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Abarca, Raul Valencia, et al v. Franklin County Water District


January 5, 2011


The opinion of the court was delivered by: Oliver W. Wanger United States District Judge



Plaintiffs allege that Meadowbrook Water Company ("Meadowbrook) delivered contaminated water from the BAC Site to the Plaintiffs' homes and properties. The present motion concerns Plaintiffs' negligence, trespass, and nuisance claims that allege that Meadowbrook failed to exercise due care with regard to its water delivery operations and that those operations discharged pollutants from Meadowbrook Well No. 2 ("MWC-2").*fn1 Plaintiffs' claims against Meadowbrook concern only the groundwater pathway. It is undisputed that Meadowbrook had no ownership or control over the alleged source of contamination, the BAC site.

Before the court for decision is Meadowbrook's motion to summarily adjudicate Plaintiffs' negligence, trespass, and nuisance claims. Defendant Meadowbrook moves to dismiss these claims on grounds that Hartwell Corporation v. Superior Court, 27 Cal.4th 256 (2002) and In re Groundwater Cases, 154 Cal. App. 4th 659 (2007) bar the claims as a matter of state law. According to Meadowbrook, these two cases stand for the proposition that a public water utility is only liable for third party damages in narrow and specific circumstances, none of which are established here. Meadowbrook also files a Daubert motion to exclude Bartlett's groundwater flow model predicting elevated concentrations of hexavelant chromium in MWC-2. Meadowbrook's arguments mirror those contained in the BAC Defendants' motion, i.e., it argues that the model is scientifically unreliable and not relevant to the issue of Meadowbrook's liability for damages as a state regulated water supplier.


This lawsuit relates to a now-closed cooling tower manufacturing facility (the "BAC site") that was operated by entities formerly owned by the BAC Defendants.*fn3 Plaintiffs, current or former residents of neighborhoods near the BAC Site,*fn4 allege that two contaminants from the BAC Site migrated from the facility via groundwater, surface water, and air pathways to locations where plaintiffs were exposed to them. Also named as defendants are various municipalities, water districts, and developers, including the Franklin County Water District, Merced Irrigation District, the City and County of Merced, and the Meadowbrook Water District.

Plaintiffs commenced this civil action on March 8, 2007. In August 2009, in response to the alleged lack of admissible evidence of general exposure to contaminants from the BAC site, the Court issued an "Order Modifying Scheduling Conference Order," establishing a first phase of discovery to focus on "whether contaminants from the former [] BAC Site, Franklin County Water District or the April 2006 Flood have ever reached any location where plaintiffs could have been exposed to them, and if so, when such contaminants arrived, how such contaminants arrived at the location, how long they were present, and at what levels they were present." (Id. at 1:14-1:28.) Meadowbrook argues that Plaintiffs have failed to meet their "Phase 1" or "general exposure" burden, entitling it to summary judgment.

On May 28, 2010, Meadowbrook filed its motion for summary judgment on Plaintiffs' negligence, trespass, and nuisance claims. (Doc. 678.) The substance of Meadowbrook's Rule 56 motion is that Plaintiffs' claims are jurisdictionally barred under Hartwell and

In re Groundwater Cases.

On June 1, 2010, Meadowbrook moved to exclude the testimony of Douglas Bartlett, Plaintiff's groundwater modeler, pursuant to Federal Rule of Evidence 702 and two United States Supreme Court cases, Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). (Doc. 685) In particular, Defendants challenge Bartlett and Sears' expert testimony on grounds that it cannot pass Daubert's "gatekeeping" requirement. See Cooper v. Brown, 510 F.3d 870, 942 (9th Cir. 2007) ("The trial court acts as a 'gatekeeper' to exclude expert testimony that does not meet the relevancy and reliability threshold requirements.") (citation omitted).

Plaintiffs opposed the motions on July 1, 2010. Plaintiffs first argue that the Hartwell and In re Groundwater Cases are inapplicable under the Phase 1 Order; arguendo, if they are considered, Meadowbrook's misconduct distinguishes both cases. As to the Daubert motion, which is relevant to the Rule 56 analysis, Plaintiffs argue that Meadowbrook's motion to exclude certain expert testimony fails because their criticisms go to the weight of the testimony, not its admissibility.

A. The BAC Defendants' Related Motions

On June 1, 2010, the BAC Defendants filed motions for partial summary judgment and to exclude the testimony/model of Douglas Bartlett.*fn5 According to the BAC Defendants, Bartlett's testimony and groundwater model are inadmissible for a number of reasons but primarily because he excludes 46 years of sampling data (49 tests) from the MWC-2 and 16 years of sampling data from monitoring wells surrounding the BAC Site. Characterizing Bartlett's model as "contradicting reality," the BAC Defendants claim that Plaintiffs "have produced no data, documents, or percipient witness testimony that could establish exposure to hexavelant chromium or arsenic from the BAC Site through MWC-2 water, and the results of analyses of water from MWC-2 refute plaintiffs' claims that such exposure occurred." The BAC Defendants asserted that the actual testing data shows that total chromium concentration at MWC-2 never exceeded 12 ug/l, less than one quarter of the MCL for total chromium. The BAC Defendants also argued that MWC-2 never captured hexavelant chromium beyond background levels.

Meadowbrook's arguments mirror those advanced by the BAC Defendants in their motions for partial summary judgment and to exclude Bartlett's testimony.*fn6 In support of its motion to exclude, Meadowbrook submits the testimony of David Bean, a hydrogeologist and groundwater modeling expert. He opines that Bartlett's model is not calibrated to any well water sampling data from the network of monitoring and extraction wells installed during the remediation of the BAC Site, nor from Meadowbrook wells, including MWC-2. There is little correlation between simulated and observed chromium concentrations (actual data v. model predictions). Bean provides a number of scattergrams and simulations to demonstrate the extent of the disparity, i.e., to demonstrate its unreliability. Bean opines that there is a complete "disconnect" between the actual data and Bartlett's model, and discusses the number of scientific processes that are excluded from Bartlett's model (adsorption, diffusion, etc.)

Plaintiffs' response to Meadowbrook's motion is identical to their opposition to the BAC Defendants' motion. They argue that the existing sampling data is unreliable and therefore should be excluded. They also argue that the data and expert opinion can "co-exist," i.e., that the issue should go to a jury to determine "the credibility of the evidence."

By a separate decision, it has been determined that the degree of variance between Bartlett's model and the well data requires a factual foundation to decide the truth and efficacy of Bartlett's grounds for minimizing most of the observed test data. The BAC Defendants' Daubert motion was denied subject to an express reservation to exclude the model after hearing all evidence concerning the model at trial. That subject of the BAC Defendants' motion for partial summary judgment on groundwater contamination was also denied without prejudice.

That Memorandum Decision is incorporated by reference and applies with equal force to Meadowbrook's current motions for summary judgment and to exclude the testimony of Douglas Bartlett. A scientific factual dispute remains as to the admissibility of the Bartlett model, which was proffered to demonstrate chromium contamination via the groundwater pathway (specifically, in MWC-2 from 1969 to present). Those portions of Meadowbrook's motions are for the same reasons DENIED without prejudice.

B. Hartwell and In re Groundwater Cases - A Jurisdictional Bar?

It is undisputed that Meadowbrook is a public utility as defined by Article XII, Section 3, of the California Constitution. Meadowbrook argues that Hartwell and In re Groundwater Cases bar claims for damages against a public utility unless Plaintiffs are able to establish "continuing violations of water quality standards to provide water to their customers."

Hartwell and In re Groundwater Cases analyze whether section 1759 of the Public Utilities Code limits the jurisdiction of judicial review of the Public Utility Commission's regulatory authority and decisions. Section 1759 provides in relevant part:*fn7

No court of this state, except the Supreme Court and the article, shall have jurisdiction to review, reverse, court of appeal, to the extent specified in this correct, or annul any order or decision of the commission or to suspend or delay the execution or operation thereof, or to enjoin, restrain, or interfere duties, as provided by law and the rules of court. with the commission in the performance of its official In Hartwell, 27 Cal.4th 256, plaintiffs sued water companies regulated by the Public Utilities Commission ("PUC" or "Commission"), alleging that they had provided contaminated well water to the plaintiffs.*fn8 The Commission had adopted California Department of Health Services ("DHS") standards for water safety and followed those standards in determining what measures the water companies should undertake to maintain water purity. Id. at 272, 276. The California Supreme Court reviewed § 1759 in light of its legislative and regulatory history and concluded that the trial court did not have jurisdiction to hear a challenge to the regulatory standards. However, the court held that the trial court did have jurisdiction to hear damage suits arising out of violations of regulatory standards.

The California Supreme Court summarized its ruling in Hartwell:

found some claims alleged in the civil action to the regulatory authority of the PUC, but that other therefore were not precluded claims would not result in such interference and decision concluded, for example, that because the PUC by section 1759. The Hartwell be barred because their adjudication would interfere with benchmark in approving water rates charged by public relied upon certain water quality standards as a utilities, challenges in the civil action to the adequacy of those standards, and claims for damages allegedly would interfere with broad and continuing regulatory caused by unhealthy water permitted by the standards, programs of the PUC such as ratemaking for public utilities. In addition, the PUC had provided a safe harbor for utilities meeting these water quality by the superior court that the existing standards were standards, and our decision observed that a determination inadequate would undermine this policy of the PUC by holding the utilities liable for damages caused by their determined was not required. Similarly, claims in the failure to undertake action that the PUC repeatedly had civil action seeking injunctive relief for current section 1759, because an injunction predicated upon a violations of water quality standards were precluded by finding of such violat decision of the PUC that the defendant utilities ions would conflict with the no further inquiries or evidentiary hearings regarding presently were in compliance with the standards, and that compliance were required.

In contrast, the decision in Hartwell concluded that by water that did not satisfy applicable water standards claims in the civil action for damages allegedly caused were not preempted by section 1759-even though the PUC previous 25 years, water provided by the defendant had issued a decision including a finding that, for the standards. In concluding that this prior PUC utilities substantially did comply with the water pronouncement regarding past compliance with water claims, our decision relied upon the following quality standards did not prelude these particular civil to the decision was characterized by the commission as a circumstances: (1) the investigation by the PUC that led rulemaking proceeding; (2) even though information process designed to gather information, rather than as a gathered in the investigation and reported in the enforcement proceeding against the utilities, the finding decision might have resulted in a rulemaking or by the PUC that the utilities had complied with water continuing program to regulate ... water quality" and quality standards did not constitute "part of a broad and

and continuing supervisory or regulatory program of the thus the program "was not part of an identifiable 'broad proceedings as ratemaking [citation] or approval of water commission' [citation] related to such routine PUC sought damages for injuries caused by water that had quality treatment facilities"; and (3) the civil action any finding by the PUC regarding past compliance would be failed to meet water standards in prior years, whereas relevant only to a future remedial program designed to redress injuries for past violations, because the PUC halt current and ongoing violations, rather than to could not provide such relief for past violations.

In sum, we determined in Hartwell damages in the civil action might result in a jury award that the claims for water quality standards, and that although such a finding based upon a finding that public water utilities violated PUC decision, such a finding or damage award would not would be contrary to a pronouncement in a single prior hinder or frustrate the declared supervisory and regulatory policies of the PUC.

People ex rel. Thomas J. Orloff v. Pac. Bell, 31 Cal. 4th 1132, 1147-48 (2003)(internal citations and footnotes omitted)(emphasis added). In essence, Orloff explains that claims are barred under Hartwell only if they would hinder or frustrate the supervisory and/or regulatory policies of the PUC.

Consistent with this approach, the California Appellate Court in In re Groundwater Cases, 154 Cal. App. 4th 659, rejected the contention that evidence of any exceedence of a numerical standard would constitute a "violation":

[T]he touchstone for determining whether there has been Hartwell a "violation" within the meaning of is whether the PUC-Regulated Defendants have failed to comply with PUC. When viewed in these terms, it becomes apparent the regulatory standards and policies set by DHS and the that plaintiffs are mistaken in their contention that standard constitutes a "violation" as that word was used any exceedance of an MCL, AL, or other numerical in Hartwell [...] exceedances of numerical standards would conflict with Imposing liability on water suppliers for isolated water quality the regulatory system established to deal with drinking.

That scheme expressly permits DHS to after an MCL exceedance has been detected. Under Health allow water suppliers to continue to deliver water even and Safety Code section 116655, if DHS determines that has discretion to issue an order that may include a any person has violated or is violating the SDWA, DHS number of requirements [ rigid requirements. DHS has the authority to exempt ...] In addition, MCLs are not agency makes certain required findings. (See Health & public water systems from compliance with an MCL if the that "granting of the exemption will not result in an Saf.Code, 116425, subd. (a).) One of those findings is unreasonable risk to health." (Health 116425, subd. (a)(3).) In such circumstances, DHS may & Saf.Code, drinking water despite its noncompl permit a public water system to continue delivery of iance with an MCL. MCL does not constitute a "violation" of the regulatory Thus, a mere exceedance of or noncompliance with a given scheme.

DHS's regulations also expressly permit the continued For organic chemicals, if the detected level exceeds the delivery of water after detection of an MCL exceedance. applicable MCL, the water supplier is required to report (Cal.Code Regs., tit. 22, § the exceedance to DHS and to conduct further sampling. an organic chemical is detected and the concentration 64445.1, subd. (c)(5).) If exceeds ten times the MCL, the water supplier must confirm the result. (Cal.Code Regs., tit. 22, § 64445.1, notify DHS and conduct resampling within 48 hours to subd. (c)(7).) Only if the average concentration in the MCL is the supplier required to cease delivery of water. original and confirmation samples exceeds ten times the (Cal.Code Regs., tit. 22, § 64445.1(c)(7)(B).)

Thus, both the California SDWA and DHS's regulations water despite isolated exceedances of MCLs. Were we to contemplate that water suppliers may continue to deliver based upon individual exceedances of MCLs or ALs, we permit the imposition of liability on water suppliers would expose water suppliers to damage awards for doing something that is expressly permitted by both the Health holding would plainly conflict with the PUC regulatory and Safety Code and by DHS and PUC regulations. Such a program that "provide[s] a safe harbor for public utilities if they comply with the DHS standards," and would directly contravene Hartwell. [citation] Id. at 685-86 (emphasis added). While the decision in In re Groundwater Cases explains that imposing liability for isolated exceedences of numeric standards would hinder or frustrate the intentionally flexible regulatory scheme established to deal with drinking water quality, it does not clearly circumscribe the range of evidence that meets Hartwell's exception to the general rules protecting the regulatory schemes.

According to Meadowbrook, the California Department of Health Services inspected its operations from 1964-2009 and, during this time period, approved Meadowbrook's water system operations. Meadowbrook has never been ordered to cease operations.*fn9 But, Orloff explains that a damages claim is not barred by Hartwell simply because it might result in a jury verdict "contrary to a pronouncement in a single prior PUC decision." 31 Cal. 4th at 48. Plaintiffs seek to present evidence that would support a finding of persistent violations of the relevant numeric standards.*fn10

The entirety of this alleged evidence to avoid the regulatory scheme comes from Mr. Bartlett and Dr. Laton. If their testimony is accepted by the trier of fact that there is hexavalent chromium and/or arsenic persistently present in the Meadowbrook Well levels above the relevant numeric standards, this would not interfere with or derogate any policy or objective of the PUC or the regulatory scheme to assure the safe operation of privately owned public entity water suppliers under rules and regulations formulated and enforced by the PUC.

C. Conclusion

For all these reasons the quasi-immunity of the PUC's regulatory scheme is not at risk and will remain intact to protect its policies and objectives unless plaintiffs prove the fraudulent violations of water quality standards they allege.

The motions to: (1) exclude Bartlett's testimony is DENIED WITHOUT PREJUDICE; (2) the motion for summary judgment on groundwater contamination is DENIED; and (3) the motion for summary judgment under Hartwell and In re Groundwater Cases is DENIED.


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