Free Trial Brief - District Court of Colorado - Colorado

Case 1:01-cv-02163-BNB-MEH

Document 243

Filed 02/26/2007

Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 01-CV-02163-BNB-MEH SIERRA CLUB and MINERAL POLICY CENTER, Plaintiffs, v. El PASO GOLD MINES, INC. (a.k.a., EL PASO PROPERTIES, INC.) Defendant. ______________________________________________________________________________ PLAINTIFFS' POST-TRIAL BRIEF ______________________________________________________________________________

Pursuant to this Court's order at the close of trial on February 9, 2007, Plaintiffs Sierra Club and Mineral Policy Center (also known as Earthworks) hereby submit Plaintiffs' Post-Trial Brief. I. Introduction The previous rulings in this case by this Court and the 10th Circuit Court of Appeals substantially narrowed the factual issues to be determined at trial. As recognized by both parties, the only factual issues remaining for determination at trial were whether water and pollutants discharged at the El Paso Shaft reach the Roosevelt Tunnel portal, where it is undisputed that polluted water flows into Cripple Creek without a Clean Water Act permit. The evidence admitted at trial, through the expert testimony of Dr. Ann Maest, the lay testimony of Ken Klco and State of Colorado Water Quality Control Division officer David Akers, the video tape of the interior of the Roosevelt Tunnel, inspection reports, and water

Case 1:01-cv-02163-BNB-MEH

Document 243

Filed 02/26/2007

Page 2 of 11

quality sampling data, all demonstrate that water and pollutants discharged from the El Paso Shaft does reach the Roosevelt Tunnel Portal and Cripple Creek. Indeed, Dr. Maest's was the only expert testimony establishing a chemical fingerprint between the pollutants discharged from the El Paso shaft and those found at the portal. This testimony also explained why some pollutant concentrations drop as the polluted water flows from the Shaft to the portal, and concluded that at least some of the polluted water exiting the Roosevelt Tunnel into Cripple Creek has its origin at the El Paso Shaft. As a result, the preponderance of the evidence offered at trial shows that the El Paso Shaft is responsible for at least some of the pollutants discharged into Cripple Creek. Therefore, the Clean Water Act requires that the owner of that conveyance El Paso Properties, Inc. ("El Paso") - obtain a permit authorizing this discharge of pollutants. While El Paso offered expert testimony that some fluctuation may exist in the water flows within the Roosevelt Tunnel, El Paso failed to overcome the substantial evidence showing continuous water and pollutant flow the entire length of the Roosevelt Tunnel from the El Paso Shaft to the tunnel portal. Specifically, the preponderance of the evidence shows that regardless of fluctuations in flow, if any, the El Paso Shaft discharges water containing zinc, manganese, aluminum, and sulfate into the Roosevelt Tunnel, and at least some of this polluted water reaches the tunnel portal and Cripple Creek. The complete factual bases supporting Plaintiffs' case are included in Plaintiffs' Proposed Findings of Fact filed simultaneously herewith. Not surprisingly, given the weight of evidence contrary to their litigation position, El Paso has focused its argument and trial strategy on an attempt to exclude the expert testimony of Dr. Maest. The crux of El Paso's argument is that Dr. Maest's expert report does not comply with the "completeness" rule of Fed.R.Civ.P. 26(a)(2), and thus her expert opinions offered at

2

Case 1:01-cv-02163-BNB-MEH

Document 243

Filed 02/26/2007

Page 3 of 11

trial cannot be based on a reliable scientific method. However, regardless of any perceived failure to comply with Fed.R.Civ.P. 26, as discussed herein, Dr. Maest's expert testimony at trial meets the requirements of Fed.R.Evid. 702, and is therefore admissible. Barring a successful attempt to exclude Dr. Maest's expert opinions, El Paso also argued that it should not be found liable under the Clean Water Act because of a claimed "hardship" defense. However, as set forth herein, such a defense is inapplicable here, as the Clean Water Act is a strict liability statute. Further, any "hardship" is contradicted by the record and evidence in this case. II. Admissibility of Dr. Maest's Expert Testimony under Fed.R.Evid. 702 Fed.R.Evid. 702 was not intended to create an overly-burdensome barrier for admissibility of expert witness testimony: A key but sometimes forgotten principle of Rule 702 and Daubert is that Rule 702, both before and after Daubert, was intended to relax traditional barriers to admission of expert opinion testimony. See, e.g., Daubert, 509 U.S. at 588. Accordingly, courts are in agreement that Rule 702 mandates a liberal standard for the admissibility of expert testimony. See Daubert, 509 U.S. at 588 (Rule 702 is part of "liberal thrust" of Federal Rules of Evidence); see generally 4 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 702.02[1] (2d ed.2005) (collecting cases). As the Advisory Committee to the 2000 amendments to Rule 702 noted with apparent approval, "[a] review of the caselaw after Daubert shows that the rejection of expert testimony is the exception rather than the rule." Cook v. Rockwell Intern. Corp., 2006 WL 3533049 at *4 (D.Colo. 2006)(Kane, J.). More specifically, with regard to the reliability of an expert's methodologies: the party need only prove that "the method employed by the expert in reaching the conclusion is scientifically sound and that the opinion is based on facts which sufficiently satisfy Rule 702's reliability requirements." Id. at 1233. "The evidentiary requirement of reliability is lower than the merits standard of correctness," In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 744 (3d Cir.1994) (quoted with approval in Fed.R.Evid. 702 2000 advisory committee's note), and gaps or inconsistencies in an expert's reasoning may go

3

Case 1:01-cv-02163-BNB-MEH

Document 243

Filed 02/26/2007

Page 4 of 11

to the weight of the expert evidence, not its admissibility, see, e.g., Campbell v. Metro. Prop. & Cas. Ins. Co., 239 F.3d 179, 186 (2 Cir.2001). Id., 2006 WL 3533049, at *6. During the trial in this case, and in closing argument, El Paso focused heavily on the content of original written expert report of Plaintiffs' expert Dr. Ann Maest. El Paso contends that the expert report was not sufficiently detailed under Fed.R.Civ.P. 26(a)(2), and as a result, Dr. Maest's expert testimony at trial should be inadmissible under Fed.R.Evid. 702. The Court rejected this argument on the first day of trial. The "completeness" rule for expert reports under Fed.R.Civ.P. 26 is not a substitute for the test for admissibility of an expert's testimony under Fed.R.Evid. 702. Rather, the determination of admissibility under Fed.R.Evid. 702 is made independent of the Rule 26 expert report, which serve largely only to give notice of an expert's opinions for purpose of case preparation. Indeed, expert reports are not even typically admissible as evidence at trial. See Strock v. USA Cycling, Inc., 2006 WL 1223151 at *7 (D.Colo. 2006)("Unsworn expert reports are not competent evidence and may not be considered for summary judgment purposes. Sofford v. Schindler Elevator Corp., 954 F.Supp. 1459, 1462-63 (D.Colo.1997)."); Apodaca v. Discover Financial Services, 417 F.Supp.2d 1220, 1233 (D.N.M. 2006)(same).1 In fact, El Paso moved to admit Dr. Maest's expert report at trial, which was denied as inadmissible hearsay.

Colorado federal courts recognize the clear distinction between the requirements of Rule 26 for expert disclosures and the test for admissibility of expert opinions under Fed.R.Evid. 702. See Cook v. Rockwell Intern. Corp., 2006 WL 3533049, at *42 (D.Colo. 2006)("Defendants' argument also confuses the expert reporting requirements of Rule 26(a)(2) with the considerations for assessing the admissibility of an expert's opinions under Rule 702 of the Federal Rules of Evidence.").

1

4

Case 1:01-cv-02163-BNB-MEH

Document 243

Filed 02/26/2007

Page 5 of 11

There is no basis in law for bootstrapping this Court's analysis of admissibility under Fed.R.Evid. 702 to any alleged deficiency in Dr. Maest's expert report under Rule 26. Indeed, district courts have "great latitude in determining how to make Daubert reliability findings..." U.S. v. Velarde, 214 F.3d 1204, 1209 (10th Cir. 2000). In fact, the only requirement for making this determination is "that the court must, on the record, make some kind of reliability determination." Id (emphasis in original). El Paso's argument that Dr. Maest's expert report is not sufficient to demonstrate reliability of her opinions at trial misses the mark. Whether an expert used reliable methodology in forming opinions testified to at trial is the subject of the 702 hearing. Indeed, that is the sole purpose of a 702 hearing as confirmed by holdings in cases where a court finds expert reports lacking for purposes of demonstrating admissibility under Fed.R.Evid. 702: The court cannot tell from the record the reliability of the opinion.... Therefore the court orders a Daubert hearing on that issue for 2:30 p.m. July 14, 2000. The court will make its ruling on the admissibility of Dr. Okoye's opinion after hearing the testimony and the parties' arguments. At the hearing, the plaintiff must; give the reasons for Dr. Okoye's opinion, show a connection between the facts and the opinion, and explain how the facts and bases lead to the opinion stated. Estate of Fuentes v. Thomas, 2000 WL 1114892 at *3 (D. Kan. 2000). To argue that the expert opinions at trial must, in all instances, be set forth verbatim in a pre-trial expert report runs counter to Fed.R.Evid. 703. Rule 703 expressly allows expert opinion based on information "made known to the expert at or before the hearing." If expert reports, and the expert's level of work put into them, were the determining factor in whether to admit such testimony, an expert witness could not offer opinions based on facts made known at the relevant hearing because there would have been no time to prepare such reports. This is not to say, however, that courts do not still perform their 702 gatekeeping function on these opinions, even

5

Case 1:01-cv-02163-BNB-MEH

Document 243

Filed 02/26/2007

Page 6 of 11

in the absence of any reports. This further demonstrates the fallacy of putting undue weight on the expert report. El Paso's argument that Dr. Maest did not spend sufficient time on her 2002 expert report is not a basis to disallow Dr. Maest's expert opinion testimony at trial. The written expert report was not admitted in evidence and was not the subject of the 702 hearing. Rather, the testimony of the expert witness at the 702 hearing and at trial are the focus. At trial, Dr. Maest testified at length as to the bases and facts supporting her opinions and the methodologies she employed. Her testimony included descriptions of the geochemical principles she applied along with multiple published reference papers supporting the use of these principles. Dr. Maest also produced multiple demonstrative exhibits showing how the methodologies she used apply with respect to the polluted water in the Roosevelt Tunnel. Her testimony was detailed and comprehensive on these matters. Additionally, Tenth Circuit case law makes clear that El Paso's arguments attacking Dr. Maest's work on the report more properly go to the weight of her testimony and not the admissibility: Kerr-McGee's attack on Maxwell's methodology is more properly directed to the weight of the proffered opinions and not to their admissibility. Cf. Cohen v. Lockwood, 2004 WL 763961, * 2 (D.Kan.2004) ("questions related to the bases and sources of an expert's opinion affect the weight to be assigned to that opinion rather than its admissibility"). See also United States v. 14.38 Acres of Land, 80 F.3d 1074, 1079 (5 Cir.1996) (the perceived flaws in the testimony of the experts are "matters properly to be tested in the crucible of adversarial proceedings; they are not the basis for truncating that process"); Jones v. Otis Elevator Co., 861 F.2d 655, 663 (11 Cir.1988) (any weaknesses in the underpinnings of an expert's opinion, goes to its weight, not its admissibility; opposing counsel will have cross-examination to ferret out the opinion's weaknesses). As the Supreme Court has acknowledged, [v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but

6

Case 1:01-cv-02163-BNB-MEH

Document 243

Filed 02/26/2007

Page 7 of 11

admissible evidence.... These conventional devices, rather than wholesale exclusion under an uncompromising `general acceptance' test, are the appropriate safeguards where the basis of [expert] testimony meets the standards of Rule 702." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. at 596. Accordingly, Kerr-McGee's request to strike Maxwell's damage calculations for the nine specified leases is denied. U.S. ex rel. Maxwell v. Kerr-McGee Chemical Worldwide, LLC, 2006 WL 2053534 at *6 (D.Colo. 2006) (Shaffer, Magistrate J.). Further, "[A]s long as a logical basis exists for an expert's opinion ... the weakness in the underpinnings of the opinion[ ] go to the weight and not the admissibility of the testimony." Jones v. Otis Elevator Co., 861 F.2d 655, 663 (11th Cir.1988). See also Lappe v. American Honda Motor Co., 857 F.Supp. 222, 228 (N.D.N.Y.1994) (fact that proffered expert may have "neglected to perform some `essential' tests or measurement will go to the weight of his testimony, not its admissibility"). Lovato v. Burlington Northern and Santa Fe Ry. Co., 2002 WL 1424599, at *5 (D.Colo. 2002) (Shaffer, Magistrate J.). Overall, this Court should not restrict its Rule 702 admissibility determination to the expert report, nor the lack of graphs and exhibits prepared for that report. Rather, the Court must rely on the full record at trial, including the expert opinion testimony, and the graphs and exhibits prepared for, considered, and admitted in that hearing. In so doing, this Court should find Dr. Maest's expert opinions admissible and reliable. III. Clean Water Act Liability Section 301(a) of the CWA states that "the discharge of any pollutant by any person shall be unlawful," unless authorized by an NPDES permit. 33 U.S.C. § 1311(a). Further, under the Act, a "discharge of a pollutant" is defined as "any addition of any pollutant to navigable waters

7

Case 1:01-cv-02163-BNB-MEH

Document 243

Filed 02/26/2007

Page 8 of 11

from any point source." 33 U.S.C. § 1362(12)(emphasis added). Thus, as set forth by the Tenth Circuit: To establish a violation of these sections, a plaintiff must prove that the defendant (1) discharged (2) a pollutant (3) into navigable waters (4) from a point source (5) without a permit. See Nat'l Wildlife Fed'n v. Gorsuch, 693 F.2d 156, 165 (D.C.Cir.1982). Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1142 (10th Cir. 2005). In this case, the only issue to be resolved concerns whether El Paso has "discharged" a "pollutant" under the Clean Water Act: The Tenth Circuit held in Sierra Club that the "addition/discharge" requirement "is satisfied by the contemporaneous introduction of polluted water from El Paso's property, through a point source owned and maintained by El Paso, to a navigable stream, Cripple Creek." 421 F.3d at 1144. Plaintiffs' evidence in the summary judgment proceeding showed that water samples taken at the El Paso shaft contained zinc and manganese. Id. at 1149 and n. 8. Accordingly, plaintiffs establish a "discharge" in this case by proving that pollutants coming into the Roosevelt Tunnel from the El Paso shaft make their way to the Tunnel portal and then exit the portal into Cripple Creek. Sierra Club v. El Paso Gold Mines, Inc., 2006 WL 2331082 at *6 n.9. Thus, the Clean Water Act requires only the finding of "any" discharge of "any" pollutant in "any" amount. At trial, Plaintiffs demonstrated that water containing pollutants, including sulfate, zinc, manganese, and aluminum, discharges from the El Paso Shaft and reaches the Roosevelt Tunnel portal, and Cripple Creek, at least on an intermittent basis. The evidence offered in support of a hydrologic connection between the Shaft and the portal included the videotape of the inspection of the Roosevelt Tunnel, numerous inspection reports, and Ken Klco's testimony, all demonstrating continuous flow from the El Paso Shaft to the Roosevelt Tunnel and Cripple Creek. There was no evidence presented by El Paso that the water does not travel the entire distance of the tunnel. In fact, the only evidence presented on this matter by El Paso was the opinion of its expert that flows fluctuate in the tunnel, and that

8

Case 1:01-cv-02163-BNB-MEH

Document 243

Filed 02/26/2007

Page 9 of 11

fractures may exist in the granite such that some water may leave the tunnel. However, there was no evidence presented that all the water drops out of the tunnel, and such a conclusion is directly contradicted by all of the other evidence of continuous flow discussed above. Further, Dr. Maest's testimony and the water quality sampling data demonstrates that zinc, manganese, sulfate, and aluminum are all discharged at the El Paso Shaft and all reach the Roosevelt Tunnel. The testimony at trial regarding sulfate is the most convincing. As testified to at trial by both Dr. Maest and El Paso's expert Dr. O'Hayre, sulfate is a conservative chemical, meaning it does not participate in the chemical reactions of precipitation and adsorption. Thus, given that the water travels the entire length of the tunnel, the only way for the sulfate to not be in the portal discharge is if it is taken out of the water by chemical reaction. As stated, sulfate does not precipitate or adsorb. As a result, the preponderance of the evidence demonstrates that the El Paso Shaft is the source for at least some of the polluted water flowing from the Roosevelt Tunnel portal into Cripple Creek. IV. El Paso's Claimed "Hardship" Defense El Paso contended in closing argument that it should not be held liable under the Clean Water Act, regardless of whether this Court finds that the El Paso Shaft contributes pollutants to the Roosevelt Tunnel portal discharge. This argument centers on El Paso's conception of the equities in this case, namely that such a finding of liability may work a hardship on the company. However, the Clean Water Act is a strict liability statute. U.S. v. Earth Sciences, Inc., 599 F.2d 368, 374 (10th Cir. 1979). As such, while equitable defenses may be raised with respect to the assessment of penalties for violations of the Act, they may not be raised in order to avoid liability

9

Case 1:01-cv-02163-BNB-MEH

Document 243

Filed 02/26/2007

Page 10 of 11

under the Act. 33 U.S.C. § 1365(a); see also NRDC v. Southwest Marine, Inc., 236 F.3d 985, 1000 (9th Cir. 2000). In this case, El Paso contended in closing argument that any finding of liability will cause undue economic harm to the company, even such that El Paso could not afford to conduct the required permit-related activities such as monitoring or treatment of any polluted discharge. However, the record in this case contradicts this assertion. For instance, this Court has previously rejected El Paso's claim that it could not afford liability in this case. See, Sierra Club v. El Paso Gold Mines, Inc., 2003 WL 25265873, at *11 (D.Colo. 2003)(Coan, J.). Further, El Paso itself has verified that it could indeed afford the costs associated with compliance with a permit for the pollutant discharges at issue in this case. See, Ex.34; Wastewater Treatment and Discharge Agreement at 5, ¶ 3.2; Ex. 12, Affidavit of David H. Schoger at ¶ 15. As such, there is no basis in law or fact for El Paso's asserted "hardship" defense to liability under the Clean Water Act. V. Conclusion The preponderance of the evidence presented at trial, including the expert testimony of Dr. Maest, demonstrates that the El Paso Shaft is a source of pollutants discharging from the Roosevelt Tunnel into Cripple Creek. As demonstrated by her testimony at trial, the opinions offered by Dr. Ann Maest are reliable for purposes of admission under Fed.R.Evid. 702. El Paso's attempts to evade Clean Water Act liability based on an argument of hardship should be rejected. This Court should enter a judgment of liability against El Paso and reinstate the relief awarded previously on summary judgment.

10

Case 1:01-cv-02163-BNB-MEH

Document 243

Filed 02/26/2007

Page 11 of 11

Dated: February 26, 2007

Respectfully submitted by, s/ Jeffrey C. Parsons _________________________ Roger Flynn, Esq. # 21078 Jeffrey C. Parsons, Esq. #30210 WESTERN MINING ACTION PROJECT P.O. Box 349 Lyons, CO 80540 (303) 823-5738 John Barth, #22957 Attorney at Law P.O. Box 409 Hygiene, CO 80533 (303) 774-8868 COUNSEL FOR PLAINTIFFS

CERTIFICATE OF SERVICE I do hereby certify that on this 26th day of February, 2007 a true and accurate copy of PLAINTIFFS' POST-TRIAL BRIEF was filed with the Electronic Case Filing system which is then to serve the same on the following by electronic means: Steve Harris James L. Merrill Merrill Anderson & Harris 20 Boulder Crescent Colorado Springs, CO 80903-3300 [email protected] Connie King Law Firm of Connie King, LLC 4711 Constitution Ave. Colorado Springs, CO 80915 [email protected] s/ Jeffrey Parsons __________________________ Jeffrey Parsons

11