and Submitted May 10, 2017 Pasadena, California
from the United States District Court for the Central
District of California, No. 2:11-cv-00167-RGK-VBK R. Gary
Klausner, District Judge, Presiding
Susannah Weaver (argued), Donahue & Goldberg LLP,
Washington, D.C.; Esther L. Klisura, Kathleen S. Kizer, SL
Environmental Law Group, San Francisco, California; Robert S.
Chapman, Sauer & Wagner, Los Angeles, California; Andrew
L. Jared, Assistant City Attorney; Arnold M. Alvarez-Glasman,
City Attorney; Office of the City Attorney of the City of
Pomona, Pomona, California; for Plaintiff-Appellant.
Gaylord Smith (argued), Lann G. McIntyre, Michael K. Johnson,
and Malissa Hathaway McKeith, Lewis Brisbois Bisgaard &
Smith LLP, San Diego, California, for Defendant-Appellee.
Anthony Z. Roisman, Weathersfield, Vermont; Ned Miltenberg,
National Legal Scholars Law Firm P.C., Washington, D.C.;
Kevin J. Madonna, Kennedy & Madonna LLP, Hurley, New
York; for Amicus Curiae Law Professors Stephen A. Saltzburg,
Michael M. Martin, and Joëlle Anne Moreno.
Before: J. Clifford Wallace, Morgan Christen, and Paul J.
Watford, Circuit Judges.
panel vacated the district court's judgment, which found
that SQM North America Corporation was not liable for causing
perchlorate contamination in the City of Pomona's water
system, and held that the district court abused its
discretion by limiting the testimony of one of the City's
experts and failing to make sufficient findings before
admitting the testimony of one of SQM's experts.
Neil Sturchio developed a methodology for collecting and
analyzing perchlorate isotopes from groundwater, and he
concluded that most of the perchlorate in the City's
water had come from the Atacama Desert in Chile. The City
filed this products-liability action, alleging that SQM's
importation of perchlorate-containing fertilizer products
from the Atacama Desert caused the contamination in the
City's water supply.
the panel addressed the district court's denial of the
City's motion to update Dr. Sturchio's report, which
resulted in the exclusion of any testimony regarding
post-2011 developments in Dr. Sturchio's research. The
panel held that in denying the City's motion, the
district court identified the correct legal standard. The
panel held, however, that the district court applied the
legal standard in an "illogical" manner, and thus
committed an abuse of discretion. The panel further held that
the district court's exclusion of Dr. Sturchio's
testimony was prejudicial.
Second, the panel considered the district court's denial
of the City's motion to exclude the testimony of
SQM's alternative source expert, Dr. Richard Laton, who
opined that the perchlorate at issue might have flowed from
hundreds of potential alternative sources other than
SQM's fertilizer. The panel held that the manner in which
the district court denied the City's Daubert
motion as to Dr. Laton constituted an abuse of discretion.
Specifically, the panel held that the district court's
failure to make any findings regarding the efficacy of Dr.
Laton's expert opinions constituted an abdication of the
district court's gatekeeping role, and was necessarily an
abuse of discretion. The panel also held that based on the
circumstances presented by the case, the City did enough to
preserve its objection. Finally, the panel held that the
erroneous inclusion of Dr. Laton's testimony, combined
with the erroneous partial exclusion of Dr. Sturchio's
testimony, was prejudicial.
remand, the panel directed the district court to allow Dr.
Sturchio to update his expert report, and testify to the
state of stable isotope research up to the present. The panel
also directed the district court to make findings regarding
the scientific reliability of Dr. Laton's proposed
opinions, and hold a Daubert hearing if deemed
WALLACE, Senior Circuit Judge.
seven-day trial, a jury found SQM North America Corporation
(SQM) not liable for causing perchlorate contamination in the
City of Pomona's (Pomona) water system. Pomona now
appeals from that judgment. We have jurisdiction pursuant to
28 U.S.C. § 1291. We hold that the district court abused
its discretion by limiting the testimony of one of
Pomona's experts and failing to make sufficient findings
before admitting the testimony of one of SQM's experts.
These errors, in combination, were prejudicial. Accordingly,
we vacate the district court's judgment and remand for a
owns and operates a public water system to provide its
residents with clean drinking water. The State of California
regulates the quality of that water by imposing maximum
contaminant levels (MCL), which limit the amount of a given
chemical that can be present in the water. In 2007,
California established that the MCL for perchlorate, a
chemical that interferes with the ability of the thyroid
gland to produce hormones, would be six parts per billion.
Shortly thereafter, Pomona discovered that fourteen of its
wells possessed perchlorate levels in excess of the MCL. In
response, Pomona shut down non-compliant wells, purchased
water from other sources, and took other steps to remedy the
perchlorate contamination in its drinking water.
2010, Pomona filed this products-liability action against
SQM. SQM began importing fertilizer from the Atacama Desert
in Chile in 1927, and from 1931 to 1968 imported a
substantial portion of the Chilean nitrate (a component of
that fertilizer) brought from Chile into the United States.
The theory of Pomona's case is that SQM's importation
of perchlorate-containing fertilizer products from the
Atacama Desert, which were used in areas around Pomona's
wells, caused the contamination in Pomona's water supply.
Thus, Pomona sought to recover over $32 million in past and
future costs associated with investigating and remediating
the perchlorate contamination.
case progressed towards a January 2012 trial date.
Unsurprisingly, the case involved several scientific experts,
as the key dispute centered around whether the perchlorate
from SQM's fertilizer had migrated into Pomona's
wells and caused the contamination present in Pomona's
water system. Five days before trial, the district court
conducted a Daubert hearing to consider whether the
testimony of Pomona's expert witness, Dr. Neil Sturchio,
should be excluded. Dr. Sturchio, who was then the Head of
the Department of Earth and Environmental Sciences at the
University of Illinois at Chicago,  had developed a
peer-reviewed methodology for collecting and analyzing
perchlorate isotopes from groundwater. Dr. Sturchio's
research concluded that perchlorate from the Atacama Desert
in Chile has a distinct isotopic fingerprint. Thus, by
analyzing the chlorine and oxygen isotopes taken from
Pomona's wells, Dr. Sturchio determined that roughly
ninety percent of the perchlorate present in Pomona's
groundwater matched the isotopic fingerprint of perchlorate
unique to the Atacama Desert. Put simply, Dr. Sturchio
concluded that most of the perchlorate in Pomona's water
had come from the Atacama Desert.
days before trial was to begin, the district court granted
SQM's motion to exclude Dr. Sturchio's testimony. In
a one half-page minute order, the district court held that
Dr. Sturchio's opinions had "not been generally
accepted by the scientific community, " had "not
been tested by other laboratories, " and that "Dr.
Sturchio's reference database [was] too limited." As
Dr. Sturchio was one of Pomona's key witnesses, the
parties stipulated to dismiss the case and allowed Pomona to
appeal the exclusion of his testimony.
reversed the district court's exclusion of Dr.
Sturchio's expert testimony. City of Pomona v. SQM
North America Corp., 750 F.3d 1036 (9th Cir. 2014)
(Pomona I). We held that the "district
court's ruling [was] unpersuasive because both grounds
for exclusion [were] without adequate support in the
record." Id. at 1047. Accordingly, we remanded
the case for trial. The mandate from our court issued in
remand, the district court ordered a status conference for
January 12, 2015. At that conference, Pomona requested to
reopen fact and expert discovery to reflect scientific
developments that had been advanced during the three years in
which the case was on appeal. The district court requested
that Pomona file a written motion to reopen discovery and set
trial to begin June 2, 2015, less than five months from the
date of the first post-remand status conference.
February 9, 2015, Pomona filed its formal motion to reopen
discovery. As to Dr. Sturchio, Pomona requested leave to
supplement his expert report to reflect additional data
concerning isotopic analysis of perchlorate that had been
developed while the appeal had been pending. The motion
contained a sworn declaration from Dr. Sturchio, in which he
described the new developments in the science of isotopic
analysis of perchlorate. Dr. Sturchio and other scientists
had conducted new interlaboratory comparisons and the
database sizes for their research had increased, which
buttressed Dr. Sturchio's conclusions and repelled the
main criticisms of his research. On March 26, 2015, the
district court denied Pomona's motion to supplement Dr.
Sturchio's report. The district court concluded that
Pomona failed to demonstrate that the information was
material and determined that updating Dr. Sturchio's
report would "create back-and-forth discovery, which
could delay trial."
case proceeded towards the June 2, 2015, trial date. Still
pending, however, were the parties' motions in
limine, which had been filed in 2011, before the
original trial date. At that juncture, before the case made
its first trip through our court, the district court had
issued tentative rulings on the motions in limine.
On May 29, 2015, four days before trial, the district court
issued new rulings on the parties' motions in
limine. Relevant for our purposes is the district
court's ruling on Pomona's motion to exclude the
testimony of SQM's expert, Dr. Richard Laton. Dr.
Laton's proffered testimony contended that the
perchlorate contamination present in Pomona's water
system could have come from hundreds of alternative sources
other than SQM's importation of fertilizer from the
Atacama Desert. For example, Dr. Laton opined that the
perchlorate in Pomona's water system could have come from
"household bleach, " "swimming pools, "
"septic tanks, " "photographic flash powder,
" or even "fireworks." Pomona's motion
asserted that Dr. Laton's testimony was unreliable under
the standard set forth in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). Before the
first appeal, the district court denied Pomona's
Daubert motion as to Dr. Laton, without explanation,
in a ruling that was explicitly labeled as tentative. The
district court's May 29, 2015, ruling on Pomona's
motion to exclude Dr. Laton did not include any analysis.
trial, Dr. Sturchio testified to the circumstances as they
existed in 2011. As the district court had denied
Pomona's motion to update Dr. Sturchio's expert
report, he was prohibited from testifying about the
significant scientific progress that had taken place while
the case had been on appeal. Furthermore, Dr. Laton testified
that the perchlorate contamination could have arisen from
many potential sources. After seven days of testimony and
argument, the jury returned its verdict, finding that
SQM's sodium nitrate fertilizer was not a substantial
factor in causing harm to Pomona-a complete defense verdict
in favor of SQM.
appeal followed, in which Pomona challenges the district
court's denial of its motion to update Dr. Sturchio's
expert report, which resulted in the exclusion of testimony
regarding new scientific developments. Pomona also challenges