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, defendants have presented their position on the admissibility of Horsak’s testimony

over the span of 22 pages of briefing. A hearing is not needed to enable the Court to understand

the nature and bases of Horsak’s opinions or to develop and define defendants’ objections. In

any event, no party has requested a Daubert hearing as to this particular 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 defendants’ Motion in Limine Relating to

Opinions or Testimony of Randy Horsak (doc. 312). The Motion has been briefed 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

trespass, negligence, and nuisance. Although they initially claimed damages in the form of

Case 1:08-cv-00068-WS-B Document 383 Filed 03/02/10 Page 1 of 13
2 Although not submitted specifically in the context of defendants’ Daubert

Motion, documentation in the court file reflects that Horsak’s estimates of clean-up costs on a

plaintiff-by-plaintiff basis for the remaining test plaintiffs are as follows, in alphabetical order:

Sexton Adams ($20,162.63), Marie Evans ($12,816.38), Ruth Everette ($24,696.41), Toni

Jackson ($7,620.25), Bertha Reed ($17,435.23), Wilford Taylor ($18,629.02), Etoria Toole

($29,108.73), Johnnie Ware ($17,471.18) and Annie Williams ($16,633.27). (Doc. 256, Exh. 9,

at Exh. 4-1.)

-2-

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.

Randy D. Horsak, P.E., is an engineer and environmental consultant with more than three

decades of experience in the field of environmental science and engineering. (Doc. 312, Exh. 1,

at § 1.1.) Plaintiffs retained Horsak for the limited purpose of preparing “an Engineering Cost

Estimate to decontaminate and restore the indoor living environments” of plaintiffs’ residences

and to provide “similar estimates for restoring the attics at those residences with accessible

attics.” (Id. at § 1.2.) Because the remedy sought by plaintiffs is recovery of restoration costs,

Horsak is effectively serving as plaintiffs’ damages expert, providing specific data that the finder

of fact can use in fixing damages for each plaintiff, should Ciba be deemed liable. To compute

cost-of-remediation estimates on a plaintiff-specific basis, Horsak relied on baseline information

collected during a site reconnaissance, considered the DDTr sampling results performed by other

experts in and around plaintiffs’ homes, worked from assumptions that the background DDTr

concentration in household dust was 10 ppb and that 10 ppb was the requisite remediation target,

and addressed 11 key restoration cost components (i.e., goals and objectives, nature and extent of

contamination, scope of work, calculation methods, base case cost, net present value cost,

pricing basis, parametric sensitivity analysis, contingencies, cost risk analysis, and a catch-all

category labeled “unknowns, assumptions, exclusions, deviations and Murphy’s Law”). (Id. at

§§ 4.2 - 4.3.) For those test plaintiffs whose residences were found to be contaminated with

DDTr at a level exceeding 10 ppb, Horsak estimated costs of decontamination and restoration

ranging from $6,382 to $33,131 per property. (Id. at § 5.0.)2

Defendants now seek to exclude Horsak’s opinions and estimates of cleanup costs on the

grounds that they are “based upon a target level that is not established as the proper level,” and

Case 1:08-cv-00068-WS-B Document 383 Filed 03/02/10 Page 2 of 13
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.

-3-

that Horsak “discusse[d] the proper way to estimate remediation levels, and then he ignore[d] it

in favor of the level the attorneys told him to use.” (Doc. 312, at 6.) Defendants also frame this

argument in terms of “fit” by asserting that Horsak “purports to provide an opinion as to the cost

to clean-up the properties, but his target clean-up goal is far beyond what is necessary,” such that

“[h]is opinions relate to the cost to do something that no one has shown needs to be done.” (Id.

at 12.) Finally, defendants cast Horsak’s damages estimates as unduly speculative because (1)

he blindly applied the 10 ppb remediation target without confirmation or research into its

validity, (2) in lieu of proper investigation and research, he built “a significant amount of extra

cost into his assumptions ... based upon a paucity of data” that he could have corrected, and (3)

he included cost elements that are unnecessary or gratuitous (such as hotel expenses for plaintiffs

and allowances for project management and administration fees). (Id. at 13.)

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

Case 1:08-cv-00068-WS-B Document 383 Filed 03/02/10 Page 3 of 13
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.

-4-

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

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. The Remediation Target.

Defendants’ principal attack against Horsak’s opinions is that his calibration of

restoration cost estimates to a pie-in-the-sky 10 ppb remediation goal renders his opinions

Case 1:08-cv-00068-WS-B Document 383 Filed 03/02/10 Page 4 of 13
5 As a threshold matter, defendants’ contention that Horsak agrees that a risk

assessment is a mandatory prerequisite to developing a remediation goal is both inaccurate and

irrelevant. Horsak states in his report that “[g]enerally speaking, a contaminated property must

be restored to either [a] its ‘pre-contamination’ conditions or, alternatively, [b] some condition

that allows residual contamination to remain at the property, as determined by some regulatory

requirement or guidance, or other criterion.” (Doc. 312, Exh. 1, at § 3.1.) Horsak also opines

that it is “difficult, if not impossible, to restore the subject properties to absolute ‘precontamination’ conditions, that is, with absolutely, zero DDT.” (Id.) Defendants pair these

statements out of context and construe them as an admission that only health-based remediation

targets are permissible. But that is not a fair characterization of Horsak’s report. Here, the “precontamination” target fixed by plaintiffs and Kaltofen was not 0 ppb, but 10 ppb (i.e., the level of

DDT that would be expected without Ciba-produced contamination). Horsak does not assert that

such a clean-up target is “difficult” or “impossible” to achieve or that it otherwise lacks scientific

validity in the absence of a risk assessment. To be sure, Horsak did testify that “[i]f there’s no

risk, there’s probably no need to clean it up” and that “[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 level

should be ....” (Doc. 312, Exh. 2 at 78, 85.) But defendants identify no testimony or opinions

from Horsak that estimating decontamination costs for a dwelling is scientifically improper in

the absence of a risk assessment. To the contrary, his report plainly reflects that other criteria

may be used to set restoration levels. Besides, as discussed infra, plaintiffs have other experts

and other evidence supporting the viability of the 10 ppb remediation target from a scientific

standpoint, and its usefulness from a legal standpoint is not necessarily bound to human health

effects at all. In light of these facts, and particularly the fact that other experts supply the

foundation of the remediation target used in Horsak’s cost estimates, “Horsak’s personal

opinions about whether and to what extent remediation is ‘needed’ or ‘required’ are

unilluminating because they are beyond the scope of his limited expert involvement in this case.” 

(Doc. 284, at 19.)

-5-

unreliable and irrelevant. Ciba submits several different iterations of this core argument in its

principal brief. According to defendants, Horsak “selected a clean-up level of 10 parts per

billion because Plaintiffs’ counsel told him to.” (Doc. 312, at 4.) Defendants state that while

Horsak acknowledges “that a risk assessment is necessary to develop clean-up levels, ... he has

not done any work to evaluate the possible risks to human health” but has instead “taken the

clean-up level of 10 parts per billion from the attorneys who hired him.” (Id. at 7.) Defendants’

position is that Horsak thinks a risk assessment is necessary to evaluate the need and extent of

any environmental clean-up, but that he failed to perform such a risk assessment here and

“simply provided a report to clean up to levels suggested by Reich and Binstock [plaintiffs’ law

firm].” (Id. at 9.)5

 Because Horsak did not use scientific methodology to arrive at the 10 ppb

Case 1:08-cv-00068-WS-B Document 383 Filed 03/02/10 Page 5 of 13
-6-

remediation target, defendants lambaste his opinions as nothing more than “pseudo-science”

whereby Horsak is merely a “mouthpiece” for plaintiffs’ attorneys. (Id. at 10.) Thoroughly

flogging the dead horse, defendants go on to liken Horsak’s opinions to a “baggy coat” and to

assert that his failure to perform a comprehensive risk assessment before deciding the

remediation target “renders his opinions useless to this case.” (Id. at 12.)

In reviewing defendants’ Motion and principal brief, the Court experienced a palpable

sense of deja vu, not only because of the internal redundancy in those filings (with the same

point being argued over and over again), but also because the Court had considered and rejected

these very contentions in a summary judgment Order (doc. 284) entered weeks before defendants

filed this Daubert Motion. In denying defendants’ Rule 56 motion alleging that plaintiffs could

not prove any damages, the Court found that defendants’ suggestion that the 10 ppb remediation

target had been spun from whole cloth by plaintiffs’ lawyers “distorts the record.” (Doc. 284, at

8 n.16.) After all, Horsak’s testimony established “that he was not retained by plaintiffs to make

any assessment of human health risks ... and that the scope of his opinions in this case is

confined to cost estimates of decontamination and restoration of plaintiffs’ properties.” (Id.) 

Another plaintiffs’ expert, Marco Kaltofen, P.E., a civil engineer who collected samples at

plaintiffs’ homes, had determined

“that the appropriate ‘background concentration’ levels of DDTr in household

dust are approximately 10 ppb. ... This 10 ppb figure represents the concentration

of DDTr that one might reasonably expect to find in household dust samples

taken from plaintiffs’ property in the absence of environmental contamination

from the nearby Ciba facility. ... Kaltofen’s opinion concerning background DDTr

concentrations in dust was relayed to plaintiffs’ remediation expert, Horsak, as a

remediation target value. Horsak then performed property-specific analyses to

estimate the cost of cleaning up the DDT contamination on each test plaintiff’s

property to restore said property to the background 10 ppb concentration of

DDTr.” 

(Doc. 284, at 8 (record citations and footnotes omitted).) In light of these facts, the Court opined

that “plaintiffs have clearly come forward with a record basis for the 10 ppb figure utilized in

Horsak’s estimates.” (Id. at 8 n.16.) To the extent that defendants’ Daubert Motion against

Horsak rehashes the incorrect notion that the 10 ppb remediation target is a made-up, lawyergenerated number with no scientific basis, that argument is again rejected for the same reasons

identified in the October 1 Summary Judgment Order.

Case 1:08-cv-00068-WS-B Document 383 Filed 03/02/10 Page 6 of 13
6 Defendants reiterate this argument multiple times in their reply brief, where they

castigate Horsak for “offer[ing] not a single credible scientific source supporting the need to

clean up at all” and insist that “there is no evidence of either a risk to human health or an

aesthetic need to clean up.” (Doc. 343, at 3-4.) These assertions constitute a thinly veiled

improper re-argument of the cognizability of plaintiffs’ damages theory, an issue that has already

been thoroughly explored on summary judgment. The Court finds now as it did then: Under

Alabama tort law, it is for the jury to decide whether remediation is appropriate if (a) Ciba has

tortiously deposited a harmful, unwanted chemical on plaintiffs’ properties in concentrations

much greater than background, but (b) that chemical cannot be seen or smelled, and is in

quantities too small to compromise human health. (See doc. 284, at 15-20.) If the jury

determines that Ciba is liable and that plaintiffs were injured, then Horsak’s testimony becomes

instrumental to the jury’s efforts to quantify the damages by fixing appropriate clean-up costs.

-7-

Defendants offer several variations on this theme, but all end the same way. For

example, defendants criticize Horsak’s opinions as unnecessary and lacking “fit” because “[h]is

opinions relate to the cost to do something that no one has shown needs to be done, i.e., clean up

to 10 parts per billion.” (Doc. 312, at 12.) Undergirding this premise is defendants’ persistent

stance that absent a “risk assessment performed by a toxicologist or someone with medical

training to assess risk to human health,” clean-up is not necessary at all. (Id. at 9.)6

 This

argument is likewise a holdover from defendants’ failed summary judgment motion. The

October 1 Order dispatched this argument and found that jury questions were presented on the

need for remediation to the 10 ppb level based on the following reasoning (none of which

defendants acknowledge in their Daubert motion):

“Recall that in a property damage case, Alabama law provides that compensatory

damages are to be awarded flexibly based on the following simple inquiry: ‘What

will compensate the plaintiff for the injury he has received?’ ... It is not at all

apparent why health risks are or should be the exclusive touchstone of that

inquiry in this case, as Ciba maintains. ... [T]here are innumerable examples

where award of remediation costs may be sensible and appropriate in the property

damage context to compensate a plaintiff for his or her injury, even in the absence

of any human health implications whatsoever.”

(Doc. 284, at 17-18 (citations omitted).) To sharpen the point, the October 1 Order further

explained:

“Test plaintiffs’ deposition testimony makes clear that they do not like having

DDT on their property, that the presence of DDT causes them worry and

discontent on a variety of different levels, and that they want Ciba’s DDT to be

eliminated from their homes. What would compensate test plaintiffs for these

Case 1:08-cv-00068-WS-B Document 383 Filed 03/02/10 Page 7 of 13
-8-

injuries? That is for the jury to decide, but remediation of contaminants that Ciba

caused to be on test plaintiffs’ properties could reasonably be viewed by the

factfinder as appropriate compensation. ... 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 20 (footnotes omitted and emphasis added).)

At the risk of belaboring the analysis, the Court observes that plaintiffs are offering

Kaltofen’s expert opinion that the expected background concentration of DDTr in the household

dust of test plaintiffs’ homes would be 10 ppb, in the absence of tortious activity by Ciba. The

properties of all nine remaining test plaintiffs were found to have DDTr concentrations in excess

of the 10 ppb background level. If the jury finds that Ciba is legally responsible for the abovebackground level of DDTr found on plaintiffs’ properties, then it could reasonably determine

that the appropriate measure of damages under Alabama law (i.e., the amount that would

compensate plaintiffs for their injuries) would be the cost of restoring their properties to that

background 10 ppb level of DDTr contamination that would have been expected without Ciba’s

contributions. Thus, far from lacking “fit” or relating to a task that no one has shown needs to be

done, as defendants insist, Horsak’s decontamination estimates are clearly, logically and

narrowly linked to plaintiffs’ overall theory of the case and to the expected proof at trial. 

Plaintiffs will be asking the jury to award them damages to remove the DDTr that Ciba caused to

be in their homes, and will be arguing that the DDTr to be removed equates to the difference

between the current readings and the expected background concentration level. Should the jury

determine that an award of remediation costs is warranted to make plaintiffs whole, then

Horsak’s calculations will be of great assistance to the jury in quantifying those damages. There

is no “fit” problem.

Defendants next excoriate Horsak for failing to “exercise the requisite rigor of a

scientist” because he did not look behind and verify independently the 10 ppb remediation

parameter for which he was asked to compute engineering cost estimates. According to Ciba, by

failing to investigate that number, to confirm Kaltofen’s basis for same, or to select his own

remediation target, Horsak is engaging in “pseudo-science” and serving as “nothing more than a

mouthpiece for Kaltofen and Plaintiffs’ counsel.” (Doc. 312, at 10.) But this criticism

Case 1:08-cv-00068-WS-B Document 383 Filed 03/02/10 Page 8 of 13
7 In large part, defendants’ Daubert challenge to Horsak is a backdoor attack on

Kaltofen’s opinions and plaintiffs’ damages theory. Neither of these detours is appropriate in the

context of this Motion. It is inefficient to utilize a Daubert motion concerning Horsak’s opinions

as a platform for questioning the admissibility of Kaltofen’s opinions, especially when

defendants have separately filed a Daubert motion targeting Kaltofen. The Court will not

needlessly add to its inordinate workload in this case by taking up the admissibility of Kaltofen’s

opinions in ruling on the Horsak Daubert motion, when another iteration of the same arguments

awaits it in the Kaltofen Daubert motion. The Court will assume for purposes of this Order that

Kaltofen’s background concentration figure is admissible. By the same token, defendants cannot

properly use this Daubert motion to rehash and relitigate their failed summary judgment motion

as to plaintiffs’ damages theory, to which this Court wrote extensively on October 1, 2009. (See

doc. 284.) Yet that is exactly what Ciba has attempted to do, by lodging a motion to reconsider

in the guise of a Daubert motion.

Notwithstanding the foregoing, it is certainly true that Horsak’s opinions are dependent

on plaintiffs’ remediation theory of damages and Kaltofen’s estimate of background DDTr

levels. If at any time the Court should determine that plaintiffs’ decontamination theory of

damages (i.e., recovery of cleanup costs to reduce total DDTr levels in plaintiffs’ homes to the

background level) is not legally viable or that Kaltofen’s opinions concerning the appropriate

background level are not admissible, defendants may renew their motion to exclude Horsak’s

opinions.

-9-

misconstrues the nature and purpose of Horsak’s expert opinions in this case. He does not

blindly adopt Kaltofen’s background concentration figure as his own, nor does he

unquestioningly vouch for its correctness or offer any opinions as to the proper remediation

target. It is not his role in this case to opine that cleanup should be effected to a particular level. 

Rather, Horsak’s testimony makes clear that “the decontamination criterion value is simply an

input to a cost model that affects the field methods and intensity of decontamination, and the

resultant cost.” (Doc. 333, Exh. A, at 5.) Horsak was not retained by plaintiffs’ counsel to fix

that decontamination criterion value; rather, that value was generated through a combination of

plaintiffs’ legal theory of recovery (i.e., plaintiffs seek to recover the cost of restoring their

properties to a background level of DDTr contamination, eliminating the effects of Ciba’s

tortious conduct) and Kaltofen’s expert opinions (i.e., identifying the expected background

level). If plaintiffs’ legal theory of damages is viable and if Kaltofen’s expert opinion as to

expected background levels is admissible, then and only then do Horsak’s decontamination cost

estimates come into play.7

 Either way, however, defendants’ “pseudo-science” and

“mouthpiece” objections to Horsak’s testimony are meritless because Horsak is neither passing

Case 1:08-cv-00068-WS-B Document 383 Filed 03/02/10 Page 9 of 13
8 Construing defendants’ argument generously, it appears that they may have

intended to attack Horsak’s assumption that “[t]he levels of DDT measured are representative of

the entire living space.” (Doc. 312, Exh. 1, at 2.) Defendants have not persuasively shown,

however, that this assumption is fatal to the reliability of Horsak’s opinions. Indeed, in the

absence of comprehensive sampling of every surface in every plaintiff’s home (surely an

impracticable and cost-prohibitive objective), such an assumption would appear to be imperative

for the calculation of any remediation cost estimate. That said, the validity of this assumption in

the context of Kaltofen’s sampling efforts in this case may reasonably be questioned, especially

if defendants are correct that DDTr levels in dust samples collected from refrigerator coils and

vacuum cleaner bags are likely to be much higher than in other, unsampled areas of plaintiffs’

homes. However, those issues have not been fleshed out in defendants’ briefs; therefore, they

are properly addressed via cross-examination and closing argument, rather than this Order.

-10-

off someone else’s opinions as his own nor offering unfounded opinions as to the appropriate

remediation targets himself.

B. Other Issues.

Aside from the cleanup level argument, defendants raise a number of other objections to

Horsak’s opinions. These can be quickly dispatched.

First, defendants find fault with Horsak’s purported assumption “that there could be

recontamination of the properties due to airborne dust or track-in from surface soil

contamination.” (Doc. 312, at 11.) However, the cited portion of the Horsak report actually

states the opposite, setting forth an assumption “that recontamination will not occur as a result of

further impacts from the Ciba Plant operations, airborne dust from contaminated surface soil

contamination, tracking in of contaminated soil, etc.” (Doc. 312, Exh. 1 at 14 (emphasis

added).) Contrary to defendants’ position, recontamination risk is thus an exclusion from

Horsak’s estimates, not an add-on. Defendants have identified no colorable basis for disputing

the assumption of no recontamination, much less for holding that such an assumption

disqualifies Horsak’s opinions in their totality.8

Next, defendants maintain that Horsak’s cost estimates are unduly speculative because,

by allowing some latitude for “Murphy’s Law” and other unknowns and deviations, he “builds a

significant amount of extra cost into his assumptions.” (Doc. 312, at 13.) This objection is

meritless. Horsak’s unrebutted testimony is that an engineering cost estimate that ignores

unknowns, deviations, Murphy’s Law, etc., is “inadequate.” (Doc. 333, Exh. A at 5.) 

Case 1:08-cv-00068-WS-B Document 383 Filed 03/02/10 Page 10 of 13
9 In a rebuttal affidavit, Horsak eliminates any residual confusion on this point by

expressly averring, “[I]t is my opinion that I had sufficient information from which to prepare a

reasonable cost estimate” in this case. (Doc. 333, Exh. A at 6.) Again, defendants have made no

persuasive showing otherwise.

-11-

Defendants have no answer to Horsak’s assertion that accounting for such factors is a necessary

component of any proper engineering cost estimate analysis. Moreover, defendants’ suggestion

that these factors transform his opinions into mere guesses is unfounded, in light of the evidence

that Horsak performed a Monte Carlo Risk Analysis to simulate those unknowns over 40,000

iterations, in order to estimate the impact of those factors to 95% certainty, with such value being

computed at 7% of base costs. (Id. at 7; doc. 312, Exh. 1 at 14.) There is nothing unduly

speculative or unreliable about such a methodology.

Defendants also suggest that Horsak’s calculations are unreliable because of his

purportedly “frank admission” that they are based on a “paucity of data.” (Doc. 312, at 13.) 

Ciba mischaracterizes Horsak’s report. While it is true that he did use the phrase “paucity of

data,” Horsak did so not in the context of bemoaning a lack of information in this case but

instead of stating the general proposition that “[a] paucity of data, or worse – conflicting data –

can result in cost estimates that are incorrect or even misleading.” (Doc. 312, Exh. 1 at 8.) 

Horsak never suggested that his estimates in this case suffer from a paucity of data or conflicting

data.9

 Defendants’ contention to the contrary is counterfactual.

As a further challenge, defendants balk at Horsak’s inclusion of line items for hotel

accommodations for plaintiffs during remediation, as well as a 10% markup for project

management and administration. (Doc. 312, at 13.) Defendants may not like these line items,

but they have not shown them to be improper components of the type of engineering cost

estimates that Horsak was retained to provide in this case. With respect to hotels, Horsak

explains that “[i]t is common practice to temporarily relocate the home owners during the

decontamination for reasons of health and safety,” and that those costs are reasonably included

in his remediation computations. (Doc. 333, Exh. A, at 6.) Ciba submits neither expert opinion

nor argument establishing otherwise. Likewise, Horsak justifies the project management and

administration fee on the ground that a 10% markup for such services “is fully consistent with

projects in the environmental sector which require some level of professional project

Case 1:08-cv-00068-WS-B Document 383 Filed 03/02/10 Page 11 of 13
10 The objection to the project management fee is particularly murky. Defendants

suggest that Horsak’s inclusion of this component of costs is tantamount to estimating the “cost

of starting a remediation business, not the actual cost of remediation for these plaintiffs.” (Doc.

312, at 13.) On their face, Horsak’s estimates have no bearing whatsoever on start-up costs for a

remediation business. Besides, given Horsak’s opinion that project management and

administration services are essential for this kind of field decontamination project, the “actual

cost of remediation for these plaintiffs” would plainly encompass a markup of this sort.

-12-

management to plan, organize, and control the work,” and that implementing a field

decontamination program with no project management and administration (as defendants seem

to propose) would be “a totally preposterous engineering approach.” (Id. at 6.) Defendants have

failed to show that Horsak’s opinions in this case are rendered inadmissible by his inclusion of a

project management line item in the cost calculations.10

Finally, defendants utilize their reply brief to unveil a new line of attack on Horsak’s

opinions, namely, that many inputs in his analysis appear to serve no purpose and that “the

bottom line is that the estimates are square footage driven.” (Doc. 343, at 4.) Defendants

characterize his methodology as “basically a cleaning service charging by the square foot.” (Id.) 

Defendants also offer new challenges pertaining to Horsak’s treatment of attics and garages. 

(Id. at 3.) Having elected not to present these available arguments in their principal brief, it is

improper for defendants to raise them in their reply, much less to devote nearly half of their reply

brief to them. See, e.g., Palmer v. City of East Brewton, 2010 WL 231513, *4 (S.D. Ala. Jan. 14,

2010) (“[d]istrict courts, including this one, ordinarily do not consider arguments raised for the

first time on reply”) (citation omitted); Abrams v. Ciba Specialty Chemicals Corp., --- F.

Supp.2d ----, 2009 WL 3261264, *7 n.16 (S.D. Ala. Oct. 1, 2009) (“As defendants well know,

new arguments are impermissible in reply briefs.”); Fisher v. Ciba Specialty Chemicals Corp.,

238 F.R.D. 273, 317 n.89 (S.D. Ala. 2006) (“this argument is not properly raised because

plaintiffs submitted it for the first time in their reply brief”). Defendants are well acquainted

with this prohibition, yet they have once again disregarded it without explanation. The Court

will not consider these improperly raised arguments.

IV. Conclusion.

For all of the foregoing reasons, Defendants’ Motion in Limine Relating to Opinions or 

Case 1:08-cv-00068-WS-B Document 383 Filed 03/02/10 Page 12 of 13
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Testimony of Randy Horsak (doc. 312) is denied.

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

s/ WILLIAM H. STEELE 

CHIEF UNITED STATES DISTRICT JUDGE

Case 1:08-cv-00068-WS-B Document 383 Filed 03/02/10 Page 13 of 13