The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION AND ORDER RE: DEFENDANT MEADOWBROOK WATER COMPANY'S MOTIONS FOR SUMMARY JUDGMENT ON GROUNDWATER PATHWAY (Doc. 671); DAUBERT TESTIMONY OF DOUGLAS MOTION TO EXCLUDE THE BARTLETT (Doc. 685)
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.
II. FACTUAL AND PROCEDURAL BACKGROUND.*fn2
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
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 ...