United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM & ORDER
W. SIPPEL UNITED STATES DISTRICT JUDGE
Ameren Missouri moves to exclude the opinion of
Plaintiff-Intervenor Sierra Club's expert witness, Dr.
Philippe Grandjean. Dr. Grandjean's opinions are relevant
to determining the balance of equities under an eBay
analysis, he is well-qualified to opine on the significance
of mercury emissions, and his methods are reliable. As a
result, I must deny Ameren's Daubert motion to
exclude Dr. Grandjean's testimony.
January 23, 2017, after a bench trial, I found that Ameren
violated the Clean Air Act, 42 U.S.C. § 7401 et
seq., by failing to obtain a permit before making major
modifications to its Rush Island Plant. (ECF No. 852). The
liability and remedies phases of this case were severed.
remedy phase trial, the Sierra Club seeks to call Dr.
Philippe Grandjean as an expert witness. Dr. Grandjean
teaches environmental medicine at Harvard University and the
University of Southern Denmark. (Brief in opposition, filed
under seal at ECF No. 989 at 2). His research focuses on
methylmercury, a form of mercury known to cause severe human
health impacts. (Id. at 3). He has an M.D. and a
Ph.D. and has published more than 500 articles on human
health effects of toxic exposure. (Id. at 2-3).
Grandjean's expert disclosure report explains how
elemental and airborne mercury released from power plants are
transported through the environment and transformed into
methylmercury. Dr. Grandjean's report discusses, for
example, (1) that all airborne and elemental mercury
eventually becomes methylmercury (2) that methylmercury
bioaccumulates in fish, (3) that it is difficult keep
one's methylmercury exposure below the Environmental
Protection Agency's (EPA) reference dose when eating
recommended quantities of fish, (4) that about 16% of
childbearing age women in the U.S. have blood mercury
concentrations higher than the recommended amount, and (5)
that methylmercury causes neurophyschological and
neurophysiological deficits for fetuses detectable through
young adulthood, among other harms.
Sierra Club intends to use Dr. Grandjean's report to
demonstrate the benefits of installing FGD on Rush Island as
part of an “historic BACT analysis.” According to
the Sierra Club, an historic analysis is necessary to
determine what emissions limit Rush Island should have been
subject to, the excess emissions released above that limit,
and correspondingly, what remedy is appropriate now. Ameren
argues that such an historic analysis is irrelevant to
determining an appropriate remedy under the eBay
four-factor test. eBay Inc. v. MercExchange, L.L.C.,
547 U.S. 388, 391 (2006). For that reason, Ameren argues that
Dr. Grandjean's opinion is unhelpful, unreliable, and
should be excluded.
to Federal Rule of Evidence 702 and Daubert, I must
“ensure that any and all scientific testimony or
evidence admitted is not only relevant, but reliable.”
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,
589, (1993). Expert testimony must be excluded if its
reasoning or methodology is either unreliable or unreliably
applied to the facts of the case. Id. 592-93. The
burden is on the party offering the expert testimony to prove
that it is reliable. Wagner v. Hesston Corp., 450
F.3d 756, 758 (8th Cir. 2006). The objective of these
requirements are to make sure that experts “employ in
the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant
field.” Kumho Tire Co. v. Carmichael, 526 U.S.
137, 152 (1999). Even so, “Rule 702 reflects an attempt
to liberalize the rules governing the admission of expert
testimony. . . .The rule clearly is one of admissibility
rather than exclusion.” Lauzon v. Senco Prod.,
Inc., 270 F.3d 681, 686 (8th Cir. 2001) (internal
citations and quotations removed).
argues that Dr. Grandjean's proposed testimony is (1)
unreliable and (2) unhelpful to the trier of fact, because it
is not applied properly to the facts at issue. Marmo v.
Tyson Fresh Meats, Inc., 457 F.3d 748, 758 (8th Cir.
2006). Both arguments derive from Dr. Grandjean's failure
to analyze the specific fate of mercury released from Rush
Island. According to Ameren,
Dr. Grandjean did no analysis of how far mercury emissions
from Rush Island travel away from the plant . . . He did no
modeling of mercury emissions from Rush Island, and he gave
no opinions on which, if any, bodies of water may be polluted
with mercury from Rush Island ..... He also testified that he
did no analysis of adverse health effects that might result
from consuming fish from bodies of water near Rush Island. .
. . Dr. Grandjean testified that he did not perform any risk
assessment to estimate what benefit might occur from reducing
the amount of mercury emitted from Rush Island . . . .
(ECF No. 964 at 9). These omissions would be fatal if the
Sierra Club intended to use Dr. Grandjean to quantify the
specific health effects of excess mercury emissions. The
Sierra Club, however, plans to use Dr. Grandjean's
testimony to explain why mercury, in general, is a harmful
pollutant. Coupled with the testimony of Dr. Stoudt, the
Sierra Club plans to use this information to demonstrate the
benefits of FGD control technology for an historic BACT
determination at Rush Island. Specifically, (1) Dr. Stoudt
plans to testify that 162 pounds excess mercury was emitted
because Rush Island had no FGD installed; (2) Dr. Grandjean
plans to testify that this release of mercury is generally
bad for society, because it will all be converted to
methylmercury, which is a grave threat to public health; and
(3) the Plaintiffs would then argue that the benefit of
avoiding excess mercury emissions would have weighed in favor
of installing FGD at Rush Island.
finders of fact have an understanding that mercury is harmful
to human health. Dr. Grandjean's testimony is not needed
to establish that point. However, the chemical speciation of
toxic mercury and its general fate in the environment are not
common knowledge. Elemental or airborne mercury, for example,
is not in itself toxic, according to Dr. Grandjean. (ECF No.
964-2 at 10). However, elemental mercury is eventually
converted to toxic, methylmercury in the environment. (ECF
No. 995 at 11). These are the ...