United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
JOHN A. ROSS, UNITED STATES DISTRICT JUDGE.
On September 12, 2014, this matter came before the Court for hearing on Asarco’s prima facie case on its contribution claim under CERCLA § 113(f) against Union Pacific (Doc. No. 214) and Union Pacific’s motion for summary judgment. (Doc. No. 220) At the hearing, the Court advised the parties that it would take all pending motions concerning exhibits, expert reports and affidavits with these matters, namely, Asarco’s Motion to Exclude Opinions of Union Pacific’s Expert Roy P. Farwell (Doc. No. 222), Union Pacific’s Motion to Exclude Expert Opinions and Testimony of Asarco’s Expert (Doc. No. 224), Union Pacific’s Motion to Strike the Declarations of Sidney L. Strickland and Gregory Evans (Doc. No. 248), Asarco’s Motion to Strike New Evidence submitted by Union Pacific in its Summary Judgment Reply Brief (Doc. No. 252), Asarco’s Motion to Strike Union Pacific’s Exhibits and Summaries of Evidence (Doc. No. 266), and Union Pacific’s Motion for Leave to file its Demonstrative Exhibits in advance of the Lone Pine Hearing (Doc. No. 272). All pending motions are fully briefed and ready for disposition.
This is a civil action brought by Plaintiff Asarco LLC (“Asarco”) under the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601 et seq., for contribution and cost recovery against Defendants NL Industries, Inc. (“NL”), Union Pacific Railroad Company (“Union Pacific”), St. Francois County Environmental Corporation (“SFCEC”), Delta Asphalt, Inc. (“Delta”), and Anschutz Mining Corporation (“AMC”) for monies it paid in its settlement with the United States and the State of Missouri regarding its environmental liability at the Southeast Missouri Mining District (“SEMO”) sites. Due to the complex nature of the case, the Court entered a Lone Pine modified case management order requiring Asarco to make a prima facie showing on the issue of CERCLA liability. (Doc. No. 147) The Court later clarified for the parties that to establish its prima facie case under CERCLA § 113(f), Asarco must prove that: (i) Defendants fall under one of four categories of “covered persons;” (ii) the site in question is a “facility;” (iii) there was a “release” or “threatened release” of a “hazardous substance” at the facility; and (iv) the release caused it to incur response costs. 42 U.S.C. § 9613(f). (Doc. No. 189)
Delta subsequently settled with Asarco and was dismissed from the case on October 31, 2013. (Doc. No. 170) SFCEC, NL Industries, and Anschutz stipulated to prima facie liability with respect to Asarco’s CERCLA contribution claim for purposes of the Lone Pine hearing. (Doc. Nos. 190, 192, 193) At the hearing, counsel for Asarco stipulated on the record that Asarco was limiting its case to St. Francois and Madison Counties and opting not to pursue its contribution claim with respect to the sites in Reynolds and Iron Counties, namely, the West Fork Mine, the Sweetwater Mine, and the Glover Smelter. (Transcript of hearing (“Tr.”), Doc. No. 299 at 4:20-5:24)
II. Lone Pine showing
A. Evidentiary matters
Before considering the merits of Asarco’s claim, the Court must address a number of evidentiary matters raised by the parties in connection with the Lone Pine showing.
1. Daubert motions
Asarco offers Paul V. Rosasco, P.E., a geologist, hydrogeologist and civil engineer,  as its expert to opine on Union Pacific’s prima facie liability under CERCLA. His opinions are summarized as follows:
A. Union Pacific Railroad owns or its predecessors owned railroad lines within St. Francois and Madison Counties that were used to haul ore and other materials to and from the historic mining sites located in SEMO.
B. The railroad track ballast and in some instances the grades of these railroad lines were constructed using mining-related waste materials, specifically chat.
C. Chat contains hazardous substances including cadmium, lead and zinc.
D. Erosion of and dissolution of metals from the railroad track ballast has resulted in release, or threat of release of cadmium, lead and zinc to surface water and sediment.
E. The U.S. Environmental Protection Agency has used funds provided by Asarco to conduct response actions to address occurrences of cadmium, lead and zinc in surface water and sediment within St. Francois and Madison Counties.
(Rosasco Report, Doc. No. 214-6 at 3)
Union Pacific disclosed railroad attorney Roy P. Farwell, J.D.,  to rebut Rosasco’s opinion with respect to ownership and control of railroad lines within St. Francois and Madison Counties and legal succession. He opines as follows:
Opinion 1 - Railroad Rights of Way in Missouri are normally easements that terminate with abandonment of rail use. The rights of way involved in the lines discussed in this opinion are consistent with this. Abandonment occurs when the railroad evidences an intention to discontinue rail service with no prospect of resumption. Upon abandonment the then unencumbered ownership lies with the underlying fee holder, typically the owners of the adjacent property.
Opinion 2 -- Neither [Union Pacific] nor any of its corporate predecessors ever owned property within what are now known as the SEMO Sites.
Opinion 3 -- There are major breaks in corporate successorship even on lines that [Union Pacific] or predecessors owned or operated, which serve to cut off potential liability.
Opinion 4 -- There were periods of time when one or more of the relevant railroads did not have control over its operations.
Opinion 5 -- There are periods of time when other entities accepted responsibility for liabilities arising out of rail operations.
(Farwell Report, Doc. No. 222-2 at 1-2)
Both sides have moved to exclude the testimony of each other’s experts. Asarco argues that Mr. Farwell’s opinions are outside the scope of proper rebuttal (see Doc. No. 222 at 7-9) and contain improper legal conclusions. (Id. at 10-12) Union Pacific argues that Mr. Rosasco’s opinions, particularly regarding ownership of SEMO rights of way (“ROW”), are outside the scope of his expertise. (Doc. No. 224 at 4-5) Union Pacific also argues that Mr. Rosasco’s opinions based on ballast samplings conducted by Asarco and environmental lab NewFields should be excluded as unreliable because without knowledge of the sampling locations or methodology, the results cannot be verified, reproduced or tested. (Id. at 6-9, 12-15)
As a threshold matter, the parties disagree on the extent of the Daubert analysis at the Lone Pine stage of this case. Relying on In re Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d 604 (8th Cir. 2011), Asarco maintains that Lone Pine expert reports are intended to be a preliminary showing that a case potentially has merit and that an exhaustive Daubert inquiry is not required, particularly before completion of merits discovery. (Doc. No. 230 at 2-4) In Zurn Pex, the Eighth Circuit concluded that a full Daubert analysis would have been “impractical” because the parties had engaged in bifurcated discovery, resulting in a limited evidentiary record at the class certification stage that would have “prevented … [a] full and conclusive Daubert inquiry.” 644 F.3d at 612-13. See also In re Vioxx Products Liability Litig., 2012 WL 1398622, at *4 (E.D.La. April 23, 2012), where the court noted that Lone Pine case-specific expert reports were not intended to be polished expert witness reports compliant with Rule 702 and capable of withstanding Daubert scrutiny.
In contrast, Union Pacific argues that the prima facie posture of a case subject to a Lone Pine order does not permit the skirting of accepted procedure concerning expert testimony and that a full Daubert analysis is required. (Doc. No. 235 at 3-4) Union Pacific cites to Avila v. Willits Envtl. Remediation Trust, 633 F.3d 828 (9th Cir. 2011). In Avila, the court excluded an expert report rendered pursuant to a Lone Pine order on the grounds that the expert lacked necessary expertise, failed to show causation and because his opinions were unreliable. Id. at 838-39.
The purpose of a Daubert motion is to ensure that only reliable and relevant expert testimony is presented to a jury. Russell v. Whirlpool Corp., 702 F.3d 450, 456 (8th Cir. 2012). Thus, the usual concerns of Daubert are not present in a case where, as here, the district judge sits as the trier of fact in place of a jury. See Zurn Pex, 644 F.3d at 613 (quoting United States v. Brown, 415 F.3d 1257, 1269 (11th Cir. 2005) (“There is less need for the gatekeeper to keep the gate when the gatekeeper is keeping the gate only for himself.”). The Court believes that some limited Daubert analysis is appropriate at this stage for purposes of determining whether Asarco has established its prima facie case, but will in its discretion apply a more relaxed Daubert standard for admitting the testimony. See Tussey v. ABB, Inc., 746 F.3d 327, 337 (8th Cir. 2014) (“In a bench trial, we not only give the trial court wide latitude in determining whether an expert's testimony is reliable, we also relax Daubert's application.”) (internal quotation marks and citations omitted). See also David E. Watson, P.C. v. U.S., 668 F.3d 1008, 1015 (8th Cir. 2012).
Generally, expert testimony is admissible when it is reliable and will assist the trier of fact. See Fed.R.Evid. 702. The Court is entitled to substantial discretion in determining whether expert testimony should be allowed. Russell, 702 F.3d at 456. If the Court is satisfied with the expert’s knowledge, skill, experience, training, or education, “and the expert's testimony is reasonably based” on that expertise, “the court does not abuse its discretion by admitting the testimony.” Weitz Co. v. MH Washington, 631 F.3d 510, 527 (8th Cir. 2011) (quoting United States v. Kenyon, 481 F.3d 1054, 1061 (8th Cir.2007)); Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 588-91 (1993). Furthermore, mere disagreement with assumptions and/or methodology does not warrant exclusion of expert testimony. Normally, questions regarding the factual bases and underpinnings of an expert's opinion affect the weight to be assigned that opinion rather than its admissibility, which should be left for the fact-finder’s consideration. See, Watson, P.C. v. United States, 668 F.3d 1008, 1014-15 (8th Cir. 2012).
After careful review of the materials submitted by the parties, the Court finds both Mr. Rosasco and Mr. Farwell have the requisite knowledge and expertise on which to base their opinions. Mr. Rosasco has over 30 years of professional experience with CERCLA and National Priorities List (NPL) site projects; Mr. Farwell has a 34-year tenure with Union Pacific working on railroad land ownership and control issues in Missouri. Both their reports are carefully researched, detailed and relevant. The Court will, therefore, exercise its discretion and deny the motions to exclude. The Daubert issues in this case are matters for the Court to consider in terms of weighing the testimony and reports of the parties’ proposed experts as opposed to finding the evidence so unreliable that it should not even be considered. Bonner v. ISP Tech., Inc., 259 F.3d 924, 929-30 (8th Cir. 2001).
2. Union Pacific’s demonstrative exhibits
On September 8, 2014, Union Pacific filed a notice with the Court that it would use demonstrative aids in support of its argument at the Lone Pine hearing and attached specific examples and descriptions of those aids, including maps, photographs, tables, and charts. (Doc. No. 264) Asarco objected to Union Pacific’s notice because it failed to disclose the actual demonstrative exhibits, offering instead only “examples” of the types of evidence it might offer at the hearing which were too vague to afford it adequate notice to examine the exhibits. (Doc. No. 267) Asarco also objected on the grounds that Union Pacific’s exhibits were not timely disclosed pursuant to the Court’s August 13, 2014 order requiring the parties file their exhibits to be offered in evidence at the Lone Pine hearing no later than September 8, 2014. (Doc. No. 246) Union Pacific responded by seeking leave to file its demonstrative exhibits in advance of the hearing, specifically a PowerPoint presentation (Doc. No. 272-1) and other visual aids consisting of demonstrative maps. (Doc. No. 272-2) Asarco objected to Union Pacific’s use of these exhibits during the September 12 hearing. (Tr. at 27:23-28:24) The Court allowed Union Pacific to use them, and Asarco renewed its objections in a later filed memorandum in opposition to Union Pacific’s motion for leave to file its demonstrative exhibits. (Doc. No. 284)
The Rules of Evidence are silent on the use and admissibility of “demonstrative” exhibits. Nevertheless, the Eighth Circuit has explained that district courts have “virtually unfettered discretion to regulate the use of … non-evidentiary devices, either generally or to achieve procedural fairness and regularity in a particular case.” United States v. Crockett, 49 F.3d 1357, 1362 (8th Cir. 1995). The use of charts, diagrams, and other visual aids to summarize other evidence is generally permissible in the sound discretion of the trial court, particularly when used to organize complex testimony or transactions for the fact finder, which in this case is the district judge. See United States v. Caswell, 825 F.2d 1228, 1235 (8th Cir.1987).
Asarco has not formulated specific objections to Union Pacific’s demonstrative materials or provided any specific deposition testimony it would have cross-designated had it been afforded access to Union Pacific’s demonstrative exhibits at an earlier time. Thus, the Court finds Asarco was not prejudiced by those exhibits. Accordingly, the Court will grant Union Pacific’s motion for leave to file its demonstrative exhibits and overrule Asarco’s objections thereto.
3. Union Pacific’s summaries of evidence
Union Pacific also filed several Notices of Filing Exhibits offering into evidence the exhibits it was relying on in support of its response to Asarco’s Lone Pine brief and summary judgment motion. (Doc. Nos. 253, 255, 256, 260, 264) In addition, Union Pacific filed a number of Summaries of Evidence pursuant to Federal Rule of Evidence 611. (Doc. Nos. 254, 257, 258, 259, 261, 262, 263) Asarco moves to strike Union Pacific’s exhibits and summaries, arguing first that pursuant to E.D.Mo. L.R. 4.01 and Rule 6(c)(2), “new documents” submitted either in support of or in opposition to a motion must be filed at the time the motion or opposition is filed. (Doc. No. 266 at 4-5) Asarco further argues that the Court’s August 13 Order addressing scheduling and procedures for the Lone Pine hearing did not provide for “summaries” of evidence, which Asarco characterizes as “surreplies in disguise” (see Doc. No. 266 at 10), or the filing of “new” exhibits. (Id. at 4-5) Asarco complains these late and unauthorized submissions have denied it any notice to meaningfully respond or rebut this evidence in its Lone Pine reply brief.
Union Pacific responds that the documents are not “new”; rather, they include documents cited by its expert Mr. Farwell, whose report is in the record, as well as documents produced by Asarco. (Doc. No. 281 at 3-4) Further, its summaries of evidence were not presented as admissible evidence, but rather as a “pedagogical aid” to the Court in identifying, among volumes of documents already ...