Metropolitan News-Enterprise


Tuesday, August 8, 2017


Page 1


Ninth Circuit Finds Klausner’s Rulings ‘Illogical’

Court Reinstates $32 Million Action by City of Pomona Against Company It Claims Contaminated Its Water Supply


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday reversed a judgment against the City of Pomona in its effort to collect $32 million from a company it says has contaminated its water supply, holding that “illogical” rulings by Judge R. Gary Klausner of the Central District of California infected the outcome.

It is the second time Klausner has been reversed in the case. In 2014, he was reversed based on improperly barring the city’s expert witness on causation, geochemist Neil Sturchio, from testifying; this time, he was reversed based on limiting the testimony of that witness.

The city contends that the contamination stems from defendant SQM’s importation in 1927, and from 1931-68, of fertilizer from the Atacama Desert in Chile. Relying on Sturchio’s tests showing that the contaminates in the water came from that desert, it maintains that the perchlorate from SQM’s fertilizer migrated to Pomona’s wells.

The high level of percholates—which can cause thyroid glands to malfunction—was discovered shortly after the state set a water standard in 2007. Pomona shut down 14 of its wells and commenced importing water, filing its court action in 2010.

In 2012, four days before trial was to begin, Klausner barred Sturchio’s testimony, finding that his opinions had “not been generally accepted by the scientific community,” his procedures had “not been tested by other laboratories,” and that his reference database was “too limited.” The city moved for dismissal so it could test the exclusion order on appeal.

Reversal came on May 2, 2014, in an opinion by Judge Michael H. Simon of the District of Oregon, sitting by designation. Simon wrote:

“Expert testimony may be excluded by a trial court under Rule 702 of the Federal Rules of Evidence only when it is either irrelevant or unreliable. Facts casting doubt on the credibility of an expert witness and contested facts regarding the strength of a particular scientific method are questions reserved for the fact finder. Accordingly, we reverse the district court’s exclusion of Dr. Sturchio’s expert testimony.”

On remand, Klausner forced Sturchio to rely on his 2011 report, declining to allow him to update it to reflect a wider acceptance within the scientific community of his isotopic fingerprint techniques and the broader database that now exists. He said “updating Dr. Sturchio’s report would create back-and-forth discovery, which could delay trial.”

A jury found no liability.

Abused Discretion

Yesterday’s reversal of Klausner came in an opinion by Senior Judge J. Clifford Wallace. He said that in looking at the delay that would be caused by reopening discovery, the judge employed the right legal standard but “applied that legal standard in an ‘illogical’ manner, thus committing an abuse of discretion.”

He explained:

“[A]ny potential for the updated expert report to delay trial was of the district court’s own making. Upon remand, the district court set a June trial date at the initial status conference, following which Pomona promptly filed its motion to reopen discovery. By the time the district court ruled on the motion, roughly two months before trial, reopening discovery would likely have caused delay. Any potential delay, however, was brought about by the combination of an expeditious trial date and the amount of time Pomona’s motion sat undecided. The problem was not the result of a lack of diligence by Pomona.”

Materiality of Updates

Klausner also declared that any updates to the 2011 report would not have been “material.” That, Wallace said, “was also illogical,” pointing out:

“SQM has acknowledged that ‘Sturchio was Pomona’s key witness, and much of the case involved his forensic methods.’ As such, the level of support for his conclusions was critical and it was important that his proffered testimony be accurate and reflect the current state of knowledge in the scientific community. The main attack on Dr. Sturchio’s testimony (as it stood in 2011) was that it had not been reproduced by other laboratories and that his reference database was too small. The proffered updates to Dr. Sturchio’s report directly combated those criticisms. Based on Dr. Sturchio’s sworn declaration (which accompanied Pomona’s motion), and the fact that the first appeal focused heavily on Dr. Sturchio’s testimony, the district court should have been on notice that the updates to Dr. Sturchio’s report were material.”

He declared that the exclusion of the testimony “more probably than not affected the verdict.”

‘Abdicated’ Role

Wallace added that Klausner abused his discretion in denying Pomona’s motion to exclude testimony of SQM’s expert by simply saying “DENY.” Case law establishes the need to give reasons, he said.

Klausner “abdicated” his “gatekeeping role by failing to make any findings of reliability” of the defendant’s expert, Wallace charged, and said there is “no doubt” the error was prejudicial.

Wallace added:

“We are sympathetic with the district court’s desire to keep this case on a fast track. A civil action may meander through discovery far too slowly and our system benefits when district judges keep the wheels of justice turning by employing effective case management. But there are limits.”

He said that the scientific technique used by Sturchio “evolved significantly during this case’ first journey through the appellate system,” and that by virtue of Klausner barring testimony as to those advancements, as well as failing to make findings as to the reliability of the defenses’s expert, it is necessary to vacate the judgment and order a new trial.

The case is City of Pomona v. SQM North America Corporation, No. 15-56062,


Copyright 2017, Metropolitan News Company