1 The Court takes this Motion under submission without a hearing. The decision of

whether to conduct a Daubert hearing in a particular case is discretionary. See, e.g., Corwin v.

Walt Disney Co., 475 F.3d 1239, 1252 n.10 (11th Cir. 2008) (in Daubert context, “although they

are often helpful, hearings are not prerequisite to such determinations under the Federal Rules or

established law”); Cook ex rel. Estate of Tessier v. Sheriff of Monroe County, Fla., 402 F.3d

1092, 1113 (11th Cir. 2005) (“the trial court was under no obligation to hold” Daubert hearing,

which was “not required, but may be helpful in complicated cases involving multiple expert

witnesses”) (citations and internal quotation marks omitted); United States v. Frazier, 387 F.3d

1244, 1264 (11th Cir. 2004) (“a district court need not conduct a Daubert hearing in every case”). 

In this case, plaintiffs’ objections to Dr. Anderson’s opinions are straightforward, and rest to a

large extent on the nexus of those opinions to the triable issues joined in this action, which can

be readily discerned from the record. Under the circumstances, the Court perceives no benefit to

conducting a hearing. In any event, no party has requested a Daubert hearing as to this motion. 

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CLEON ABRAMS, SR., et al., )

 )

Plaintiffs, )

 )

v. ) CIVIL ACTION 08-0068-WS-B

 )

CIBA SPECIALTY CHEMICALS )

CORPORATION, et al., )

 )

Defendants. )

ORDER

This matter comes before the Court on plaintiffs’ Motion to Exclude Elizabeth

Anderson’s Expert Testimony, Opinions, and Reports (doc. 304). The Motion has been briefed

(although plaintiffs elected not to file a reply brief) and the Court has carefully reviewed the

parties’ memoranda and supporting exhibits.1

I. Background.

Plaintiffs are owners of property in and around McIntosh, Alabama, who allege that their

homes have been contaminated by DDT and its metabolites (collectively, “DDTr”) emanating

from a nearby chemical manufacturing facility owned and operated by defendants (collectively,

“Ciba”). On that basis, plaintiffs have brought causes of action against Ciba sounding in

Case 1:08-cv-00068-WS-B Document 384 Filed 03/02/10 Page 1 of 9
2 In their brief, plaintiffs suggest that their remaining causes of action in this case

“include nuisance, trespass, strict liability and negligence.” (Doc. 304, at 1.) But the Joint

Pretrial Document (doc. 321), which constitutes the final statement of all triable claims joined in

this action and which governs for trial purposes, omits any reference to a strict liability cause of

action. As such, that claim is not joined for trial.

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trespass, negligence, and nuisance.2

 Although they initially claimed damages in the form of

diminution of their property’s value, plaintiffs have since abandoned that theory of recovery, and

are now seeking an award of compensatory damages for restoration costs, that is, the cost of

reducing DDTr concentrations in their dwellings to a level of 10 parts per billion.

Defendants retained Elizabeth L. Anderson, Ph.D., as “an expert in risk assessment who

will testify that the levels of DDT in Plaintiffs’ homes poses [sic] no health risk and does not

need to be cleaned up.” (Doc. 321, at 36.) In her report, Dr. Anderson explained that she

applied a methodology developed by the U.S. Environmental Protection Agency for calculating

risk-based screening levels specific to indoor dust, computed such screening levels for DDTr,

and compared those levels to the sampling data collected by plaintiffs’ experts. (Doc. 327, Exh.

1, at 2.) The result of this procedure was that Dr. Anderson found “no reason to believe that the

concentrations in dust at any of the [test] plaintiffs’ properties pose a threat to health” and “no

rationale for cleaning these properties that can be related to possible adverse health impacts from

DDT.” (Id. at 3.) As these opinions demonstrate, Dr. Anderson is, in effect, defendants’

damages expert. Even if plaintiffs prove at trial that Ciba engaged in tortious conduct which

caused DDT to infiltrate and contaminate plaintiffs’ homes, defendants will rely on Dr.

Anderson’s opinions to argue that plaintiffs have not been damaged and that clean-up is

unnecessary because the concentration of DDTr measured in plaintiffs’ homes is far below that

which that might trigger health concerns.

Plaintiffs have now moved to exclude Dr. Anderson’s opinions in their entirety, for the

following stated reasons: (i) her opinions are irrelevant because this is a property damage case,

while her testimony concerns health effects; (ii) her opinions will not help the jury decide

whether DDT is on plaintiffs’ property or whether Ciba put it there; (iii) she lacks scientifically

reliable opinions as to health effects of DDT in household dust; (iv) she has ignored health risks

associated with plaintiffs’ past exposure to DDTr; and (v) her opinions are inadmissible under

Case 1:08-cv-00068-WS-B Document 384 Filed 03/02/10 Page 2 of 9
3 Rule 702 reads as follows: “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.” Id.

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Rule 403 because they will likely confuse the jury.

II. Legal Standard.

The Federal Rules of Evidence, as construed by the Supreme Court in the landmark case

of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d

469 (1993), “require[] expert scientific evidence to be both reliable and relevant pursuant to Rule

702,” such that it “appropriately assists the trier of fact.” United States v. Henderson, 409 F.3d

1293, 1302 (11th Cir. 2005).3

 In that regard, “[t]he court serves as a gatekeeper, charged with

screening out experts whose methods are untrustworthy or whose expertise is irrelevant to the

issue at hand.” Corwin v. Walt Disney Co., 475 F.3d 1239, 1250 (11th Cir. 2007). This

gatekeeping function is guided by the well-established principle that “[t]he proponent of the

expert testimony carries a substantial burden under Rule 702” to show admissibility of that

testimony by a preponderance of the evidence. Cook ex rel. Estate of Tessier v. Sheriff of

Monroe County, Fla., 402 F.3d 1092, 1107 (11th Cir. 2005); see also Boca Raton Community

Hosp., Inc. v. Tenet Health Care Corp., 582 F.3d 1227, 1232 (11th Cir. 2009) (“The offering

party must show that the opinion meets the Daubert criteria, including reliable methodology and

helpfulness to the factfinder ..., by a preponderance of the evidence.”).

As a general proposition, “[i]n determining the admissibility of expert testimony under

Rule 702, a district court considers whether (1) the expert is qualified to testify competently

regarding the matter he intends to address; (2) the methodology by which the expert reaches his

conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and

(3) the testimony assists the trier of fact, through the application of scientific, technical, or

specialized expertise, to understand the evidence or to determine a fact in issue.” United States

v. Douglas, 489 F.3d 1117, 1124-25 (11th Cir. 2007); see also Maiz v. Virani, 253 F.3d 641, 665

(11th Cir. 2001) (similar). That said, “[t]he rules relating to Daubert issues are not precisely

Case 1:08-cv-00068-WS-B Document 384 Filed 03/02/10 Page 3 of 9
4 The Court also proceeds in recognition of appellate guidance that “a district court

may not exclude an expert because it believes one expert is more persuasive than another expert”

or “because it believes the expert lacks personal credibility because of prior bad acts or other

prior instances of untruthfulness.” Rink v. Cheminova, Inc., 400 F.3d 1286, 1293 n.7 (11th Cir.

2005); see also Smith v. Ford Motor Co., 215 F.3d 713, 719 (7th Cir. 2000) (“It is not the trial

court’s role to decide whether an expert’s opinion is correct.”). Such circumstances may provide

fertile ground for cross-examination at trial, but they do not constitute a permissible basis for

excluding testimony altogether under Rule 702 and Daubert.

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calibrated and must be applied in case-specific evidentiary circumstances that often defy

generalization.” United States v. Brown, 415 F.3d 1257, 1266 (11th Cir. 2005). For that reason,

courts have stressed that the Daubert inquiry is “a flexible one,” that the Daubert factors are

mere guidelines for applying Rule 702, and that “expert testimony that does not meet all or most

of the Daubert factors may sometimes be admissible” based on the particular circumstances

involved. Brown, 415 F.3d at 1267-68.4 In performing a Daubert analysis, the Court’s focus

must be “solely on principles and methodology, not on the conclusions that they generate”; thus,

it matters not whether the proposed expert testimony is scientifically correct, so long as it is

shown to be reliable. Allison v. McGhan Medical Corp., 184 F.3d 1300, 1312 (11th Cir. 1999).

III. Analysis.

A. Relevancy Objection.

Although other arguments are cited, the moving force of plaintiffs’ Motion is their

contention that Dr. Anderson’s opinions are not relevant because “this is a property damage case,

not a personal injury case. ... Ms. [sic] Anderson’s opinions regarding the health effects of DDT

have no bearing on the property issues in this case.” (Doc. 304, at 4 (emphasis omitted).) It is,

of course, true that “[t]he party offering the expert testimony has the burden of demonstrating

that the testimony is relevant to the task at hand ....” Boca Raton, 582 F.3d at 1232. 

Nonetheless, plaintiffs’ relevancy objection fails.

As a threshold matter, plaintiffs inexplicably ignore this Court’s previous rulings that

such evidence is relevant and will be allowed at trial, at least to a degree. For example, in a

summary judgment order entered just weeks before plaintiffs filed their Motion, the undersigned

explained why this evidence is relevant to this case, as follows:

“[T]here is obviously a vigorous debate between the parties as to whether and to

Case 1:08-cv-00068-WS-B Document 384 Filed 03/02/10 Page 4 of 9
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what extent clean-up of plaintiffs’ properties is needed. Defendants argue that

any need for clean-up should be pegged to human health risks, and that the

presence of DDT at levels below those detrimental to human health does not

warrant any award for clean-up. By contrast, plaintiffs’ position is apparently that

Ciba wrongfully caused this DDT to enter their property, that plaintiffs do not

want DDT on their property, and that Ciba should have to pay the cost of

removing it, irrespective of human health implications. Both sides will be

allowed to make these arguments to the jury, which will then be tasked with

determining what will compensate plaintiffs for the injuries received .... 

Defendants can make their human health showing to the extent it ties into their

argument that there is no reason to clean up plaintiffs’ homes (i.e., that plaintiffs

have no damages), but they are expected to do so in a concise manner that does

not transform this trial into one about human health risks.”

Abrams v. Ciba Specialty Chemicals Corp., 2009 WL 3254443, *9 n.19 (S.D. Ala. Oct. 1, 2009)

(emphasis omitted).

In another summary judgment ruling entered on the same day, the Court reached a similar

conclusion, as follows:

“[T]he parties (and principally Ciba) may have valid reason to present limited

evidence to the jury concerning the human health dimension of the DDT

contamination observed on test plaintiffs’ properties. After all, upon learning that

DDT is a possible or probable human carcinogen, the jury’s verdict on damages

may be unfairly skewed by inappropriate conclusions about health risks presented

by defendants’ actions. Under the circumstances, it is reasonable to allow the

parties to present scientific evidence concerning the human health implications of

the DDT contamination found on test plaintiffs’ properties, so that the jury will be

able to place in appropriate scientific context the measured concentrations of

DDT for purposes of determining the sums that would compensate test plaintiffs

for the complained-of injuries to their property.”

Abrams v. Ciba Specialty Chemicals Corp., 663 F. Supp.2d 1243, 1258-59 (S.D. Ala. 2009).

Plaintiffs fail to acknowledge the rationale of these decisions, much less to present any

effective rebuttal. Moreover, plaintiffs’ own remediation expert, Randy Horsak, P.E., has

expressly testified that risk assessment routinely factors into the determination of appropriate

clean-up levels to be used in calculating decontamination costs. According to Horsak,

“[t]ypically, when we do a cost estimate to decontaminate a house, a toxicologist or a medical

doctor will give us input into what the levels should be.” (Doc. 312, Exh. 2, at 85.) Horsak

further stated in his report that remediation targets may be properly “based on health and

ecological based risk assessments and other considerations.” (Doc. 312, Exh. 1, at § 3.1.) Given

Case 1:08-cv-00068-WS-B Document 384 Filed 03/02/10 Page 5 of 9
5 By all appearances, plaintiffs’ relevance argument hinges a stray statement by

defendants in a brief filed in August 2009, wherein they asserted that “potential health risks,

much less calculations based on models of health effects, have no relevance to this litigation, and

they certainly do not meet Plaintiffs’ burden of proving they sustained property damage.” (Doc.

243, at 15.) This statement appears to be nothing more than an ill-advised, off-the-cuff, but

ultimately harmless argument based on the shifting expediencies of the moment. By essentially

couching this remark as a waiver of defendants’ right to put on risk assessment evidence,

plaintiffs place far more weight on it than it can reasonably bear. Plaintiffs have always known

that defendants retained Dr. Anderson to testify about risk assessment and health effects in this

case; indeed, defendants stated as much in the same paragraph of the same brief from which

plaintiffs culled the above-quoted passage. As such, plaintiffs cannot plausibly suggest that they

were misled by defendants’ argument, which the Court did not adopt, in any event. Besides,

plaintiffs never developed a judicial estoppel argument, so the Court will not construct one for

them.

6 This summary judgment order stated, in part, as follows: “A jury could

reasonably decide that the question of whether the observed DDT placed test plaintiffs’ health at

risk is beside the point. If Ciba caused unwelcome, unwanted foreign matter to invade and settle

on test plaintiffs’ properties, then the cost of removal of that foreign matter is a reasonable

metric for making plaintiffs whole, irrespective of whether there is a health risk component to

that foreign matter.” Id. at 1258. That order included a specific determination that “a jury

question exists as to whether the DDT concentrations observed on test plaintiffs’ properties

constitute ‘substantial damage to the res’.” Id. at 1255. Defendants’ opposition brief improperly

ignores (and, indeed, contradicts) that ruling, by arguing that “[i]f one cannot see or smell DDT

in the Plaintiffs’ homes, and it poses no health risk, it necessarily follows that DDT cannot

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the confirmation by their own remediation expert that a risk assessment of human health effects

is an appropriate means of gauging the benchmark level of DDT which decontamination efforts

should attain, plaintiffs’ absolutist position that all evidence of health effects must be irrelevant

because this is a property damage case is neither persuasive nor defensible.5

The fundamental insight here is a simple one that this Court has reiterated on muliple

occasions in this case. The appropriate damages inquiry under Alabama law in cases of property

damage is as follows: “What will compensate the plaintiff for the injury he has received?” 

Borland v. Sanders Lead Co., 369 So.2d 523, 531 (Ala. 1979). Just as the Court cannot

conclusively rule out the jury’s use of non-health considerations in deciding whether plaintiffs

have been damaged and if so, to what degree, the Court likewise cannot foreclose the jury’s

consideration of health evidence as a tool for answering those queries. See, e.g., Abrams, 663 F.

Supp.2d at 1257-58.6

 In other words, notwithstanding plaintiffs’ mantra that this is a property

Case 1:08-cv-00068-WS-B Document 384 Filed 03/02/10 Page 6 of 9
constitute a substantial damage to the Plaintiffs’ property.” (Doc. 327, at 9.) This is not the first

time that defendants have reacted to an unfavorable ruling in this case by simply pretending it

does not exist in subsequent filings. Of course, plaintiffs have committed the same infraction, as

evidenced by their relevance objection in this very Motion. The Court wearies of the parties’

inefficient and disrespectful practice of selectively waving aside inconvenient rulings in this case

that are not to their liking, and proceeding as if they never happened.

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damage case, it would be reasonable for the finder of fact to determine that, if there are no health

risks, plaintiffs have not been injured and do not require any cleanup of their properties to

remove DDT that Ciba wrongfully deposited there. Dr. Anderson’s opinions concerning the

absence of health effects are therefore directly relevant to damages issues in this case.

B. Other Objections.

Plaintiffs’ remaining arguments for excluding Dr. Anderson’s opinions are cursory and

underdeveloped, and may be addressed in short order.

First, plaintiffs balk that Dr. Anderson’s opinions will not assist the trier of fact, as

required by Rule 702, Fed.R.Evid., because they “will not help the jury make a decision as to

whether DDT exists on Plaintiffs’ properties or whether Defendants have created a nuisance by

allowing the DDT to escape their property and enter Plaintiffs’ homes.” (Doc. 304, at 5.) This

argument is correct, as far as it goes. Dr. Anderson’s testimony does not establish tortious

conduct or causation, and will not help the jury to decide those issues. Defendants have never

suggested otherwise. But her testimony may be extremely helpful to the jury in deciding

questions of damages, as explained supra; therefore, Dr. Anderson’s opinions unquestionably

meet the “helpfulness” requirement of Rule 702.

Second, plaintiffs request that Dr. Anderson’s opinions be excluded because she “does

not have any scientifically reliable opinions regarding the health effects of DDT in household

dust” and because “her opinions regarding the health effects of DDT according to the EPA’s soil

screening values are irrelevant.” (Doc. 304, at 5.) Plaintiffs make no effort to expand on or flesh

out these arguments. However, Dr. Anderson’s report explains that she applied an established

methodology for determining screening values for indoor dust, a methodology that the EPA has

utilized for risk assessment purposes in its pesticide program, as well as at the World Trade

Center disaster site and at least one Superfund site for indoor dust contamination. (Doc. 327,

Case 1:08-cv-00068-WS-B Document 384 Filed 03/02/10 Page 7 of 9
7 The same conclusion attaches to plaintiffs’ Rule 403 objection that “[a] jury may

easily confuse Ms. [sic] Anderson’s opinions regarding the EPA’s screening values for DDT in

soil as a standard for screening values for DDT in household dust in McIntosh.” (Doc. 304, at 6

(emphasis in original).) Dr. Anderson’s report is quite clear that she did not use soil screening

values. Any confusion on this point lies with plaintiffs, not the jury.

-8-

Exh. 1 at 18.) Plaintiffs do not explain why they think this methodology lacks scientific

reliability, other than to suggest that the model was developed for “the World Trade Center

catastrophe, a short-term incident.” (Doc. 304, at 5.) It is not apparent why this proposed shortterm / long-term distinction matters for reliability purposes, particularly where the EPA has also

utilized this same methodology in the context of a Superfund risk assessment. The Court will

neither formulate plaintiffs’ arguments for them nor guess as to what those objections might

entail. And plaintiffs’ objection to “soil screening values” is soundly rebutted by Dr. Anderson’s

report, wherein she clarifies that her methodology “is a refinement on the standard approach for

derivation of risk-based screening levels for soil” that specifically “incorporates dust-specific

factors.” (Doc. 327, Exh. 1 at 19.) Dr. Anderson further explains that her model “differs from

the approaches used for soil, because it contains more sophisticated algorithms to describe the

contact rates and ingestion.” (Id. at 19 n.21.) Based on the plain text of her report, plaintiffs’

accusation that Dr. Anderson wrongfully applied a soil screening level to an indoor dust case has

no basis in fact.7

Finally, plaintiffs state that Dr. Anderson’s opinions are inadmissible because she “only

considers the risks going forward in time” and never “calculate[d] the risk associated with the

Plaintiffs’ past exposure to DDTr.” (Doc. 304, at 5 (emphasis omitted).) Plaintiffs point to

record evidence showing that Dr. Anderson did not assess the risks to plaintiffs from past DDT

exposure, but they do not explain why that omission renders her opinions inadmissible. There is

nothing obviously improper about performing a risk assessment that focuses on future exposure,

especially when the purpose of the assessment is to fix appropriate remediation targets for a

future cleanup. Plaintiffs do not articulate any legal argument showing why a risk assessment

that fails to account for past exposure levels somehow flunks the reliability principles of

Daubert. Again, the Court will not articulate plaintiffs’ arguments for them or speculate as to

what they might have intended, but failed, to state.

Case 1:08-cv-00068-WS-B Document 384 Filed 03/02/10 Page 8 of 9
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IV. Conclusion.

For all of the foregoing reasons, Plaintiffs’ Motion to Exclude Elizabeth Anderson’s

Expert Testimony, Opinions and Reports (doc. 304) is denied.

DONE and ORDERED this 2nd day of March, 2010.

s/ WILLIAM H. STEELE 

CHIEF UNITED STATES DISTRICT JUDGE

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