Hobart Corporation et al v. The Dayton Power and Light Company et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
HOBART CORPORATION, et al.,
Plaintiffs,
V.
DAYTON POWER AND LIGHT
COMPANY, etal.,
Defendants.
Case No. 3:13-cv-115
JUDGE WALTER H. RICE
DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING IN PART
CONAGRA'S MOTION IN LIMINE TO LIMIT THE TESTIMONY OF DR. JEFFREY V.
DAGDIGIAN (DOC. #1463); OVERRULING DEFENDANTS' MOTION IN LIMINE TO
EXCLUDE THE TESTIMONY OF DR. DAVID STRADLING (DOC. #1466);
OVERRULING VALLEY ASPHALTS MOTION IN LIMINE TO EXCLUDE OR LIMIT
TESTIMONY FROM PLAINTIFFS' EXPERT JEFFREY SMITH (DOC. #1467);
OVERRULING PLAINTIFFS' MOTION IN LIMINE TO EXCLUDE DEFENDANTS'
EXPERTS' TESTIMONY ON FACT WITNESS CREDIBILITi' (DOC. #1472);
OVERRULING PLAINTIFFS' MOTION TO FILE SUR-REPLY (DOC. #1528); AND
SUSTAINING IN PART AND OVERRULING IN PART CONAGRA'S MOTION IN
LIMINE TO PRECLUDE PLAINTIFFS FROM PURSUING THE FORFEITED VEIL
PIERCING ARGUMENT AGAINST CONAGRA (DOC. #1559)
This case is before the Court on several pending motions. First is a Motion in
Limine to Limit the Testimony of Dr. Jeffrey V. Dagdigian, filed by Defendant
ConAgra Grocery Products Company, LLC ("ConAgra"). Doc. #1463. Plaintiffs filed
a response in opposition to the motion. Doc. #1494, and ConAgra filed a reply in
support of its motion. Doc. #1507.
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Second is a collective motion filed by all then-five present Defendants1
entitled as a Motion in Limine to Exclude the Testimony of Dr. David Stradling. Doc.
#1466. Plaintiffs filed a response to Defendants' motion. Doc. #1495, and
Defendants filed a reply in support of their motion. Doc. #1508. After the close of
briefing. Plaintiffs filed a Motion for Leave to File Sur-reply, Doc. #1528. Defendants
filed a response in opposition, Doc. #1541, and Plaintiffs filed a reply in support of
their motion. Doc. #1550. However, because the underlying motion is adequately
decided without the aid of the sur-reply. Plaintiffs' motion, Doc. #1528, is
OVERRULED.
Third, Defendant Valley Asphalt Corporation ("Valley Asphalt") filed a Motion
to Exclude or Limit Testimony from Plaintiffs' Expert Jeffrey Smith. Doc. #1467.
Plaintiffs filed a response in opposition. Doc. #1496, and Valley Asphalt filed a reply
in support of its motion. Doc. #1510.
Fourth, Plaintiffs filed a Motion in Limine to Exclude Defendants' Experts'
Testimony on Fact Witness Credibility. Doc. #1472. Responses in opposition to
Plaintiffs' motion were filed by ConAgra, Doc. #1489, and Defendant Waste
1 Defendant Sherwin Williams is included in this group of five current Defendants.
Subsequent to this motion's briefing, it was reported to the Court that Sherwin Williams
and Plaintiffs have reached a settlement.
2
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Management of Ohio ("WMO"), Doc. #1491. Plaintiffs filed a reply in support of their
motion. Doc. #1512.
Fifth, ConAgra filed a Motion in Limine to Preclude Plaintiffs from Pursuing
the Forfeited Veil Piercing Argument Against ConAgra. Doc. #1559. Plaintiffs filed a
response in opposition to the motion. Doc. #1566, and ConAgra filed a reply in
support of its motion. Doc. #1569.
All of these motions are fully briefed and ripe for review. For the reasons
contained herein, ConAgra's Motion in Limine to Limit the Testimony of Dr. Jeffrey
V. Dagdigian, Doc. #1463, is SUSTAINED IN PART and OVERRULED IN PART;
Defendants' Motion in Limine to Exclude the Testimony of Dr. David Stradling, Doc.
#1466, is OVERRULED; Valley Asphalt's Motion to Exclude or Limit Testimony from
Plaintiffs' Expert Jeffrey Smith, Doc. #1467, is OVERRULED; Plaintiffs' Motion in
Limine to Exclude Defendants' Experts' Testimony on Fact Witness Credibility, Doc.
#1472, is OVERRULED; Plaintiffs' Motion for Leave to File Sur-Reply, Doc. #1528, is
OVERRULED; and ConAgra's Motion in Limine to Preclude Plaintiffs from Pursuing
the Forfeited Veil Piercing Argument Against ConAgra, Doc. #1559, is SUSTAINED
IN PART and OVERRULED IN PART.
I. Procedural and Factual Background
Plaintiffs seek contribution from numerous defendants under the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980
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("CERCLA"), 42 U. S. C. § 9613(f), for response costs incurred at the South Dayton
Dump and Landfill Site ("SDD" or "site").
Plaintiffs' claims stem from two settlement agreements they entered into
with the United States Environmental Protection Agency ("EPA"): (1)
Administrative Settlement Agreement and Order on Consent for Removal Action
("2013 ASAOC"); and (2) Administrative Settlement Agreement and Order on
Consent for Remedial Investigation/Feasibility Study ("RI/FS") for Operable Unit 1
and Operable Unit2 ("2016ASAOC"). These ASAOCs required Plaintiffs to perform
certain work at the site, including investigation and testing of the contamination.
On September 8, 2020, the Court approved a settlement agreement between
Plaintiffs and the eight remaining Defendants with respect to response costs
incurred in connection with the 2013 ASAOC, which was limited to vapor intrusion
risks at the Site. Doc. #1172. With that agreement completed, the 2013 ASAOC was
resolved, leaving only the 2016 ASAOC for adjudication. The Court administratively
processed the case until the completion of a feasibility study. Doc. #1188.
In mid-2023, now knowing that the feasibility study would take significantly
longer than originally anticipated. Plaintiffs moved for a pretrial conference and a
trial setting. Docs. #1194 & 1205. The Court, construing Plaintiffs' requests as a
motion to bifurcate the trial on liability, sustained the motion. Doc. #1206.
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II. Legal Standard
A. Motions in Limine
Although neither the Federal Rules of Evidence nor the Federal Rules of Civil
Procedure explicitly authorizes the Court to rule on an evidentiary motion in limine,
the Supreme Court has noted that the practice of ruling on such motions "has
developed pursuant to the district court's inherent authority to manage the course
of trials. " Luce v. United States, 469 U. S. 38, 41 n. 4 (1984). The purpose of a motion
in limine is to allow the Court to rule on issues pertaining to evidence in advance of
trial in order to both avoid delay and ensure an evenhanded and expeditious trial.
See Indiana Ins. Co. v. Gen. Elec. Co., 326 F. Supp. 2d 844, 846 (N. D. Ohio 2004)
(citing Jonasson v. Lutheran Child & Family Servs., 115 F. 3d 436, 440 (7th Cir. 1997)).
Also, pretrial orders often save the parties time and costs in preparing for trial and
presenting their cases.
Courtsaregenerally reluctant to grant broad exclusions of evidence in limine,
however, because "a court is almost always better situated during the actual trial
to assess the value and utility of evidence. " Koch v. Koch Indus., Inc., 2 F. Supp. 2d
1385, 1388 (D. Kan. 1998); accord Sperberg v. Goodyear Tire & Rubber Co., 519 F. 2d
708, 712 (6th Cir. 1975). A court should not make a ruling in limine unless the
moving party meets its burden of showing that the evidence in question is clearly
inadmissible. Indiana Ins. Co., 326 F. Supp. 2d at 846; Koch, 2 F. Supp. 2d at 1388. If
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this high standard is not met, evidentiary rulings should be deferred so that the
issues may be resolved in the context of the trial. Indiana Ins. Co; 326 F. Supp. 2d
at 846.
B. Expert Witnesses
Fed. R. Evid. 702, governing expert witness testimony, provides as follows:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or
otherwise if:
(a) the expert's scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or
to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods;
and
(d) the expert has reliably applied the principles and methods to
the facts of the case.
Fed. R. Evid. 702.
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993), the
Supreme Court held that the trial judge must act as a gatekeeper, excluding expert
witness testimony that is not both relevant and reliable. Id. at 589. Relevant
testimony is that which has a "tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable
than it would be without the evidence. " Fed. R. Civ. P. 401.
Expert witness testimony must also rest on a reliable foundation. In re Scrap
Metal Antitrust Litig., 527 F. 3d 517, 529-30 (6th Cir. 2008). Reliable evidence is
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"supported by appropriate validation. " Daubert, 509 U. S. at 590. In determining
whether expert witness testimony is sufficiently reliable, the court must focus "on
[the] principles and methodology, not on the conclusions they generate. " Id. at 595.
Factors to be considered include "testing, peer review, publication, error rates, the
existence and maintenance of standards controlling the technique's operation, and
general acceptance in the relevant scientific community. " United States v. Langan,
263 F. 3d 613, 621 (6th Cir. 2001) (citing Daubert, 509 U. S. at 593-94).
When a party moves to exclude expert witness testimony, an evidentiary
hearing is not necessarily required. Greenwell v. Boatwright, 184 F. 3d 492, 498 (6th
Cir. 1999).
III. Analysis
A. ConAgra's Motion in limine to Limit the Testimony of Dr. Jeffrey V.
Dagdigian (Doc. #1463).
ConAgra argues that Dr. Dagdigian should be barred from testifying that
McCall's printing operations generated waste containing magazines and paper,
office trash, cardboard, and wood skids, because these opinions deviate from
Plaintiffs' original expert. Dr. Jurgen Exner. Doc. #1463, PagelD #58848. A
comparison of Dr. Exner's opinion and the one issued by Dr. Dagdigian show that
they are identical. Compare Doc. #1270-12, PagelD #46779 with Doc. #1347-2,
PagelD #50859. ConAgra's basis for the exclusion is an admission by Dr. Exner that
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magazines, paper, office trash, cardboard, and wood skids do not contain
hazardous substances. Doc. #886, PagelD #27362.
In the prior Decision permitting the substitution of experts, the Court stated
that the "substitute witnesses are restricted from deviating from the opinions
contained in Dr. Exner's and Mr. Mullin's reports, as well as from consistent
opinions based on new evidence, site conditions, or trial testimony. " Doc. #1297,
PagelD #48404. This Decision was issued with the goal of limiting all parties from
using the witness substitutions as a justification to expand the issues. Where new
facts, new testimony, and changing site conditions lead to new opinions which
could not have been foreseen by the original witness, it would be inequitable to
constrain that new testimony. However, where the issues and facts were known to
the original witness and that witness chose not to pursue a given theory, a
substitute witness cannot now try to draw forth that forfeited opinion.
For this reason, the Court will not permit Dr. Dagdigian to testify that those
materials listed above contain hazardous substances barring any sort of showing
that new evidence has emerged to which Dr. Exner was not aware. Yet, the Court
also notes that an admission by Dr. Exner that those items did not contain
hazardous substances is not akin to an admission that McCall's waste stream did
not include those items. The Court wilt permit Dr. Dagdigian to testify that McCall
generated waste that included magazines, paper, office trash, cardboard, and wood
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skids as consistent with Dr. Exner's testimony. However, Dr. Dagdigian will not be
permitted to change Dr. Exner's position and now argue that those items contained
hazardous substances.
As to ConAgra's second point, it identifies that Dr. Dagdigian's opinion listing
the hazardous substances created by McCall adds three items that Dr. Exner's
opinion lacked: PCBs, TCE, and 1, 1, 1-TCA. 2 Doc. #1463, PagelD #58848. Of these
three substances, only PCBs are at issue. Plaintiffs argue for the inclusion of Dr.
Dagdigian's McCall PCB opinion because it is consistent with Dr. Exner's opinions
and, if extraneous, the differences are harmless.
Often, when a court determines that substitution of expert witnesses is called
for, the new witnesses are confined to testimony that is "substantially similar" to
that of the witness who is unavailable. See In re Davol, Inc., No. 2:18-md-2846, 2021
WL 3286439 (S. D. Ohio Aug. 1, 2021); Whiteside v. State Farm Fire & Cas. Co., No.
11-10091, 2011 WL 5084981 (E. D. Mich. Oct. 26, 2011); Hilber v. Malley's Candies,
2 On January 31, 2019, Dr. Exner issued a supplemental declaration stating that he had
reviewed a new report and was now of the opinion that McCall had disposed of TCE and
TCA. Doc. #975-1. On September 23, 2019, the Court ruled that those opinions were
permitted to be argued by Plaintiffs going forward. Doc. #1069. Dr. Exner's new declaration
was premised on the discovery of new facts-a 1975 report authored by the National
Institute for Occupational Safety and Health-justifying a change in his opinion. As
explained infra, if a party can show that new facts, new testimony, or changing site
conditions lead to new opinions which could not have been foreseen by the original
witness, a substitute witness may be permitted to deviate from the original witness's
opinions.
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Inc., 1:22-cv-02305, 2025 WL 3029615 (N. D. Ohio Oct. 30, 2025). The same is true in
this case.
This issue is one of framing and can be viewed differently depending upon
the perspective one takes. From a top level, both Dr. Exner and Dr. Dagdigian have
offered the opinion that the waste stream generally includes hazardous waste. If
one takes a more granular view, they might see that both listed a number of
compounds that constituted hazardous waste and Dr. Dagdigian's list contained an
additional substance: PCBs.
As the Davo/court identified, one expert will never present opinions exactly
identical to another. In re Davol, 2021 WL 3286439, at *3. "The substantial similarity
inquiry requires substantial similarity, not perfect similarity, and prohibits opinions
that are contrary to or inconsistent with those presented by the original expert. " Id.
(quotation omitted). While the Court will continue to ensure that the replacement
experts do not deviate excessively from the original experts, the Court does not
believe that, in most cases, a granular, line-by-line, comparison is necessary.
However, the Court recognizes that Dr. Exner did not explicitly state that PCBs were
a hazardous substance found in the waste stream. The Court does not believe that
"substantially similar" opinions in this context encompasses adding a new
hazardous substance to an opposing party's waste stream.
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Dr. Exner stated in his report that his "work has included a wide range of
pollutants in soil, water, and ground water" including "Polychlorinated biphenyls
(PCBs). " Doc. #1270-12, PagelD #46772. Despite this familiarity, his report did not
list PCBs as one of the hazardous wastes contained in McCall's waste stream. Id. at
PagelD #46779. PCBs are a substance which Dr. Exner was familiar with and chose
to exclude from his report. Plaintiffs have not provided an explanation for why Dr.
Exner's exclusion of PCBs should be overlooked, such as the discovery of new
evidence or a change in the conditions of the Site.
It appears to the Court that Dr. Dagdigian's attempt to add PCBs to this list
now is an attempt to bolster its case against ConAgra by adding an additional
substance which it claims it is responsible for. Therefore, Dr. Dagdigian's opinion
regarding PCBs is a deviation from Dr. Exner's opinion, with no identifiable
justification. Thus, his opinions about PCBs in relation to ConAgra are excluded.
Therefore, the Court will SUSTAIN IN PART and OVERRULE IN PART
ConAgra's Motion in Limine to Limit the Testimony of Dr. Jeffrey V. Dagdigian. Doc.
#1463. Specifically, Dr. Dagdigian may testify that McCall's waste stream included
magazines, paper, office trash, cardboard, and wood skids, but may not testify that
one or more or all of those items constituted or contained hazardous waste.
Additionally, he is barred by testifying about PCBs in relation to McCall and
ConAgra, but may testify as to TCE and 1, 1, 1 TCA. However, to preserve the record,
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the Court will permit Plaintiffs to proffer Dr Dagdigian's testimony relating to PCBs
at trial.
B. Defendants' Motion in Limine to Exclude the Testimony of Dr. David
Stradling (Doc. #1466)
Defendants collectively filed a motion in limine seeking to exclude Plaintiffs'
expert. Dr. David Stradling, from testifying at trial. Doc. #1466. They base the motion
on the argument that Dr. Stradling's report and anticipated testimony is merely a
recitation of facts given by other sources, and that he does not apply any
independent expert analysis. Instead, Defendants argue that Dr. Stradling
encroaches upon the role of the factfinder by focusing his report on deciphering the
reliability of witnesses and evidence and synthesizing factual evidence presented
by others to create a narrative.
In opposition. Plaintiffs argue that Dr. Stradling has not and is not attempting
to render an opinion of other witnesses' credibility, nor is he merely recapping
existing evidence as a layman could. Doc. #1495. Instead, they argue that he
reviewed voluminous records, articles, reports, and transcripts and used his
experience and training in historical research to help contextualize the history of
the Site and of Dayton's industrial past. Nor, they argue, did he render improper
opinions on witness credibility. While he may have developed his own opinions
about other witnesses' credibility, they were not proffered and used only in his own
mind when weighing differing sources.
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Expert historians are no strangers to CERCLA litigation. See Foster y. United
States, 130 F. Supp. 2d 68, 72 n. 6 (D. D. C. 2001). In a case like this, where the
arguments will center on activities that occurred more than a half-century ago,
understanding the history of the region may be important. That said, expert
witnesses are intended to provide context and explain facts that may be helpful to
a factfinder. But expert witnesses are not "mouthpieces" from which a party may
provide closing arguments from the witness stand. See In re Whirlpool Corp. Front-
Loading Washer Prods. Liability Lit, 45 F. Supp. 3d 724, 741 (N. D. Ohio 2014) (citing
DuraAuto. Sys. of Indiana, Inc. v. CTS Corp., 285 F. 3d 609, 614 (7th Cir. 2002)).
White the Court certainly has a duty to ensure that expert testimony complies
with Fed. R. Evid. 702, the Court also recognizes that "[t]he 'gatekeeper' doctrine
was designed to protect juries and is largely irrelevant in the context of a bench
trial. " Deal v. Hamilton Cnty. Bd. ofEduc., 392 F. 3d 840, 852 (6th Cir. 2004). A "trial
judge sitting alone is presumed capable of weighing evidence to sift the important
from the unimportant, and even the admissible from the inadmissible when those
are intertwined in a way that might counsel excluding the same evidence from
consideration by a lay jury. " UAWy. Gen. Motors Corp., 235 F. R. D. 383, 387 (E. D.
Mich. 2006). Certainly, during a bench trial, the court can never rely on expert
witness testimony that does not satisfy the requirements of Fed. R. Evid. 702.
Nevertheless, rather than excluding challenged expert witness testimony
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altogether, it often makes sense for the court to hear all of the evidence and then
determine how much weight to allot to the given expert witness opinions, if any
This Court has previously described the improprieties that result from an
expert witness opining on the credibility of other witnesses. SeeDoc. #1069, PagelD
40649; Doc. #1397, PagelD #53022. The Court has also differentiated between
opinions concerning another's credibility and opinions about the general nature of
human memory. Doc. #1397, PagelD #53023. It may turn out that Dr. Stradling's
testimony will allow his historical expertise to provide a useful perspective on this
case. If so, the Court would be very hesitant to exclude it.
With that in mind, the Court believes that it is prudent to see what Dr.
Stradling's testimony will be at trial. Certainly, if his testimony opines on the
credibility of other witnesses. Defendants can move to have that testimony stricken.
Likewise, if he acts merely as a mouthpiece reciting Plaintiffs arguments or
presenting historical facts without any expert analysis. Defendants will be permitted
to challenge his testimony at that point. However, because the Court is unable to
categorically rule that Dr. Stradling's testimony will not be admissible and helpful,
Defendants' Motion in Limine to Exclude the Testimony of Dr. David Stradling, Doc.
#1466, is OVERRULED.
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C. Valley Asphalt Motion in Limine to Exclude or Limit Testimony From
Plaintiffs' Expert Jeffrey Smith (Doc. #1467)
Valley Asphalt has moved to exclude or limit testimony from Plaintiffs' expert
Jeffrey Smith. Doc. #1467. It bases this request on the notion that "Mr. Smith does
not have any affirmative opinions relevant to the issue of which parties may be
responsible for disposal of hazardous substances at the South Dayton Dump
("SDD"). " Doc. #1467, PagelD #59449. Rather, it argues that Mr. Smith's opinions
"relate to the scope and cost of potential remedies that might be selected by U. S.
EPA to remediate SDD. " Id. In other words, it argues that Mr. Smith's opinions are
only relevant to the second phase of this case: allocation. 3 Valley Asphalt also
argues that Mr. Smith's testimony is improper because it infringes upon the role of
the Court as gatekeeper of the admissibility of evidence and as the ultimate
factfinder. Doc. #1467, PagelD #59450.
Plaintiffs agree that several portions of Mr. Smith's report are not relevant to
this phase of the case. Doc. #1496, PagelD #61501. Specifically, Plaintiffs admit that
o inions 1, 3, and 4, as well as conclusions 2, 4, and 5, are not relevant until the
allocation phase. Id. However, Plaintiffs argue that opinions 2, 5, 6, 7, 8, and 9, as
well as conclusions 1 and 3, are relevant to the liability phase. Id. at PagelD#61502-
3 Valley Asphalt notes that co-Defendants Dayton Power & Light Company, ConAgra, and
Waste Management join it in seeking to exclude Mr. Smith on this first basis. Doc. #1467,
PagelD #59450 n. 1.
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07. Plaintiffs further argue that Mr. Smith's testimony does not improperly intrude
into the role of the Court.
The Court agrees with Plaintiffs that the mere fact that a witness comments
on another witness's methodology does not generate an implication that the
testimony is improper. Plaintiffs are well within their right to attempt to refute Valley
Asphalt's witness with one of their own. That rebuttal witness may, in turn, attempt
to explain deficiencies in the expert's testimony, whether it be though improper
methodology or incomplete information. Yet, as this Court has reiterated
periodically in this case, the breadth of appropriate testimony does not extend as
far as legal relevance or credibility determinations.
In many cases, whether a witness is testifying as to another's credibility or
merely whether their methodology is proper can be a difficult issue. Certainly, a
witness is forbidden from commenting that another witness, testifying in court,
appeared to lack credibility. On the other hand, it would be proper for a rebuttal
witness to explain that an expert failed to adhere to industry standard methodology
or failed to account for certain data points.
In this case, the Court need not undertake a rigorous parsing of Mr. Smith's
potential testimony at this time. As explained above, because this case will not be
heard by a jury, the Court can determine during the trial which portions of Mr.
Smith's testimony properly opines about other experts' methodology, and which
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portions improperly opine on credibility. See UAWv. Gen. Motors Corp., 235 F. R. D.
383, 387 (E. D. Mich. 2006).
Though Plaintiffs admit that several of Mr. Smith's opinions and conclusions
are not germane to the present phase of the case, they argue that others are
relevant and should be permitted. Plaintiffs provide specific arguments on each
opinion and conclusion they intend to use at trial, but these arguments boil down
to the proposition that Mr. Smith will testify regarding constituents of potential
concern (COPC) and explain how the presence and concentration of certain COPCs
make it more likely that certain Defendants contributed hazardous waste to the Site.
Valley Asphalt's reply memoranda argues that his testimony goes to allocating
response costs, given that his report seems to focus on what methods of
remediation will ultimately be necessary.
While the predominance of Mr. Smith's testimony may be in determining a
fair allocation of remediation costs, his opinions can still be relevant to the initial
determination regarding which entities are liable at all. The Court has previously
sustained a motion finding that certain substances are present at the Site. Doc.
#1568, PagelD #66938-39. In that ruling, the Court explained that the presence of
the substances alone did not link any of the Defendants to any of the substances.
For that, Plaintiffs will need to provide additional evidence.
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It may turn out that Mr. Smith provides evidence to span that missing link. If
he has information regarding concentrations of substances that make it more or
less probable that any particular Defendant contributed hazardous substances, then
that testimony will be relevant to this phase of this case and will be permitted. Yet,
the Court will not permit Mr. Smith, or any other witness, to present evidence
irrelevant to the binary determinations whether a Defendant is liable or not. The
allocation of liability is not yet at issue, and Plaintiffs, nor any other party, cannot
argue that any entity should shoulder more of a burden than any other entity at this
stage.
In summary, Mr. Smith will be permitted to testify about the presence or
absence of specific substances in an effort to show that certain Defendants are
liable. To the extent that he has relevant knowledge and expertise, he may critique
other experts' methodology, but may not directly opine on credibility. Should Mr.
Smith's testimony cross the line into an area which Valley Asphalt believes to be
inadmissible, it may object and renew its motion to exclude at the relevant time. At
this point, however. Valley Asphalt's Motion to Exclude or Limit Testimony from
Plaintiffs' Expert Jeffrey Smith, Doc. #1467, is OVERRULED.
D. Plaintiffs' Motion in Limine to Exclude Defendants' Experts'
Testimony on Fact Witness Credibility (Doc. #1472)
Plaintiffs seek to exclude testimony from ConAgra's expert David Hagen and
WMO's expert Christopher Wittenbrink on the basis that both witnesses "explicitly
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or implicitly opined on the credibility of fact witnesses. " Doc. #1472, PagelD#59692.
The crux of Plaintiffs' arguments is that both experts engage in improper witness
credibility determinations, infringing upon the Court's role as factfinder. Both
ConAgra and WMO filed responses arguing that their respective experts have not
engaged in and will not be testifying about credibility determinations. Docs. #1489,
1491. Their position is that, while the experts may have made independent
credibility determinations while writing their reports, such determinations are not
improper and do not justify exclusion, especially when the testimony they will
present is focused on their own conclusions, and not on other experts' credibility.
Strictly speaking. Plaintiffs' request to prevent experts from testifying about
other witnesses' credibility is a request that is easily sustained. The Court has made
it clear that it will not allow witnesses to testify as to others' credibility. Yet, it is not
convinced that credibility is the subject matter upon which Mr. Hagen and Mr.
Wittenbrink will be called to testify. Both witnesses have compiled expert reports,
in which they have reviewed the evidence presented to them, including depositions,
statements, and reports of other witnesses. In order to produce a report, the experts
necessarily had to look at the evidence and, when there are conflicts, make
determinations about which accounts to credit and which to discredit. Ultimately,
the report includes details explaining why they lean on certain sources of
information and shirk others.
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In a case like this, where the Court sits as factfinder, there is a presumption
that it will be able to decipher which portions of testimony are permissible and
which portions are improper. All parties are aware that witnesses cannot testify as
to others' credibility as ConAgra and WMO recognize here. See Doc. #1489, PagelD
#61143 ("ConAgra has been clear that it intends to call Mr. Hagen about his
technical opinions and his opinions regarding the flaws in Plaintiffs' expert
opinions, which are consistent with the Court's prior rulings precluding opinions
about witness credibility. "); Doc. #1491, PagelD #61252. However, the Court also
sees a distinction between credibility testimony and the type of personal credibility
determinations that these two witnesses (not to mention many others) made in the
drafting of their reports. To the extent that Plaintiffs, or any other party, believes
that a witness's personal credibility determination was unfounded and led to a
flawed report or opinion, that matter is better handled via a probing cross-
examination, as well as a possible motion to strike all or a portion of that witness's
testimony.
Should either witness attempt to testify as to another witness's credibility,
Plaintiff may object and move to bar that testimony at the time. However, the Court
believes it will be able to make independent credibility determinations and will
maintain an understanding that any witness's personal determinations of witness
credibility are nothing more than their own opinion. At this time, Plaintiffs' Motion
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in Limine to Exclude Defendants' Experts' Testimony on Fact Witness Credibility is
OVERRULED.
E. Defendant ConAgra's Motion in Limine to Preclude Plaintiffs from
Pursuing the Forfeited Veil Piercing Argument Against ConAgra (Doc.
#1559)
ConAgra's motion in limine seeks to preclude Plaintiffs from attempting to
pierce the corporate veil or argue a form of corporate liability inconsistent with the
decision in Bestfoods. This particular issue revolves around the McCall Corporation
which was incorporated in 1968 ("New McCall") and a printing facility in the area.
Plaintiffs believe that New McCall was the owner of the printing facility in name
only, and that ConAgra's predecessor corporation actually controlled the facility.
ConAgra has maintained that neither it nor its predecessor controlled the facility.
The Court has previously ruled that the issue of control is one to be determined at
trial. Doc. #1397, PagelD #53013.
At this juncture, ConAgra seeks to limit the methods under which it may be
held liable for the operations at the printing facility. The first of these potential
avenues is by seeking indirect liability by piercing the corporate veil. United States
v. Bestfoods, 524 U. S. 51, 62 (1998). However, this method is often required to be
presented in the factual pleadings. Baseball at Trotwood, LLC v. Dayton
Professional Baseball Club, No. C-3-98-260, 2003 WL 25566103, *26 n. 32 (S. D. Ohio
Sept. 2, 2003) (Rice, C. J. ); Scarbrough v. Perez, 870 F. 2d 1079, 1084 (6th Cir. 1989).
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Plaintiffs did not plead such facts and do not contest that they are foreclosed from
pursuing this avenue of liability.
Plaintiffs may also pursue direct liability for ConAgra consistent with the
decision in Bestfoods. In United States v. Bestfoods, the Supreme Court of the
United States analyzed the differences between direct and indirect liability of
corporate entities within the context of CERCLA litigation. 524 U. S. 51 (1998) In
determining whether a parent corporation has direct liability:
The question is not whether the parent operates the subsidiary, but
rather whether it operates the facility, and that operation is evidenced
by participation in the activities of the facility, not the subsidiary.
Control of the subsidiary, if extensive enough, gives rise to indirect
liability under piercing doctrine, not direct liability under the statutory
language.
Bestfoods, 524 U. S. at 68 (quotation omitted). Simply put, the question of parent
liability hinges on whether that parent operated the facility directly or whether it
merely operated the subsidiary which, in turn, operated the facility.
The Bestfoods Court recognized that this question would come down to the
facts unique to each case:
Just as we may look to such norms in identifying the limits of the
presumption that a dual officeholder acts in his ostensible capacity, so
here we may refer to them in distinguishing a parental officer's
oversight of a subsidiary from such an officer's control over the
operation of the subsidiary's facility. "[A]ctivities that involve the
facility but which are consistent with the parent's investor status, such
as monitoring of the subsidiary's performance, supervision of the
subsidiary's finance and capital budget decisions, and articulation of
general policies and procedures, should not give rise to direct
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liability. " Oswald 282. The critical question is whether, in degree and
detail, actions directed to the facility by an agent of the parent alone
are [unconventional or unusual] under accepted norms of parental
oversight of a subsidiary's facility.
Id. at 71-72 (quoting Lynda Oswald, Bifurcation ofthe Owner and Operator Analysis
under CERCLA, 72 WASH. U. L. Q. 223, 282 (1994)).
In this case. Plaintiffs will be required to prove that ConAgra's predecessor
exercised direct control over the printing facility, rather than merely activities
"consistent with the parent's investor status. " ConAgra points to a handful of
statements Plaintiffs made in their trial brief as evidence that Plaintiffs will try to
establish liability by showing their predecessor had control over New McCall. Doc.
#1559, PagelD #66375. For example, Plaintiffs argue that "New McCall was 'not an
operating business from 1968 through 1975, ' was 'simply a shell entity, ' and that it
did not 'conduct any business of its own accord. '" Id. (quoting Doc. #1479, PagelD
#60169-71).
In the Court's view, these statements appear to go toward the issue of
whether New McCall was actually operating the printing facility or, alternatively,
whether ConAgra's predecessor was. Plaintiffs can present evidence and argument
that ConAgra's predecessor controlled the Dayton printing facility, and may have
direct liability consistent with Bestfoods. However, Plaintiffs will not be able to
establish liability based on a showing that the predecessor controlled New McCall
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which, in turn, controlled the printing facility, nor on a theory of piercing the
corporate veil.
To the extent that this Decision agrees with ConAgra's motion as titled, but
does not grant the breadth of relief that it seeks, ConAgra's Motion in Limine to
Preclude Plaintiffs from Pursuing the Forfeited Veil Piercing Argument Against
ConAgra, Doc. #1559, is SUSTAINED IN PART and OVERRULED IN PART.
IV. Conclusion
For the reasons contained herein, ConAgra's Motion in Limine to Limit the
Testimony of Dr. Jeffrey V. Dagdigian, Doc. #1463, is SUSTAINED IN PART and
OVERRULED IN PART; Defendants' Motion in Limine to Exclude the Testimony of
Dr. David Stradling, Doc. #1466, is OVERRULED; Valley Asphalt's Motion to Exclude
or Limit Testimony from Plaintiffs' Expert Jeffrey Smith, Doc. #1467, is
OVERRULED; Plaintiffs' Motion in Limine to Exclude Defendants' Experts'
Testimony on Fact Witness Credibility, Doc. #1472, is OVERRULED; Plaintiffs'
Motion to File Sur-Reply, Doc. #1528, is OVERRULED; Plaintiffs' Motion to File Sur-
Reply, Doc. #1528, is OVERRULED; and ConAgra's Motion in Limine to Preclude
Plaintiffs from Pursuing the Forfeited Veil Piercing Argument Against ConAgra, Doc.
#1559, is SUSTAINED IN PART and OVERRULED IN PART.
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Date: March 27, 2026 UcS	rfldUr<<-'fe^ . ^"
WALTER H. RICE
UNITED STATES DISTRICT JUDGE
(Reviewed by Judge Rice prior to his
signature being affixed)
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