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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 Introduction 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 Evidence 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 Post-Daubert 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 (1997) Khumo Tire, 526 U.S. 137 (1999). 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 1318). 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 587. 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). Kelly/Frye 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 workers. 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 801(b). 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 see? 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 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. Environmental Forensic Methods Re-cap Category Method Purpose Petroleum Forensics Molecular Fingerprinting Stable Isotope Ratio Source Chlorinated Solvent Signature Compounds Identification 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 groundwater? 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. Articles 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 Involved. 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 10 synthetic perchlorate 0 d Cl 37 -10 Atacama perchlorate -20 -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 3 Perchlorate 2 1 d Cl 0 37 -1 Baker EM Mallinckrodt -2 Sigma-Aldrich AMPAC/WE -3 Hummel-Croton -4 -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- bin/jcen?esthag/asap/html/es048612xhtml 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” Admissible? 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: Resin. 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). Conclusions 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. THANK YOU.
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