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UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW HAMPSHIRE 

 

UNITED STATES OF AMERICA, 

 Plaintiff, 

 v. Case No. 06-CV-00354-PB 

GENERAL ELECTRIC COMPANY, Judge Paul J. Barbadoro 

 Defendant. 

DEFENDANT GENERAL ELECTRIC COMPANY’S 

MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MOTION TO LIMIT 

THE EXPERT TESTIMONY OF DR. JAMES GIRARD

 The Government does not challenge Dr. Girard’s qualifications to testify as an 

expert witness. It does not claim any factual or methodological defects in his report. The 

motion in limine depends, rather, on the argument that a portion of Dr. Girard’s 

testimony will not be relevant because GE has supposedly failed to “establish” the fact in 

issue to which the testimony relates. This Court should deny the motion in limine because 

its essential premise is demonstrably incorrect. 

1. Dr. Girard’s Testimony Is Relevant Because The Record Contains Evidence 

(Which The Government Ignores) To Support The Reasonable Inference 

That Webster Cement Used Pyranol To Manufacture Roof Coatings. 

 The Rules of Evidence allow expert testimony that will assist the trier of fact to 

determine a “fact in issue.” Fed. R. Evid. 702. The fact in issue to which Dr. Girard’s 

testimony relates is the usefulness of the Pyranol that GE sold to Fletcher Paint, and that 

Fletcher in turn sold to Webster Cement (also known as Webtex). Usefulness is one 

element of the two-part test for distinguishing the sale of a useful product from an 

arrangement for the disposal of waste. See, e.g., In re Solutia, Inc., 2001 WL 1549338 

(E.A.B. 2001) (focusing on “reason for the transaction” and the “nature of the material 

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exchanged”); see also Memorandum in Support of the United States’ Motion for Partial 

Summary Judgment as to Liability (Doc. No. 33-2), p. 17 (articulating the same inquiry). 

Dr. Girard will give his expert opinion as a chemist that the Pyranol purchased from GE, 

and sold to Webster, by Fletcher was useful as an ingredient in the manufacture of roof 

coating products. The Government’s own expert on roof coatings, Mr. Portfolio, agrees

with Dr. Girard. Revised Expert Report of Donald C. Portfolio (“Revised Portfolio 

Report”, GE Reply, Ex. G, Doc. No. 48-9), dated September 25, 2007, p.4. It is clear 

enough, therefore, why the Government now wants to exclude Dr. Girard’s testimony. 

See Memorandum in Support of Motion In Limine (Doc. No. 57-2) at 5 (offering to 

withdraw Mr. Portfolio if the Court strikes Dr. Girard’s testimony). 

 The Government’s argument, however, is insufficient to the task. The 

Government claims that the usefulness of Pyranol as an ingredient in roof coatings is not 

a legitimate “fact in issue,” within the meaning of Rule 702, because, “at the summary 

judgment stage of this case, GE failed to . . . establish its assertion that Webster Cement 

Company used scrap Pyranol as an ingredient in roof coating.” Memorandum in Support 

of Motion In Limine (Doc. No. 57-2) at 3. 

 It should be noted that the Government has completely ignored the applicable 

legal standards for “establishing” (or failing to establish) the facts assumed by an expert. 

The lapse is unsurprising, because the bar is not high. “Counsel in framing hypothetical 

questions to be put to expert witnesses, are not confined to facts admitted or absolutely 

proved, but facts may be assumed which there is any evidence on either side tending to 

establish, and which are pertinent to the theories which they are attempting to uphold.” 

Massachusetts Mutual Life Insurance Co. v. Brei, 311 F.2d 463, 471 (2d Cir. 1962), 

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quoting Dilleber v. Home Life Insurance Co., 87 N.Y. 79, 81 (1882) (emphasis added). 

Thus, while an expert’s opinion should assume only those facts “supported” by the 

evidence, Toucet v. Maritime Overseas Corp., 991 F.2d 5, 10 (1st Cir. 1993), sufficient 

evidentiary support exists where the assumed facts “can reasonably be deduced from the 

evidence.” Travelers Insurance Co. v. Drake, 89 F.2d 47, 50 (9th Cir. 1937). Once the 

proponent has crossed that low threshold, the Rules of Evidence “place the ‘full burden 

of exploration of the facts and assumptions underlying the testimony of an expert witness 

squarely on the shoulders of opposing counsel’s cross-examination,” Toucet, 991 F.2d at 

10, quoting Smith v. Ford Motor Co., 626 F.2d 764, 793 (10th Cir. 1980), and the truth of 

facts assumed by the expert becomes “a question of fact for the determination of the 

jury.” Travelers Insurance Co., 89 F.2d at 50. 

 The Government’s motion, therefore, rests on its contention that GE “failed to 

identify any admissible evidence,” Memorandum in Support of Motion In Limine (Doc. 

No. 57-2) at 3 (emphasis added), to support the inference that Webster Cement used the 

Pyranol it bought from Fletcher Paint to manufacture roof coating products. It is difficult 

to understand how the Government could even make this assertion. At the summary 

judgment stage, in both its opposition memorandum (Doc. No. 39) and its opposition to a 

motion to strike (Doc. No. 41), GE identified a wealth of admissible evidence (including 

admissions by the Government) to support a finding that Webster purchased Pyranol for 

use in its products. See infra at 4-5. 

As GE pointed out in these summary judgment briefings, there may no longer be 

any direct evidence about Webster’s use of Pyranol. This is because, by the time the 

United States inspected the Fletcher site and then prosecuted this lawsuit, the transactions 

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at issue were decades old, Webster was no longer in business, its employees had scattered 

and become unavailable, and its records had been lost. But nothing in CERCLA requires 

only proof by direct evidence. The use of circumstantial evidence is “not unusual in 

CERCLA cases, like this one, where the [transactions at issue] occurred many years ago, 

detailed records are unavailable, memories have dimmed, and witnesses having first-hand 

knowledge may either be difficult to locate or are reluctant to testify.” United States v. 

Davis, 20 F. Supp. 2d 326, 336 (D. R.I. 1998). See also Gathers v. South Carolina 

Electric & Gas Co., 427 S.E.2d 687, 688 (S.C.App. 1993) (“counsel may rely upon 

circumstantial evidence to prove an essential fact in framing a hypothetical question” for 

an expert witness). 

The circumstantial evidence, first identified by GE at the summary judgment 

stage, is ample. The following facts, all supported by admissible evidence, most of which 

are conceded or unopposed by the Government, support the inference that Webster used 

the Pyranol it bought from Fletcher to manufacture roof coating products: 

 (1) Webster bought Pyranol from Fletcher, see EPA’s De Minimis Determination, 

¶ 14 (GE SJ Memo, Ex. M, Doc. No. 36-16) (Fletcher “began selling pyranol to Webster 

Cement in 1956”); Declaration of Wallace Hooper, dated August 29, 1991 (“Hooper 

Decl.”), at p. 1 (USA SJ Memo, Ex. 26, Doc. No. 34-1); Deposition of Wallace Hooper, 

dated April 29, 1992 (“Hooper Dep. I”) 93:7-93:19, 174:19-174:22, 239:5-239:12, 244:4-

244:12, 272:22-273:1, 276:2-276:23 (GE Reply, Ex. D, Doc. No. 48-6); Declaration of 

Richard Whitney, dated January 25, 2007 (“Whitney Decl.”) at ¶ 8 (GE SJ Memo, Ex. U, 

Doc. No. 36-24); Deposition of Richard Whitney, dated January 16, 2001 (“Whitney 

Dep. I”) 54:14-55:1, 185:6-185:21 (USA SJ Memo, Ex. 72, Doc. No. 35-22), Deposition 

of Richard Whitney, dated April 20, 2007 (“Whitney Dep. II”, attached hereto as Exhibit 

A) 35:10-35:22, 55:5-55:18 (GE Reply, Ex. E, Doc. No. 48-7); R. Fletcher Dep. 51:17-

52:7 (GE SJ Memo, Ex. R, Doc. No. 36-21); 

 (2) the sales of Pyranol to Webster by Fletcher continued for about 11 years, from 

1956 through 1967, see EPA’s De Minimis Determination, ¶¶ 14, 43, 53 (GE SJ Memo, 

Ex. M, Doc. No. 36-16); 

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(3) Webster bought “the better part of” the Pyranol Fletcher first purchased from 

GE, see Hooper Dep. I 272:22-273:1 (GE Reply, Ex. D, Doc. No. 48-6), and that what 

Fletcher could not use he sold to Webster; Whitney Decl. (GE Reply, Ex. E, Doc. No. 48-

7) at ¶ 8; Whitney Dep. II (Exhibit A) 40:23-41:7;

(4) Fletcher’s relationship with Webster was profitable enough that Fletcher took 

steps to ensure that Webster did not know he obtained his supply of Pyranol from GE, 

and that GE did not know he sold some of his supply to Webster, see EPA’s De Minimis 

Determination, ¶ 22 (GE SJ Memo, Ex. M, Doc. No. 36-16), Deposition of Wallace 

Hooper, dated July 13-14, 2000 (“Hooper Dep. II”) 189:8-189:12 (GE Reply, Ex. F, Doc. 

No. 48-8); 

 (5) Webster’s use of Pyranol was such that it led to the filtering and blending of 

Pyranol by Fletcher to satisfy the customer’s demand for consistent density, see Whitney 

Dep. II (Exhibit A) 42:1-15, 49:3-9, 55:12-18; 

(6) Webster’s use of Pyranol was such that it paid Fletcher different prices for the 

material dependent upon the density of the product, and Fletcher’s relationship with 

Webster was profitable enough that Fletcher tested and (when necessary) blended 

Pyranol to produce a more consistent density and maximize revenue from Webster, see 

id. at 10; and

(7) Webster manufactured asphalt roof coatings, see Webtex Roof Coating label 

(USA SJ Memo, Ex. 71, Doc. No. 35-21); U.S. Patent No. 643,830 (filed Aug. 13, 1956), 

No. 655, 693 (filed Aug. 13, 1956)), No. 655, 958 (filed Aug. 13, 1956) (GE Reply, Ex. 

B, Doc. No. 48-4); CHEMICAL WEEK, Sept. 4, 1965, at 26 (reporting the sale of Webtex to 

Essex Chemical Corp.) (GE Reply, Ex. C, Doc. No. 48-5). 

The Government, of course, will be free at trial to cross-examine GE’s witnesses 

and attempt to impeach its evidence, and then to argue that Webster did not use Pyranol 

to manufacture roof coating products. The Government cannot, however, foreclose 

disadvantageous testimony (from its own expert, as well as GE’s) by ignoring the 

evidence or by predicting, in defiance of the record, that the evidence at trial will 

preclude the fact-finder from making a plausible inference that Webster did use Pyranol 

for this purpose. 

Indeed, the inference is so natural that Mr. Portfolio, the Government’s roof 

coating expert would not disagree -- referring in his report to “the use by Fletcher’s and 

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Webtex of scrap Pyranol,” saying that “scrap Pyranol was a cheap extender or scrap type 

material for asphalt roof coating,” and concluding that Fletcher and Webster “were the 

only two companies to use such materials in asphalt roof coatings.” Revised Portfolio 

Report (GE Reply, Ex. G, Doc. No. 48-9), p. 5. If the Government’s own expert, after 

reviewing the record, inferred that Webster used Pyranol to make roof coatings, then it 

would not be unreasonable for a fact-finder to make the same inference.1

 

2. Dr. Girard’s Testimony Is Also Relevant To The Issue Of Intent -- Whether 

Or Not GE “Arranged For Disposal” Of The Pyranol It Sold To Fletcher. 

 There is something else wrong with the Government’s argument. The 

Government suggests that evidence to “establish” Webster’s use of Pyranol as a roof 

coating ingredient is a predicate for the relevance of expert testimony about its usefulness 

for that purpose. But this is only half the story. The Government misses the fact that 

expert testimony about Pyranol’s usefulness in roof coatings is also evidence of its actual 

use: If Webster could have used Pyranol for that purpose, then it is reasonable to infer 

 

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 More than three months after it produced Mr. Portfolio’s initial expert report, the Government 

submitted an “amended” report, which purported to “correct” the first of these statements to insert the 

phrase “if it was used,” and the second statement to say that Pyranol “could have been used” rather than 

“was used” by Webster. ((Revised) Expert Report of Donald C. Portfolio, dated September 25, 2007 

(“Revised Portfolio Report”), at pp. 3-5 (GE Reply, Ex. G, Doc. No. 48-9)). In a cover letter, a 

Government lawyer contended that the “correction” was warranted to erase any implication “that Mr. 

Portfolio has factual knowledge regarding what Webtex was doing with the scrap Pyranol it purchased 

from Fletchers Paint Works.” (Letter from Daniel S. Smith, Trial Attorney, U.S. Department of Justice, to 

William Cowan (Sept. 25, 2007) (GE Reply, Ex. H, Doc. No. 48-10)). Note that even the lawyer’s 

explanation concedes that Webster purchased its supply of Pyranol from Fletcher, and that even the 

“corrected” report left intact Mr. Portfolio’s conclusion that “Fletcher’s and Webtex were the only two 

companies to use [Pyranol] in asphalt roof coatings.” (Revised Portfolio Report, at p. 5 (GE Reply, Ex. G, 

Doc. No. 48-9)). Whether or not this Court accepts the late-filed “corrected” report, which GE has opposed 

and would continue to oppose, the original report is part of the record, and demonstrates emphatically the 

strength of the circumstantial evidence. Like everybody else involved in this case, Mr. Portfolio may 

“ha[ve] no personal knowledge [i.e., direct evidence] of the operations of Webtex,” (Letter from Daniel S. 

Smith (GE Reply, Ex. H, Doc. No. 48-10)) but he is the expert engaged by the United States to address on 

those portions of the record relating to Webster’s involvement, and the reasonable inference he drew from 

the circumstantial evidence is the same as Dr. Girard’s: Webster used the Pyranol it bought from Fletcher 

in its asphalt roof coating products. Indeed, the inference is so natural that the Government’s lawyers -- 

who presumably vetted the original report carefully -- saw nothing to “correct” in it for more than three 

months after they produced it to GE. 

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that Webster did use it for that purpose. Dr. Girard’s testimony is therefore relevant, not 

only to demonstrate that Pyranol was a useful product, but also to elucidate another “fact 

in issue” -- whether GE intended to sell the material as a useful product, and not to 

arrange for its disposal. Intent is the second element of the “useful product” inquiry. See, 

In re Solutia; U.S. v. Petersen Sand and Gravel, 806 F.Supp. 1346, 1354-55 (N.D. Ill. 

1992) (imposing liability where the parties intended a disposal and denying liability 

where the parties intended a sale). Dr. Girard’s testimony is relevant to intent for the 

following reasons: 

First, as noted, Dr. Girard’s (and Mr. Portfolio’s) testimony will show that 

Webster could have used Pyranol to manufacture its asphalt roof coating products; this 

makes it more likely that Webster did buy the material from Fletcher for that purpose. 

 Second, if Webster bought Pyranol from Fletcher for that purpose, then it is more 

likely that Fletcher bought Pyranol from GE for a related productive purpose (i.e., resale 

to Webster), rather than as part of an arrangement for disposal. 

 The inferential chain between Dr. Girard’s testimony and GE’s intent, in other 

words, is short and consists of these solid links. The Government cannot break the chain 

and instead tries to escape it by advocating an untenably narrow definition of 

“relevance,” arguing that “the question of what Webster did with scrap Pyranol is not 

relevant to the inquiry for trial.” See Motion In Limine (Doc. No. 57-2) at 4, n.2. 

According to the Government, this is because it does not appear that GE knew Webster 

was buying from Fletcher the same material Fletcher purchased from GE. See Motion In 

Limine (Doc. No. 57-2) at 4, n.2. 

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 Once again, while the Government may claim that GE’s lack of knowledge about 

sales to Webster affects the weight of the evidence at trial, the fact does not support a 

decision to preclude the evidence from trial. As GE has previously shown, although the 

ultimate determinant of arranger liability may be the seller’s intent, the buyer’s purpose 

in conducting the transaction is inherently probative: when the buyer intends to purchase 

a useful product, the seller will usually intend to sell one. Evidence about the buyer’s 

intent has therefore served in the case law as a reliable factual marker of the seller’s. See

Doc. No. 48-1, General Electric Company’s Reply To The United States’ Opposition To 

General Electric Company’s Motion for Summary Judgment at 8-10 and cases cited 

therein. Because it will assist the trier of fact to make this determination as well, Dr. 

Girard’s testimony is both relevant and admissible under Rule 702. 

 GENERAL ELECTRIC COMPANY, 

 By its counsel, 

 /s/ William M. Cowan 

 Bret A. Cohen, BNH No. 15989 

 Jeffrey R. Porter, MA BBO No. 552520 

 Peter A. Biagetti, MA BBO No. 042310 

 William M. Cowan, MA BBO No. 566940 

 MINTZ, LEVIN, COHN, FERRIS, 

 GLOVSKY AND POPEO, P.C. 

 One Financial Center 

 Boston, Massachusetts 02111 

Dated: August 18, 2008 (617) 542-6000 

Case 1:06-cv-00354-PB Document 60 Filed 08/18/08 Page 8 of 9
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CERTIFICATE OF SERVICE

I, William M. Cowan, do hereby certify that on the 18th day of August 2008, I 

caused a true and accurate copy of Defendant General Electric Company’s Memorandum 

in Opposition to Plaintiff’s Motion to Limit the Expert Testimony of Dr. James Girard to 

be served as indicated below to all parties on the attached Service List. 

 

 /s/ William M. Cowan

 William M. Cowan 

SERVICE LIST 

Catherine Adams Fiske, Esq. 

Environmental Enforcement 

Section 

United States Department of Justice 

Boston Field Office 

One Gateway Center, Suite 616 

Newton, MA 02458 

(by electronic mail at 

Addie.Fiske@usdoj.gov) 

Laura J. Rowley, Esq. 

US Department of Justice (#7611) 

Environmental Enforcement 

Section 

PO Box 7611 

Washington, DC 20044-7611 

(by electronic mail at 

Laura.Rowley@usdoj.gov) 

 

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