Free Reply to Response to Motion - District Court of Colorado - Colorado

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

Document 192

Filed 07/30/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 01-CV-02163-PAC-MEH SIERRA CLUB and MINERAL POLICY CENTER, Plaintiffs, v. El PASO GOLD MINES, INC. (a.k.a., EL PASO PROPERTIES, INC.) Defendant. ______________________________________________________________________________ PLAINTIFFS' REPLY TO DEFENDANT'S RESPONSE TO PLAINTIFFS' MOTION TO EXCLUDE EXERT OPINIONS OF ROBERT BROGDEN ______________________________________________________________________________

Plaintiffs Sierra Club and Mineral Policy Center (also known as Earthworks) hereby submit this Reply to Defendant's Response to Plaintiffs' Motion to Exclude Expert Opinions of Robert Brogden. This Court should grant Plaintiffs' motion because: 1) Plaintiffs' motion is timely; 2) Brogden did not disclose any expert opinions under Rule 26 regarding the fate and transport of pollutants in the Roosevelt Tunnel and thus should not be allowed to offer such opinions at trial. Plaintiffs also request that this Court enter an order prior to trial or any Rule 702 hearing specifically prohibiting EPGM from identifying any new expert witnesses or expert opinions not previously disclosed as required by Fed.R.Civ.P. 26(a)(2). 1. Plaintiffs' Motion is Timely

EPGM's Response repeatedly accuses Plaintiffs of filing an untimely Rule 702 motion. This argument has no basis in fact. This Court set the date of June 30, 2006 for filing Rule 702 1

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motions. EPGM consented to this date. Plaintiffs filed their Rule 702 motion by the deadline. Thus, Plaintiffs' Motion is timely. Given that EPGM consented to the date for filing Rule 702 motions, EPGM should be estopped from arguing that Plaintiffs' Rule 702 motion is now somehow untimely. 2. Mr. Brogden Never Disclosed Opinions on Fate and Transport of Pollutants

EPGM argues that Robert Brogden has offered expert opinions regarding "evidence showing dramatic declines in zinc levels as water flows from the El Paso shaft toward the portal." EPGM's Response, p. 2. This is simply not true. Nowhere does this quote appear in any of Mr. Brogden's expert reports. Also, nowhere in Mr. Brogden's expert report or supplemental expert report does he offer any opinion regarding the fate and transport of pollutants along the length of the Roosevelt Tunnel. In fact, in its response, EPGM is forced to admit that "Mr. Brogden will not render opinions on issues of chemistry." EPGM Response at p. 10. EPGM also argues that a quote from Mr. Brogden's report addresses fate and transport of "pollutants" in the Roosevelt Tunnel. EPGM's Response, p. 5. However the selected quote makes clear that Mr. Brogden's opinions are limited to "pinpointing the exact source or sources of water" and conclusions about the "exact sources of water flowing at the portal." EPGM's Response at p. 5. This is the best quote EPGM could find to support its weak argument that Mr. Brogden actually disclosed expert opinions about fate and transport of "pollutants" in the Roosevelt Tunnel. The quote makes clear that Mr. Brogden's expert opinions are limited to water flow and have nothing to do with fate and transport of pollutants. 2

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Nor has Mr. Brogden offered any expert opinions specifically rebutting those of Plaintiffs' fate and transport expert witness--Dr. Ann Maest. EPGM has not filed a motion for leave to add or supplement Mr. Brogden's expert opinions. Thus, EPGM is limited to those opinions clearly disclosed in Brogden's expert reports. EPGM should not be allowed to offer any expert opinions at trial or in a Rule 702 hearing that were not previously disclosed in his report. 3. Mr. Brogden is not qualified to Opine on Fate and Transport of Pollutants

A separate reason for excluding expert opinions by Mr. Brogden regarding fate and transport of pollutants in the Roosevelt Tunnel is because he simply is unqualified to offer any such opinions. EPGM's response fails to state that Mr. Brogden has any expertise in chemistry or fate and transport of pollutants at mine sites. Instead, EPGM admits that Mr. Brogden's expertise is limited to "flow" of water--not the chemistry of water or fate and transport of pollutants. By contrast, Plaintiffs' expert witness, Dr. Ann Maest, specializes in fate and transport of pollutants at mine sites. As such, Mr. Brogden is not qualified to offer expert opinions at trial or rebut the expert opinions of Dr. Ann Maest on the fate and transport of pollutants in the Roosevelt Tunnel. 4. Mr. Brogden Never Rebutted Plaintiffs' Experts' Methodology or Facts EPGM also argues that in the CC&V case Judge Krieger "agreed with Mr. Brogden's central thesis: that the Plaintiffs' experts did not use reliable methods or consider sufficient facts and data to render opinions that they expressed." EPGM Response, p. 7. However, it is interesting to note that EPGM never identifies which of Mr. Brogden's "opinions" it is referring 3

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to. To the contrary, a review of Mr. Brogden's reports show that he never rebutted or took issue with the methodology used by Plaintiffs' experts to reach their opinions. Moreover, Mr. Brogden never specifically rebutted the facts used by Plaintiffs in reaching their opinions. In fact, Mr. Brogden relied on many of the same facts and documents in reaching his opinions. Again, since Mr. Brogden failed to rebut the methodology and facts used by Plaintiffs' experts, he should not be allowed to do so at trial or in a Rule 702 hearing. 5. If Mr. Brogden's Facts and Methodologies are Adequate, so are Plaintiffs

EPGM argues that Mr. Brogden's methodologies and facts are adequate to render his opinions. If this is true, the then methodologies of Plaintiffs' experts are likewise adequate. As stated earlier, Mr. Brogden relied on many of the same facts used by Plaintiffs' experts. EPGM's response fails to identify any significant additional facts considered by Mr. Brogden that were not also considered by Plaintiffs' experts. Thus, if Mr. Brogden's facts are adequate--so must be Plaintiffs' experts. Moreover, Mr. Brogden's methodology was to review maps, inspection reports, flow information, and other written materials to reach his opinions. Plaintiffs' experts used a similar methodology but took additional steps, such as actually inspecting the interior of the Tunnel to confirm the observations of others. Thus, the methodologies used by Plaintiffs' experts were more extensive than Mr. Brogden's. In summary, if Mr. Brogden's methodology is adequate, then so is Plaintiffs'.

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6.

EPGM Should Not Be Allowed to Rely On Addition Rebuttal Witnesses

EPGM admits that Mr. Brogden will not offer testimony on issues of chemistry. EPGM's Response, p. 10. Thus, he will not be able to offer expert opinion on the fate and transport of such chemicals in the Roosevelt Tunnel or to rebut the expert opinions in the area of chemistry by Dr. Ann Maest--a geochemist. Realizing this problem, EPGM boldly states that it "reserves the right to call other witnesses in support of its Rule 702 motion seeking to exclude the opinions of Mr. Klco, Dr. Maest, and Robert Burm." EPGM Response, p. 12. At this late date, EPGM should not be allowed to identify new expert witnesses or new expert opinions to be offered at trial or at a Rule 702 hearing. Federal Rule of Civil Procedure 26(a)(2) requires advance disclosure of "the identity of any person who may be used at trial to present evidence under Rule 702, 703, or 705 of the Federal Rules of Evidence." To date, EPGM has not disclosed these new expert witnesses. Nor has EPGM disclosed the new expert opinions they intend to offer. Nor did EPGM file for leave of the Court by the June 30, 2006 deadline to add new expert witnesses, rebuttal expert witnesses, or rebuttal expert opinions. Having failed to request leave of the Court, EPGM should not be allowed to add new expert witnesses or expert witness opinions at this late date. Instead, it is obvious that EPGM is attempting to conduct a "trial by surprise"--bringing new undisclosed expert witnesses the day of trial. EPGM's tactics violate the requirements of Fed.R.Civ. P. 26 and concepts of fundamental fairness. The day for disclosing expert witnesses and opinions has come and gone. So has the date to seek leave of the court to add such new expert witnesses or opinions. Plaintiffs respectfully request a ruling from this Court prior to any 5

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Rule 702 hearing or trial prohibiting EPGM from calling previously undisclosed expert witnesses from testifying to previously undisclosed expert opinions. Such a ruling is necessary to prevent EPGM from turning this proceeding into a three-ring circus. 7. Conclusion

For the reasons stated herein, the expert opinions objected to herein should be excluded at trial or a Rule 702 hearing. Plaintiffs also request a ruling from this Court prior to a Rule 702 hearing or trial prohibiting EPGM from calling any previously undisclosed expert witness or offering any previously undisclosed expert opinions at trial or at a Rule 702 hearing.

Respectfully submitted by, July 30, 2006 s/ John Barth _________________________ John M. Barth, #22957 Attorney at Law P.O. Box 409 Hygiene, CO 80533 (303) 774-8868 Roger Flynn, Esq. # 21078 Jeffrey C. Parsons, Esq. #30210 WESTERN MINING ACTION PROJECT 2260 Baseline Road, Suite 101A Boulder, CO 80302 (303) 473-9618 COUNSEL FOR PLAINTIFFS

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

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CERTIFICATE OF SERVICE I do hereby certify that on this 30thth day of July 2006 a true and accurate copy of PLAINTIFFS' REPLY TO DEFENDANT'S RESPONSE TO MOTION TO EXCLUDE EXPERT OPINIONS OF ROBERT BROGDEN was filed with the Electronic Case Filing system which is then to serve the same on the following by electronic means: Steve Harris 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/ John Barth __________________________ John Barth

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