Free Motion in Limine - District Court of Colorado - Colorado

Case 1:01-cv-02163-BNB-MEH

Document 235-3

Filed 02/01/2007

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EXHIBIT 2
December 7, 2006 Memorandum Opinion Regarding Daubert Motions and Motions in Limine in Cook, et al. v. Rockwell International Corporation, et al.; Civil Action No. 90-cv-00181-JLK, United States District Court of the District of Colorado

El Paso's Motion in Limine to Exclude Exhibits and Testimony Sierra Club, et al. v. El Paso Properties, Inc. 01-cv-2163-BNB-MEH

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Loislaw Federal District Court Opinions
COOK v. ROCKWELL INTERNATIONAL CORPORATION, (Colo. 12-7-2006) MERILYN COOK, et al., Plaintiffs, v. ROCKWELL INTERNATIONAL CORPORATION AND THE DOW CHEMICAL COMPANY, Defendants. Civil Action No. 90-cv-00181-JLK. United States District Court, D. Colorado. December 7, 2006

MEMORANDUM OPINION REGARDING DAUBERT MOTIONS AND MOTIONS IN LIMINE JOHN KANE, Senior District Judge Introduction This class action presents claims for trespass and nuisance against the former operators of the Rocky Flats Nuclear Weapons Plant ("Rocky Flats") near Denver. The named Plaintiffs represent a class of individuals and businesses that owned property in a defined area (the "Class Area") adjoining the plant site as of June 7, 1989.[fn1] Plaintiffs seek damages for the diminished value of Class members' properties as a result of Defendants' alleged trespass and nuisance. In February 2005, I set the class claims for an eight to ten week jury trial commencing on October 3, 2005. See Order (Doc. 1325).[fn2] As part of the run-up to trial, I ordered the parties to file any motions challenging the admissibility of expert witness testimony ("Daubert motions") and any other motions in limine no later than June 16, 2005. See Order on Scheduling and Jury Instruction Issues (Doc. 1338) at 1 (May 17, 2005) [hereinafter "May 2005 Order"]; Minute Order (Doc. 1340). Defendants responded by filing nineteen motions seeking to exclude all testimony by Plaintiffs' eleven designated expert witnesses and much of Plaintiffs' anticipated lay evidence. Defs.' Mot. to Exclude Expert Witness Test. Relating to Damages (Doc. 1371); Defs.' Mot. to Page 2 Exclude Expert Witness Test. Relating to Defs.' Conduct (Doc. 1374); Defs.' Mot. to Exclude Expert Witness Test. Relating to Risk (Doc. 1376/1380); Defs.' Mots. in Limine Nos. 1-16 (Docs. 1354-69). Plaintiffs filed two, more limited motions seeking to exclude or limit the testimony of eleven of the eighteen or more expert witnesses designated by Defendants and to exclude certain lay evidence. See Pls.' Mot. to Exclude Test. of Certain Defense Expert Witnesses (Doc. 1350); Pls.' Omnibus Mot. in Limine (Doc. 1341). By the time briefing was completed on these motions, Plaintiffs had submitted nearly 300 pages of argument and Defendants had submitted more than 700 pages. Together, the parties provided approximately 5400 additional pages of exhibits to be considered in connection with their motions.

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I heard oral argument on the parties' Daubert motions and motions in limine on July 28-29 and August 2-3, 2005. I offered the parties the opportunity to present live testimony at this hearing, but both declined. See Order (Doc. 1349); Jt. Statement re: Hr'g on Daubert Mots. and Mots. in Limine (Doc. 1403). Upon review of the parties' Daubert motions, I also determined that live testimony was not necessary for me to decide them. After careful consideration of the parties' arguments, exhibits and authorities, I decided their respective motions in a series of pretrial bench rulings. Aug. 22, 2005 Tr. (Doc. 1430) at 3-9, 14-15 (ruling on Defendants' Daubert motions and Motions in Limine Nos. 1-12, 14-15); Sept. 13, 2005 Tr. (Doc. 1443) at 4-10 (ruling on all of Plaintiffs' motions except those seeking to exclude national security evidence and certain lay opinion testimony); Sept. 22, 2005 Tr. (Doc. 1459) at 4-10 (ruling on all remaining motions). I also granted Defendants leave to file an additional Daubert motion regarding one of Plaintiffs' expert witnesses, see Defs.' Mot. to Page 3 Exclude Test. of Dr. Steven Wing (Doc. 1444), and decided that motion before trial as well, see Order (Doc. 1483). In general, I denied Defendants' Daubert motions and granted in part and denied in part their motions in limine, and granted in part and denied in part Plaintiffs' Daubert motion and motion in limine. All of these rulings were reported in summary fashion so they could be provided to the parties as soon as possible and incorporated in their trial preparations.[fn3] At the time of these summary rulings, I recognized my obligation under governing Tenth Circuit authority to make specific findings on the record sufficient for the appellate court to review my conclusions regarding the admissibility of the challenged expert witness testimony and to confirm that I had properly exercised my "gatekeeping" function with regard to this testimony. Aug. 22, 2005 Tr. at 4; Sept. 13, 2005 Tr. at 4; Sept. 22, 2005 Tr. at 4; see Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1232 (10th Cir. 2004); Dodge v. Cotter Corp., 328 F.3d 1212, 1225 (10th Cir. 2003). In light of the number, length and complexity of the parties' Daubert motions, meeting this obligation required a written opinion reporting my findings and rationale. Given the nature of the parties' Daubert motions, however, as well as the need to complete the jury instructions and to deal with a plethora of additional pretrial motions and other matters,[fn4] it was not possible to prepare this written opinion before trial. Delaying the start of trial to allow the Page 4 opinion to be completed was not an option given the difficulty of scheduling a trial of this length and the long delays the parties had already suffered in this action. The parties were prepared to go to trial in this fifteen year old case, and any further delay would have imposed an undue hardship on them and their counsel. Accordingly, my intent at the time I made my rulings was to transform the notes and preliminary drafts that I had relied on in rendering them into a comprehensive written decision meeting the Tenth Circuit's requirements during the course of what

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ultimately became a four and half month trial. This too proved impossible, however, as the parties filed approximately 300 additional substantive motions, written objections, proposed jury instructions and related legal memoranda during the trial that required my attention when I was not presiding in the courtroom.[fn5] See Order Limiting Mots. Practice During Trial (Doc. 1626) (describing trial motion practice). These filings presented well in excess of a thousand additional pages of legal argument and thousands of pages of supporting material regarding issues that in most instances had to be decided almost immediately in order for the trial to continue. This daily deluge of filings as well as matters raised during the parties' courtroom presentations consumed all of my and my staff's time during trial. This pace continued through the three weeks of jury deliberations, as every question from the jury prompted new disputes and argument by the parties. I am issuing this written opinion today as one of four memorandum opinions setting out the rationale for my rulings on various motions and disputes that were decided before, during and Page 5 after the class trial.[fn6] I opted to issue all of these opinions at one time rather than in seriatim as they were completed because some of them address related issues and because I wanted to ensure that the parties had all relevant opinions in hand before they filed any final motions in this case. This opinion reports my findings and rationale for ruling as I did on the parties' pretrial evidentiary motions. It is based on the arguments and materials presented by the parties in connection with their June, 2005 motions. In some instances, such as when the parties cited evidence or authorities but did not provide adequate (or any) excerpts of these materials in their supporting exhibits, I made an effort to locate and retrieve the cited material from the pretrial case record or from public sources.[fn7] I did not, however, make a comprehensive search of the thousands of filings in this case or all potential sources to find materials that were cited but not adequately produced in connection with these motions. Many of the parties' pretrial motions sought exclusion of broad categories of evidence, and my pretrial rulings were correspondingly broad. Some of these rulings were refined during trial to address discrete issues that emerged concerning specific testimony or items of evidence Page 6 falling within these categories. The analysis in this decision, however, is written from the broad, pretrial perspective and does not, with one exception noted in the text, include consideration of arguments, issues or rulings that occurred during trial. The analysis is written in the present tense because it reflects my thinking at the time I issued my pretrial rulings and reports the findings that would have accompanied these rulings if circumstances had permitted it. This opinion begins with a statement of the standard I utilized in reviewing the parties' motions to exclude expert witness testimony. It next reports my analysis of first Defendants' expert witness motions and motions in limine and then Plaintiffs' motions. The decision concludes with a summary of the rulings on

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each of the parties' motions, as initially reported in my pretrial bench rulings. Standard for Review of Expert Witness Testimony My review of the parties' motions to exclude expert testimony is governed by Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny. In Daubert, the Supreme Court held that Rule 702 had replaced the former standard for admission of expert witness testimony with a "flexible" inquiry focused on determining whether the proffered expert testimony is both relevant and reliable. Daubert, 509 U.S. at 589, 594-95. The Court stated Rule 702 requires a trial judge faced with a proffer of scientific expert testimony to determine at the outset whether the testimony is admissible under this standard. Id. at 592. The Supreme Court clarified in its subsequent Kumho Tire decision that this "gatekeeping" obligation and Rule 702's relevance and reliability standard also applies to proffers of non-scientific expert testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999). Page 7 In 2000, the Supreme Court approved amendments to Rule 702 to conform it to the principles of Daubert and its progeny. As amended, Rule 702 states the following requirements for admission of expert testimony: (1) the proffered expert testimony must "assist the trier of fact to understand the evidence or to determine a fact in issue;" (2) the witness must be "qualified as an expert by knowledge, skill, experience, training, or education;" and (3) the proffered testimony must be "based upon sufficient facts or data," "the product of reliable principles and methods;" and the product of the reliable application of these principles and methods to the facts of the case. Fed.R.Evid. 702. Like the parties in this case, I will refer to these requirements in short-hand as "relevance" or "fit," "qualifications" and "reliability." To fulfill the mandatory gatekeeper function declared by Daubert and Rule 702, I must conduct a two-part inquiry. In one part, I determine if the expert's proffered testimony has "a reliable basis in the knowledge and experience of his [or her] discipline." Bitler, 400 F.3d at 1232-33 (citing Daubert, 509 U.S. at 592). This requires that I conduct "a preliminary inquiry" into the expert's qualifications and "whether the reasoning or methodology underlying the testimony" is reliable under the standards set by Rule 702. Id. at 1233. In the second part, I consider "whether the proposed testimony is sufficiently `relevant to the task at hand.'" Id. at 1234 (quoting Daubert, 509 U.S. at 597). As directed by the Tenth Circuit, I must also make "specific factual findings on the record that are sufficient for an appellate court to review" my conclusions on these points. Id. at 1232. Within this framework, I have "broad discretion . . . both in deciding how to assess an expert's reliability, including what procedures to utilize in making that assessment, as well as in making the ultimate determination of reliability." Dodge, 328 F.3d at 1223; see Kumho Tire, 526 U.S. at 141-42; Bitler, 400 F.3d at 1232. Page 8

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A key but sometimes forgotten principle of Rule 702 and Daubert is that Rule 702, both before and after Daubert, was intended to relax traditional barriers to admission of expert opinion testimony. See, e.g., Daubert, 509 U.S. at 588. Accordingly, courts are in agreement that Rule 702 mandates a liberal standard for the admissibility of expert testimony. See Daubert, 509 U.S. at 588 (Rule 702 is part of "liberal thrust" of Federal Rules of Evidence); see generally 4 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 702.02[1] (2d ed. 2005) (collecting cases). As the Advisory Committee to the 2000 amendments to Rule 702 noted with apparent approval, "[a] review of the caselaw after Daubert shows that the rejection of expert testimony is the exception rather than the rule." That being said, the proponent of an expert witness must demonstrate that the expert's proffered testimony meets Rule 702's requirements -- relevance/fit, qualifications and reliability -- before the expert's testimony will be admitted. See Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 970 n. 4 (10th Cir. 2001); Mitchell v. Gencorp Inc., 165 F.3d 778, 781-82 (10th Cir. 1999). Not surprisingly given the contentious nature of this case, the parties disagree on the showing that must be made to satisfy each of these requirements. Accordingly, I set out below the standard I employed in deciding the parties' Daubert motions. Relevance/fit Rule 702 requires that the proffered expert testimony "assist the trier of fact to understand the evidence or to determine a fact in issue." Fed.R.Evid. 702. The Supreme Court stated in Daubert that this requirement goes primarily to relevance, because "expert testimony that does not relate to any issue in the case is not relevant and, ergo, non-helpful." 509 U.S. at 591. It is also well-settled that expert testimony explaining general principles is admissible, without Page 9 application of these principles to the facts of the case, if the explanation would assist the trier of fact and is found to be reliable. Fed.R.Evid. 702 2000 advisory committee's note. Consistent with these authorities, the Tenth Circuit has set the standard for this Rule 702 requirement by reference to Federal Rule of Evidence 401, which defines relevant evidence as "`evidence having any 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.'" Bitler, 400 F.3d at 1234 (quoting Fed.R.Evid. 401). Scientifically valid and reliable expert testimony that is not relevant to an issue of consequence to the case does not "fit" because it will not assist the trier of fact. See id.; Daubert, 509 U.S. at 591. The Tenth Circuit takes a liberal approach to the question of whether proffered expert testimony will assist the jury. "Doubts about whether an expert's testimony will be useful should generally be resolved in favor of admissibility unless there are strong factors such as time or surprise favoring exclusions. The

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jury is intelligent enough to ignore what is unhelpful in its deliberations." Robinson v. Mo. Pac. R.R. Co., 16 F.3d 1083, 1090 (10th Cir. 1994) (quotation omitted); see also Weinstein, § 702.03[2][c] (concluding based on case review that trial judges should approach exclusion based on this Rule 702 requirement gingerly "and should admit the testimony if there is any chance at all it will be beneficial to the finder of fact."). In their Daubert motions, Defendants assign a much more restrictive meaning to the "assist the trier of fact" requirement. Relying on Daubert's reference to "fit" as a short-hand for this requirement and language they incorrectly attribute to the Supreme Court, Defendants argue that the proffered testimony of virtually all of Plaintiffs' experts does not "fit" this case because Page 10 the testimony is not sufficient to prove one or more of the elements of Plaintiffs' claims.[fn8] This is an incorrect statement of the relevance/fit standard for the reasons just stated, and because it confuses the threshold question of whether an expert's evidence is admissible with the separate question of whether it is sufficient to prove a particular point. See In re Joint E. & S. Dists. Asbestos Litig., 52 F.3d 1124, 1132 (2nd Cir. 1995) (distinguishing between inquiry into admissibility of expert evidence and "a sufficiency inquiry, which asks whether the collective weight of a litigant's evidence is adequate to present a jury question."). Neither Rule 702 nor Daubert require that an expert's testimony prove an element of the offering party's case for it to be admissible. See, e.g., Adams v. Ameritech Servs., Inc., 231 F.3d 414, 425 (7th Cir. 2000) ("First, the question before us is not whether the reports proffered by the plaintiffs prove the entire case; it is whether they were prepared in a reliable and statistically sound way, such that they contained relevant evidence that a trier of fact would have been entitled to consider."); City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 564-65 (11th Cir. 1998) (expert's study and testimony "need not prove plaintiffs' case by themselves; they must merely constitute one piece of the puzzle that the plaintiffs endeavor to assemble before the jury."); Ambrosini v. Labarraque, 101 F.3d 129, 135 (D.C. Cir. 1996) ("fitness prong of the Daubert admissibility analysis primarily concerns relevance" and "not whether the testimony satisfies the plaintiffs' [burden of proof]"). Page 11 Defendants' confusion of the distinct concepts of the admissibility of evidence and its sufficiency as a matter of proof is a recurring flaw in their arguments as will be demonstrated shortly. Qualifications As part of the reliability inquiry under Rule 702, I must determine whether the witness is qualified to testify as an expert. The standard for this determination is whether the witness is an expert on the subject in question based on his knowledge, skill, experience, training or education. Fed.R.Evid. 702. The Tenth Circuit and other courts have held that this standard should be construed and applied liberally. See, e.g., United States v. Gomez, 67 F.3d 1515, 1526 (10th Cir. 1995);

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Weinstein, § 702.04[1][a] (summarizing cases). The expert's proffered testimony must, of course, be within the scope of his established expertise. Expertise in a specialized area directly related to the issue in question is generally not required, however, as long the expert "stays within the reasonable confines of his subject area." Ralston, 275 F.3d at 970 (internal quotation omitted); Wheeler v. John Deere Co., 935 F.2d 1090, 1100 (10th Cir. 1991); see generally Weinstein, § 702.04[1][a]. In general "a lack of specialization does not affect the admissibility of [the expert] opinion, but only its weight." Ralston, 275 F.3d at 970 (internal quotation omitted); Wheeler, 935 F.2d at 1100. Reliable methodology Expert testimony must be based on a reliable methodology to be admissible. See, e.g., Bitler, 400 F.3d at 1232. This does not mean, however, that the offering party must prove "that the expert is indisputably correct" for the expert evidence to be admissible. Id. at 1233 (quoting Mitchell, 165 F.3d at 781). Rather, the party need only prove that "the method employed by the expert in reaching the conclusion is scientifically sound and that the opinion is based on facts Page 12 which sufficiently satisfy Rule 702's reliability requirements." Id. at 1233. "The evidentiary requirement of reliability is lower than the merits standard of correctness," In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 744 (3d Cir. 1994) (quoted with approval in Fed.R.Evid. 702 2000 advisory committee's note), and gaps or inconsistencies in an expert's reasoning may go to the weight of the expert evidence, not its admissibility, see, e.g., Campbell v. Metro. Prop. & Cas. Ins. Co., 239 F.3d 179, 186 (2nd Cir. 2001). As the Supreme Court acknowledged in Daubert, expert evidence can be "shaky" and yet still admissible, and may be attacked through the traditional means of "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof." Daubert, 509 U.S. at 596. Maintaining this distinction between the evidentiary requirement of reliability and the higher standard of whether the expert's conclusions are correct or sufficient to prove the merits "is indeed significant as it preserves the fact finding role of the jury." In re TMI Litig., 193 F.3d 613, 665 n. 90 (3rd Cir. 1999). Accordingly, my task in considering the reliability of each of the challenged expert's methodology is to ensure that the "expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire, 526 U.S. at 152. If this test is met and the expert's testimony is otherwise admissible, it is up to the jury to decide whether the expert used the best or most reliable methodology, what weight to accord to his testimony and which of competing experts' opinions should be credited. The ultimate determination of whether expert testimony is correct and "reliable" in this sense remains with the jury. Page 13 The nature of my reliability review under Rule 702 is further

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informed by the Rule's statement of the three areas of inquiry for determining whether an expert's methodology is sufficiently reliable for his testimony to be admitted. The first of these is whether the testimony is based on sufficient facts or data. See Fed.R.Evid. 702(1). This is a quantitative rather than a qualitative standard, i.e., the question is whether the expert considered enough information to make the proffered opinion reliable. Fed.R.Evid. 702 2000 advisory committee's note. That the expert relied on disputed facts in reaching his opinion does not render the expert's opinion unreliable under this test. Id. The second area of inquiry is whether the expert used reliable principles and methodologies in reaching his opinion. Fed.R.Evid. 702(2). In Daubert, the Supreme Court noted a number of factors that could be relevant to deciding the reliability of a scientific method or principle, including whether the method can be tested in some objective sense, its known or potential rate of error, any peer review or publication, and its general acceptance in the scientific community. 509 U.S. at 593-94; see Fed.R.Evid. 702 2000 advisory committee's note (summarizing Daubert factors). Even though the Supreme Court took pains to describe this list as non-exclusive and non-dispositive, and the inquiry in general as flexible and fact-driven, see 509 U.S. at 593-94, some courts, commentators and counsel have seized on these "Daubert factors" as a checklist for making the reliability determination. Kumho Tire and other authority have since clarified that this is not the case and that, depending on the circumstances presented, the Daubert factors and/or any number of other factors may be relevant to determining the reliability of the methodology used to produce a particular expert opinion. See, e.g., Kumho Tire, Page 14 526 U.S. at 150; Bitler, 400 F.3d at 1233; Fed.R.Evid. 702 2000 advisory committee's note (summarizing cases). The third component of the reliability inquiry assumes the witness used reliable principles and methods in forming his opinions, and focuses instead on whether the witness applied these principles and methods reliably to the facts of the case. Fed.R.Evid. 702(3). This by necessity is a fact-specific inquiry. Finally, in considering the parties' Daubert motions, I have kept in mind the Supreme Court's admonition in Daubert that Rule 702 is not designed to promote an "exhaustive search for cosmic understanding," but rather provides a means "for the particularized resolution of legal disputes." 509 U.S. at 597. As a result, "it is the specific relation between an expert's method, the proffered conclusions, and the particular factual circumstances of the dispute, and not asymptotic perfection, that renders testimony both reliable and relevant." Bitler, 400 F.3d at 1234. Analysis I. Defendants' Daubert Motions and Motions in Limine Defendants filed a multitude of lengthy motions seeking to exclude most of Plaintiffs' proffered evidence in this case. Some

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of Defendants' arguments were sound and supported by appropriate authority, but many others were not. Rather, Defendants appear to have employed in these motions an approach aptly described by the Tenth Circuit in another context as "throw -- as -- much -- mud -- against -- the -- wall -- as -- you -- can -- and -- hope -- some -- of -- it -- sticks." Dodd Ins. Servs., Inc. v. Royal Ins. Co., 935 F.2d 1152, 1158 (10th Cir. 1991). This approach resulted in an Page 15 undifferentiated mass of plausible and implausible arguments, which complicated the process of deciding and reporting on these motions. My review also revealed that in a number of instances Defendants misreported the relevant evidence, prior rulings in this case and/or relevant legal authority in making their arguments. In other instances, Defendants relied on what they declared was the governing legal standard without providing authority that the standard existed or applied in this situation. Examples of these practices are included in the analysis of Defendants' individual motions. A. Defendants' Relevancy Standard Most of Defendants' Daubert motions and motions in limine regarding Plaintiffs' evidence of risk and conduct are based in whole or in part on the premise that the only evidence relevant to the property class claims is evidence that can be tied directly to common and class-wide contamination or health risk. See infra Section I.B (regarding Defendants' motions to exclude risk evidence), Section 1.D (regarding Defendants' motions to exclude conduct evidence). Defendants further assert that evidence of many incidents and practices at Rocky Flats is irrelevant because Plaintiffs will not be able prove that it meets this test. See, e.g., id. This relevancy standard, purportedly based on my past rulings defining the parties' claims and defenses, is flawed in several fundamental respects. Defendants' first error is in defining relevant evidence only as direct evidence pertaining to certain issues. The Federal Rules of Evidence define relevant evidence broadly as "evidence having any 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.Evid. 401 (emphasis added). This is a liberal standard that incorporates notions of both Page 16 materiality and probativity. United States v. McVeigh, 153 F.3d 1166, 1190 (10th Cir. 1998). Both direct and circumstantial evidence, as well evidence that is essentially background or contextual in nature, may be relevant under this rule. Fed.R.Evid. 401 & advisory committee's note. In addition, evidence need not be conclusive or highly probative to satisfy Rule 401 -- "even a minimal probability" that the asserted fact exists will suffice. McVeigh, 153 F.3d at 1190. Defendants' relevancy standard is further flawed in its narrow definition of the facts "of consequence to the determination of this action" to include only the physical invasion element of Plaintiffs' trespass claims and the interference element of their

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nuisance claims. A fact is "of consequence" under Rule 401 "when its existence would provide the fact-finder with a basis for making some inference, or chain of inferences, about an issue that is necessary to a verdict." McVeigh, 153 F.3d at 1190. The class trial in this action will require the jury to determine facts beyond these two elements and their focus on the existence of or potential for class-wide contamination or risk attributable to Rocky Flats. These additional issues include, but are not limited to, whether the conduct that caused or contributed to any physical invasion or interference was negligent or intentional, the property market's knowledge of and response to the alleged trespass and nuisance, and whether Defendants' conduct was wilful and wanton so that punitive damages should be awarded. See, e.g., Cook v. Rockwell Int'l Corp. ("Cook IX"), 273 F. Supp. 2d 1175, 1199-1212 (D. Colo. 2003) (stating elements of Plaintiffs' trespass and nuisance claims and standards for determining damages). Facts beyond these may also be of consequence because they provide a basis for making an inference about these or other issues necessary to the verdict. See McVeigh, 153 F.3d at 1190; Fed.R.Evid. 401 advisory Page 17 committee's note ("fact to be proved may be ultimate, intermediate, or evidentiary; it matters not, so long as it is of consequence to the determination of the action."). Defendants also err in asserting that evidence relating to contamination or risk is only relevant if it applies in common to every Class member or the entirety of the Class Area. It should be self-evident that the question to be decided is not whether a single item of evidence demonstrates a common or class-wide effect, but rather whether Plaintiffs' evidence as a whole demonstrates class-wide liability and damages. Defendants' argument in this regard confuses the sufficiency of an item of evidence with its relevance. Defendants' relevancy arguments also frequently misstate the forms of interference with the use and enjoyment of property to be tried in connection with the class nuisance claims. I have previously examined Plaintiffs' asserted forms of interference and identified two that could support a finding of class-wide interference with the use and enjoyment of property: (1) alleged interference in the form of current human health risk arising from past or on-going exposure to plutonium released from Rocky Flats as a result of one or both of Defendants' activities there;[fn9] and (2) alleged interference in the form of a demonstrable risk of future harm to Class properties based on objective conditions caused by Defendants' activities at Rocky Flats. May 2005 Order at 4-6. Many of Defendants' relevancy arguments omit any mention of the second potential basis for a class-wide finding of interference, and when it is addressed, Defendants appear to assume this basis only makes relevant evidence proving that some common, class-wide health risk will Page 18 occur in the future. See, e.g., Defs.' Combined Reply in Supp. of Mots. in Limine (Doc. 1410) at 8. This is not correct. Evidence that has any tendency to show that objective conditions caused by Defendants create a demonstrable risk of harm that has the potential to affect all of the Class Area is relevant to this potential form of class-wide interference. See Mem. Op. re: Jury

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Instructions, Section II.C.2 (regarding Defendants' proposed revisions to Instruction No. 3.6 (elements of nuisance claim)). In addition, Defendants' relevancy arguments largely ignore a third form of interference with the use and enjoyment of property that I held may be determined in part at the class trial, which is whether Defendants' conduct at Rocky Flats was capable of causing Class members to be fearful, anxious or otherwise disturbed by the real or perceived risks posed by the facility. The "generic causation" question of whether Defendants' conduct is capable of causing this form of interference with the use and enjoyment of Class properties will be decided by the jury in the class trial, leaving to future proceedings (if necessary) the separate question of whether particular Class members in fact suffered this form of interference with the right to use and enjoy property.[fn10] See May 2005 Order at 6-7. This summary identifies the major, persistent flaws Defendants advanced in the relevance and fit arguments in their Daubert motions and motions in limine. In light of the extensive briefing and oral argument by Defendants on these motions, however, I cannot say that I have addressed all such flaws in this section. Accordingly, the parties should not assume that a Page 19 particular interpretation of my past rulings or asserted standard for determining relevant evidence in the class trial has been approved simply because I have not called it out and corrected it here. B. Motion to Exclude Plaintiffs' Expert Witness Testimony Relating to Risk Plaintiffs offered four expert witnesses to testify at trial regarding the health and other risks posed by Rocky Flats: Dr. Robert Goble, Dr. Richard Clapp, Dr. K. Shawn Smallwood and Dr. Steven Wing. Defendants moved to exclude testimony by Drs. Goble, Clapp and Smallwood on June 16, 2005,[fn11] see Defs.' Am. Mot. to Exclude Expert Test. Relating to Risk (Doc. 1380) [hereinafter "Defs.' Mot. re: Pls.' Risk Experts"], and subsequently moved to exclude Dr. Wing's testimony, Defs.' Mot. to Exclude Test. of Dr. Steven Wing (Doc. 1444).[fn12] I address the admissibility of each of these witnesses' proffered testimony in turn. 1. Dr. Robert Goble Dr. Goble is Plaintiffs' dose reconstruction expert. He holds a Ph.D. in physics and since 1976 has taught and conducted research on energy and environmental science and policy at Clark University. He has performed research on human health risk and risk assessment in the past for the United States Environmental Protection Agency, the National Science Foundation and the Page 20 United States Department of Energy, among others. See Pls.' Cons. Mem. in Opp'n to Defs.' Mots. to Exclude Expert Test. (Doc. 1399) [hereinafter "Pls.' Cons. Daubert Resp."], Ex. 15, App. A at 1-2. Dr. Goble authored an 82-page expert report for this case that addressed a number of subjects, including exposure to plutonium released from Rocky Flats and associated health risks. Pls.'

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Cons. Daubert Resp., Ex. 15 [hereinafter "Goble Report"]. This is the only subject on which Plaintiffs offer Dr. Goble's testimony in the property class trial.[fn13] Defendants do not challenge Dr. Goble's qualifications to render opinions on this subject, and I find Dr. Goble qualified to testify as an expert on it. In his report, Dr. Goble estimated the exposures to plutonium to people living near Rocky Flats and assessed the risks experienced as a result. His risk assessment is based on inhalation of plutonium, and he relied on information regarding plutonium concentrations in soil and other data to estimate the concentration of plutonium in air, and hence exposure, at various periods from 1954 to 1989. He then used these exposure estimates to estimate the radiation doses that resulted and the associated risk of disease. Id. at 14-16. Dr. Goble reported the existence of substantial uncertainty and variability in the underlying data and each step in his analysis. Accordingly, a key component of Dr. Goble's assessment was a quantitative treatment of both uncertainty and variability as they relate to plutonium exposure Page 21 and risk.[fn14] See, e.g., Goble Report at 13. Dr. Goble employed the widely recognized Monte Carlo simulation method to accomplish this and to develop estimates of the quantitative ranges within which plutonium releases, exposures, doses and risks have likely fallen. He expressed his estimates at stated levels of confidence.[fn15] Defendants do not dispute that the principles and methods relied upon by Dr. Goble are reliable and that he utilized sufficient facts and data in conducting his analysis, as required by Rule 702. They contend, however, that Dr. Goble's expert testimony regarding plutonium exposure and risk should nonetheless be excluded in its entirety because it does not fit the issues to be decided in the class trial and because he did not apply his methods reliably to the facts of this case. Relevance/fit Defendants principally argue that Dr. Goble's plutonium exposure and risk testimony does not fit the issues to be tried because the dose and health estimates he calculated showed a large variability of exposure and risk and he did not attempt to quantify the magnitude of any plutonium exposure and risk experienced in common by every class member. This, Defendants argue, Page 22 violates the supposed rule that all evidence of any kind must be applicable and common to the class as a whole in order to be relevant to and fit the class trial. As stated earlier, however, no such rule exists in this case. Evidence regarding plutonium releases to the Class Area and the resulting exposure and risk is relevant to the Plaintiffs' claim that Defendants' activities at Rocky Flats constitute a nuisance because they have caused some increment of health risk to the class. See May 2005 Order at 4-5 (describing one form of interference with use and enjoyment of property to be tried on a class-wide basis). Dr. Goble's intended testimony will assist the jury in deciding this issue. That Dr. Goble's analysis describes a range of exposures and risks does

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not change this conclusion. Defendants also argue Dr. Goble's estimates are not relevant because they do not apply to the Class Area. Defendants contend this is so because Dr. Goble based his estimates of plutonium-in-air concentrations during the key 1965-70 time period on data from three locations, none of which is in the Class Area.[fn16] As Dr. Goble stated in his report, however, these locations were selected to provide a reasonable representation of conditions inside the proposed medical monitoring region. Goble Report at 29. The proposed medical monitoring region generally encompasses the property Class Area. See, e.g., id. at Figure 2. la (depicting the proposed medical monitoring region and the plutonium contour that defines the property class area). Dr. Goble's analysis regarding air concentrations in 1965-70 is, therefore, relevant to the property Class Area. Page 23 Reliability Defendants assert Dr. Goble made multiple errors in applying his methodology to assess plutonium exposure and risk arising from Rocky Flats, and that these alleged errors render his expert testimony unreliable and inadmissible under Rule 702. I disagree for the following reasons. First, Defendants argue that the range of estimated exposures, doses and risks found by Dr. Goble at the various confidence levels are simply too broad to be reliable. It is true that for a given confidence level, a narrower range indicates a more precise estimate, while a broad range indicates an estimate that may include substantial random error. David H. Kaye & David A. Freedman, Reference Guide on Statistics, in Reference Manual on Scientific Evidence 83, 119 & n. 120 (2d ed. 2000) [hereinafter "Ref. Guide on Statistics"]. Defendants do not, however, point to any mistake in Dr. Goble's method or analysis that caused the broad ranges he reports for various confidence intervals. Rather, Dr. Goble explained in his 1996 expert report and 1999 declaration that these ranges resulted from the large uncertainties in the available information and variability in individual responses to plutonium exposure. See Goble Report at 36-48; Pls.' Cons. Daubert Resp., Ex. 16 [hereinafter "Goble Decl."] at 8-10. It is undisputed that risk assessors commonly deal with such uncertainties in their analyses and that broad estimated ranges of exposure, dose and risk may result from them. The existence of such uncertainties, and the consequences that flow from them in estimating plutonium exposure, dose and health risk associated with Rocky Flats, may affect the weight to be accorded to Dr. Goble's testimony but do not provide a basis for finding his work and conclusions unreliable within the meaning of Rule 702. Page 24 Defendants cite three cases for the proposition that courts have found statistical estimates thousands of times narrower than Dr. Goble's "scientifically unreliable" and hence inadmissible under Rule 702. See Defs.' Mot. re: Pls.' Risk Experts at 8-9. None of the cited cases stand for this proposition, as all concern instances in which the court or fact finder admitted and considered the statistical evidence in reaching a decision on the

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merits. See Turpin v. Merrell Dow Pharm., Inc., 959 F.2d 1349, 1353, 1357 (6th Cir. 1992) (deciding case on basis of sufficiency of the evidence and specifically finding that the challenged statistical studies "constitute evidence on which a jury might ground" its verdict); United States v. Am. Society of Composers, Civ. 13-95 (WCC), (S.D.N.Y. Oct. 12, 1989) (magistrate judge sitting as trier of fact accords little weight to statistical evidence having broad confidence intervals), aff'd sub nom. Am. Society of Composers v. Showtime/The Movie Channel, Inc., 912 F.2d 563 (2nd Cir. 1990) (magistrate judge decision reprinted as appendix, 912 F.2d 572, 591); Haim v. Sec'y of Dep't of Health & Human Servs., No. 90-1031V, 1993 WL 346392, at *6 (Fed.Cl. Ct. Aug. 27, 1993) (special master sitting as finder of fact weighs expert testimony). Thus, these cases demonstrate that Defendants' complaints regarding the breadth of Dr. Goble's ranges go to the weight that the finder of fact may assign them, and not to the separate question of whether his testimony is admissible. Defendants' second basis for asserting that Dr. Goble's work is unreliable is that he failed to engage in hypothesis-testing, which Defendants assert is necessary for any reliable scientific endeavor. There should be no question, however, that scientific endeavor takes many forms, many of which do not involve hypothesis testing. See Goble Decl. at 2-3 (citing, among others, the work of Darwin and Einstein). Dr. Goble explained at length in his 1999 Declaration why hypothesis testing frequently is not feasible or appropriate in the risk assessment context, and why Page 25 this mode of inquiry was not appropriate to his analysis of risk arising from Rocky Flats. Id. at 3-9. Defendants offer no rebuttal to this reasoned explanation. Defendants next argue Dr. Goble's expert testimony must be stricken due to his allegedly improper reliance on 95th percentile estimates. The portion of Dr. Goble's report cited by Defendants, however, conveys Dr. Goble's recommendation that the 95th percentile risk level be considered in designing a medical monitoring program. See Goble Report at 22-25. Medical monitoring is not part of the trial on Plaintiffs' property class claims. Plaintiffs intend in the property class trial to offer Dr. Goble's testimony regarding the various ranges he calculated for exposure, dose and risk. There is no "reliance" on the 95th percentile range, improper or otherwise, in reporting these ranges to the jury in the property class trial. Defendants further assert Dr. Goble's proposed testimony is unreliable because he failed to compare and calibrate his estimates of plutonium-in-air concentrations for the 1965-70 time period, which Dr. Goble modeled from plutonium soil concentration data, with available air monitoring data from this period. Defendants contend such a comparison of computer-modeled estimates and "real world data" is a mandatory component of any modeling exercise, and that the results of any computerized model that omits this step are per se unreliable and inadmissible under Rule 702. Defendants cite their experts' statements and excerpts from scientific authority quoted by their experts in support of this proposition. They submitted no legal authority supporting this alleged rule. Defendants further assert that the actual plutonium-in-air concentrations measured at Rocky Flats establish

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that much risk Page Dr. Goble's soil-based air concentration estimates are as as 1,000 times too high, which in turn render his dose and estimates unreliable. 26

The scientific authority quoted by Defendants' experts is consistent with what common sense tells us: that a comparison of modeled estimates and "real world data" can aid in establishing the credibility of the modeled results, but is not always possible or informative. See, e.g., App. to Defs.' Mot. re: Pls.' Risk Experts (Doc. 1377), Ex. 10, ¶¶ 11-12 (quoting scientific papers describing the desirability of comparing simulation models against environmental monitoring results "whenever possible"). Relevant environmental monitoring data, for example, may not be available or may itself be suspect. The accuracy of the air monitoring data on which Defendants rely is a vigorously disputed issue in this case. Dr. Goble explained in his 1996 expert report and 1999 declaration why he believed the available air monitoring data were too sparse and unreliable to set bounds on his estimated exposures based on plutonium soil concentrations.[fn17] See Goble Report at 29; Goble Decl. at 10-12. Defendants and their experts disagree, and assert the available air monitoring data are the most reliable indicator of the concentration of plutonium in air. This is a classic disagreement between experts that goes to the credibility of each expert's opinions, not to the reliability of their methodology within the meaning of Rule 702. It is the jury's function in this instance to weigh the expert's competing views and determine their respective credibility. Defendants make two further arguments challenging the reliability of Dr. Goble's methodology as he applied it, both relating to his estimates for plutonium air concentrations. First, Defendants argue that Dr. Goble used an improper value in estimating plutonium air concentrations in the 1965-70 time period. As stated earlier, Dr. Goble based his estimated Page 27 ranges of exposure during this period on plutonium soil concentrations. One of the factors in the model he used to estimate air concentration from soil data was the velocity at which airborne plutonium is deposited. Dr. Goble drew his velocity value from an expert judgment elicitation assessing dispersion and deposition uncertainties in modeling the consequences of a nuclear accident. See Goble Report at 37 (citing U.S. Nuclear Regulatory Commission and Commission of European Communities, Probabilistic Accident Consequence Uncertainty Analysis: Dispersion and Deposition Uncertainty Assessment, Vols. I-III, NUREG/CR-6244 (1995) [hereinafter "NUREG/CR-6244"]). The elicitation was funded and directed jointly by the U.S. Nuclear Regulatory Commission and the Commission of European Communities to "develop credible and traceable uncertainty distributions" for these input variables. NUREG/CR-6244, Vol. I (Main Report) at ES-1.[fn18] The deposition velocity used by Dr. Goble was the result of the equal weighting scheme used by the NRC and European authors to aggregate and report the results of the experts' assessments. See id. at 3-9 to 3-10. Defendants assert Dr. Goble was not justified in relying on the

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deposition velocities reported in NUREG/CR-6244 because the equal weighting scheme used in the study to aggregate the results of the participating experts was itself unreliable. Defendants base this contention entirely on Appendix D to NUREG/CR-6244, in which the study authors discuss alternate, Page 28 performance-based weighting methods for aggregating the distributions elicited from experts, and apply one such method to the elicited results for comparison purposes. See id., Vol. III, Appendix D; see also id., Vol. I, at 3-10. Using the performance-based method selected, the deposition assessments of seven of the eight experts received a calibration score below the significance level. Id., Vol. III at D-5. It is clear from the entirety of Appendix D that the NRC and European researchers who directed the study did not consider this result to be determinative of the credibility of these experts' work, and did not view the particular performance-based weighting scheme applied in Appendix D with the same confidence as the equal weighting method they used to derive the deposition velocity relied upon by Dr. Goble. See, e.g., id. at D-4 to D-5; see also Goble Decl. at 14 (discussing Appendix D). Defendants also do not dispute that equal weighting of expert results has been used in other expert elicitation studies in this field, see id. at D-4, or the reliability of the expert elicitation process itself. It was the results of the equal weighting scheme that were published as the study's findings, not the alternate scheme discussed in Appendix D. Finally, Defendants have not presented evidence that anyone other than its paid experts considers the NUREG/CR-6244 velocities used by Dr. Goble to be unreliable. For all of these reasons, I find no basis to hold Dr. Goble's work unreliable and inadmissible as a result of his use of deposition velocities published in NUREG/CR-6244. Moving beyond their general challenge to Dr. Goble's reliance on NUREG/CR-6244, Defendants assert Dr. Goble erred in selecting from it the velocities stated for one micron particles. Observed data from Rocky Flats, Defendants argue, demonstrate that the average particle size is much larger than one micron, and that the estimated concentration of plutonium in Page 29 air decreases by several orders of magnitude if deposition velocities from NUREG/CR-6244 corresponding to this larger size are used. Dr. Goble responded in his 1999 Declaration to both this criticism and the related complaint that the NUREG/CR-6244 deposition velocities he utilized were based on different wind speeds than occurred during some of the wind-borne plutonium releases from the 903 pad in the 1965-70 period. See Goble Decl. at 16-18. This response included a reasoned explanation by Dr. Goble for his choice of the one micron deposition velocity and his decision not to stratify for different wind speeds. That Defendants' experts apparently disagree with Dr. Goble's choices and believe that more accurate results could have been achieved by use of different inputs does not render Dr. Goble's work unreliable and inadmissible under Rule 702. Last but not least, Defendants complain vigorously that Dr. Goble's analysis is unreliable because he improperly used a

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"multiplier" of plutonium releases in 1965-70 to estimate plutonium releases and exposures in other time periods. Defendants contend courts assessing Daubert issues have identified use of a multiplier as a "telltale sign" of a lack of reliability, Aug. 2, 2005 Tr. at 497; see Defs.' Intro. & Overview to Mot. to Exclude Expert Witness Test. (Doc. 1378) at 12, and that Dr. Goble arbitrarily selected the multiplier he used. There are at least two fundamental problems with Defendants' argument. First, they cite no authority supporting their assertion that courts consider use of a multiplier a sign that an expert analysis is unreliable. The only authority cited in support of this proposition, In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717 (3rd Cir. 1994), does not address this issue. Instead, it affirms the district court's holding that there was no scientific justification for an expert's recalculation of certain blood test results. Id. at 772-73. That this recalculation involved the use of a multiplier Page 30 played no part in this decision. Moreover, the Third Circuit noted that the recalculation, presumably using a multiplier, might be acceptable in other circumstances. Id. at 773. Second, Defendants misstate Dr. Goble's methodology in making this argument. As he made clear in his expert report and 1999 Declaration, Dr. Goble did not rely on a multiplier to estimate plutonium releases and air concentrations in the periods preceding and following the 1965-70 releases from the 903 pad. Instead, Dr. Goble used various period-specific data, including air monitoring data he considered of sufficient reliability, to estimate plutonium releases from 1954 to 1964 and from 1971 to 1989. Goble Report at 13-14, 38-41; Goble Decl. at 18 & n. 15. He then converted the estimated plutonium releases for each period into a percentage of the 1965-70 releases for computational ease in calculating exposure and dose ranges and to capture what he considered to be the better characterization of uncertainty in the 1965-70 data. See Goble Report at 41-42, Table 4.2; Goble Decl. at 18. Thus, while Dr. Goble expressed his estimated plutonium releases for these other periods as a multiplier of the 1965-70 releases for purposes of subsequent calculations, he did not base these estimates on the 1965-70 releases or some multiplier thereof. What little effort Defendants made to challenge the method by which Dr. Goble arrived at these multipliers is incomplete and not persuasive. Defendants' contention that Dr. Goble relied on arbitrarily selected multipliers of 1965-70 plutonium releases for these other periods, therefore, and their arguments against admission of his testimony on this basis, are without merit. For all of the reasons stated above, I find no merit in Defendants' challenges to the relevance and reliability of Dr. Goble's intended testimony under Rule 702. Plaintiffs have demonstrated that Dr. Goble's testimony is relevant to this action and that it is the product of the Page 31 "same level of intellectual rigor that characterizes the practice of an expert in the field." Kumho Tire, 526 U.S. at 152. Dr. Goble's expert testimony is therefore admissible under Rule 702.

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2. Dr. Richard Clapp Dr. Clapp is an epidemiologist with a Master of Public Health degree from Harvard University and a Doctor of Science degree from Boston University's School of Public Health, where he is currently a Professor in the Department of Environmental Health. From 1980-89, Dr. Clapp served as Director of the Massachusetts Cancer Registry in the Massachusetts Department of Public Health. He is a member of several professional organizations and has published a number of studies on cancer and other diseases in peer-reviewed scientific journals. He also has advised graduate students and had other experience in research on the health effects of emissions from U.S. nuclear facilities, and has been qualified as an expert in numerous federal and state courts. Pls.' Cons. Daubert Resp. (Doc. 1399), Ex. 4 [hereinafter "Clapp Report"] ¶ 1. Epidemiological studies seek to determine whether there is an association between exposure to a particular agent or agents and disease. Michael D. Green et al, Reference Guide on Epidemiology, in Reference Manual on Scientific Evidence 333, 337, 348 (2d ed. 2000) [hereinafter "Ref. Guide on Epidemiology"]. An association exists when exposure and disease occur more frequently together than one would expect by chance. Id. at 348. Epidemiological studies frequently express the existence and strength of any observed association between exposure and disease as "relative risk." Id. A relative risk of 1.0, also referred to as the "null hypothesis," signifies that no association between exposure and disease was observed. Id. at 349; see DeLuca v. Merrell Dow Pharms., Inc., 911 F.2d 941, 945, 947 (3rd Cir. 1990). If the relative risk is greater than 1.0, then there is a positive association because the risk in the exposed Page 32 individuals or group is greater than the risk in unexposed individuals or groups. Ref. Guide on Epidemiology at 349. Where there is a positive association between the exposure and disease, epidemiologists consider further whether the association represents a causal relationship between exposure to the agent and the disease. See id. at 348-49, 374-75. However, "epidemiology cannot objectively prove causation; rather causation is a judgment by epidemiologists and others interpreting epidemiological data." Id. at 374. For this case, Dr. Clapp conducted an epidemiological study to assess the pattern of cancer incidence in relation to an exposure source, the Rocky Flats plant. Id.; Pls.' Cons. Daubert Resp. (Doc. 1399), Ex. 5 [hereinafter "Clapp Dep."] at 214. To accomplish this, Dr. Clapp analyzed cancer incidence data obtained from the Colorado Central Cancer Registry to compare the odds of a person developing lung or bone cancer in a target geographic area immediately east and south of the Rocky Flats plant with the odds of developing these cancers in more distant areas of Jefferson County. Dr. Clapp used zip codes to define the target area, which includes all or most of the Class Area, and also to define the separate reference area. Clapp Report ¶ 8 & App. 3. Dr. Clapp selected the zip codes for the target area based on whether the centroid of the zip code area was found within the inner two contours of Krey and Hardy's mapping of

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plutonium contamination in soil around Rocky Flats. Id. Krey and Hardy's plutonium contours also define the Class Area. Page 33 Dr. Clapp employed a standard epidemiologic methodology, known as age-standardized odds ratio analysis, to perform his comparison.[fn19] See id. ¶ 8. The methodology used by Dr. Clapp is also known as an ecological study or analysis. Dr. Clapp performed comparisons for three time periods, 1979-83, 1984-88 and 1989-92, and, in the case of lung cancer, analyzed the data for men and women separately. By calculating and comparing the odds ratios for the target area population with the corresponding odds ratios for the reference area population, Dr. Clapp found there was an increased incidence of both bone and lung cancers in the target population in the two plutonium contours closest to Rocky Flats, see id. ¶ 8-10, which he concluded was "indicative of an ongoing health effect" related to proximity to Rocky Flats, id. ¶ 12. Dr. Clapp testified in deposition that he had used the exact same methodology employed in reaching these conclusions in several published, peer-reviewed works and in expert testimony admitted in at least four trials. See Clapp Dep. at 300-03. Defendants argue Dr. Clapp's expert testimony should be excluded in its entirety under Rule 702 because it is not relevant to the issues to be tried and because both his methodology and the conclusions he drew from it are unreliable. Defendants do not challenge Dr. Clapp's qualifications, which are clearly sufficient. Relevance/fit Defendants' principal argument here is that Dr. Clapp did not analyze risks for persons who owned property in the Class Area as of the Class membership, June 7, 1989, with the result Page 34 that the increased cancer incidence he reported is neither common to the Class nor class-wide.[fn20] As a result, according to Defendants, Dr. Clapp's study cannot demonstrate a common or class-wide risk and is therefore irrelevant to this action. Defendants' argument misses the point. It is not Plaintiffs' burden to show that all or some Class members have been diagnosed with cancer or some other disease because of exposure to plutonium or other hazardous substances released from Rocky Flats. The issue, as presented by Plaintiffs' nuisance claims, is one of risk, e.g., whether Defendants interfered with the use and enjoyment of Class properties because past, current or potential future exposure to plutonium or other toxic substances released from Rocky Flats poses an increased health risk to occupants of the Class Area. Evidence that the population residing in the reportedly plutonium-contaminated area adjoining the plant has experienced an increased incidence of lung and bone cancer is relevant to this question and will assist the jury in deciding it. Defendants next argue Dr. Clapp's testimony is irrelevant because his target area is larger than the Class Area. There is no dispute, however, that Dr. Clapp's zip-coded defined target area encompasses all or most of the Class Area. This renders his

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study relevant to the question of risk to persons in the Class Area. That his target area includes some additional areas slightly further Page 35 from the plant, and presumably having lower levels of plutonium in soil and fewer airborne contaminants as a result, does not change this conclusion. Defendants finally contend that Dr. Clapp's work i