1 No party has requested an evidentiary hearing in connection with this Motion, and

the Court in its discretion finds that a hearing is unnecessary to resolve the issues presented. See

generally 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 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 Portions of David

Langseth’s Expert Testimony, Opinions and Reports (doc. 309). The Motion has been briefed

and is now ripe for disposition.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

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

Case 1:08-cv-00068-WS-B Document 381 Filed 03/02/10 Page 1 of 12
2 The parties’ competing Daubert motions on fate and transport issues reflect that

they seek to hold opposing experts to a more stringent legal standard than their own. For

example, defendants laud Dr. Langseth’s methodology concerning spatial concentration patterns

as being “generally accepted in the scientific community” (doc. 326, at 2), yet they filed a

Daubert motion denouncing as unreliable and unscientific the opinions of plaintiffs’ fate and

transport expert, Dr. Robert Scates, which utilized the same type of analysis. Similarly,

defendants characterize Dr. Langseth’s methodology as “sound” because “he considers each

possible source and tries to determine the most likely source.” (Id. at 7.) Of course, Dr. Scates

followed that same methodology, but defendants nonetheless moved to disqualify his opinions as

being untethered to “true science.” Elsewhere, defendants justify Dr. Langseth’s “use of data

from studies and evidence of general use” because of the daunting task of reconstructing

conditions dating back a half century (id. at 3), only to castigate Dr. Scates for relying on the

same types of studies and evidence. Plaintiffs also play this game by, for example, complaining

that Dr. Langseth’s “comparisons of the McIntosh community to known contaminated

communities are [not] relevant or reliable in any way” (doc. 351, at 2), even though Dr. Scates

performed similar comparisons. Similarly, plaintiffs object to certain of Dr. Langseth’s opinions

as “mere speculation and overreaching of his demonstrated expertise” (doc. 309, at 10), when the

same objection was plausibly interposed against Dr. Scates. In reviewing these dueling Daubert

motions, the Court is left with the distinct impression that they were filed tit-for-tat, with each

side being outspoken in criticizing the other’s expert for activities in which they both engaged, to

a greater or lesser extent, because of the nature of the science and methodologies involved, the

gaps in existing data, and the difficulty of reconstructing events that occurred more than 50 years

ago. This is not an efficient use of the Daubert mechanism or scarce judicial resources.

-2-

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 Dr. Langseth as an expert witness “to develop opinions about the

extent and likely sources of DDTr” found on plaintiffs’ property. (Doc. 309, Exh. A, at § 1.1.) 

In a lengthy Expert Report dated May 14, 2009, Dr. Langseth concluded that plaintiffs’ homes

were not adversely impacted by their proximity to the Ciba plant, based on the following

underlying opinions: (i) DDTr concentrations in plaintiffs’ homes are comparable to, or lower

than, observed concentrations in other locations not proximate to DDT manufacturing plants; (ii)

spatial concentration patterns (i.e., the plotting of measured DDT concentrations against distance

from the Ciba plant) in McIntosh are inconsistent with plaintiffs’ theory that the Ciba plant was

the source; and (iii) McIntosh community soil samples exhibit no DDT impacts from the Ciba

plant. (Id.)

2

 According to Dr. Langseth, “[t]he DDTr in McIntosh community indoor dust is

rather more likely due to a combination of DDTr that is widely distributed in the environment

Case 1:08-cv-00068-WS-B Document 381 Filed 03/02/10 Page 2 of 12
3 Regarding the American Healthy Homes study, defendants suggest that “[i]t is

quite telling that Mr. [sic] Scates makes no mention of this highly relevant study” in his report. 

(Doc. 326, at 3-4.) On its face, this criticism is absurd. The American Healthy Homes study was

published on June 15, 2009. (Id. at 3.) Dr. Scates’ supplemental report is likewise dated June

15, 2009. (Doc. 309, Exh. B.) Defendants fail to explain how Dr. Scates could possibly have

addressed the American Healthy Homes study in his reports when that study was published

contemporaneously with his supplemental report.

-3-

from extensive past local use in or near the homes ....” (Id.)

Nearly three months later, on August 7, 2009, Dr. Langseth submitted a short document

styled a “Supplemental Report” (doc. 309, Exh. C). The body of this Supplemental Report was

just two pages long and was accompanied by a reference list numbering 20 items. Dr. Langseth

prefaced his Supplemental Report by stating that its purpose “is not to offer rebuttal” to Dr.

Scates’ supplemental report dated June 15, 2009, “but is rather to call attention to some

information that may not have been available to Dr. Scates.” (Id. at 1.) A careful reading of Dr.

Langseth’s Supplemental Report reveals that he did not purport to be setting forth new opinions

or elaborating on any opinions already made; instead, the Supplemental Report merely recited

(largely without comment) additional studies and research performed by others. In particular,

Dr. Langseth identified the following facts from the literature: (i) Washington County, Alabama,

was pre-approved for a National Malaria Eradication Program (“NMEP”) in 1948 under which

houses were sprayed with DDT; (ii) homes sprayed in the NMEP program received an average

of 0.43 to 1.12 pounds of DDT; (iii) the Tennessee Valley Authority produced reports of

mosquito control programs that included aerial DDT spraying; (iv) long after cancellation of

DDT’s registration in 1972, thousands of homes still stored products containing DDT; and (v) an

American Healthy Homes Survey found that DDT was detected in as many as 41% of floor wipe

samples taken from residential homes. (Id. at 1-2.)3

Plaintiffs now seek to exclude Dr. Langseth’s Supplemental Report as untimely, and to

exclude certain of his opinions on grounds of relevance and reliability.

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

Case 1:08-cv-00068-WS-B Document 381 Filed 03/02/10 Page 3 of 12
4 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.

-4-

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

1293, 1302 (11th Cir. 2005).4 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

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

Case 1:08-cv-00068-WS-B Document 381 Filed 03/02/10 Page 4 of 12
5 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.

6 In briefing their Daubert motions, the parties habitually refer to their own experts

with the “Dr.” title, but identify opposing experts with a “Mr.” or “Ms.” prefix, if any. This is

both improper and disrespectful. Hard-fought litigation does not justify abandonment of civility

and decorum. Regardless of their disagreement with an expert’s opinions, if that expert is

commonly referred to as “Dr.” by virtue of that person’s education, training and/or experience,

then both sides are expected to use that title in identifying or addressing that person at trial or in

briefs. 

-5-

involved. Brown, 415 F.3d at 1267-68.5 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. Timeliness of Supplemental Report.

Plaintiffs’ first objection concerns the timing of Dr. Langseth’s Supplemental Report,

which was submitted on August 7, 2009, some 74 days after his deposition, 52 days after Dr.

Scates’ supplemental report, and 37 days after the close of discovery. (Doc. 309, at 5.) Plaintiffs

maintain that Dr. Langseth’s Supplemental Report is untimely because the applicable Rule 16(b)

Scheduling Order provided that disclosure of expert rebuttal evidence “authorized by Rule

26(a)(2)(c), shall be made within 30 days after the disclosure made by the other party.” (Doc.

67, ¶ 6.) Additionally, plaintiffs decry the timing of this Supplemental Report as prejudicial to

them because it was made after the close of discovery, such that plaintiffs “have had no

opportunity to seek discovery on and to test Mr. [sic] Langseth’s” statements therein. (Doc. 309,

at 6.)6 Finally, plaintiffs object that defendants have failed to furnish them with copies of the

studies and literature cited in Dr. Langseth’s Supplemental Report.

In their Response (doc. 326), defendants largely gloss over the reasons why Dr.

Case 1:08-cv-00068-WS-B Document 381 Filed 03/02/10 Page 5 of 12
7 That said, the Court will not allow Dr. Langseth to exceed the boundaries of the

Supplemental Report to testify in a manner that extrapolates from those studies and literature to

inject new opinions into this case at trial. Having failed to supplement his report within the

prescribed period, and having limited his Supplemental Report to disclosure of additional

literature, Dr. Langseth cannot now be heard to proffer new but previously available opinions,

but is instead confined to those opinions recited in his initial report. If defendants wish to ask

Dr. Langseth about the literature identified in his Supplemental Report to “call attention” to

those materials, they may do so. But they may not ask him to render opinions about the

application of those items to McIntosh because (a) he did not offer any such opinions in his

initial report or his Supplemental Report, and (b) such opinions would be untimely and improper

under the Scheduling Order and applicable discovery obligations.

-6-

Langseth’s Supplemental Report was submitted well beyond the 30-day deadline for rebuttal

reports. Nonetheless, the Court does not credit plaintiffs’ objections on grounds of untimeliness

and prejudice. As noted, Dr. Langseth’s Supplemental Report does not express any new

opinions, or any opinions at all, but simply “call[s] attention” to existing (but newly discovered)

literature that might bear on some of Dr. Scates’ conclusions. As such, Dr. Langseth’s

Supplemental Report is not properly viewed as a rebuttal expert report at all, but is simply a

disclosure of additional studies and literature. Defendants could have cross-examined Dr. Scates

about such literature without presenting it in the form of Dr. Langseth’s Supplemental Report. 

That they elected to notify plaintiffs of those additional studies via Dr. Langseth’s Supplemental

Report does not bar defendants from engaging in such cross-examination of Dr. Scates at trial,

nor does it forbid Dr. Langseth from identifying those studies (without offering any new or

additional expert opinions about the veracity or application of those studies to plaintiffs) in his

trial testimony.7

 Viewed through this prism, Dr. Langseth’s Supplemental Report does not

constitute improper sandbagging or noncompliance with expert report deadlines fixed by the

Scheduling Order.

Plaintiffs also allege prejudice because they have been unable to test Dr. Langseth’s

assertions from his Supplemental Report via deposition or discovery; however, those objections

fail. Simply put, Dr. Langseth is not offering any new opinions in his Supplemental Report, so

there is nothing to test or investigate. For example, plaintiffs contend that Dr. Langseth is

asserting “that the DDTr in McIntosh may have come from some pest and mosquito control

uses.” (Doc. 309, at 6.) This characterization of Dr. Langseth’s Supplemental Report is

Case 1:08-cv-00068-WS-B Document 381 Filed 03/02/10 Page 6 of 12
8 To the extent that plaintiffs object that non-disclosure at an earlier date violates

Rule 26(a)(2)(B), Fed.R.Civ.P., and constitutes non-compliance with their Notice of Deposition

for Dr. Langseth, they again miss the mark. Defendants have explained that Dr. Langseth

researched and located the literature cited in his Supplemental Report only after receiving Dr.

Scates’ supplemental report of June 15, 2009. (Doc. 326, at 3.) Thus, Dr. Langseth did not have

these materials when he prepared and submitted his initial expert report, nor did he have them

when he sat for his deposition. These studies and literature were newly obtained by Dr.

Langseth sometime after June 15, 2009; therefore, defendants will not be penalized for failing to

disclose them previously.

-7-

incorrect. He does not purport to state an opinion in the Supplemental Report that pest and

mosquito spraying in Washington County may be the source of the DDTr in plaintiffs’ homes;

rather, Dr. Langseth merely identifies literature showing that “the interiors of Washington

County houses were sprayed with DDT” in 1948, and refrains from editorializing or

extrapolating from same. (Doc. 309, Exh. C, at 1.) With no new opinions being proffered by Dr.

Langseth’s Supplemental Report, there are no new areas as to which plaintiffs reasonably require

investigation via deposition or discovery; therefore, the Supplemental Report works no

prejudice.

Finally, plaintiffs balk that the studies recited in Dr. Langseth’s Supplemental Report had

not been provided them as of the filing of their Motion to Exclude. Plaintiffs acknowledge,

however, receipt of such materials on November 2, 2009, in conjunction with defendants’

production of trial exhibits. (Doc. 351, at 3.) This disclosure means that plaintiffs and Dr.

Scates will have had copies of these studies to review for nearly five months as of the March 30,

2010 trial setting. Surely this interval allows sufficient time for them to scrutinize those exhibits

and prepare Dr. Scates for cross-examination. Given these circumstances, non-production of the

cited studies is not an appropriate basis for excluding those materials from trial.8

B. Relevance / Reliability Objections.

Plaintiffs also interpose a series of objections to Dr. Langseth’s opinions on grounds of

relevance and reliability. “Under Rule 702, a district court must determine that proffered expert

testimony is both reliable and relevant.” American General Life Ins. Co. v. Schoenthal Family,

LLC, 555 F.3d 1331, 1338 (11th Cir. 2009); see also Toole v. Baxter Healthcare Corp., 235 F.3d

1307, 1312 (11th Cir. 2000) (“Scientific evidence or testimony must not only be relevant, but also

Case 1:08-cv-00068-WS-B Document 381 Filed 03/02/10 Page 7 of 12
9 The Court understands that the parties’ experts differ as to whether the spatial

concentration pattern analysis should or should not include sampling results from the Ciba plant

site. (Doc. 351, at 1-2.) On this record, the Court finds that neither approach is unreliable;

rather, it appears that reasonable engineering minds can (and do) differ as to the proper way of

performing a spatial concentration pattern analysis and the proper data points to include. Under

-8-

reliable.”). “The party offering the expert testimony has the burden of demonstrating that the

testimony is relevant to the task at hand and logically advances a material aspect of its case.” 

Boca Raton, 582 F.3d at 1232 (citations and internal quotation marks omitted). Although the

relevance standard is “liberal,” an expert opinion should be excluded for lack of “fit” if it “does

not have a valid scientific connection to the pertinent inquiry.” Id. (citations and internal

quotation marks omitted). With respect to the reliability prong, the Eleventh Circuit has

explained that “[e]xactly how reliability is evaluated may vary from case to case, but what

remains constant is the requirement that the trial judge evaluate the reliability of the testimony

before allowing its admission at trial.” United States v. Frazier, 387 F.3d 1244, 1262 (11th Cir.

2004).

Plaintiffs first contend that Dr. Langseth’s opinions are unreliable because he “does not

include any specific information, facts, or evidence to support his opinion that the DDT in

Plaintiffs’ homes and yards came from sources other than the Ciba-Geigy plant site.” (Doc. 309,

at 9.) According to plaintiffs, Dr. Langseth “does not even make a reasonable attempt to rule

out” the Ciba plant as a cause of the contamination. (Id. at 14.) Such contentions are flatly

irreconcilable with Dr. Langseth’s report, which describes in great detail why he rejects the Ciba

plant as a significant source of the DDTr found in plaintiffs’ homes. For example, after

analyzing plaintiffs’ DDT sampling results and comparing them to studies from other

communities, Dr. Langseth found that DDT concentrations from McIntosh samples “tend to be

lower than concentrations in similar samples taken in other communities” where there is no Ciba

plant and that “DDTr detection frequencies are no higher in McIntosh than in other

communities.” (Doc. 326, Exh. B, at § 3.1.) Similarly, Dr. Langseth examined spatial

concentration patterns in McIntosh and concluded that they “do not provide any support for a

claim that airborne transport from the Ciba McIntosh site contributed a significant, or even

noticeable, portion of the DDTr found in McIntosh community indoor dust.” (Id. at § 3.2.1.)9

Case 1:08-cv-00068-WS-B Document 381 Filed 03/02/10 Page 8 of 12
the circumstances, it would be inappropriate for this Court to pick and choose which variant of

the methodology it preferred, to the exclusion of the other. See generally Rink, 400 F.3d at 1293

n.7 (“a district court may not exclude an expert because it believes one expert is more persuasive

than another expert”); Quiet Technology DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333,

1341 (11th Cir. 2003) (“[V]igorous cross-examination, presentation of contrary evidence, and

careful instruction on the burden of proof are the traditional and appropriate means of attacking

shaky but admissible evidence.”) (citations omitted).

-9-

He also looked at soil sample results, and deemed them inconsistent with impacts from the Ciba

plant. (Id. at § 3.3.) Plaintiffs may disagree with Dr. Langseth’s conclusions, but they cannot

plausibly attack his methodology as mere speculation, given that (a) Dr. Langseth’s opinions are

demonstrably founded on much more than his ipse dixit, and (b) plaintiffs’ own fate and

transport expert used many of the same methods (i.e., comparing McIntosh sampling results to

studies from other communities, examining patterns of observed DDT concentrations with

distance from the Ciba plant).

Plaintiffs also object that Dr. Langseth “has made no effort to evaluate the amount of

DDTr that was released from the Ciba-Geigy Plant site.” (Doc. 309, at 10.) The Court

understands that plaintiffs’ expert (Dr. Scates) did perform rough calculations to determine the

approximate quantity of DDT released from the Ciba plant; however, plaintiffs have not

explained why Dr. Langseth’s expert opinions are rendered unreliable because he failed to rely

on the same type of admittedly approximate calculation used by Dr. Scates to estimate DDT

emissions. Dr. Langseth examined a variety of data and evidence in reaching his opinion that the

Ciba site is not a significant source of the DDTr found in plaintiffs’ homes. Plaintiffs’ objection

is essentially that he should have considered another category of data (emission estimates) before

making that determination; however, they fail to make any showing that computation of Ciba

plant releases is a mandatory component of any fate and transport analysis, particularly where

such a calculation is inherently inexact because of gaps in the data. If Dr. Langseth has studied

other data and categories of information, and has concluded from them that the Ciba plant was

not and could not have been a significant source of DDT contamination in McIntosh, then why

would he need to calculate order-of-magnitude emission estimates at all? This is fodder for

cross-examination, not exclusion under Daubert.

Close inspection of plaintiffs’ filings suggests that their principal reliability objection is

Case 1:08-cv-00068-WS-B Document 381 Filed 03/02/10 Page 9 of 12
10 Moreover, it is not accurate for plaintiffs to assert that there is no evidence to

support Dr. Langseth’s finding that the DDT in plaintiffs’ homes came from background and

local sources other than the Ciba plant. For example, Dr. Langseth opined that the scattered

spatial distribution of McIntosh houses with elevated DDT concentrations is consistent with

localized DDT uses in or near the house, and not with a nearby manufacturing source. (Doc.

326, Exh. B, at § 3.4.) This conclusion is bolstered by Dr. Langseth’s analysis of literature and

data to show that background levels of DDT in air around the world would be expected to create

DDTr concentrations in indoor dust without specific local sources. (Id. at § 3.4.1.) It is further

supported by literature cited by Dr. Langseth for the proposition that dust with high

concentrations of DDT “due to indoor spraying could contribute to DDTr concentrations in

household dust for many years into the future.” (Id. at § 3.4.2.) Dr. Langseth’s assignment of

causation to localized sources also finds support in his analysis that “pesticides that have no

association with the Ciba McIntosh site were detected in 18 of the 19 samples in which DDT

was detected.” (Id. at § 3.6.) As the foregoing examples demonstrate, Dr. Langseth’s conclusion

that the most likely source of the DDT found in plaintiffs’ homes was background DDT

contamination coupled with localized use of pesticides in and around the home was not drawn

from thin air, but is grounded in scientific methodology.

-10-

not so much that Dr. Langseth has rejected the Ciba plant as a significant source of the observed

DDTr contamination, but that he has failed to prove that the DDT in plaintiffs’ homes “came

from any specific sources other than the Ciba-Geigy plant site other than identifying vague

categories of DDT use that is worldwide and unspecific to McIntosh.” (Doc. 309, at 10.) But

plaintiffs are criticizing Dr. Langseth for using the same methodology that their own Dr. Scates

did. Dr. Scates looked at each of the possible causes of the DDT contamination in plaintiffs’

houses, and found that the Ciba plant was a likely contributor while the others were not. Part

(though not all) of Dr. Scates’ reasoning was that if (as he concluded) the DDT did not originate

from the other possible sources, then it must have come from the Ciba plant. Meanwhile, Dr.

Langseth utilized similar process-of-elimination methodology, but reached the opposite

conclusion. In essence, Dr. Langseth reasoned that if (as he concluded, based on his research

and analysis) the DDT in plaintiffs’ homes did not come from the Ciba plant, then it must have

come from other sources such as “background concentrations combined with the impacts of local

use in or near specific properties.” (Doc. 326, Exh. B, at § 3.4.) The DDT had to come from

somewhere. If its source was not the Ciba plant, as Dr. Langseth found to be the case, then the

source(s) must have been other categories of DDT use. This line of reasoning is not unduly

speculative or unreliable.10 He did not have to pinpoint an exact cause, of course, because as

Case 1:08-cv-00068-WS-B Document 381 Filed 03/02/10 Page 10 of 12
Given this and other supporting data set forth in Dr. Langseth’s report, it is difficult to

fathom plaintiffs’ contention that “his entire opinion ... is simply that at one point in history DDT

was so widespread and that other ‘possible’ sources of DDT existed throughout the world and

therefore - illogically, mind you - the DDT in Plaintiffs’ homes in McIntosh simply could not

have come from the Ciba-Geigy plant.” (Doc. 309, at 12.) Such blatant mischaracterization of

expert opinions has surfaced all too frequently in these Daubert motions; after all, defendants did

the same thing in challenging Dr. Scates’ opinions. In addition to being troubling from a Rule

11 standpoint, such casual, frequent distortion of critical facts by both sides is entirely unhelpful

to the Court and to the interests of the clients for whom counsel advocates.

11 Plaintiffs’ Rule 403 objection on this point is equally unavailing. According to

plaintiffs, “[a] jury may easily confuse Mr. [sic] Langseth’s opinions regarding area-wide

spraying by Washington County as including McIntosh.” (Doc. 309, at 15.) The Court trusts

that plaintiffs will articulate that point with adequate clarity to the jury to ameliorate any

meaningful risk of confusion. In any event, the probative value of evidence of the Washington

County DDT spraying program in 1948 far outweighs any risk of prejudice or confusion borne

from the program’s reference to Washington County (in which McIntosh sits) rather than

specifically to McIntosh itself.

-11-

long as the DDT did not come from the Ciba plant, defendants cannot be liable to plaintiffs, no

matter what the real source(s) might be.

Plaintiffs’ remaining relevance and reliability objections can be quickly disposed of. In

particular, plaintiffs suggest that any references to the NMEP program of DDT spraying in

Washington County in 1948 is irrelevant because McIntosh is only part of Washington County,

and there is no evidence specifically linking that program to McIntosh. (Doc. 309, at 11.) This

is a classic argument for cross-examination or closing argument, not a Daubert motion. 

Defendants have evidence that DDT spraying was happening on a systematic basis inside homes

in the county where plaintiffs are located. Such evidence is not rendered irrelevant or

inadmissible simply because it does not isolate the specific town, neighborhood or cul-de-sac in

which specific plaintiffs reside.11 Elsewhere, plaintiffs balk at defendants’ mention of the

MOWA incinerator as a possible source of DDT; however, they do not tie it to Dr. Langseth and

do not cite any opinions that Dr. Langseth has offered concerning the MOWA incinerator. (Doc.

351, at 2.) This objection therefore appears wholly divorced from Dr. Langseth’s testimony and

is misplaced here. The Court also rejects plaintiffs’ criticism that Dr. Langseth used “wordsmith

techniques” by referring to comparator communities in which there is no manufacturing source,

Case 1:08-cv-00068-WS-B Document 381 Filed 03/02/10 Page 11 of 12
-12-

without acknowledging that those communities “are contaminated by other non-manufacturing

sources.” (Doc. 351, at 2.) Again, this argument properly goes to the credibility of Dr.

Langseth’s testimony and opinions, rather than the relevance or reliability of his methodology,

and is properly couched as cross-examination, not a Daubert objection.

IV. Conclusion.

For all of the foregoing reasons, Plaintiffs’ Motion to Exclude Portions of David

Langseth’s Expert Testimony, Opinions and Reports (doc. 309) is denied. There is a caveat,

however. To the extent that Dr. Langseth may wish to offer new expert opinions based on the

authorities identified in his Supplemental Report, he will not be permitted to do so at trial

because such opinions were not rendered within the time frame mandated by the Federal Rules

of Civil Procedure, the Rule 16(b) Scheduling Order, and relevant discovery protocols. To be

clear, he will be permitted to identify those studies and to discuss their findings in general terms,

but he may not present opinions as to the implications of those studies for plaintiffs’ claims

(unless, of course, plaintiffs open the door via cross-examination or otherwise).

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 381 Filed 03/02/10 Page 12 of 12