The opinion of the court was delivered by: RAMBO
Presently before the court is Defendants' motion in limine to exclude the testimony of Plaintiffs' experts on dose. Specifically, Defendants seek to exclude some or all of the testimony of the following experts: Richard Webb, David A. Lochbaum, Ignaz Vergeiner, Charles E. Armentrout, James E. Gunckel, Victor Neuwirth, Vladimir A. Shevchenko, Steven B. Wing, Douglas Crawford-Brown, and Bruce Molholt. The issues have been briefed, and the court has conducted extensive in limine hearings with respect to these experts.
Accordingly, Defendants' motions in limine are ripe for disposition. In addition, the court previously issued an order, unaccompanied by a memorandum of law, with respect to the following experts: Dr. L.N. Smierennyi, Dr. Ivannovich (L.N.U.), Professor Vasilenko, Ronald Kerman, Zinovy Reyblatt, Professor Eggar, Professor Scharr, Victor Neuwirth, A. Tascev, G. Kozubov, V. Popov, A. Portman, and O. Tarasenko. This memorandum of law will set forth the court's rationale with respect to those rulings.
The events precipitating this litigation began to unfold at approximately 4:00 a.m. on March 28, 1979, within the Unit-2 reactor at the Three Mile Island nuclear power facility ("TMI"). The facility is located on an island in the Susquehenna River not far from Goldsboro, Pennsylvania, and the events are now known to have led to the nation's most infamous nuclear reactor accident. Despite the diligent research efforts of many persons, including persons affiliated with the instant action, many important questions remain regarding the accident. In the context of this litigation, the parties have endeavored to answer these questions by explaining the course of events that constitute the TMI accident. The in limine hearings conducted by the court in November of 1995 focused on the parties' theories regarding the dose of radiation emitted from TMI and allegedly received by Plaintiffs. The United States Court of Appeals for the Third Circuit has recently ruled that Defendants violated the relevant standard of care by allowing radioactive releases to occur. In re TMI, 67 F.3d 1103, 1117-1118 (3d Cir. 1995). The issue that remains is that of the magnitude of release for purposes of proving causation and damages. Id. at 1119. ("Defendants violated the standard of care . . . . Plaintiffs' exposures to radiation remain relevant, but only to prove causation and damages.")
Plaintiffs posit that a "blowout" occurred within the TMI Unit-2 reactor, thereby forcing high quantities of radioactive noble gases into the atmosphere. Plaintiffs have proffered the testimony of a variety of experts in support of this theory. These experts opine on subjects as diverse as nuclear reactor physics, meteorology, chromosomal abnormalities, cancer incidence, and plant biology. Through their experts, Plaintiffs seek to demonstrate that after the blowout occurred within the reactor, winds carried a dense yet narrow plume of radioactive noble gases through the atmosphere. This plume, according to Plaintiffs, made contact with land in areas north and east of TMI, with the most significant contact occurring at higher elevations.
Supporting their theory, Plaintiffs contend, is evidence of tree damage, chromosome abnormalities in humans, increased cancer incidence rates, and evidence of radiation sickness in both humans and animals.
Defendants do not deny that some radioactive noble gases escaped from the reactor building during the accident. In re TMI, 67 F.3d 1103, 1995 U.S. App. LEXIS 28924, *47, ("Defendants conceded that they violated § 20.106, [therefore we find] they violated their duty of care.") However, Defendants contend that Plaintiffs cannot prove either that the release was significant and dangerous or that their alleged injuries were caused by radiation. Defendants challenge Plaintiffs' proffered expert testimony on dose as lacking scientific reliability.
II. LEGAL STANDARDS FOR THE ADMISSION OF EXPERT SCIENTIFIC TESTIMONY
In Daubert v. Merrell Dow Pharmaceuticals, Inc., U.S. , 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993), the Supreme Court outlined the standards and reasoning that a district court must apply in determining whether expert scientific testimony is admissible at trial. The Third Circuit Court of Appeals has interpreted Daubert to characterize the district court's role as that of "gatekeeper." In re Paoli Railroad Yard PCB Litigation, 35 F.3d 717, 732 (3d Cir. 1994) ("Paoli II "). Both Daubert and Paoli II require the district court "to act as 'gatekeeper' and to assure that the scientific methodology upon which the expert opinion is founded is reliable, i.e., that the expert's conclusion is based on good grounds (the methods and principles of science)." Paoli II, 35 F.3d at 732 (discussing Daubert). This court's analysis of the proffered expert scientific testimony will be guided by the Third Circuit's exhaustive discussion and interpretation of Daubert in Paoli II.
(1) whether the method consists of a testable hypothesis; (2) whether the method has been subject to peer review; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique's operation; (5) whether the method is generally accepted; (6) the relationship of the technique to methods which have been established to be reliable; (7) the qualifications of the expert witness testifying based on the methodology; (8) the non-judicial uses to which the method has been put.
In addition to these factors, this court has apprised the parties that it also finds the following factors to be relevant:
Falsifiability. -- Scientific explanations must be capable of falsification; that is, the logical form of a hypothesis must make it amenable to empirical testing . . . [the factor is important enough that] the Supreme Court listed [it] first among its factors.
Logical Consistency. -- A valid hypothesis cannot be self-contradictory. It is evident that a hypothesis that contradicts itself is logically ill-formed and cannot be tested.
Consistency with Accepted Theories. -- Scientific knowledge tends to be cumulative and progressive, and a hypothesis that is not consistent with accepted theories should be regarded with great caution, whether or not the hypothesis ultimately proves true. . . . Though the Supreme Court rejected the Frye test, it did retain acceptance as one of the factors to be considered in evaluating science.
Precision. -- Broad generalizations are far more difficult to corroborate than precise statements and have little explanatory power . . . . If severe and varied tests are the best indicator of validity, it follows that broad generalization that can account for any possible state of affairs, and thus cannot be empirically tested, are not as good.
In re TMI, No. 88-1452 (M.D. Pa. November 9, 1995) (order explaining the factors the court would consider when ruling on in limine motions) (quoting Bert Black, et al., Science and the Law in the Wake of Daubert : A New Search for Scientific Knowledge, 72 Tex. L. Rev. 715, 783-84 (1994)).
Finally, Rule 702 also requires that there be a "fit" between the testimony offered and a fact in issue. Paoli II, 35 F.3d at 743.
"'Fit' is not always obvious, and scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes." Thus, even if an expert's proposed testimony constitutes scientific knowledge, his or her testimony will be excluded if it is not scientific knowledge for purposes of the case.
Id. (quoting Daubert, U.S. at , 113 S. Ct. at 2796 (citation omitted) (emphasis in original)). Once the party seeking to admit the testimony demonstrates that the proffered testimony is reliable by a preponderance of the evidence, Paoli II, 35 F.3d at 744 n.11 (citing Daubert), the court must evaluate the proffer pursuant to Rule 403.
Rule 403 requires the district court to consider whether the admission of proffered testimony might overwhelm or confuse the jury. As explained in Paoli II :
Id. at 746. Thus, "in order for a district court to exclude scientific evidence, there must be something particularly confusing about the scientific evidence at issue . . . ." Id.
With the foregoing framework in mind, the court will reach the merits of Defendants' motion in limine. Embarking on this task, the court empathizes with the plight of the United States Court of Appeals for the Ninth Circuit as they recently ruled on the remand of Daubert. Before beginning their analysis, the Ninth Circuit reflected as follows:
Though we are largely untrained in science and certainly no match for any of the witnesses whose testimony we are reviewing, it is our responsibility to determine whether those experts' proposed testimony amounts to "scientific knowledge," constitutes "good science," and was "derived by scientific method."
The task before us is more daunting still when the dispute concerns matters at the very cutting edge of scientific research, where fact meets theory and certainty dissolves into probability. As the record in this case illustrates, scientists often have vigorous and sincere disagreements as to what research methodology is proper, what should be accepted as sufficient proof for the existence of a "fact," and whether information derived by a particular method can tell us anything useful about the subject under study.
Our responsibility, then, unless we badly misread the Supreme Court's opinion, is to resolve disputes among respected, well-credentialed scientists about matters squarely within their expertise, in areas where there is no scientific consensus as to what is and what is not "good science," and occasionally to reject such expert testimony because it was not "derived by scientific method."
Daubert v. Merrell Dow Pharmaceuticals, 43 F.3d 1311, 1316 (9th Cir. 1995) ("Daubert II "). The scientific issues before this court are similarly daunting. As a nation, we are grateful that we have experienced only one nuclear power reactor accident of the severity of the TMI accident. In the context of this litigation, however, this translates into a lack of concrete data and knowledge regarding the specifics of such an accident. To an extent, then, this will be a journey into uncharted waters.
A. Dr. Webb's Blowout Theory
The lack of forced coolant flow allowed the water in the RCS [(Reactor Coolant System)] to lay and collect in lower parts of the system by gravity. The water level in the 1A cold leg pipe of the RCS is specially [sic] important; for near the base of that pipe is where the Letdown pipe is connected to the RCS. In the period between 10 hours and 13.5 hours into the accident, the 1A cold leg pipe probably emptied of water, due to venting of the reactor coolant through the PORV valve (loss of water from the RCS), and drainage of the water by the letdown out-flow. Because of the large drop in water inventory in the RCS by the PORV venting (during which time the injection of "make-up" water was minimal, and the make-up water was injected into the B-loop cold legs, not the A-loop cold legs), the water level in the reactor vessel probably dropped below the elevation of the inlet and outlet nozzles of the reactor vessel, thereby stopping the water flow (pour) into the 1A cold leg from the vessel, and thus allowing the 1A cold leg pipe to drain completely, due to the continuous letdown out-flow.
Once the water level dropped below the intake of the Letdown pipe, the gas and water vapor in the gas space of the Reactor Coolant System could then enter the Letdown pipe (under high pressure) and blow out from the system.
(Id. at 19 (citation omitted).) Dr. Webb did not testify at the in limine hearings, although his deposition is of record. Significant portions of Dr. Webb's deposition are troubling, however, as they evidence Webb's uncertainty about his own hypothesis, methods and report. (See, e.g., Webb Dep. at 125 ("Q. What was in between the upper and lower crust?" "A. The consolidated region, yes, the consolidated region they call it. If you notice they give .2 percent is metal. So apparently I just neglected it. I don't see it in my notes.") (emphasis added); Webb Dep. at 225 ("And so I haven't really finished my investigation of that second blowout possibility or additional hydrogen generation, therefore more release of hydrogen noble gases earlier in the accident. So I have to make it more complete or accurate about the matter of hydroqen generation.") (emphasis added); Webb Dep. at 256 ("Q. On page two of your report you say that 'A more detailed critique of Woodard's analysis has been written for inclusion as a section of this present report, but it has not been possible to type this critique in time for submission in this present report.' Did you ever type and submit that critique?" "A. Not yet. I've been involved in tremendous research . . . ."); Webb Dep. at 372 ("You got to keep in mind, this result I'm getting of release by the model is not a, is not presented and represented to be a very accurate plus or minus 1 percent sure established prediction.") (emphasis added); Webb Dep. at 529 ("Q. Now I'm really confused. Should that number be 163 or 171 or 213 or something else?" "A. You have a right to be confused . . . ." "Q. What should it be?" "A. Well, I'll, as I said, I wasn't fully, my latest calculation is the number 171 I gave you." "Q. All right." "A. Now that 213, maybe that's based on the 71 gallons per minute and I neglected to correct it. Again there was a very extreme deadline and I worked like 16-hour days and the last few days was like, like three hours' sleep, this kind of thing the last few days." (emphasis added).)
On December 6, 1995, the court became aware of a message left by Dr. Webb on the voice mail of A.H. Wilcox, co-counsel for Defendants. Through this message, Dr. Webb appears to have disavowed the underlying premise of his blowout theory. In relevant part, the message provides as follows:
Chub Wilcox, Richard Webb calling from Germany. As a courtesy to you I want to tell you why I haven't answered your questions at the deposition. I did prepare a letter to send you but it, in fact was ready to mail out. But I wanted to pursue questions I had of my own mathematical analysis which I've done in a very intensive and several months of deep research and I've remodeled and perfected my release models and I don't get the high releases that I got before, so it's like 25 million curies instead of 106 million curies. There's no blowout, gas blowout, that I estimate now that I had done earlier. There's a smaller one earlier in the accident that I'm predicting now, but it's during the time when the weather conditions dispersed the material much more.
So it's entirely, I always wanted to get back to the release model after I did all the dose and health effects research, get back to the release model that I did before and the deposition was an occasion to get back into that scene and pursue some of the questions I still had about which I noted in my original treatise. So I was going to make a report and submit it to the court about three weeks ago but I had to stop all that work after learning that the United States attacked Bosnia back in September . . . so I've now been working full time the last three weeks to write up a paper on constitutional law about this war to give my government.
Transcript of Voice Mail Message received by A.H. Wilcox on 12/6/95 from Dr. Richard Webb (emphasis added).
B. Daubert/Paoli Analysis
In defining the phrase "scientific knowledge" as it pertains to Rule 702 of the Federal Rules of Evidence, the Supreme Court noted that "the word 'knowledge' connotes more than subjective belief or unsupported speculation. The term 'applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds.'" Daubert, 113 S. Ct. at 2795 (citation omitted). The Court went on to conclude that "the requirement that an expert's testimony pertain to "scientific knowledge" establishes a standard of evidentiary reliability." Id. Pursuant to Rule 104(a) of the Federal Rules of Evidence, this court must determine "whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue." Id. at 2796.
In evaluating the Webb proffer, the court encountered difficulty deciphering the substance of the proposed testimony. During June of 1993, Dr. Webb submitted a series of reports and affidavits in support of his evaluation of the TMI accident. These filings are replete with statements by Dr. Webb that they are draft versions, and that more complete reports and explanations will follow at a later date. (See, e.g., 6/19/93 Webb Report at 1 ("It has not been possible to write a full treatise which would contain the complete details of the analysis and proof in the time required for submitting the Affidavit. In place of such a treatise, which can be written later, the following report of the analysis is offered . . . ."); 6/19/93 Webb Report at 24 ("I have written separate chapters . . . which contain my critical evaluation of Daniels and Woodard treatises and the Presidents' Commission Report . . . but it has not-been possible to type and print these chapters for submission of this present report.").) No "final" report was filed prior to the close of fact discovery on dose experts. Moreover, as noted above, during his deposition Dr. Webb appeared particularly uncertain of his methodology and the means by which he reached his conclusions. Dr. Webb's reports, standing alone, are inadequate to serve as a basis for finding that Dr. Webb would testify to scientific knowledge. Likewise, Dr. Webb's deposition testimony does little to solidify or clarify his analysis; in fact, it only adds to the confusion. Finally, Plaintiffs chose not to have Dr. Webb testify during the in limine hearings. As such, the court was unable to probe Dr. Webb himself regarding the uncertainties expressed in his report and deposition testimony.
Based upon the aforementioned discussion, the court was prepared to exclude the testimony of Dr. Webb as unreliable pursuant to Rules 702 and 104(a) of the Federal Rules of Evidence. Whiting v. Boston Edison Co., 891 F. Supp. 12, 18 (D. Mass. 1995) (excluding expert's dose calculation based on formula of his own invention which, although superficially impressive, was "so riddled with factual inaccuracies and unproven assumptions that no reasonable jury could give his opinion credence."). Receipt of the transcript of Dr. Webb's voice mail message to Mr. Wilcox only reinforced the court's decision on this matter. As Dr. Webb himself is unable to stand behind his hypothesis or to explain how he reached his conclusions, it is impossible for the court to see how he could assist a jury in understanding the complex facts of the captioned action. Accordingly, the court will grant Defendants' motion in limine as it applies to the proffered testimony of Dr. Webb.
David Lochbaum is a nuclear engineer with fifteen years experience in the commercial reactor field. In his expert report, Lochbaum reviews Dr. Webb's report and reaches the conclusion that "Webb's methodology provides a valid approach for the determination of the release of fission product noble gases." (Lochbaum Rpt. at 5.) Lochbaum did not testify during the in limine hearings, and does not advance any relevant theory or hypothesis independent of his review of Dr. Webb's report. Because the court has found Dr. Webb's testimony to be unreliable and therefore inadmissible, Lochbaum's testimony no longer "fits" within the case. That Lochbaum can opine as to the methodological soundness of Dr. Webb's report, or point to flaws in Dr. Webb's methodology, is of no consequence as Dr. Webb's report will not be admitted. Based upon the foregoing, the court will grant Defendants' motion in limine to exclude the testimony of David Lochbaum as lacking the requisite Rule 702 fit with a fact in issue.
Dr. Vergeiner is a meteorologist affiliated with the University of Innsbruck in Innsbruck, Austria. He holds undergraduate degrees in math and physics, and a Ph.D. in meteorology. For the past twenty years he has taught meteorology at both the undergraduate and graduate levels. Plaintiffs proffer Dr. Vergeiner as an expert in meteorology, specifically boundary level meteorology in alpine regions,
for the purpose of explaining how the alleged plume of radioactive noble gases travelled and dispersed after being released during the TMI accident. Defendants have filed a motion in limine seeking to exclude all of Dr. Vergeiner's proffered testimony.
Dr. Vergeiner's testimony can be subdivided into three distinct areas. First, he has been offered to testify on the subject of boundary layer meteorology. If permitted, Dr. Vergeiner will opine regarding the weather conditions at TMI and in surrounding areas at the time of the accident and during the period immediately following the accident.
Based upon his own assumptions and source term data supplied to him by Plaintiffs' counsel,
Dr. Vergeiner produces estimates regarding plume dispersion. A "plume movie" and water model
are presented to assist Dr. Vergeiner in explaining his hypothesis. The "movie" is actually a series of sketches drawn by Dr. Vergeiner aimed at depicting the possible course of plume dispersion during the accident. (Tr. at 617-21, 634-36, 654.) Similarly, the water model is used to visually demonstrate how a plume might have dispersed over the TMI region during the accident. (Vergeiner Dep. at 235-38, 241.) Defendants seek to have the plume dispersion testimony excluded as scientifically unreliable and speculative. Further, Defendants seek exclusion of the plume movie and water model video on the ground that they will confuse the jury. Defendants fear that the jury will construe the examples as what did happen rather than what could have happened.
Finally, throughout his report, Dr. Vergeiner expresses his opinions regarding subjects wholly unrelated to meteorology. These opinions center around a general distrust of the "original" plant data from TMI, and around an apparent suspicion of the nuclear power industry. Defendants object to this testimony as being outside Dr. Vergeiner's area of expertise.
The court will analyze each of the above mentioned areas of proffered testimony under the Daubert/Paoli II framework set forth in Section II of this memorandum.
B. Daubert/Paoli Analysis
1. Is the Methodology Based Upon a Testable Hypothesis?
The logical starting point for an analysis of Dr. Vergeiner's methodology is his own somewhat convoluted discussion of that methodology. When asked during the in limine hearings whether his method consisted of a testable hypothesis, Dr. Vergeiner responded as follows:
I would say this. When I started this work, I had no finished hypothesis. How should I? There was no way I could have. So I started drawing together the data and forming a picture -- analyzing the data and forming a picture of the weather situation. In the end, I believe what I do have you may call a hypothesis, or a choice of hypotheses, and I would explain them this way.
One hypothesis is that most of the time that we are interested in, when releases occurred, plumes were narrow and relatively little diluted. So the concentrations were very high, depositions were very localized and you have to face the consequences.
The other hypothesis would be that plumes were overwhelmingly or exclusively as wide as Mr. Woodard has computed them to be, right? They were so diluted already before they hit any hills or mountains that impaction could not occur, that these features had practically no influence on what happened at that -- of course, you must also then draw the consequences from that.
And I am convinced out of my work that there is strong reasons for the hypothesis that plumes were most of the time were very narrow and undiluted, and I will explain that. Of course, the best proof of that would be either if we had seen these plumes or if we had been able to have detailed measurements up in the air, documenting these plumes. Right? . . . So we don't have that kind of information.
So I'm trying to obtain a picture of how such a hypothesis might be verified. And of course, it is also true that when I think of what I would have needed to really verify any hypothesis, some of these, many of these data are not, do not exist. For example, it would have been great to have many, many measurements of air concentration, because what the model, the Gaussian model, the first thing it gives you is concentration of the release, right? Of the substance. But there is no such measurement. There are some few measurements of iodine, but there is no measurement of the noble gases, as far as I remember, if I remember correctly, to until day eight or nine after the release, eight or nine days after the release, after the start of the accident.
So this type of information is absolutely lacking. And I did look at, just to confirm some assumptions, some scenarios, I call them, I did look at concentration data. . . .
Additionally, Dr. Vergeiner's dose estimates do not lend themselves to empirical testing. The source terms used by Dr. Vergeiner as a basis for his estimates were provided by Plaintiffs' counsel.
Dr. Vergeiner himself could not explain how the figures were derived. Consequently, any expert endeavoring to test the validity of Dr. Vergeiner's dose estimates would be relegated to relying blindly on the source terms supplied by Plaintiffs' counsel. As such, it would be impossible to subject the dose hypothesis to rigorous and unbiased testing.
Based upon the foregoing, the court finds that Dr. Vergeiner's hypothesis cannot be empirically tested. The bulk of Dr. Vergeiner's testimony consists of broad generalizations and suppositions regarding what might have happened during the accident. While such generalizations could provide a valid starting point for a detailed analysis, Dr. Vergeiner's opinions never move beyond this starting point. Thus, no hypothesis is advanced that is capable of being tested. Accordingly, this factor weighs against admitting Dr. Vergeiner's proffered testimony.
2. Has the Methodology Been Subject to Peer Review?
This factor will weigh in favor of the admission of Dr. Vergeiner's basic meteorologic and synoptic analysis testimony, and against the admission of Dr. Vergeiner's plume movie, water model and dose estimate testimony.
3. Is There a Known or Potential Rate of Error?
During his testimony, Dr. Vergeiner did not discuss whether there existed any known or potential rate of error with respect to his methodology. Rather, he expounded upon his personal belief that "the general picture and the general magnitude of the concentrations of these plumes would be right," but that the exact course and concentration of the plume could not be calculated by anyone. (Tr. at 622-23.) The court finds the potential rate of error to be high. Much of Dr. Vergeiner's report, as mentioned above, is based upon speculation and estimates. Moreover, although Dr. Vergeiner stated that he believes that it is important to test a hypothesis, he did not thoroughly test his hypothesis. According to Dr. Vergeiner, he tested his hypothesis "to the limited extent that seemed sensible" to him. (Tr. at 663.) When asked to explain the limitations, Dr. Vergeiner noted that he "did not compare . . . [his] plume movie with TLDs because . . . [he] believe[d] that the TLDs have very bad instruments, very insensitive and very not useful for discriminating plumes." (Id. at 664.); cf. Whiting, 891 F. Supp. at 18 n.24 (discussing the flawed methodology where expert disregarded primary and secondary data due to his unsubstantiated mistrust of the accuracy of TLDs). In-qualifying this answer, Dr. Vergeiner concluded that "we have to get away from the idea that anything that is called data or measurement is beyond criticism." (Id. at 664-65.)
In the long run, Dr. Vergeiner may be proven to be correct. TLDs
may eventually prove to be highly ineffective at measuring plume concentration. However, the court takes judicial notice of the fact that the relevant scientific communities regularly use TLDs and find them to be a valid means of measuring radioactivity. See NUREG-0637, "Report to the Nuclear Regulatory Commission from the Staff Panel on the Commission's Determination of an Extraordinary Nuclear Occurrence ("ENO")" at A1-A4 (January 1980) (general discussion of TLDs with specific attention paid to their use at TMI in conjunction with evaluating the TMI-2 accident). As such, the court finds that within the context of this litigation, Dr. Vergeiner's refusal to consider such information calls into question the reliability and scientific validity of his conclusions. At the very least, Dr. Vergeiner could have compared his results with the TLD readings and then explained to the court why his results were scientifically more sound than the TLDs. Instead, Dr. Vergeiner has disregarded arguably valid information without any rational explanation. The court finds that his failure to consider primary data in combination with his use of speculation, assumptions and "eyeballing" of figures, exposes Dr. Vergeiner's methodology to a potentially high rate of error. Moreover, the court finds that the failure of the water model to take into account the actual topography of the TMI area increases the risk that any demonstration run through the water model will be subject to a high rate of error. (10/18/95 Vergeiner Aff. at 6, P6 (discussing limitations of the water model).)
This factor will weigh against the admission of Dr. Vergeiner's testimony including his plume movie and water model.
4. Were There Standards Controlling the Technique's Operation?
The court finds this factor to have only tangential relevance to Dr. Vergeiner's proffered testimony. Insofar as Dr. Vergeiner "eyeballed" his plume movie, the court holds that there were few standards controlling the operation of that technique. Further, the court finds that in making his dose estimates, Dr. Vergeiner failed to employ basic standards to control his technique's operation.
It appears that there were available standards to control the operation of the water model, see Water Model Report at 9; however, this will prove irrelevant in light of the other flaws which the court has already touched upon.
Based upon the foregoing, the court will not accord any weight to this factor when determining the admissibility of the proffered testimony.
5. Is the Methodology Generally Accepted?
Certain of Dr. Vergeiner's methodologies are generally accepted while others appear to be directly contrary to generally accepted methods. Dr. Vergeiner's methods with respect to his basic meteorological and synoptic analysis testimony are generally accepted. The parties do not dispute this. The plume dispersion and dose estimate methodologies cannot be categorized as generally accepted based upon a common flaw. At the hearing, Dr. Vergeiner testified that he discarded standard mathematical computer models
often used to estimate concentrations when actual concentration measurements are unavailable, see EPA 1992 at 22,912; NRC 1995 at 36, on the ground that the models did not take into consideration the complicated wind and topographical conditions at TMI. (Tr. at 562-66.) In his report, however, Dr. Vergeiner gives a less scientific explanation for his disregard of generally accepted methods:
So why not straightaway model the flow numerically using the power of modern computers? Let me remind the reader of the enormous complexity of such a task. Transport and dispersion models exist to the hundreds, many of them in the nuclear industry or in the scientific "grey zone" around it . . . . Even to list the respective acronyms would fill pages.
Quite a few of these models are global in scale, and some apparently have succeeded in simulating the path and contaminating action of the Chernobyl clouds reasonably well, after years of tuning and verification on the many observations available.
It was my judgement, therefore, not only that it did not seem feasible to obtain access and results within a limited time span and financial frame, but that relatively simpler, well-tested, more robust and accessible models might be just as good, even preferable. This may appear to do injustice to the more than 50 man-years' [sic] expert work condensed in this enormous structure. There is no doubt that each of these models is capable of computing flow structures very suggestive of real nature, but I couldn't convince myself that the enormously increased expense would bear a sound relation to similarly improved results.
Ignaz Vergeiner, Treatise on the TMI-2 Accident of March 28, 1979, Particularly its Meteorological Aspects Including Transport and Dispersion of the Radionuclides Released, at 50 (July 1994) (hereinafter "Vergeiner Treatise I").
Dr. Vergeiner admits to discarding the generally accepted computer models with respect to his dose calculations and plume dispersion analysis. Moreover, he fails to provide the court with anything other than his bare assertion that the self-styled models he does employ are generally accepted. Dr. Vergeiner has not met his Daubert burden in this respect. Daubert II, 43 F.3d at 1319.
Based upon the foregoing, this factor will weigh in favor of excluding Dr. Vergeiner's testimony with respect to the plume movie and dose estimates. This factor will not weigh against the admission of the water model testimony.
6. Is There a Relationship Between the Technique and Methods That are Established to be Reliable?
Portions of Dr. Vergeiner's methodology resemble methods established to be reliable while other portions appear novel. Defendants do not challenge, and the court does not question, that Dr. Vergeiner's broad meteorological statements and synoptic analysis comport with established and reliable meteorological principles. Less can be said with respect to his plume movie, water model and dose estimates. Using computerized models, such as the Gaussian model, as the "established and reliable" method against which Dr. Vergeiner's methods must be judged,
the court finds no relationship between the two. Further, the court finds no recognizable similarities between established methods for dose reconstruction and Dr. Vergeiner's dose estimates. The literature does not support the notion that a scientist would blindly base a dose reconstruction upon an assumed and unverified source term supplied by attorneys. See, e.g., Radiation Dose Reconstruction at 16 ("A full description of the source term includes what was released and in what form and where and when the release occurred. These factors must be described with enough accuracy and detail both to satisfy the scientific requirements for the design and conduct of epidemiologic studies and to address the public's concern."); id. at 18 ("The credibility of a comprehensive source term study depends on confirming that all pertinent documents have been seen and evaluated. Complete records are essential in identifying the source term.")
The court finds that this factor weighs in favor of excluding Dr. Vergeiner's plume movie, water model and dose estimate testimony.
7. Qualifications of the Expert Based Upon the Methodology
Based upon the foregoing the court finds that this factor weighs against the admission of Dr. Vergeiner's dose estimate testimony. It weighs in favor of his meteorological and synoptic analysis testimony, and will not weigh against the admission of the plume movie and water model.
8. Non-Judicial Uses of the Methodology
Insofar as Dr. Vergeiner's methods reflect standard meteorological analysis, they are widely used in non-judicial settings. The methodology followed with respect to the plume movie, water model and dose estimates deviates from standard methodology and appears to have been derived solely in connection with this litigation. This factor will weigh against the admission of Dr. Vergeiner's plume movie, water model and dose estimate testimony.
In conjunction with the above Daubert/Paoli II analysis, the court indicated that Dr. Vergeiner's explanations are, by and large, not subject to falsification. Further, while his hypothesis is generally logically consistent, it is not consistent with accepted theories. Most striking is Dr. Vergeiner's disregard of primary data. While Dr. Vergeiner might prove to be ahead of his time in his disdain for TLDs, TLDs are currently accepted devices for measuring atmospheric radiation. As such, Dr. Vergeiner's cursory disregard of such measurements is unacceptable. Finally, the court finds that Dr. Vergeiner's plume movie and water model lack precision. "Broad generalization[s] that can account for any possible state of affairs . . . cannot be empirically tested, [and thus] are not as good." Science 72 Tex. L. Rev. at 784. Dr. Vergeiner himself indicated that his models are nothing more than generalizations and suppositions about what might have happened during the TMI accident. (Tr. at 635-36; Vergeiner Dep. at 278-79.) As such, the models are necessarily imprecise.
The court's analysis of the Daubert/Paoli II factors militates in favor of excluding Dr. Vergeiner's plume movie and water model. While the court could exclude the proffered testimony based solely on those grounds, the court finds the more appropriate ground for exclusion of the plume movie and water model to be an absence of "fit." The plume movie and water model are not accurate depictions of plume dispersion during the TMI accident. Plaintiffs do not dispute this fact. These models, instead, are proffered to demonstrate what may have happened. The models might have "fit" within the case if they bore any meaningful relationship to the actual topography of the TMI area or to the primary data.
The plume movie does not "fit" within the case because it is based upon an undefined source term, fails to account for weather readings on the TMI weather tower, and fails to incorporate all primary data. Thus, it cannot be found to bear a valid relationship to the TMI accident. Similarly, the water model does not take into account the actual topography of the TMI area. Any demonstration performed using the water model, therefore, would not bear a close relationship to the way a substance would be dispersed into the atmosphere around TMI. "Federal judges must . . . exclude proffered scientific evidence under Rules 702 and 403 unless they are convinced that it speaks clearly and directly to an issue in dispute in the case, and that it will not mislead the jury." Daubert II, 43 F.3d at 1311 n.17. Neither the plume movie nor the water model speak clearly to any issue in dispute in this case.
Because neither purports to provide an accurate representation of plume dispersion during the accident, the models cannot "clearly" speak to anything. Furthermore, there is a high potential that such models would mislead a jury insofar as the jury might perceive the models to accurately represent the manner in which plumes did disperse during the accident. The court will exclude the plume movie and water model testimony pursuant to Rules 702 and 403. Robinson v. Missouri Pacific R.R. Co., 16 F.3d 1083, 1089 (10th Cir. 1994) ("Concerning future similar issues under Rule 702 we suggest that as 'gatekeeper' the district court carefully and meticulously make an early pretrial evaluation of issues of admissibility, particularly of scientific expert opinions in films or animations illustrative of such opinions.").
The foregoing analysis reveals that a significant portion of Dr. Vergeiner's proffered testimony is unreliable and therefore inadmissible pursuant to Rule 702. Specifically, Dr. Vergeiner's dose estimates will be excluded at trial as lacking scientific validity and reliability. Further, the court will exclude Dr. Vergeiner's plume movie and water model as lacking the necessary "fit" with the instant litigation pursuant to Rule 702, and as potentially confusing to the jury pursuant to Rule 403. McKnight v. Johnson Controls, Inc., 36 F.3d 1396, 1402 (8th Cir. 1994) (excluding simulation "where some principles of some kind may be demonstrated but in a fashion that looks very much like a recreation of the events that gave rise to the trial"); Robinson, 16 F.3d at 1089 n.7 (noting that Rule 403 prejudice is a ground that a court should consider for exclusion of computer simulations and animations and the like); Fusco v. General Motors Corp., 11 F.3d 259, 264 (1st Cir. 1993) (excluding accident replication videotape where the drama of the videotape was capable of overcoming the logic of the distinctions raised by opposing experts). As Dr. Vergeiner is an expert in meteorology, and can offer insights regarding the weather conditions during and immediately following the accident, the court will not exclude his testimony in this narrow area. The court will, however, require Plaintiffs to give a proffer as to how this narrow area of testimony "fits" absent Dr. Vergeiner's other proposed testimony. (See Defs.' Findings at 54, P 8 (challenging the "fit" of the synoptic analysis presuming the inadmissibility of the plume movie and dose estimates).)
VI. CHARLES E. ARMENTROUT
Professor Armentrout has masters degrees in Physics and Radiological Physics. According to his curriculum vitae, he is currently an Associate Professor at the University of Southern Maine. Professor Armentrout's proffered testimony can be divided into four distinct areas as follows: (1) a discussion of what Armentrout calls "anomalously high" radiation background readings measured in Portland, Maine a few days after the TMI accident (2/20/95 Armentrout Rpt. at 2-4); (2) the results of soil sample analyses performed by Victor Neuwirth on soil samples extracted from TMI and its surrounding areas (id. at 4-23); (3) a discussion of radiation survey meter readings allegedly taken by a local resident during the TMI accident; and, (4) an explanation of the rate-dependant behavior of Geiger-Muller radiation detectors. (Id. at 26.)
The court has already precluded Professor Armentrout from testifying as to the substance of Victor Neuwirth's report (e.g. soil sampling techniques and results). In re TMI, No. 88-1452 (M.D. Pa. November 9, 1995) (preliminary order ruling on portions of Defendants' motion in limine). Professor Neuwirth filed his own report and testified at the in limine hearings. Accordingly, Plaintiffs' proffer with respect to the Armentrout/Neuwirth soil sample analysis will be evaluated pursuant to the court's discussion of the Neuwirth proffer. The court will now evaluate the remaining areas of Professor Armentrout's proffered testimony.
1. Section I of the Armentrout Report
Defendants contend that this portion of Professor Armentrout's proffered testimony should be excluded as it will not be helpful to the trier of fact. (Defs.' Findings at 81, P 15.) Plaintiffs' findings do not directly address this section of the Armentrout report, but rather, focus on the soil sampling techniques and results. The court agrees with Defendants insofar as the testimony does not "fit" with any material fact in issue. Equipment on the roof of the science building at the University of Southern Maine registered radiation "spikes" shortly after the TMI accident began. Professor Armentrout suggests that the readings support the theory that the TMI plume passed over Maine. This contention is made absent reliable scientific corroboration or verification, and thus, cannot tie the radiation readings to any occurrence at TMI. Accordingly, the court finds that the proffered testimony will not assist the jury in determining any fact in issue. Professor Armentrout will be precluded from testifying as to the substance of section I of his report.
2. Section III of the Armentrout Report
In this section, Professor Armentrout speaks to his attempts to verify alleged radiation readings taken by civilians living near TMI during the accident. After repeated phone contact from a resident of Etters, Pennsylvania,
Professor Armentrout attempted to verify the resident's alleged radiation readings. Professor Armentrout devised a means to calibrate the resident's ion chamber monitor, and came to the Harrisburg area to meet with the gentleman and verify the alleged readings. However, when Professor Armentrout arrived in the area, he could not locate the gentleman who had contacted him. Instead, Professor Armentrout spoke to a neighbor who remembered the that he and the missing gentleman had purchased identical ion chamber monitors
from a local store. Further, this neighbor remembered that he made an indoor reading during the accident that sent his monitor off-scale. (Armentrout Rpt. at 25.) Professor Armentrout contends that this incident verifies the first gentleman's reports of the high readings that he took during the accident.
Based upon the foregoing, the court finds the testimony proffered in section I of the Armentrout report to lack scientific validity, reliability and the requisite "fit" with the instant litigation. The testimony proffered in section III similarly lacks scientific validity and reliability; therefore, the testimony will be excluded. The court will now turn to the Neuwirth proffer and determine whether the testimony will be admitted at trial. Evaluation of the Neuwirth proffer will necessarily involve discussion of that portion of section II of the Armentrout report authored by Professor Armentrout.
Victor Neuwirth is a laboratory associate and Professor of Chemistry at the University of Southern Maine. Professor Armentrout enlisted the support of Professor Neuwirth to analyze soil samples from the TMI area to determine whether he could extract potentially radioactive materials from the samples. Professor Neuwirth performed the analysis on the soil samples and authored the portion of the Armentrout report dealing with the soil sample analysis. Additionally, Professor Neuwirth testified during the in limine hearings. Defendants challenge the proffered testimony as lacking a Rule 702 "fit" because no connection can be made between the results of the soil sampling and the 1979 TMI accident. (See Defs.' Findings at 87, P 1.)
A. The Proffered Testimony
If permitted, Professor Neuwirth will testify as to the methods he employed and the results he obtained in analyzing certain TMI soil samples. At the direction of Professor Armentrout, Professor Neuwirth concentrated soil samples provided to him by Professor Armentrout and used a sodium iodine detector to make integrated counts of radionuclides.
(Tr. at 1065-66; Armentrout Rpt. at 7-9.) Professor Neuwirth found certain samples to contain radioactive materials, but was unable to identify specific radionuclides. Despite his inability to identify specific radionuclides, Professor Armentrout directed him to calculate the half life of each of the soil samples as a whole (rather than calculating the half lives of specific radionuclides within each soil sample).
Professor Neuwirth took measurements of the same soil samples at a one year interval, with no intermediate readings. Based upon these two data points, he made a generalized half life calculation for each of the samples. Professor Armentrout used Professor Neuwirth's half life calculations to make dose estimates for the TMI Plaintiffs.
B. Daubert/Paoli Analysis
1. Does the Method Consist of a Testable Hypothesis?
Of more concern to the court are Professor Neuwirth's half life calculations. Because he was unable to identify specific radionuclides within any sample, Professor Neuwirth was forced to make a generalized half life estimate for each soil sample as a whole. The estimate was based upon taking two separate readings of each sample with one year separating the two readings. Based upon the decay in the sample over an entire year, half life values were calculated. Professor Armentrout then used the Neuwirth half life values to derive dose estimates for TMI residents.
Based upon the foregoing, this factor will weigh against the admission of the soil sample and half life calculation testimony.
2. Has the Methodology Been Subject to Peer Review?
The parties do not dispute that the chemical extraction process employed by Professor Neuwirth has been subject to peer review. It is doubtful, however, that the half life calculation technique utilized by Professor Neuwirth has been subject to peer review. Defense expert Dade Moeller testified that to determine the half life of a material, measurements must be taken at periodic intervals over time. (Tr. at 293-94.) He further testified that it is important to have more than two data points from which to calculate the half life. (Id.) Plaintiffs provide no evidence that the half life calculation approach utilized by Professor Neuwirth on the TMI soil samples has been peer reviewed. Consequently, the court finds that this factor weighs in favor of the admission of the chemical extraction testimony and against the admission of the half life calculation testimony.
3. Is There a Known or Potential Rate of Error?
Professor Neuwirth testified to the rate of error for his soil extraction calculations. (Tr. at 1033.) Based upon the testimony, the court believes that this is a standard rate of error for what the court has already found to be a standard extraction procedure. This factor will not weigh against the admission of the extraction testimony. To the contrary, the court finds the potential rate of error with respect to the half life calculations and dose estimates to be high. As discussed above, Professor Neuwirth used only two data points when making his half life estimates. Consequently, the calculation does not accurately categorize the decay rate of the sample. See Allen v. United States, 588 F. Supp. 247, 276 (D. Utah 1984); (Tr. at 293-94.). Because the decay rate is not properly categorized, the potential rate of error in estimating the half life value is high. Moreover, any error in the half life calculation carries over into Professor Armentrout's dose estimates as the half life calculations were integral to the dose calculations. Thus, this factor will weigh against the admission of the half life calculation and dose estimate testimony.
4. Were There Standards Controlling the Techniques Operation?
In an experiment the investigators select certain units for treatment. In an observational study the investigators have no control over ...