1/

 Additional background information is available in the United States’ Memorandum in Support of Its Motion for

Partial Summary Judgment as to Liability (“Memorandum on Liability”), Doc. No. 33-2. 

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

____________________________________)

UNITED STATES OF AMERICA, )

)

Plaintiff, )

) Case No.: 06-CV-00354-PB

vs. )

) Judge Paul J. Barbadoro

GENERAL ELECTRIC COMPANY, )

)

Defendant. ) )

MEMORANDUM IN SUPPORT OF

UNITED STATES’ MOTION IN LIMINE TO EXCLUDE THE PROPOSED TESTIMONY 

OF GENERAL ELECTRIC COMPANY’S EXPERT WITNESS NEIL SHIFRIN

The United States submits this memorandum in support of its Motion in Limine to

Exclude the Proposed Testimony of General Electric Company’s Expert Witness Neil Shifrin. 

The government seeks to exclude the testimony pursuant to Fed. R. Evid. 702. The proposed

expert, Neil Shifrin, is an engineer who offers three separate opinions in support of defendant

General Electric Company’s purported “useful product” defense. For the reasons detailed below,

Shifrin is not qualified to offer these opinions: the opinions are not based upon reliable

methodology; they are not relevant; and they would not assist the Court to understand the

evidence or to determine any fact in issue.

BACKGROUND

In this action, the United States seeks reimbursement of its costs of responding to

environmental contamination at the Fletcher’s Paint Works Superfund Site (“the Site”). GE

asserts that it did not arrange for the disposal of scrap Pyranol – a hazardous substance that was a

waste by-product of its manufacturing operations – at the Site. Rather, GE claims that it sold

scrap Pyranol to Frederic Fletcher’s companies (“Fletcher’s”) as a “useful product.”1/

 

GE has submitted an expert report from Neil Shifrin. Report, Exhibit (“Ex.”) 1, attached

Case 1:06-cv-00354-PB Document 59-1 Filed 08/03/08 Page 1 of 14
- 2 -

along with all other exhibits hereto. A civil environmental engineer by training, Shifrin received

a Ph.D. in environmental engineering, with a concentration in water quality and chemical

biosynthesis, from the Massachusetts Institute of Technology. Shifrin C.V. attached to Report,

Ex. 1. Shifrin presently serves as president of Gradient Corporation, a consulting firm that

specializes in the “fate of and risk of chemicals in the environment from contaminated sites.” 

Report at 2, Ex. 1. Shifrin appears to have extensive experience testifying as an expert witness

on that subject. 

GE is not, however, proffering Shifrin as an expert on the fate and risk of chemicals

released into the environment. Instead, Shifrin is being proffered as an expert on the purported 

“historical context” in which transactions between GE and Fletcher’s took place. Report at 1,

Ex. 1. Shifrin has admitted that he has never taken a course, or received any training, in

regulatory law, legal history, economics, or the manufacture and sale of paints, coatings, or any

commercial product. See Deposition of Neil Shifrin on July 26, 2007 (“Dep.”) at 36:14-40:9,

Ex. 2. He has no work experience in those fields. Id. He did not conduct any legal research

specifically for this assignment. Dep. at 11:5-12:13, Ex. 2. Although he opined that scrap

Pyranol could be used in the manufacture of paint and roof coatings, he admitted that he did not

consult with chemists who specialize in polymer chemistry or polymer physics, or with anyone

in the paint manufacturing and roof coating industry. Dep. at 26:11-26:23, Ex. 2. Moreover, he

saw no reason to draw any distinctions in potential commercial uses between Aroclors (a virgin

PCB product manufactured by Monsanto), and scrap Pyranol (a waste material including an

unpredictable collection of contaminants, any drum of which might vary from liquid to semisolid state). Report at 10-12, Ex. 1. 

For the reasons set forth below, Shifrin’s opinions should be excluded under Rule 702.

 ARGUMENT

I. Legal Standard for Admissibility of Expert Testimony Under Rule 702.

The basic standard for the admissibility of expert testimony is set forth in Fed. R. Evid.

Case 1:06-cv-00354-PB Document 59-1 Filed 08/03/08 Page 2 of 14
2/

 It is the burden of the party seeking to introduce the evidence to establish admissibility. See Apostol v. United

States, 838 F. 2d 595, 599 (1st Cir. 1998); Ruiz-Troche v. Pepsi Cola of Puerto Rico Bottling Co., 161 F.3d 77, 85

(1st Cir. 1998). 

- 3 -

702, which incorporates the standard first articulated in Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 578 (1993).2/

 Rule 702 provides: 

If scientific, technical, or other specialized knowledge will assist the trier of fact to 

 understand the evidence or to determine a fact in issue, a witness qualified as an expert 

 by knowledge, skill, experience, training, or education, may testify thereto in the form of 

 an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the

testimony is the product of reliable principles and methods, and (3) the witness has

applied the principles and methods reliably to the facts of the case. 

The Rule codifies the Daubert line of cases, under which the trial court performs a “gatekeeping”

function concerning the admissibility of expert testimony. United States v. Diaz, 300 F.3d 66,

73 (1st Cir. 2002) (citing Daubert, 509 U.S. at 589-95; Kumho Tire Co. v. Carmichael, 526 U.S.

137, 141, 147-49 (1999)). This gatekeeping function requires a preliminary evaluation of both

the relevancy and the reliability of proffered expert testimony. Id. All expert testimony must

meet that standard, whether technical, scientific, or based upon other specialized knowledge. 

Kumho Tire, 526 U.S. at 152. 

As with any expert, the testimony of experts who do not testify on scientific or technical

subjects must be scrutinized carefully. Id. at 150-153. Because testimony based on experience

or independent research has not been tested by scientific method or through statistical analysis,

the Court must be certain that an expert with “specialized knowledge” possesses genuine

expertise in the field, and that the testimony adheres to the same standard of intellectual rigor

that applies to the practice of an expert in that field. Id. at 156-157.

II. Shifrin’s Testimony on Regulation of Waste Disposal Should Be Excluded.

Shifrin’s first opinion is as follows:

Governmental regulations of the disposal of industrial waste (including [PCBs]) 

were virtually non-existent during the period 1953-1967. Report at 13, Ex. 1.

Shifrin thus seeks to offer a legal or historical analysis of government regulation of PCBs

between 1953 and 1967. Report at 1, 7, 13, Ex. 1. He does not, however, possess the specialized

Case 1:06-cv-00354-PB Document 59-1 Filed 08/03/08 Page 3 of 14
- 4 -

knowledge and qualifications required to render that opinion. More fundamentally, his opinion

is not relevant to any issue in this case, and he did not employ a reliable methodology as required

by Rule 702. 

A. Shifrin is Not Qualified to Testify on Government Regulation of Waste Disposal.

Under Rule 702, only witnesses who are qualified by “knowledge, skill, experience,

training, or education” may provide expert testimony. Diefenbach v. Sheridan Transp., 229 F.3d

27, 30 (1st Cir. 2000). Shifrin is simply not qualified to render an opinion on historic

governmental regulations in New York, where the waste was generated, and where some of it

was disposed. He is not a lawyer or historian, and it is unclear whether he ever undertook any

specific legal research of the laws of New York, or how these laws were applied to the disposal

of industrial waste at the time. Dep. at 11:5-6; 40:10-43:22, Ex. 2. 

B. Shifrin’s Opinion Is Not Relevant.

In addition, Shifrin’s opinion on government regulations of landfill disposal is irrelevant. 

To be admissible, expert testimony must be relevant – “not only in the sense that all evidence

must be relevant, but also in the incremental sense that the expert's proposed opinion, if

admitted, likely would assist the trier of fact to understand or determine a fact in issue.” Ruiz

Trocha v. Pepsi Cola of Puerto Rico Bottling Co., 161 F. 3d 77, 81 (1st Cir. 1998). In other

words, Rule 702 “requires a valid scientific connection to the pertinent inquiry as a precondition

to admissibility.” Id.

The United States does not claim in this proceeding that GE violated any landfill disposal

laws or regulations that were in place during the 1950s and 1960s. Because this action arises

under CERCLA, a strict and retroactive liability statute, it is irrelevant whether industrial waste

landfill regulations were “virtually nonexistent” during the period 1953-1967.

Reduced to its essence, Shifrin’s reasoning appears to be as follows: (1) in the alleged

absence of any regulation, GE could dispose of its scrap PCBs freely and easily; (2) GE

therefore had no incentive to store scrap Pyranol for later removal by Fletcher’s; and (3) because

Case 1:06-cv-00354-PB Document 59-1 Filed 08/03/08 Page 4 of 14
3/ His article, “Pollution Management in the Twentieth Century,” contains passing references to the federal laws in

effect from 1953-1967 that governed industrial discharge to waterway including the Rivers and Harbors Act, Oil

Pollution Act, Federal Water Pollution Control Act, and the Water Quality Act. Ex. 4 at 681. However, his report

does not even mention any of these laws or discuss any New York laws and regulations that also regulated or limited

discharge of industrial waste to waterways during this time period. See footnote 4 below.

- 5 -

GE did so, scrap Pyranol therefore must have been a “useful product.” This argument fails

completely, unless Shifrin can claim that landfill disposal was both unregulated and free, a point

he concedes is not there. Report at 9, Ex. 1; Dep. at 152:14-19; 157:6-9, Ex. 2. Because the

United States and GE agree that GE could not legally dispose of scrap Pyranol for free in local

landfills, Shifrin’s opinion as to the lack of regulation is not relevant and should be excluded. 

C. Shifrin’s Opinion is Not Based on Reliable Methodology.

Shifrin’s conclusion regarding the regulation of industrial waste in New York is not

based upon a reliable methodology. Where a proffered expert fails to show that his reasoning or

technique would satisfy the professional standards in the relevant field, that his methods are used

by others in the industry, or that relevant publications validate his approach, his testimony

should be excluded. Kumho Tire, 526 U.S. at 157. Here, the methodology underlying Shifrin’s

opinion lacks any objective measure of reliability. 

 When asked how he formed his opinion on governmental regulation of PCBs, Shifrin

referred to a 1998 paper that he co-authored entitled “A Historical Perspective on PCBs.” Ex. 3;

Dep. at 42:21-43:22, Ex. 2; see also a similar Shifrin article, Ex. 4. Significantly, the Supreme

Court has cautioned that journal publication “is not a sine qua non of admissibility; it does not

necessarily correlate with reliability.” Daubert, 509 U.S. at 593-94. Shifrin also stated that he

has read “500 to 1,000 articles” on the history of waste management. Dep. at 97:8-97:18, Ex. 2. 

However, for this assignment, he did not undertake any legal research of the laws, regulations, or

case law in existence in the 1950-60s, Dep. at 11:5-12:13, Ex. 2, and none of his prior writings

specifically address the state laws, regulations, or case law of this relevant time period.3/

 General

research on the general history of PCBs fails to support an expert opinion on laws and

Case 1:06-cv-00354-PB Document 59-1 Filed 08/03/08 Page 5 of 14
4/ See New York’s Water Pollution Control Act of 1949 (“Water Pollution Control Act”), N.Y. Public Health L.

1949 c. 666, Article 6, Title III, § 115, Ex. 5 (“It shall be unlawful for any person, directly or indirectly to ...

discharge into any of the waters of this state...organic or inorganic matter that shall cause or contribute to a

condition in contravention of the standards adopted by the [Water Control] board pursuant to Section [109] of this

Article”); see also Refuse Act of 1899, 33 U.S.C. § 407; (“It shall not be lawful to...discharge...from or out of any

manufacturing establishment ... any refuse matter of any kind or description whatever...into any navigable water of

the United States, or into any tributary of any navigable water from which the same shall float...”). 

In addition, by 1965, pursuant to the Water Pollution Control Act, Ex. 5, New York’s Water Pollution

Control Board passed regulations governing industrial discharge into the Upper Hudson River Basin, where GE’s

plants at Fort Edward and Hudson Falls were located. 6 NYCRR § 941, Ex. 6. Eventually GE was sued by the New

York State Department of Environmental Conservation for its gross discharges of PCBs dating back to 1966: In the

Matter of Alleged Violation of Sections 17-0501, 17-0511 and 11-0503 of the Environmental Conservation Law of

the State of New York, Interim Opinion and Order, File No 2833, February 9, 1976, Doc. No. 34-16 (see pages 27-

28 for a historic overview of the law and regulations governing the Hudson River and pages 19-26 for a discussion

of GE’s historic PCB disposal to the Hudson River).

Common law doctrine, such as nuisance, would also have affected a company’s disposal decisions. See

Application of City of Johnstown, 209 N.Y.S. 2d 982 (1961) (discharging pollutants into New York State’s public

waterways prohibited if such disposal resulted in a public nuisance).

5/

 GE has acknowledged the existence of an “extensive body of publicly-available literature on PCBs which dated

back to the 1930s and which included suggested exposure limits for PCBs,” and GE has also acknowledged the

“wealth of public information [available in the 1950s and 60s] on the potential hazards of PCBs and the precautions

- 6 -

regulations that may have been in place in New York during the relevant time period. His

reliance on his own largely irrelevant articles does not correlate to reliability under Rule 702. 

His opinion suffers from an additional methodological weakness. Although Shifrin’s

report addresses disposal in landfills, it contains no evaluation of the regulation of industrial

discharge into waterways. Under any reliable methodology, if the question being addressed is

the “practice” and “regulation” of disposal of industrial waste, all disposal practices and

regulations would have to be evaluated. While purporting to evaluate government regulations of

all the “means of disposal” available to GE, he omits any discussion of a significant disposal

method actually used by GE, namely its discharge of large volumes of scrap Pyranol to the

Hudson River. Indeed, he concedes that his “report is not about disposal to the Hudson River.”

Dep. at 78:24-79:1, Ex. 2. 

Shifrin thus simply ignores any statutes, regulations, and case law of the time period

concerning discharge of industrial waste to the Hudson River.4/

 He also fails to consider the

growing social and scientific consensus during that time period regarding the hazards of PCBs –

and the fact that GE was aware of these developments.5/

 For example, while Robert Abbe was

Case 1:06-cv-00354-PB Document 59-1 Filed 08/03/08 Page 6 of 14
necessary to avoid those hazards.” See Doc. No. 34-14 at page 9 of 14 (GE’s memorandum in support of motion for

summary judgment on defendant’s failure to warn claim). In addition, GE was providing warnings to its electrical

equipment customers at this time about exposure to PCBs. See Doc. No. 34-14 at pages 11-12 of 14 (GE’s statement

of material facts not in dispute in support of motion for summary judgment on defendant’s failure to warn claim). 

These warnings comported with New York and New Hampshire law requiring reasonable warnings of known latent

dangers associated with a product. He also avoids analysis of GE’s actual cost of disposing of PCBs in local

landfills, as discussed on p. 9, below. See McLaughlin v. Mine Safety Appliances Co., 11 N.Y.2d 62, 68-69 (1962)

(citing Lenz v. Standard Oil Co. of N.Y., 88 N.H. 212 (1936)). 

- 7 -

GE’s Manager of Indirect Materials in the early 1960s, he believed scrap Pyranol “poisoned the

ground.” See Deposition of Robert Abbe on June 19, 2008 at 23:1-23:14, Ex. 7. Shifrin thus

simply avoids any factors tending to contradict his theory that GE’s disposal options for PCBs

were “readily available” and relatively “inexpensive.” Report at 9, Ex. 1.

During the relevant time period, it is undisputed that GE both discharged scrap Pyranol to

the Hudson River and sent it to a local New York landfill at rates of up to $3.00 per drum. See

Affidavit of Jill Siebels ¶5, Doc. No. 35-14 ¶ 5; Dep. at 76:8-77:24, Ex. 2. Whether GE chose

not to dispose of all of its scrap Pyranol in the Hudson River because of emerging social and

environmental awareness of the hazards of PCBs, or because of potential liability under existing

laws and regulations, or some combination of both factors, is a question Shifrin cannot answer

and did not even consider.

Q: Why do you think GE would dispose of scrap Pyranol in a local landfill if

they could dispose of it in the Hudson River?

A: I don’t know. Dep. at 151:11-18, Ex. 2. Shifrin simply ignores a critical set of facts – the potentially costly legal and social consequences

of disposal of PCBs into the Hudson River – that contradict his thesis of readily available and

inexpensive disposal methods. His methodology is clearly unreliable and unsound, and his

opinions, accordingly, should be excluded. 

Case 1:06-cv-00354-PB Document 59-1 Filed 08/03/08 Page 7 of 14
6/ NEQ Pyranol is a term that one of GE’s consultants developed in preparation for this litigation to describe scrap

Pyranol. Dep. at 47:4-48:7, Ex. 2. No GE witness ever used the term NEQ Pyranol during the relevant time period. 

It was called “scrap” Pyranol. Dep. at 48:10-18, Ex. 2.

7/

 While the price Fletcher’s paid for scrap Pyranol might be a factor in GE’s disposal decisions, that is not a factor

upon which Shifrin offers any opinion. 

- 8 -

 III. Shifrin’s Opinion on the Relationship Between Fletcher’s Transportation

of Scrap Pyranol and the Means for Disposal Available To GE Should be

Excluded. Shifrin’s second opinion is as follows:

The transportation of NEQ [scrap] Pyranol6/

 over long distances at Fletcher’s

expense was not consistent with the means for disposal of industrial wastes

readily available to GE at the time, when the disposal of such wastes, including

those containing PCBs, was effectively unregulated. Report at 13, Ex. 1.

Shifrin’s opinion purporting to connect the “means of disposal readily available to GE”

and Fletcher’s transportation “expense” is not based upon his expertise, accurate factual data, or

even a logical syllogism. Fletcher’s transportation expenses have no bearing at all on GE’s

decisions about how to dispose of scrap Pyranol. Shifrin’s opinion is based upon a faulty

syllogism: he seems to suggest that (1) because Fletcher’s expenses were a factor that GE would

have considered in evaluating how to dispose of scrap Pyranol; and (2) because other means

were presumably available to GE for disposal that did not include cost to Fletcher’s, therefore:

(3) GE’s transfers of scrap Pyranol to Fletcher’s must have been for a “useful product.” This

argument simply makes no sense. Fletcher’s expenses were irrelevant to GE in formulating its

waste management storage and disposal practices.7/

 Whatever conclusions may be inferred from

Fletcher’s transportation expenses, GE’s choice of disposal method is not one of them. 

Shifrin also ignores, or grossly underestimates, GE’s difficulties disposing of scrap

Pyranol. To be admissible, expert testimony must be predicated on adequate factual data. 

Pelletier v. Main Street Textiles, LP, 470 F.3d 48, 55 (1st Cir. 2006) (expert testimony excluded

because expert did not conduct an inspection of the facility and, therefore, had insufficient

information upon which to base his opinion); Irvine v. Murad Skin Research Laboratories, Inc.,

194 F.3d 313, 320-321 (1st Cir. 1999) (ordering a new proceeding to determine money damages

Case 1:06-cv-00354-PB Document 59-1 Filed 08/03/08 Page 8 of 14
- 9 -

where the previous estimate was based on expert’s incorrect factual assumption); Schubert v.

Nissan Motor Corp., USA, 148 F.3d 25, 31 (1st Cir. 1998). Here, Shifrin is mistaken on at least

two fronts in his opinions on the means of waste disposal available to GE between 1953 and

1967. 

First, as discussed in Section II, pp. 3-7 above, Shifrin simply ignored significant legal

and social prohibitions against disposing of industrial wastes, including PCBs, into the Hudson

River. Clearly GE had legal and/or social reasons not to dispose of all its PCBs in the Hudson

River, otherwise it would never have paid to dispose of scrap Pyranol in landfills.

Second, Shifrin describes disposal in landfills as both readily available and relatively

“inexpensive,” based upon an estimate of “approximately $0.03 for 55 gallons (e.g. the size of a

typical drum)” of scrap Pyranol. Report at 9, Ex. 1. According to GE’s own witness, however,

GE actually paid up to $3.00 per drum to dispose of scrap Pyranol in a landfill between 1953 and

1967. See Affidavit of Jill Siebels ¶ 5, Doc. No. 35-14 ¶ 5. Shifrin thus underestimates the cost

of disposal by a factor of up to one hundred. Far from being “inexpensive,” disposing of PCBs

in landfills was a costly endeavor that GE consistently sought to avoid by multiple means,

including efforts to develop a secondary PCB market (such as sales to municipalities for use as a

dust suppressant on roads); a “gate passing” system, whereby GE employees could take scrap

Pyranol home without charge; and by extensively disposing of scrap Pyranol into the Hudson

River. See Memorandum on Liability at 5-6, Doc. No. 33-2 at 5-6. Clearly, GE had a financial

incentive to store its scrap Pyranol for removal by Fletcher’s.

Shifrin’s reliance on incorrect legal and factual assumptions and flawed methodology

leads him to an erroneous conclusion that GE had no incentive to hold scrap Pyranol for removal

by Fletcher’s. His opinion is particularly unreasonable given the evidence regarding GE’s actual

landfill disposal costs and the potential legal or social consequences for discharge of PCBs to the

Hudson River. Accordingly, Shifrin’s testimony should be excluded under Rule 702 as

irrelevant, unhelpful, and based on a flawed methodology.

Case 1:06-cv-00354-PB Document 59-1 Filed 08/03/08 Page 9 of 14
8/

 As discussed above, admissible expert testimony must be predicated on adequate factual data that provides a

reasonable basis for an expert’s conclusion. Schubert v. Nissan Motor Corp., USA, 148 F.3d 25, 31 (1st Cir. 1998). 

Here, Shifrin’s opinion is based on at least two additional factual premises that are not correct.

First, Shifrin’s report suggests that Fletcher’s paid for each load of scrap Pyranol it received between 1953

and 1967. Report at 3, Ex. 1. At his deposition, however, Shifrin was confronted with evidence that Fletcher’s

consistently received free loads of scrap Pyranol and that, for two full years, Fletcher’s did not pay for it at all. Dep.

at 81:3-83:7, Ex. 2. At his deposition, Shifrin back-tracked, and claimed that the word “purchase,” as used in his

report, does not necessarily involve a money transaction. Id. at 58:7-59:21. Instead, Shifrin indicated that his use of

the word “purchase” reflects only an intent to be paid, rather than actual payment. Id. 

Second, his report states that “[scrap] Pyranol did not leave the GE plant site without being tagged with its

contents, identified on a purchase order and shipping notice, and signed for by a foreman.” Report at 6, Ex. 1. 

Again, Shifrin was confronted with evidence of the inaccuracy of his statement, specifically information on GE’s

extensive disposal of scrap Pyranol into the Hudson River, its “gate-passing” system whereby employees could take

it home, without charge, and GE’s transfer of scrap Pyranol to municipalities for road oiling purposes. When asked

whether he still contended that this scrap Pyranol was tagged, identified and signed for before leaving a GE plant,

Shifrin responded “No. That’s not really what the sentence is talking about.” Dep. at 78:1-5, Ex. 2.

Shifrin’s defenses regarding the inaccuracies underlying his opinion, such as “that’s not really what the

sentence is talking about” and his unusual explanation for his use of the word “purchase,” are insufficient. His

report contains more than poor word choice; it contains incorrect factual information and significant omissions that

render his opinion unreliable and inadmissible. 

- 10 -

 IV. Shifrin’s Testimony on Uses or Sales of Scrap Pyranol Should Be Excluded. 

Shifrin’s third opinion is as follows:

The nature of the transaction between GE and Fletcher was consistent with the

sale (GE) and purchase (Fletcher) of a useful product, NEQ [scrap] Pyranol. 

Report at 13, Ex. 1.

Shifrin’s opinion characterizing the GE/Fletcher’s transactions as the sale of a “useful

product” is not based upon his expertise, accurate factual data,8/

 or reliable methodology. 

Furthermore, his opinion is simply a legal conclusion that will not assist the Court in evaluating

the evidence.

A. Shifrin is Not Qualified to Testify on Uses or Sales of Scrap Pyranol, and 

His Opinion is Not Supported by Any Accepted Methodology. 

Shifrin is an environmental engineer. He is not, and never has been, a designer or

manufacturer of paints or roof coatings. He therefore lacks any qualifications to testify on uses

or the nature of sales of scrap Pyranol in this case. An expert's specialized knowledge on one

subject does not qualify him to testify on another. Wilson v. Bradlees of New England, Inc., 250

F.3d 10, 17-18 (1st Cir. 2001) (upholding exclusion of testimony where witness, a chemist and

authority on flammability, was permitted to testify on matters involving chemistry and

Case 1:06-cv-00354-PB Document 59-1 Filed 08/03/08 Page 10 of 14
9/

 Accordingly, the Court does not require an expert to testify to this stipulated and accepted fact about Aroclors.

- 11 -

flammability, but not on usages and practices in the ink manufacturing process). Shifrin lacks

any expertise to testify on the utility of scrap Pyranol as an additive to any commercial product.

He has not taken any courses in the manufacturing of commercial products, such as paint, and

he has no work experience, training, or skill in these fields. Dep. at 38:8-40:9, Ex. 2. 

Shifrin does not even attempt to support his opinion through his background as a civil

engineer, or by the use of any scientific or technical methodology. He did not contact any

persons who specialize in polymer chemistry or physics, and did not consult with representatives

of the paint and roof coating industries to validate any aspect of his opinion. Dep. at 26:11-23,

Ex. 2. Instead, his conclusion on the utility of scrap Pyranol relies entirely on information

concerning Monsanto’s sales of its manufactured PCB commercial product known as Aroclor,

and Monsanto’s adverting bulletins for use of Aroclor as a plasticizer. Report at 10-12, Ex. 1;

Dep. at 89, Ex. 2. The United States is willing to stipulate that Monsanto advertised pure

Aroclor for use as a plasticizer, and that virgin Aroclor was sold for use as a plasticizer.9/

Shifrin’s opinion, however, fails to acknowledge, much less address, the dramatic

differences between virgin Aroclors (a pure PCB product manufactured by Monsanto) and scrap

Pyranol (a random collection of unwanted contaminants and PCBs). His report contains no

discussion of how unpredictable quantities of water, trichloroethylene (“TCE”), dirt and other

waste additives commonly found in scrap Pyranol (but not in Aroclor) would impact the quality

and potential commercial use of the scrap Pyranol, including the varying viscosity of the waste

from semi-solid to liquid. At his deposition, he acknowledged that if such byproducts were

incompatible with resins, the scrap Pyranol would not be an effective plasticizer. Dep. at 140:4 -

141:11, Ex. 2. But his report treats pure PCBs and scrap Pyranol as though they were the same

product with the same potential and uses. Any expert with experience in commercial

manufacturing would recognize this distinction as vital to a qualified, technical opinion on the

utility of scrap Pyranol as a commercial additive. 

Case 1:06-cv-00354-PB Document 59-1 Filed 08/03/08 Page 11 of 14
- 12 -

In short, Shifrin’s opinion is not based upon his technical background in civil

environmental engineering. No matter how impressive his engineering credentials, Rule 702

does not permit an expert to substitute his subjective belief for genuine science. Daubert, 509

U.S. at 590. For this reason, his proposed testimony on the uses and sale of scrap Pyranol should

be excluded. 

B. Shifrin’s Opinion That Scrap Pyranol is a Useful Product is an Inadmissible Legal 

 Conclusion. 

Pursuant to Rule 702, expert opinion testimony is admissible only if it will “assist the

trier of fact” either “to understand the evidence or to determine a fact in issue.” Fed. R. Evid.

702; Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92, 100 (1st Cir. 1997); United States v.

Newman, 49 F.3d 1, 7 (1st Cir. 1995). “Expert testimony that consists of legal conclusions

cannot properly assist the trier of fact in either respect,” and thus is inadmissible. Burkart v.

Washington Metro. Area Transit Author., 112 F.3d 1207, 1212 (D.C. Cir. 1997); Pelletier v.

Main Street Textiles, LP, 470 F.3d 48, 54-55 (1st Cir. 2006). 

Shifrin opines that GE sold scrap Pyranol to Fletcher’s as a “useful product.” He claims

that he is merely offering this opinion in his capacity as an environmental engineer, and is not

offering a legal opinion. Dep. at 25:22-26:10; 46:22-47:3; 160:3-6, Ex. 2. He further claims that

his focus is simply on “utility.” Dep. at 159:14-22, Ex. 2. Nonetheless, it is clear that Shifrin

has ventured well beyond his expertise as an environmental engineer when he opines on “the

nature of the transaction.” 

In forming his opinion that the nature of the transactions between GE and Fletcher’s was

consistent with the sale of a useful product, Shifrin has merely undertaken an inadequate replica

of the exercise that the Court will presumably undertake to resolve this legal issue. Shifrin was

instructed by GE’s counsel on the legal concept associated with the term “useful product,” Dep.

at 24:9-14, Ex. 2, and then, while adding no expertise to the analysis, he erroneously and

Case 1:06-cv-00354-PB Document 59-1 Filed 08/03/08 Page 12 of 14
10/ For example, Shifrin concedes that several factors considered by the courts in their “totality of circumstances”

analysis of a “useful product defense” were unimportant to his analysis, such as whether scrap Pyranol was removed

by Fletcher's from a scrap and salvage area or a production line, Dep. 68:20-69:3, Ex. 2; or whether GE disposed of

it in the Hudson River, Dep. at 78:24-79:1, Ex. 2; or whether it was legal to do so at the time, see p. 6, above; or

whether Fletcher’s actually paid for the scrap Pyranol, see footnote 9, above. In addition, he grossly underestimates

the cost of disposing of PCBs in local landfills. See p. 8, above. Finally, he provides no discussion of the need to

treat scrap Pyranol prior to incorporating it into any type of standardized product, and knows of no specific uses of

used or contaminated PCBs, only virgin Aroclors. Dep. at 139:6-141:2, Ex. 2.

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incompletely applied select facts to that concept.10/

 Where an expert reaches a conclusion that

the Court is capable of reaching without assistance, that expert’s testimony fails to meet Rule

702’s requirement that it assist the trier of fact. Nieves-Villanueva, 133 F. 3d 92, 98-99; City of

Tuscaloos v. Harcors Chemicals Inc., 158 F. 3d 548, 565 (11th Cir. 1998) (excluding “expert”

testimony because the trier of fact was capable of determining whether to draw such conclusions

without technical assistance). Accordingly, Shifrin’s conclusion regarding the nature of the

transaction between GE and Fletcher’s will not assist this Court’s understanding of the evidence

or a factual determination at issue, and should be excluded under Rule 702. 

 CONCLUSION 

For the foregoing reasons, the United States respectfully requests that this Court exclude

Shifrin’s proposed testimony. 

Respectfully Submitted, 

RONALD J. TENPAS

Assistant Attorney General

Environment and Natural Resources Division

United States Department of Justice

Washington, D.C. 20530

Dated: 08/03/2008 /s/ C.A. Fiske__________ Catherine Adams Fiske, Trial Attorney

Environmental Enforcement Section

United States Department of Justice

One Gateway Center, Suite 616

Newton, MA 02458

addie.fiske@usdoj.gov

(617) 450-0444

Case 1:06-cv-00354-PB Document 59-1 Filed 08/03/08 Page 13 of 14
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Peter M. Flynn, Senior Attorney

Laura J. Rowley, Trial Attorney

Environmental Enforcement Section

United States Department of Justice

P.O. Box 7611

Washington, D.C. 20044-7611

THOMAS P. COLANTUONO 

United States Attorney 

District of New Hampshire

Gretchen Leah Witt 

Chief, Civil Division

Office of the United States Attorney

53 Pleasant Street, Fourth Floor

Concord, NH 03301-3904

OF COUNSEL:

RuthAnn Sherman

United States Environmental Protection Agency 

Region 1

One Congress Street, Suite 1100 (SES)

Boston, MA 02114

Case 1:06-cv-00354-PB Document 59-1 Filed 08/03/08 Page 14 of 14