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									Admissibility of Environmental
 Forensic Expert Testimony

  J. Michael Sowinski, J.D., M.S.
               Presented at:

             California State Bar
       Environmental Law Conference
            Yosemite, California

             October 22, 2005
   Legal Overview of Scientific Opinion Admissibility
       Federal
       State

   Application to Environmental Forensic Testimony
       Summary of Environmental Forensic “Reliability”
       Stable Isotope Daubert Challenge
       Perchlorate Forensic (Stable Isotope) Admissibility
Introduction (Cont.)
Not Covered

    Qualifications of Experts

    Conflict of Interest Issues for Experts

    Expert Disclosures

    Discovery of Testifying and Non-Testifying Expert Witness
Federal Court Admissibility
Daubert, 509 U.S. 579 (1993).

    Prior to Daubert, Confusion Existed on Whether FRE 702
     Applied or Whether Frye’s (general acceptance test) Applied.
        FRE 702 allowed qualified experts to provide expert opinions, if
         helpful to the trier of fact (no general acceptance requirement).
    Daubert Concerned Expert Opinions on Whether Benedictin,
     Taken by Pregnant Women, Caused Birth Defects.
    Daubert held, generally:
        FRE 702 Supersedes Frye
        Expert Opinions Must Be Reliable
        Expert Opinions Must Be Relevant
        The Trial Court Must Act as the Gatekeeper
Federal Court Admissibility

    Remand to the 9th Circuit          Numerous Application of
     (Daubert II)                        Daubert in the Lower Courts
         Additional Factors                 Additional Factors

    Two More Sup.Ct.Cases (the         FRE 702 Amendment in 2002
     Daubert Trilogy)                        Codified Daubert Approach
         General Electric Co. v.            Did Not Codify any
          Joiner, 522 U.S. 136                Reliability Factors
         Khumo Tire, 526 U.S. 137
Federal Court Admissibility
The Reliability Standard

      To determine whether a proffered scientific
      testimony or evidence satisfies the standard of
      evidentiary reliability, a judge must ascertain
      whether it is grounded in the methods and
      procedures of science. Daubert, at 590.
Federal Court Admissibility
The Court’s Gatekeeper Role

    The Trial Court’s Must Act as the Gatekeeper, and Screen
     Proffered Expertise to Ensure That What is Admitted is
     Reliable. Daubert, at 589.
    While FRE 104 and FRE 702 Provided Courts With Authority
     to Gatekeep, Daubert Made it an Obligation. See Federal Judicial
     Center 2000, Reference Manual on Scientific Evidence Second Edition, at 11.

    Gatekeeping Obligations Apply to Testimony Based on
     Scientific (Daubert), as well as Technical and Specialized
     Knowledge (Khumo Tire). See Khumo Tire, 526 U.S. 137, 149-151.
Daubert Factors
Guideposts for Finding “Reliability”
    Daubert Sets Forth a Flexible Approach With Non-
     Exclusive Factors.
        The Daubert opinion adopts a flexible approaches to be tailored to
         the particular circumstances of the particular case. Khumo Tire.
        The Daubert factors neither necessarily nor exclusively apply to
         all expert witness testimony. Khumo Tire.
        The Daubert Factors “May” (Not Must) Bear on a Judge’s
         Gatekeeping Determinations. Federal Judicial Center 2000, Reference
         Manual on Scientific Evidence Second Edition, at 19.
Daubert Factors
Guideposts for Finding “Reliability”(cont.)

    Daubert’s Enumerated Factors.        See Daubert, at 593-594.

        Technique Testability
        Peer Review
        Error Rates
        Standards Governing the Technique
        Acceptability in the Relevant Scientific Community.
Daubert Factors
Additional Post-Daubert Factors

   Independent Research vs. Litigation Preparations.
   Daubert II, 43 F.3d 1311 (9th Cir. 1995).
       One important factor is whether the expert conducted independent
        research or research exclusively for litigation purposes. Clausen, at 1056
        (citing Daubert II at 1317).
       If the research was prepared for litigation, the proponent must offer
        objective, verifiable evidence of scientific validity. Id.
       One way to show this is by showing that the research relied upon and the
        analysis conducted has been subject to peer review. Id. (citing Daubert II at
       But even without a showing of peer review, the testimony may be
        admitted if experts explain precisely how they went about reaching their
        conclusions and point to some objective source to show that they
        followed a scientific method. Id. (citing Daubert II at 1319).
Daubert Factors
Additional Post-Daubert Factors (cont.)

   Consider Alternative Explanations.                      Claar, 29 F. 3d 499 (9th
   Cir. 1994).
       Whether the expert has adequately accounted for obvious
        alternative explanations. Clausen, (citing Claar v. Burlington N.R.R., 29
        F.3d 499 (9th Cir. 1994))
       The experts cannot “utterly fail” to explain why they ruled out an
        alternative cause. Clausen, at 1061(citing Cooper, 259 F.3d 194, 202 (4th
        Cir. 2001).
       The experts reasons for ruling out an alternative explanation
        cannot be based upon subjective beliefs or unsupported
        speculation. Id. (citing Claar, at 502)
Daubert Factors
Additional Post-Daubert Factors (cont.)

    Too Great of an Analytical Gap.                   Joiner.
        Daubert instructed the courts to focus on the methodology, rather than
         the expert’s conclusions. Daubert, at 595.
        However, conclusions and methodology are not entirely distinct. Joiner,
         at 146.
        Experts commonly extrapolate from existing data. Id.
        A court may conclude that there is simply too great of an analytical gap
         between the data and the opinion proffered. Id.

         The process of forming a conclusion, in itself, constitutes a method –thus
         Daubert does not prohibit courts from scrutinizing this process. Courts
         can freely inquire: is this opinion speculative or is it adequately
         supported by the data.
Daubert Factors
Additional Post-Daubert Factors (cont.)
    Intellectual Rigor.     Khumo Tire.

        The court must make sure that the proffered expert will observe the same
         standard of intellectual rigor in testifying as he or she would employ
         when dealing with similar matters outside of the court room. Khumo Tire.

         This factor operates like Daubert II’s “prepared solely for litigation
         factor. Like Khumo Tire, Daubert II requires litigation-prepared
         testimony must follow a verifiable, objective procedure, similar to what
         would be performed during independent research.
FRE 702 and 703

   FRE 702 was Amended in 2002 to also provide that, to be admissible expert
    testimony must:
        Based on sufficient facts.
        The product of reliable principles and methods.
        Proper application of the methods and principles.
         The rule provides general standards to assess reliability, but does not
         intend to codify the Daubert factors. See Advisory Committee Note to 2000
         Amendment to Rule 702.

   FRE 703
        OK for experts to rely on facts or data, otherwise inadmissible, if of a
         type “reasonably relied on by experts in the particular field in forming
         opinions or inferences upon the subject.”
Method “Reliability”
Observations on Daubert Application

 Pure Methods
       Error rate
       Peer review
       General acceptance
 Interpretation Methods
       The interpretation methodology is invalid - not peer reviewed.
       The data relied upon was too sparse.
       The conclusions are too subjective or speculative (not testable).
       Alternative explanations exist.
       Conclusion are not generalizable to site specifics.
California Continues to Follow FRYE.

    Rather than Daubert, California continues to follow the Frye
     decision’s general acceptance rule. People v. Kelly, 17 Cal.3d 24 (1976).

    Under Kelly/Frye
         To be admissible, the scientific method must have achieved
          general acceptance in the scientific community. Leahy, 8 Cal. 4th
The General Acceptance Test
Focuses on the Scientific Community’s View

    Whether professional literature and expert testimony establishes
     that the technique is accepted as reliable by the relevant
     scientific community. See People v. Axell, 235 Cal.App.3d 836 (1991).

    General acceptance under Kelly means a consensus drawn from
     a typical cross-section of the relevant, qualified scientific
     community. People v. Leahy, 8 Cal. App. 587, 612 (1994).
Only Triggered for “New Scientific Techniques”

    Kelly/Frye applies to a limited class of testimony which relies
     on a new scientific technique. People v. Leahy, 8 Cal. 4th 587, 605 (1994).

     Especially machines and instrumental
     scientific techniques – not expert inferences.
         Evidence produced by machines and similar devices appear
          infallible, even though they may be experimental or tentative.
          Roberti v. Andy’s Pest Control, Inc., 113 Cal. App. 4th 893 (2003).
         Kelly/Frye seeks to prevent jurors from being unduly influenced
          by procedures which seem infallible, but which actually are not.
          People v. Webb, 6 Cal. 4th 494, 524 (1993); see People v. McDonald, 37 Cal. 3d
          351 (1984) (jurors ascribe high degree of certainty to scientific evidence).
Any Limits On Expert Opinions?
No Speculation or Conjecture Allowed

    Conjecture and speculation provide no proper basis for an
     expert’s opinion. Smith v. ACandS, Inc., 31 Cal. App. 4th 77, 93 (1994) (citing
     Hyatt v. Sierra Boat Co., 79 Cal. App. 3d 325, 338 (1978)).

    It is apparent that expert evidence about the car’s speed would
     have been speculative, conjectural, and remote in nature. Hyatt at
     338 (citing Culpepper v. Volkswagon of America, Inc., 33 Cal. App. 3d 510 (1973).

    Evid. Code 352 allows courts to exclude evidence that would
     confuse the jury. The expert testimony matching guard rail
     paint scrapings to the Volkswagon was speculative, conjectural
     and could well have confused the jury. Culpepper, at 520.
Movement Towards A Daubert-Style Test?
The Lockheed Litigation Cases

    Lockheed Litigation Cases
      Currently Pending Before Ca Supreme Court.
      The Appeals Court decision seems to apply a
       Daubert-style analyses.
      Commenters opine that the appellate ruling stands
       for a movement towards Daubert.                 Chris Locke, Clearing
       Out the Junk: A Recent Appellate Ruling Has Altered the Expert
       Testimony Landscape in Toxic Tort Litigation, The Recorder Vol. 129
       No. 49 (Mar. 14, 2005)
Lockheed Litigation Cases

   Issue – Admissibility of expert testimony concerning whether
    workplace exposure to organic solvents caused disease to
   The expert relied on four data sets:
     Human epidemiological studies
     Animal studies
     Case reports
     Toxic Registries and Treatises
   Based on the combination of these bases, the expert proffered
    his opinion.
Lockheed Litigation (Cont.)
California Evidence Code 801(b)

    The Kelly/Frye standard was not at issue in the case. Rather,
     the case dealt with the application of Evid. Code 801(b).
        An expert’s testimony must be based on matter that is of a type
         that reasonably may be relied upon by an expert. Evid. Code
    Is 801(b) meant to allow reliance on inadmissible evidence or is
     it meant to require a reasonable basis for expert opinions?
Lockheed Litigation (Cont.)
“Reasonable Basis” Logic Opens the Door to Daubert-Style Review.

    A Summary of the Court’s Logic (in my view).
        Evid. Code 801(b) requires courts to determine whether an
         expert’s opinion relies on matter that an expert reasonably can
         rely on. Id. at 771.
        Expert opinion based upon speculation or conjecture is
         inadmissible. Id. (citing Smith).
        [Thus], we construe 801(b) to mean that the matter relied on must
         provide a reasonable basis for the expert testimony. Id.
        The trial court properly considered whether a reasonable basis
         existed for the expert’s opinion. Id. at 772.
Lockheed Litigation (Cont.)
A Close “Divide and Conquer” Review of The Expert’s Basis.

 Epidemiological Studies
       The studies do not provide a reasonable basis because they concern
        multiple solvent studies whose solvents do not exactly match the
        solvents at issue here. Id. at 773-774.
 Animal Studies
       Rather then showing whether scientists commonly rely on animal
        studies, an expert must show why reliance on a particular animal study is
        reliable. Id. at 789-780.
 Case Reports
       It was OK for the trial court to determine that the case reports held little
        value in support of the opinion. Id. at 780.
 Toxic Registries and Treatises (Published Sources)
       We reviewed the pages …and concluded that these sources are not
        probative. Id. at 781
Lockheed Litigation (Cont.)

   Testimony Inadmissible.

   California Supreme Court Granted Review.

   A shift to Daubert or Daubert-style rules – we’ll
Method “Reliability”
Daubert Application Observations (Review).

 Pure Methods
        Error rate
        Peer review
        General acceptance
 Interpretation Methods
        The interpretation methodology is invalid - not peer     Lockheed Litigation
        The data relied upon was too sparse.
        The conclusions are too subjective or speculative (not
        Alternative explanations exist.
        Conclusion are not generalizable to site specifics.
Environmental Forensic Methods
 Category                Method                           Purpose
 Petroleum Forensics     Molecular Fingerprinting

                         Stable Isotope Ratio
 Chlorinated Solvent     Signature Compounds
 Forensics               Degradation Pattern Analyses

                         Molar Ratio Analyses
                         Stable Isotope Ratio
 MTBE Forensics          Oxygenate Signatures
                         Stable Isotope Ratio
 Perchlorate Forensics   Signature Compounds
                         Stable Isotope Ratio             Age Date Release
                         Mineralogical Characterization

 Dendroecology           Tree Ring Evaluation
                         Micro X Ray Fluorescence
Stable Isotope Admissibility
Mejdrech v. Lockformer Co. (N.D. Ill. 2003).

    This case concerned expert testimony on the source of
     TCE in groundwater, based on a stable isotope
     analyses of TCE.

    The expert, Dr. Neil Sturchio, was (and is) the
     Director of the Environmental Isotope Geochemistry
     Laboratory at the University of Illinois, and Head of
     the Department of Earth and Environmental Sciences.
Stable Isotope Admissibility
Mejdrech v. Lockformer Co. (N.D. Ill 2003) (cont.)

    Two TCE release sites existed – whose TCE is in the
        One site only released TCE (site 1)
        One site released PCE, TCE, and TCA (site 2).
    Sturchio performed stable isotope analyses, and concluded:
        Site 1 and Site 2 Stable Isotope Ratios Do Not Match – Showing
         that Site 2’s TCE Impacted the GW.
        TCE in the impacted GW could only have come from the
         degradation of PCE (recanted).
Stable Isotope Admissibility
Mejdrech v. Lockformer Co. (N.D. Ill 2003) (cont.)
   Applying Daubert, the Court stated the following
   grounds for excluding the testimony:
   Method Was Not Peer Reviewed
        The expert veered from the peer reviewed method by using a
         larger sample size volume.
        This unprecedented variation has not achieved general acceptance.
        Holt, B., Sturcho., N, Abfajono, T., Heraty L., 1997. Conversion of Chlorinated Volatile Organic Compounds
        to Carbon Dioxide and Methyl Chloride for Isotopic Analysis of Carbon and Chlorine. Analytical Chemistry
        69, 2727-2733.
        Holt, B., Heraty, L., Sturchio, N., 2001. Extraction of chlorinated aliphatic hydrocarbons from groundwater
        at micromolar concentrations for isotopic analysis of chlorine. Environmental Pollution, 113, 263-269.
        Sturchio, N., Clausen, J., Heraty, L., Huang, L., Holt, B., Abrajona, T., 1998. Chlorine Isotope Investigation
        of Natural Attenuation of Trichloroethene in an Aerobic Aquifer. Environmental Science & Technology,
        32(20), 3037-3042.
Stable Isotope Admissibility
Mejdrech v. Lockformer Co. (N.D. Ill 2003) (cont.)

    Inherent Method Unreliability
       The Cl isotope method was not compound-specific. Other
        Chlorine-containing materials could have impacted the results.
       Large water volume introduced a large potential for error.

    Improper Interpretation
       Did not consider matching Oxygen isotope ratios.
       Ignored Chlorine isotope data that was not favorable to his theory.
How Could This Happen?
   Expert Experience in Litigation.

   Tight Time-Frame and Litigation Pressure.

   Expert’s Understanding of the Broader Technical Issues

   Direct Lawyer-University Relation.
Perchlorate Stable Isotope Analyses
The state of the science.

       Perchlorate Contains Chlorine and Oxygen
Perchlorate Stable Isotope Analyses
The state of the science (cont.)
       Man-Made Perchlorate Seems Isotopically Distinct From
             Natural (Chilean Fertilizer) Perchlorate

d Cl



              -30          -20                         -10                           0                          10

                                                     d 18 O
                    Reproduced from Sturchio, N. 2005. Environmental Isotope Forensics of Perchlorate: Source
                    Characteristics and Groundwater Case Studies. Presented at ISEF Workshop Environmental
                    Forensics: Focus on Perchlorate Santa Fe, NM, September 21-22, 2005
Perchlorate Stable Isotope Analyses
The state of the science (cont.)
   Some Isotopic Distinctions Seem to Exist Among Man-Made


       d Cl


              -1               Baker

                   -26       -24          -22         -20          -18          -16         -14          -12

                                                          d 18 O
                         Reproduced from Sturchio, N. 2005. Environmental Isotope Forensics of Perchlorate: Source
                         Characteristics and Groundwater Case Studies. Presented at ISEF Workshop Environmental
                         Forensics: Focus on Perchlorate Santa Fe, NM, September 21-22, 2005
    Perchlorate Stable Isotope Analyses
    Peer Reviewed Articles             1) Ader, M., Coleman, M., Doyle, S., Stroud, M., and D. Wakelin,
                                       2001. Methods for stable isotopic analysis of chlorine in chlorate
                                       and perchlorate compounds. Analytical Chemistry. 73, 4946-4950.
     Peer Reviewed Articles            2) Bao, H., and B. Gu, 2004. Natural perchlorate has a unique
                                       oxygen isotope signature. Environmental Science &
     On Perchlorate Isotope            Technology.38, 5073-5077.
     Analyses Exist                    3) Coleman, M., Ader, M., Chaudhuri, S. and J. Coates, 2003.
                                       Microbial isotopic fractionation of perchlorate chlorine. Applied
But…                                   Environmental Microbiology. 69, 4997-5000.
                                       4) Dasgupta, P., Martinelango, P., Jackson, A., Anderson, T., Tian,
    Articles review stable isotope    K., Tock, R., and S. Rajaopalan, 2005. The origin of naturally
                                       occurring perchlorate: The role of atmospheric processes.
     methods employed for the          Environmental Science & Technology. Web Release Date.
     specific purpose of the study.    January 29, 2005. http://pubs.acs.org/cgi-
                                       5) Erickson, B., 2004. Tracing the origin of perchlorate. Analytical
                                       Chemistry. 76 (21), 388A-389A.
    Articles identify uncertainties   6) Gu, B., Brown, G., Alexandratos, S., Ober, R., Dale, J., and S.
     and the need for additional       Plant, 2000. Efficient treatment of perchlorate (ClO4-)
     research.                         contaminated groundwater with bifunctional anion-exchange
                                       resins. Environmental Science Research. Volume 57, 165-176.
                                       7) Jackson, A., Anandam, A. Anderson, T. Lehman, K. Rainwater,
                                       S. Rajagopalan, M. Ridley, and W. Tock, 2005. Perchlorate
    No holistic standard for a        occurrence in the Texas southern high plains aquifer
     “method” exists.                  system. Groundwater Monitoring and Remediation. 25:1-13.
                                       8) Sturchio, N., Hatzinger, P., Arkins, M., Suh, C., and L. Heraty,
                                       2003. Chlorine isotope fractionation during microbial reduction of
                                       perchlorate. Environmental Science & Technology, 37(17), 3859-
The Perchlorate Isotope Analyses “Method”

 The “Method” Includes Many Steps
 1) Concentrate the Sample on Resin.
 2) Extract Perchlorate From the Resin.
                                          Pure Method
 3) Purify the Extraction.
 4) Isolate Cl and O.
 5) Measure Cl and O Isotopes.
 6) Plot Isotope Ratios.
                                                          Interpretation Method
 7) Compare Measured Ratios Against Natural Perchlorate
    or Against Multiple Synthetic Perchlorate Ratios.
    (Jackson, Bao)
The Perchlorate Isotope Analyses “Method”
                                         When the study performed in
 The “Method” Includes Many               preparation for litigation:
   Steps                                      Peer reviewed articles for each
 1) Concentrate the Sample on Resin            step of the method?
    (in the field).                           Precise explanation of steps.
 2) Extract Perchlorate From the         For each “pure method” step:
                                              Error rate analyses
 3) Purify the Extraction.
                                              Peer reviewed endorsement
 4) Isolate Cl and O.                          (any deviations)
 5) Measure Cl and O Isotopes.                General acceptance
 6) Plot Isotope Ratios.
 7) Compare Measured Ratios Against
    Natural Ratios.
The Perchlorate Isotope Analyses “Method”
Admissible? (cont.)

 The “Method” Includes Many
                                         For each “interpretation method”
   Steps                                  step:
 1) Concentrate the Sample on Resin           Peer reviewed endorsement
    (in the field).                            (any deviations)
 2) Extract Perchlorate From the              Justify any analytical gap,
    Resin.                                     speculation, or conjecture.
 3) Purify the Extraction.                    Adequate data set for
 4) Isolate Cl and O.                          conclusion.
 5) Measure Cl and O Isotopes.           Also see 19 UCLA J. Envtl. L. &
                                          Policy 401(discussing expert
 6) Plot Isotope Ratios.                  report and discovery-related tactics
 7) Compare Measured Ratios Against       for admitting testimony based on
    Natural Ratios.                       novel science).

   Daubert Factors Split Among “Pure Method” Inquiries and
    “Interpretation Method” Inquiries
   California Expert Testimony Admissibility Rules Might Move
    Towards A Daubert-Style Approach – for Pure Methods,
    Interpretation Methods, or Both?
   Expert Opinion Testimony Based Upon Environmental Forensic
    Methods Remains Largely Untested.
   Peer Reviewed Studies Justify Environmental Forensic Methods
    and, with Careful Attention During Trial Preparations,
    Testimony Should Satisfy Daubert Challenges.

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