Monday, May 5, 2014

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Court Says Expert Wrongly Excluded in Pollution Suit

By a MetNews Staff Writer

U.S. District Judge R. Gary Klausner of the Central District of California abused his discretion when he excluded an expert witness from a trial regarding groundwater pollution in the City of Pomona, the Ninth U.S. Circuit Court of Appeals ruled Friday.

The court reinstated the city’s suit against SQM North America Corporation. The city claims that SQM’s importation of sodium nitrate for fertilizer, which was used over a substantial period of time, is responsible for perchlorate contamination found in its water system.

The city designated Dr. Neil Sturchio as its expert witness on causation. Sturchio is the director of the Environmental Isotope Geochemistry Laboratory at the University of Illinois at Chicago. He opined that the dominant source of perchlorate in the city’s groundwater is the Atacama Desert in Chile, supporting the city’s claim that SQM, which imported perchlorate from Chile between 1927 and the 1950s, was responsible.

In moving to exclude the testimony, SQM argued that Sturchio’s “stable isotope analysis” was unreliable and should be excluded under Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Following an evidentiary hearing, Klausner ruled that Sturchio’s procedure were not generally accepted in the scientific community and therefore unreliable as a matter of law. He noted that the Environmental Protection Agency has not yet certified stable isotope analysis and that debate continues as to the quality of the methodology.

But “[t]hose reasons are insufficient to exclude Dr. Sturchio’s testimony,” U.S. District Judge Michael Simon, of the District of Oregon, sitting by designation, wrote for the Ninth Circuit.

Just because a methodology is subject to “further testing and refinement,” he explained, doesn’t mean it lacks credibility under Daubert.

“[D]espite the fact that there is no EPA-certified method of analysis, the record shows that Dr. Sturchio’s methodology and report are based on the scientific method, practiced by recognized scientists in the field, and have a basis in the knowledge and experience of the relevant discipline, thereby rendering the report reliable,” Simon wrote.

He went on to say:

“Dr. Sturchio’s expert report details how he analyzed the relevant data and applied the data to reach his conclusions. The Federal Rules of Evidence do not require an endorsement from the EPA approving Dr. Sturchio’s results. The district court’s conclusion to the contrary was an abuse of discretion.”

The court ordered that the city’s action, which had been dismissed by stipulation following the exclusion of the witness, be revived.

The case is City of Pomona v. SQM North America Corporation, 12-55147.