Providing litigation support can be a pressure cooker. We prefer to have multiple lines of evidence when we are presenting our position before the regulators or the court. When the multiple lines of evidence are consistent and point to the same conclusion, that conclusion is difficult to refute. An approach that has worked well for us for the past 30 years, but not shared by everyone as we see in a couple of the cases below.
Note we are just touching on the cases and provide links to other articles, court documents, and legal blogs for those who want more details.
UK Expert on Carbon Trading
The first case is in the United Kingdom, and it revolved around carbon credit trading fraud. This case was embarrassingly bad. The prosecution hired an “expert” as they brought a case against eight men accused of £7 million carbon (emissions) credit fraud.
After three weeks (and a lot of public money), the case was halted. The judge said of the prosecution’s expert, “Andrew Ager is not an expert of suitable calibre. He had little or no understanding of the duties of an expert. He had received no training and attended no courses. He has no academic qualifications. His work has never been peer-reviewed.”
Did Not Want His Evidence Challenged
What’s more, two weeks before the trial, Mr. Ager called one of the experts (Dr. Frunza) for the defense. According to the judge, “Mr. Ager attempted to convince that, if he spoke in court, he risked being in a ‘horrendous environment’ in which he would find out ‘what you are defending is someone who has taken someone’s life savings.’”
According to an article in BBC News, “Mr. Ager was keen that his evidence should not be challenged and he felt threatened by the prospect of a far more impressive expert appearing in an area of expertise in which he hoped to continue making a living.”
One has to wonder how this individual (who was hired at least 20 other times by the prosecution) was vetted and selected as an expert.
But problems with experts is not confined to our friends across the pond. Below are two recent cases where the environmental experts didn’t pass muster.
US Litigation Expert Provides “Simplistic Analysis”
According to an article in the Evanston Round Table, “On April 9, United States District Court Judge John Z. Lee filed a 45 page opinion in which he denied the City of Evanston’s motion for a preliminary injunction against Northern Illinois Gas Company and Commonwealth Edison Company (the Utilities) in the James Park litigation. To date the amount spent by the City on investigation and testing, expert fees and legal fees is $8,148,237.”
The City filed suit against the Utilities under the Resource Conservation and Recovery Act (RCRA). At issue was polycyclic aromatic hydrocarbon (PAH) contamination in the area.
Testimony “Fell Short”
Judge John Z. Lee said that the City’s expert’s “rather simplistic analysis” fell short of proving that the Skokie MGP (Utility) was the source of the PAH’s. The Judge also said “…all of the testimony was hypothetical.” The City’s experts have not “actually looked at or studied Evanston’s water system, conducted any testing to determine what the level of risk might be…”
The City’s expert also ruled out several other potential sources including a landfill, a gas station, a Rust-Oleum plant, and others. However, he did not give a clear answer as to why he ruled out those possibilities.
The Judge stated that the expert for the defense had chemical analysis that showed that the Utility was not the source of contamination. The evidence presented by the defense’s expert was “persuasive and largely unrebutted.”
In a press release, The City of Evanston said that, “The City will carefully review the Court’s ruling and weigh its next steps.”
Sudden and Accidental?
Finally, another case in Illinois (Varlen Corporation v Liberty Mutual Insurance) did not end well for the expert.
According to court documents, Varlen owned and operated two industrial facilities related to railroad operations during the time period relevant to this appeal. At the first site, which the parties call the LASI site, Varlen performed operations such as plating parts for locomotive engines in chrome. At the second site, the Silvis site, Varlen’s operations included refueling diesel engines. Varlen discovered contamination at both sites.
Varlen had an insurance policy with Liberty Mutual Insurance, but there was an exclusion for any property damage arising out of chemical leaks or discharges, and Liberty Mutual denied coverage on this ground.
However, Varlen stated that the policy would provide coverage if the pollution was a result of a sudden and accidental release. Varlen’s expert, Daniel Rogers (geologist), said the releases were “sudden and accidental.” However, the court stated the he did not elaborate sufficiently with respect to how he came to this conclusion.
Were Conclusions Guesses?
According to a blog by Megan Elliot at Manko, Gold, Katcher, and Fox, “The judge reviewed the witness’ testimony and deemed it unreliable based on an analysis under Rule 702 of the Federal Rules of Evidence and the Supreme Court’s opinion in Daubert v. Merrell Dow Pharmaceuticals. Under both of those standards, experts are permitted to make inferences about what happened and base those inferences on their personal expertise. Those inferences, however, must still be ‘based on sufficient facts or data.’”
Court documents state, “In short, Rogers failed to demonstrate that his conclusions were anything more than guesses.”
The ruling was in favor of the insurance provider, Liberty Mutual.
Litigation can be very challenging, even for the most seasoned litigators and experts. With respect to the experts, using multiple lines of evidence that support the conclusions (in court or before regulators) is still pretty sound advice.
If you need help with an expert environmental services project, you can reach us at 248-932-0228, or drop me an email, and we will get in touch with you.