony on the grounds of irrelevance, asserting that his opinions did not cover the full period during which DuPont supplied chemicals to the McCaffrey Street site. They argued that Love’s data only reflected roughly a third of the known supply period, making it insufficient to determine DuPont’s contribution to the contamination. Plaintiffs further contended that his opinions did not make it less probable that DuPont significantly contributed to the contamination in Hoosick Falls.
The Court, however, found Love’s testimony relevant under Rule 401 of the Federal Rules of Evidence, which allows evidence that has any tendency to make a fact more or less probable. The comparative data he presented could reasonably lead a jury to conclude that DuPont was not a significant contributor to the contamination. Additionally, the Court noted that Love’s report explicitly recognized the limitations in the available data, particularly regarding the APFO content in the AFDs supplied by DuPont. While Plaintiffs argued that this limited scope could confuse the jury, the Court emphasized that such concerns could be addressed through cross-examination rather than by excluding the testimony. Thus, Love’s testimony was found to be both relevant and based on a sufficient foundation.
David Duffus
Plaintiffs also sought to exclude Duffus’ expert testimony, arguing that his reliance on a limited data set—specifically, records from Saint-Gobain covering a narrow time frame—rendered his conclusions irrelevant. Duffus’ report addressed DuPont’s supply of AFDs between 1991 and 2003, but Plaintiffs argued that this narrow focus could not accurately assess DuPont’s contribution to the contamination.
In response, the Court found Duffus’ testimony relevant under Rule 702, which establishes a broad standard for the admissibility of expert opinions. Despite the limited data set, the Court concluded that Duffus had based his opinions on the best available information, which was accessible to both parties. The Court also rejected Plaintiffs’ argument that the source of the data—Saint-Gobain—undermined the testimony’s foundation. Instead, it held that any limitations in Duffus’ analysis could be explored during cross-examination, rather than serving as grounds for exclusion. Permitting Plaintiffs’ able counsel to cross examine Duffus about the perceived limitations of the data set and what, if any, information can be gleaned from his opinion about DuPont’s potential contribution of APFOs is considered a better remedy than total preclusion of this opinion.
Held
The Court denied the Plaintiffs’ motions to exclude expert testimonies from Adam Love and David Duffus, ruling they met relevance and admissibility standards under Federal Rules 401(a) and 702.
Key Takeaways:
- Relevance of Expert Testimony: The Court affirmed that expert testimony can be relevant even if it doesn’t cover the entire time period of alleged contamination. Partial data can still be useful in assessing a party’s potential contribution to environmental damage.
- Cross-Examination vs. Exclusion: The Court favored allowing expert testimony and subjecting it to cross-examination rather than excluding it entirely, even when there were potential limitations in the data or analysis.
- Foundation for Expert Opinions: The Court found that expert opinions based on limited available data can still have sufficient foundation, especially in cases where complete historical records may not exist.
- Source of Data: The Court determined that the source of data (in this case, from one of the parties) does not automatically render expert testimony inadmissible or lacking foundation.
Please refer to the blog previously published about this case:
Chemical Engineering Expert Witness’ Testimony About the Harms Surrounding PFOA Limited
Case Details:
| Case Caption: | Baker v. Saint-Gobain Performance Plastics Corp. |
| Docket Number: | 1:16cv917 |
| Court: | United States District Court for the Northern District of New York |
| Order Date: | September 13, 2024 |
