"Do not be bullied out of your common sense by the specialist; two to one, he is a pedant."
- Oliver Wendall Holmes
Introduction
Environmental attorneys rely heavily on experts such as engineers, chemists, toxicologists, land valuation experts and environmental insurance underwriters to prove their cases. For that reason, an environmental attorney’s ability to support or discredit an expert witness is particularly important. This article focuses on discrediting an adversary’s expert. There are three basic ways to cross-examine an expert: (1) challenging the expert’s qualifications, (2) challenging the reliability of the expert’s opinion, and (3) challenging the connection between the facts and the expert’s conclusions. Whether in a federal court or an Indiana state court or administrative body1, these methods for cross-examining an opponent’s expert may form the basis for a motion to exclude, motion in limine or motion for summary judgment.
Expert Qualifications
Both the federal and Indiana rule of evidence 702 require that an expert be "qualified by knowledge, skill, experience, training, or education" before testifying.2 Excluding an expert based upon insufficient qualifications alone will generally prove difficult because a trial court may look to practical rather than formal training in evaluating an expert’s qualifications3 and because the court’s ultimate decision will be reviewed only for an abuse of discretion.4 Typically, a trial court will find that an expert’s professional shortcomings go to the weight, rather than the admissibility, of the expert’s testimony.5
Counsel interrogating an environmental expert should first attempt to establish the exact parameters of the witness’s area(s) of expertise. By focusing on specific areas of knowledge, rather than on broad categories of qualification associated with professional titles or licenses, an attorney may more readily establish that an opinion is outside a particular area of expertise. For example, in Wintz v. Northrop6 the court affirmed the trial court’s exclusion of a toxicologist and his testimony relating to bromide exposure because he lacked the medical training and experience necessary to testify as to the cause of the plaintiff’s physical abnormalities. The court based its decision, in part, on a lack of sufficient expertise as to a genetic disorder which another expert asserted was the cause of the plaintiff’s condition. Thus, an environmental expert must exhibit sufficient qualifications that not only support his own opinions but also address the pertinent opinions of other experts in the case.
While the Wintz case will certainly prove helpful in federal court, it may also be useful in state court. In a state court action, counsel moving to exclude an expert based on inadequate qualifications will need to distinguish one of the many decisions by the appellate courts which uphold the admission of testimony from a state expert witness in a criminal case.7
Reliability of Expert Opinion
The more usual means of excluding expert testimony is to establish the unreliability of the testimony at a "Daubert" hearing. The Daubert reliability test, generally accepted and applied by Indiana state courts,8 permits a trial judge to make a determination of reliability by considering factors such as: 1) whether the scientific theory or technique has been tested, 2) whether the theory has been subjected to peer review, 3) the known or potential error rate, and 4) the general acceptance of the theory or technique within the scientific community.9
Differences between the federal and state reliability tests, however, may affect whether a witness will be excluded. Most fundamentally, the federal "reliability" requirement is derived from a liberal interpretation of the expert qualification requirements contained in Federal Rule of Evidence 702.10 The authority for the reliability requirement in Indiana state courts, on the other hand, originates specifically from Indiana Rule of Evidence 702(b) which provides that "expert scientific testimony" is admissible only if the expert’s scientific principles are reliable.11 For that reason, the expansion of the federal reliability requirement beyond areas of "scientific" expertise and into areas of "technical" or other "specialized" knowledge in the recent Kumho Tire Co. v. Carmichael12 decision should not directly affect the scope of the state reliability test. Indiana courts have already refused to impose a Daubert analysis on an expert who basis his opinion on "specialized knowledge," rather than "scientific" principles.13 The Kumho Tire case could, however, facilitate an expansion of the term "scientific." A broad interpretation of "scientific" would permit Indiana state trial courts to review some expert testimony previously thought to be outside the scope of a state court’s gatekeeping powers.
The Kumho Tire decision also shows the fundamental difference in the level of trust that federal and Indiana State court judges have in expert testimony. Federal judges worry that juries may place too much reliance on an expert’s testimony, particularly in unusual or complex cases.14 Justice Breyer emphasized both the testimonial latitude afforded only to expert witnesses and the trial court’s effort to assist juries with the "foreign experience" associated with specialized testimony.15 The Indiana rulemakers, however, rejected the theory that "the introduction of the testimony may overwhelm or mislead the jury," citing social science evidence that jurors "tend to reject science when it conflicts with intuition, emotion and personal experience."16 This disparity in rationale may explain the more aggressive exercise of the gatekeeping function by federal courts.
In either a federal or state forum, a party to a Daubert/Kumho Tire hearing should emphasize to the court the complexity of adverse testimony. A more complex opinion is not only more difficult to comprehend but is also more likely to contain false assumptions, poor logic or require additional academic and professional credentials. Therefore, a more complex opinion is more likely to result in erroneous conclusions not only by a jury but also by the expert.
Failure to Establish Causation
A defendant in an environmental matter should closely examine opposing expert testimony to determine if the testimony effectively establishes causation or supports an award of damages as to that defendant. A scientifically "reliable" opinion offered by a fully qualified expert may nevertheless fail to establish that one or more defendants proximately caused the plaintiff’s damages. Incomplete soil or groundwater testing, for example, may represent a fatal gap in the causal chain between the release of a contaminant by a particular defendant and a resulting environmental harm. This shortcoming may then give rise to a motion for summary judgment or motion for directed verdict, separate from or in addition to a motion to exclude or a motion in limine.
In the situation in which a party intends to file a motion for summary judgment, the forum becomes even more important because of the very different summary judgment standards applied in federal and Indiana courts. Under Indiana’s summary judgment standard, as described by the Supreme Court in Jarboe v. Landmark Community Newspapers,17 a party moving for summary judgment must present sufficient evidence to disprove the claim of the non-moving party before the non-moving party is required to come forward with contrary evidence. In the federal system, the moving party need only point to the relevant portion of the record which demonstrates the absence of a genuine issue of material fact.18 This different standard may force many environmental litigants to hire their own experts to confirm an opposing party’s failure to establish a necessary element of its case.
Conclusion
The complicated and technical nature of environmental litigation requires that attorneys are prepared to cross-examine an expert’s qualifications, the reliability of the expert’s opinions and the expert’s ability to establish causation or prove damages. Environmental attorneys must now also be aware of the Kumho Tire decision and the various ways in which it may affect the review of expert testimony, particularly in federal court.
1 312 IAC 3-1-10 provides that the Indiana Rules of Trial Procedure and the Indiana Rules of Evidence are applicable to the Department of Natural Resources to the extent the rules are consistent with DNR’s rules. Under 315 IAC 1-3-1(b)(10), the Indiana Rules of Procedure are similarly applicable to the Office of Environmental Adjudication.
2 Fed. Evidence Rule 702, Ind. Evidence Rule 702(a).
3Blair v. State of Indiana, 364 N.E.2d 793, 797 (Ind. Ct. App. 1977).
4 Burkett v. State, 691 N.E. 2d 1241 (Ind. Ct. App. 1998).
5 See e.g. Grinstead v. State of Indiana, 684 N.E.2d 482, 487 (Ind. Ct. App. 1997).
6 Wintz v. Northrop Corp., 110 F.3d 508 (7th Cir. 1997); but see Backet v. Valspar Corp., 783 F.2d 77, 79 (7th Cir. 1986) (reversing decision of trial court and adding that individual employed by the Illinois environmental protection agency was qualified, although marginally, to testify as to the health effects of water contaminated by phenols.)
7 See Grinstead v. State of Indiana, 684 N.E.2d 482, 487 (Ind. 1997) (Court upheld admission of policy officer’s expert testimony on blood spatters despite the fact that the officer’s only training on blood spatter evidence was a general two week training course.) See also Bacher v. State of Indiana, 686 N.E.2d 791, 800 (Ind. 1997) (Court held that paramedic was qualified to testify as to victim’s time of death.)
8 "Although Daubert is not binding upon the determination of state evidentiary issues, it is helpful to us as ‘the concerns driving Daubert coincide with the express requirement of Indiana Rule of Evidence 702(b). . .’" Ford Motor Co. v. Ammerman, 705 N.E.2d 539, 550 (Ind. Ct. App. 1999); citing Steward v. State, 652 N.E.2d 490, 498 (Ind. 1995) (revising defendant’s criminal conviction and ruling that testimony regarding child sexual abuse syndrome must pass reliability requirement).
9 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-594 (1993).
10 The same requirements are contained in Ind. Evidence Rule 702(a).
11 See Ind. Evidence Rule 702(b), which preceded the Daubert decision.
12 Kumho Tire Company v. Carmichael, 119 S.Ct. 1167, 1176 (1999).
13 Jervis v. State of Indiana, 679 N.E.2d 875, 881 (Ind. 1997). In Jervis, the Supreme Court held that the trial court did not abuse its discretion in admitting evidence from a technician which involved a cotton swab. Id. The court noted that the technician’s observations involved "specialized knowledge" but not "scientific principles" and were, therefore, beyond the reach of Rule 702(b). The Jervis case was cited affirmatively in McGrew v. State of Indiana, 682 N.E.2d 1289, 1292 (Ind. 1997). In McGrew, however, the court upheld the admission of a hair analyst’s testimony without specifying whether the expert relied upon "specialized knowledge" or whether his testimony was simply "lay opinion." Id.
14 Kumho 119 S.Ct. at 1176 (Court noted that reliability determination arises in "less usual" or "more complex" cases.)
15 Kumho 119 S.Ct. at 1174-1175
16 See Committee Commentary to Ind. Evidence Rule 702. The Committee Commentary also provides that "(s)ocial scientists have shown that jurors tend to undervalue science and under-utilize statistics. . ."
17 Jarboe v. Landmark Community Newspapers, 644 N.E.2d 118, 123 (Ind. 1994).
18 Jarboe 644 N.E.2d at 118, 123 citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.