Free Trial Brief - District Court of Colorado - Colorado

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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-2163-BNB-MEH SIERRA CLUB and MINERAL POLICY CENTER, Plaintiffs, vs. EL PASO PROPERTIES, INC., Defendant. ______________________________________________________________________________ EL PASO'S TRIAL BRIEF ______________________________________________________________________________ Defendant El Paso Properties, Inc. ("El Paso"), by counsel, respectfully submits this Trial Brief pursuant to the October 17, 2006 Trial Procedures Order and states as follows: This is a citizen's suit brought under the Clean Water Act, 33 U.S.C. §§ 1251-1387 ("the Act"). Plaintiffs allege that El Paso has violated and continues to violate the Act by discharging zinc from the Roosevelt Tunnel portal into navigable waters of the United States. At trial, the evidence will show that the testimony of Plaintiffs' expert witness Dr. Ann Maest is inadmissible under FED. R. EVID. 702.1 The evidence will also show that Plaintiffs cannot carry their burden of proving that El Paso has discharged zinc into Cripple Creek. I. Dr. Maest's opinions are inadmissible under FED. R. EVID. 702. FED. R. EVID. 702 governs the admission of expert testimony. According to Rule 702, expert testimony is only admissible if: (1) the expert is qualified to provide the testimony; (2) the

The Court will also need to determine whether the opinions offered by El Paso's expert witness Robert Brogden are admissible under FED. R. EVID. 702.

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expert's testimony is based on sufficient facts or data; (3) the testimony is the product of reliable principles and methods; and (4) the expert has applied the principles and methods reliably to the facts of the case. The proponent of the testimony bears the burden of proving that the expert's opinions satisfy the criteria set forth in Rule 702. See Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 978 (10th Cir. 2001); Tessier v. Sheriff of Monroe County, 402 F.3d 192, 1108 (11th Cir. 2005); United States v. Hicks, 389 F.3d 514, 525 (5th Cir. 2004). El Paso does not challenge Dr. Maest's qualifications. In Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590 (1993), the United States Supreme Court made clear that the focus of a Rule 702 inquiry is determining the reliability of expert testimony. For expert testimony to be reliable, "it must be based on scientific knowledge which implies a grounding in the methods and procedures of science based on actual knowledge, not subjective belief or unsupported speculation." Dodge v. Cotter Corp. 328 F.3d 1212, 1222 (10th Cir. 2002) (internal quotation omitted). Thus, "a trial court's focus generally should not be upon the precise conclusions reached by the expert, but on the methodology employed in reaching those conclusions." Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1233 (10th Cir. 2005) (citing Daubert, 509 U.S. at 595). The proponent of an expert opinion "must show 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." Mitchell v. Gencorp, Inc., 165 F.3d 778, 781 (10th Cir. 1999); Bitler, 400 F.3d at 1233 (quoting Mitchell, 165 F.3d at 781).
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In Daubert, the Supreme Court set forth a non-exclusive checklist of factors for trial courts to use in assessing the reliability of scientific testimony. Daubert, 509 U.S. at 592-94. These factors include: (1) whether the expert's technique or theory can be or has been tested-that is, whether the expert's theory can be challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability; (2) whether the technique or theory has been subjected to peer review and publication; (3) the known or potential rate of error of the technique or theory when applied; (4) the existence and maintenance of standards and controls; and (5) whether the technique or theory has been generally accepted in the scientific community. Id. Courts both before and after Daubert was decided have found other factors relevant in determining whether expert testimony is sufficiently reliable to be considered by the trier of fact; including: (1) whether the expert is proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying, Daubert v. Merrill Dow Pharms., Inc. 43 F.3d 1311, 1317 (9th Cir. 1995); (2) whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion, General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) ("A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered"); (3) whether the expert has adequately accounted for obvious alternative explanations, Claar v. Burlington N.R.R., 29 F.3d 499, 502 (9th Cir. 1999); and (4) whether the expert is being as careful as he would be in his regular professional work
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outside his paid litigation consulting, Sheehan v. Daily Racing Form, Inc., 104 F.3d 940, 942 (7th Cir. 1999). The evidence at trial will demonstrate that Dr. Maest's testimony is inadmissible because it does not meet the requirements of FED. R. EVID. 702 or the reliability factors set forth in Daubert and its progeny. Plaintiffs identified Dr. Maest as an expert in the field of aqueous geochemistry and pollutant fate and transport. Plaintiffs' Exhibit 21 at ¶ 1. In Dr. Maest's June 20, 2002 report and the Joint Statement of Expert Opinions submitted by the parties [Doc # 206], Plaintiffs identified five opinions to be offered by Dr. Maest. First, Dr. Maest opines that the shaft and related workings of the El Paso Mines are hydrologically connected to Cripple Creek via the Roosevelt Tunnel. Id. at ¶ 4; [Doc # 206 at 2]. Second, Dr. Maest opines that when snowmelt and infiltrating rainwater flow through the El Paso shaft and underground workings, they "pick up" metals and other contaminants from mineralized rock and carry them to the Roosevelt Tunnel. Id. at ¶ 5; [Doc # 206 at 2]. Third, Dr. Maest opines that a large waste rock pile located where the shaft intersects the earth's surface, the El Paso shaft, and the underground workings leading to the shaft all contain minerals that will release metals and other contaminants to waters flowing through the underground workings. Id. at ¶ 4; [Doc # 206 at 3]. Fourth, Dr. Maest opines that the El Paso shaft is a source of contamination to water in the Roosevelt Tunnel and that zinc and other contaminants are being discharged into Cripple Creek from Roosevelt Tunnel. Id. at ¶ 7; [Doc # 206 at 3-4]. Finally, Dr. Maest opines that "at least some" of the metals and other contaminants being discharged into Cripple Creek from the Roosevelt Tunnel are generated
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from the El Paso mine, the El Paso shaft, and related underground workings. Id. at ¶ 3; [Doc # 206 at 4]. In her report, Dr. Maest states "I may be asked to review additional documents related to this case at a later date and may also conduct an inspection of the Roosevelt Tunnel or the El Paso Mine. I therefore reserve the right to revise or supplement this report in the future." Id. at 4. Despite reserving this right, Dr. Maest has never supplemented or revised her report. After receiving Dr. Maest's report in 2002, El Paso requested copies of any other reports or documents supporting Dr. Maest's opinions. Exhibit 1 attached hereto. On September 14, 2006, El Paso reiterated its request for documents supporting Dr. Maest's opinions. Exhibit 2 attached hereto. Plaintiffs never produced any documents or other information in response to El Paso's requests. See, Exhibits 1 & 3 attached hereto. Until the December 12, 2006 exchange of trial exhibits between the parties, Plaintiffs did not produce a single page of work product from Dr. Maest other than her original report.2 The evidence will demonstrate that Dr. Maest's opinions are not based upon sufficient facts or data. Dr. Maest based her opinions on the flawed and superficial reports of others and

Plaintiffs identified roughly 50 trial exhibits that were not disclosed or produced during discovery. El Paso objects to these exhibits on the basis that they were not disclosed as required by FED. R. CIV. P. 26. Rule 26(a)(1)(B) requires a party to provide "a copy of . . . all documents that are in the possession custody, or control of the party and that the disclosing party may use to support its claims or defenses." Rule 26(e) requires a party to supplement its Rule 26 disclosures with information acquired after the initial disclosures were made. FED. R. CIV. P. 37 (c)(1) states that "[a] party that without substantial justification fails to disclose information by Rule 26(a) is not, unless such failure is harmless, permitted to use to use as evidence at trial . . . any witness or information not so disclosed." Since Plaintiffs did not timely produce these documents, any testimony based upon them at trial should be excluded.
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ignored existing water chemistry data. In forming her opinions, Dr. Maest did not discuss or analyze the existing data or explain contradictory data. Dr. Maest did not base her opinions on any physical, chemical or hydrologic characteristics of the Roosevelt Tunnel or any reliable water flow or sampling data. The evidence will also demonstrate that Dr. Maest's opinions are not the product of reliable principles or methods and that Dr. Maest did not apply any principles and methods reliably to the facts of the case. Dr. Maest does not describe a single scientific technique or method in her report. Dr. Maest did note the existence of generalized chemical constituents in the water within the Roosevelt Tunnel, but did not test or analytically compare the water chemistry at different flow points to verify that zinc in water collected at the Roosevelt Tunnel has its origin in the El Paso shaft. Dr. Maest did not test the physical, chemical or hydrologic characteristics of the Roosevelt Tunnel, perform any other chemical or hydrologic test, prepare any flow models, or perform any calculations that could reliably establish a nexus between zinc at the El Paso shaft and zinc at the portal. Dr. Maest's opinions are not sufficiently reliable to be considered by the Court because they have not been subjected to peer review and are not based on sufficient methods, data or analysis to allow meaningful peer review. The methodology employed by Dr. Maest in reaching her opinions, which included reviewing documents provided by an attorney and allowing the same attorney to write the first draft of her report, is not generally accepted in the fields of geochemistry or pollutant fate and transport.
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The evidence will show that Dr. Maest's opinions are unreliable because she failed to account for alternative explanations such as the possibility that zinc occurs naturally in water flowing within the Roosevelt Tunnel. Claar, 29 F.3d at 502 (holding that the district court was justified in excluding expert testimony where the experts failed to rule out other causes of the plaintiff's injuries). No studies have ever been conducted to determine naturally occurring levels of zinc in the water flowing through the Roosevelt Tunnel. The evidence will also show that there is an analytical gap between the water quality data reviewed by Dr. Maest and her conclusions. General Elec. Co. v. Joiner, 522 U.S. at 146 (holding that an analytical gap existed where the plaintiff's experts could not account for the fact that the studies they relied on did not support their conclusions). While expressly acknowledging the existence of "other contaminated water" in the Roosevelt Tunnel flows, Dr. Maest's report does not discuss the origins of this "other contaminated water," distinguish the admittedly multiple flow sources of portal water, or quantify the portal constituent concentrations by source. Plaintiffs' Exhibit 21 at ¶ 3. Dr. Maest's report fails to acknowledge or discuss conflicting data, such as sampling data from October 1994 showing a 99.85% decrease in zinc concentrations in the first 3,000 feet downgradient from the El Paso shaft. Defendant's Exhibit Q. Finally, the evidence will show that Dr. Maest has not exercised the same level of scientific care in forming her opinions in this case as she does in her work outside of litigation consulting. Sheehan, 104 F.3d at 942 (finding that an expert's opinions were properly excluded
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where the expert did not exercise the same care in reaching his conclusions that he would have exercised in his normal scientific work). The scientific reports Dr. Maest prepares in her work outside of litigation are lengthy and rich in facts and data. Dr. Maest has produced many other reports that describe the methods used and apply methods to existing facts and data. Dr. Maest's other reports contain maps, charts and citations to other scientific reports. There is a stark contrast between Dr. Maest's report in this case and her outside work, indicating that she did not exercise the level of care commonly accepted in the field of pollutant fate and transport analysis. Plaintiffs relied on Dr. Maest's expert opinions in a separate action before this Court in which Plaintiffs alleged that other parties were also liable for the discharge of pollutants from the El Paso shaft into Cripple Creek via the Roosevelt Tunnel. Sierra Club v. Cripple Creek and Victor Gold Mining Co., Civil Action No. 01-cv-02325-MSK-MEH ("the CC&V case"). In the CC&V case, Dr. Maest offered the following opinion: The fourth opinion is that at least some of the constituents in the water flowing out of the Roosevelt Tunnel and into Cripple Creek originates from the El Paso Mine, the El Paso Shaft, and/or related underground workings and thus the El Paso Mine, Shaft, and related workings are hydrologically connected to Cripple Creek via the Roosevelt Tunnel. [Exhibit 6 to Doc # 178 at 3]. With respect to all of Dr. Maest's opinions, including the opinion recited above, the District Court ruled that "the plaintiff has not carried its burden of proof and the opinions have to be excluded." Id. at 9. Specifically, the District Court found that Plaintiffs had introduced no evidence by which it could determine "what really is generally accepted and whether the methodology used by Dr. Maest comports with that standard." Id. After the
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Plaintiffs moved for reconsideration, the District Court affirmed its ruling and held "[w]hether we use a standard of general acceptance or we use a standard of whether this is reliable, the plaintiff has not offered evidence to exceed the preponderance or to reach the preponderance of evidence standard that the methodology used by Dr. Maest is reliable in the field." Id. at 10. II. Plaintiffs cannot prove that El Paso has discharged zinc into navigable waters. The Clean Water Act prohibits the discharge of any pollutant from a point source to navigable waters unless authorized by permit. 33 U.S.C. § 1311; Nat'l Wildlife Fed'n v. Gorsuch, 693 F.2d 156, 165 (D.C. Cir. 1982). A "discharge of a pollutant" occurs when five elements exist: (1) a pollutant must be (2) added (3) to navigable waters (4) from (5) a point source. Nat'l Wildlife Fed'n v. East Bay Mun. Dist., 13 F.3d 305, 308 (9th Cir. 1993). Plaintiffs bear the burden of proving each element by a preponderance of the evidence in order to establish that El Paso is violating the Act. Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1146 (10th Cir. 2005), cert. denied, 126 S. Ct. 1653 (2006). Thus, Plaintiffs must prove that there is a nexus between zinc at the El Paso shaft and zinc in flows from the Roosevelt Tunnel portal into Cripple Creek. The evidence presented at trial will demonstrate that Plaintiffs cannot meet this burden.

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A.

Existing sampling data does not support the theory that zinc from the El Paso shaft is discharged from the Roosevelt Tunnel portal.

Plaintiffs' case rests on the proposition that zinc3 in water flowing out of the El Paso shaft is transported 2½ miles through the Roosevelt Tunnel and thence from the portal into Cripple Creek. To test this hypothesis, one must consider water quality sampling data at the portal, at the El Paso shaft, and at intermediate locations within the Roosevelt Tunnel. The existing water quality sampling data collected within the Roosevelt Tunnel is scant and does not support the proposition that the El Paso shaft is the source of zinc exiting the portal. El Paso concedes that water quality samples collected at the Roosevelt Tunnel portal sometimes contain measurable amounts of zinc. However, the data demonstrates that concentrations of zinc at the portal are highly variable. Since 1994, water samples have been collected inside the Roosevelt Tunnel on only six days: May 13, 1994, October 14, 1994, October 26, 1995, October 23, 1996, November 16, 2000, and August 7, 2001. A sample was collected at the El Paso shaft during only four of the six sampling events. Samples were collected in the more than 14,000 feet of tunnel that separate the El Paso shaft and the portal during only three of the six sampling events. The meager data available support the conclusion that the Roosevelt Tunnel is gaining and losing most, if not all, of the water flows between the El Paso shaft and the portal.

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Zinc is the only pollutant specifically identified by Plaintiffs' expert witness Dr. Ann Maest.

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On May 13, 1994, a water sample collected at the El Paso shaft revealed the presence of 2.1 parts per million ("ppm") of total recoverable ("TR") zinc. No samples were taken at the portal or between the shaft and the portal on that day. Defendant's Exhibit Q. On October 14, 1994, a water sample collected at the El Paso shaft revealed the presence of 4.1 ppm of zinc (TR). Id. No sample was taken at the portal on that day, but three samples were collected between the shaft and the portal. At a location 2,000 feet west of the shaft, the zinc concentration was 0.013 ppm (TR). At a point 3,000 feet west of the shaft, the zinc concentration was 0.006 ppm (TR), a 683-fold (or 99.85%) reduction in less than ¼ of the distance from the El Paso shaft to the portal. At a location 4,000 west of the shaft, the concentration of zinc increased to 0.009 ppm (TR). On May 26, 1995, a water sample was collected east of the El Paso shaft; no samples were collected at the portal, the shaft or between the shaft and portal. Id. On October 23, 1996, a water sample collected at the intermediate shaft about halfway between the El Paso shaft and the portal revealed 0.916 ppm of zinc (TR). Id. A sample collected at the portal on that day did not indicate the presence of zinc. Plaintiffs' Exhibit 19. On November 16, 2000, a water sample collected at the El Paso shaft revealed the presence of 2.34 ppm of zinc (TR). Defendant's Exhibit P. At a location "approximately 6,000 to 8,000 feet from the Shaft," analysis of a water sample indicated 0.637 ppm of zinc (TR). At a location identified as "approximately 700 feet east of the portal," a water sample revealed 0.197 ppm of zinc (TR). No sample was collected at the portal on that day.
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On August 7, 2001, a water sample taken at the El Paso shaft showed 2.63 ppm of dissolved zinc. A water sample collected at the portal on that day indicated 0.056 ppm of dissolved zinc. No samples were collected in the 14,000 feet separating the shaft and the portal on that day. Plaintiffs' Exhibit 60. Although spanning seven years in their collection, these data are consistent with one another in showing dramatic changes in zinc concentrations in water flowing between the El Paso shaft and the Roosevelt Tunnel portal. They also support the observations and conclusions of those who have inspected the tunnel and reported that it gains and loses water flows along its length. This data also demonstrates that the vast majority (if not all) of the El Paso shaft flows, whatever their origin, infiltrate into the Roosevelt Tunnel floor and do not reach the portal. The available data does not prove that the El Paso shaft is the source of zinc exiting the Roosevelt Tunnel. Plaintiffs will present no evidence regarding whether or the degree to which zinc is naturally found in water flowing in the Roosevelt Tunnel. Consequently, there is no evidence from which the Court can determine whether any pollutant has been added or discharged into the water. Thus, Plaintiffs cannot meet their burden of proving a nexus between zinc at the El Paso shaft and zinc at the tunnel portal.

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B.

Prior judicial rulings recognize that the source of zinc at the Roosevelt Tunnel portal cannot be proven.

In January 2003, Colorado Administrative Law Judge Matthew E. Norwood heard evidence in the state's efforts to hold El Paso liable for the Roosevelt Tunnel portal flow into Cripple Creek. In Re: The Matter of El Paso Gold Mines, Inc. (Case No WQ 2002-001). After hearing the evidence, Judge Norwood issued an Initial Decision finding that the lack of scientific data was a crucial defect in the government's case against El Paso. Judge Norwood's ruling with respect to the nexus between zinc at the shaft and zinc at the portal was explicit: The Division has failed to prove that the zinc and manganese in the water coming out of the Roosevelt Tunnel has its origin in the El Paso Mine owned by [El Paso]. Reliable measuring devices to determine the flow of water in the Roosevelt Tunnel have not been used. This, along with the dramatic drop in zinc and manganese concentrations from the El Paso Shaft to the portal, casts sufficient doubt on whether any of the zinc and manganese tested at the portal is coming from the El Paso Mine. Plaintiffs' Exhibit 15 at 12 (Conclusion of Law 3). El Paso appealed this Court's summary judgment ruling to the Tenth Circuit Court of Appeals. The Tenth Circuit questioned Plaintiffs' evidence regarding the source of zinc at the Roosevelt Tunnel portal and held that although: the experts agree that at least some of the water from the El Paso shaft reaches the portal, there is no agreement regarding whether pollutants coming from the shaft are discharged at the portal. It may not be a difficult leap to presume that if water makes the two and one half mile journey, then so do pollutants. But this ignores the evidence showing dramatic declines in zinc levels as water flows from the El Paso Shaft towards the portal. It further fails to
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take into account the apparently complex process of infiltration and exfiltration that occurs along the length of the Roosevelt Tunnel. Even the Plaintiffs' strongest evidence ­ that water samples taken at the shaft and the tunnel portal... both contain zinc and manganese is less than convincing given the uncertainties by which the data was collected. Viewed in the light most favorable to the nonmoving party, there is a genuine issue of material fact regarding the source of pollutants discharged at the portal. Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d at 1149-50 (emphasis supplied). In the CC&V case, the District Court held that Plaintiffs had not met their burden of proving a violation of the Act with regard to the El Paso shaft. After hearing Plaintiffs' evidence, the District Court concluded: The Sierra Club repeatedly argues that it is not required to "prove the origin of the pollutants in order to establish liability." This argument begs the question. With regard to a non-permit claim, the Sierra Club must establish that there was a discharge of a pollutant into the water--the mere presence of identified chemicals in the water does not constitute a violation of the Clean Water Act because such chemicals could be there naturally. If water contains a substance in the same amount or degree as naturally occurs in the environment, then it is unlikely that anything has been added or discharged into the water. Sierra Club has presented no evidence as to whether, what or the degree to which the chemicals or other substances reported in the test results are naturally found in the water at the subject locations. Thus, the Court has no evidence from which it can determine whether any pollutant has been added or discharged into the water. [Exhibit 2 to Doc # 177 at 4]. The District Court did not find that Plaintiffs' evidence was inadequate or less than convincing; the Court found that the Plaintiffs presented "no evidence." Id.

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Despite seeking and receiving permission to enter the Roosevelt Tunnel in August 2006 for the purpose of conducting tracer studies, solid sampling, flow measuring and water quality sampling, Plaintiffs have not gathered any additional evidence since the trial in the CC&V case to prove that zinc present at the El Paso shaft is the same zinc at the Roosevelt Tunnel portal. Thus, this Court will be considering the same evidence previously rejected by a Colorado ALJ, the District Court in the CC&V case, and the Tenth Circuit Court of Appeals. For the reasons set forth in this Trial Brief and based on the evidence to be presented at trial, this Court should find that Dr. Maest's opinions are inadmissible under FED. R. EVID 702. The Court should further enter an order finding that Plaintiffs have failed to meet their burden of proving a nexus between zinc at the El Paso shaft and zinc at the Roosevelt Tunnel portal. In the event that the Court finds that Plaintiffs have established liability, El Paso reserves the right to re-argue the evidence presented in 2002 relevant to a determination of remedies and incorporates by reference its Trial Brief regarding remedies on December 4, 2002 [Doc # 103].

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Respectfully submitted this 22nd day of January, 2007.

_s/Stephen D. Harris_______ James L. Merrill, No. 9466 Stephen D. Harris, No. 24178 Michael J. Gustafson, No. 37364 MERRILL, ANDERSON & HARRIS, LLC 20 Boulder Crescent Colorado Springs, Colorado 80903-3300 (719) 633-4421 (telephone) (719) 633-4759 (facsimile) Counsel for El Paso Properties, Inc. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing EL PASO'S TRIAL BRIIEF was sent electronically via ECF this 22nd day of January, 2007, to the following: John M. Barth, Esq. Attorney at Law Post Office Box 409 Hygiene, Colorado 80533 [email protected] Roger Flynn, Esq. Jeffrey C. Parsons, Esq. 2260 Baseline Road, Suite 101A Boulder, Colorado 80302 [email protected]

_s/Sarah D. White____________ Sarah D. White, Staff Assistant

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