Free Response to Motion - District Court of Colorado - Colorado

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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' RESPONSE IN OPPOSITION TO DEFENDANT'S CONTINGENT MOTION TO EXCLUDE PLAINTIFFS' EXPERT WITNESS OPINIONS AND REQUEST FOR EVIDENTIARY HEARING ________________________________________________________________________

Plaintiffs Sierra Club and Mineral Policy Center (also known as Earthworks) hereby file this Response in Opposition to Defendant's Contingent Motion to Exclude Plaintiffs' Expert Witness Opinions and Request for Evidentiary Hearing ("Motion"). In its Motion, Defendant argues that this Court is bound under the doctrine of collateral estoppel by the rulings made with regard to Plaintiffs' expert opinions in Sierra Club v. Cripple Creek & Victor Gold Mining Co, et al., Civil Action No. 00-MK-2325. Motion at 1-2. These collateral estoppel arguments are addressed in Plaintiffs' Response in Opposition to Defendant's Motion for Judgment on the Basis of the Doctrine of Collateral Estoppel, filed herewith, at 7-9. Thus, Plaintiffs hereby incorporate and reassert those arguments. As an alternative to striking Plaintiffs' expert opinions on the basis of collateral estoppel, Defendant also requests an evidentiary hearing to argue that all of Plaintiffs'

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expert opinions of Kenneth Klco, Robert Burm, and Ann Maest should be excluded under Fed.R.Evid. 702. Motion at 8-9. Contrary to Defendant's arguments, the Court should allow all of Plaintiffs' experts to testify as to each proffered opinion. Kenneth Klco Qualifications Defendant repeats the same assertion for each opinion that Mr. Klco is unqualified to express the proffered expert opinions because "[h]e is a geologist, not a hydrologist or an aqueous chemist." Defendant's Motion at 9-15 (Klco Opinion Nos. 18). Defendant offers no additional support explaining how this objection bears on the opinions at issue. Moreover, EPGM never submitted a rebuttal expert report specifically challenging the qualifications of Mr. Klco to render his opinions. Thus, EPGM will not be able to present any expert testimony on this objection and instead will be limited to cross-examination at any FRE 702 hearings. Furthermore, Mr. Klco is a geologist with extensive experience with issues of mining and hydrology, including discharges from mine drainage tunnels. Thus, although Mr. Klco's professional education establish his expertise, Mr. Klco's highly relevant experience in mining and mine drainage tunnel discharge also qualifies him to render the expert opinions he intends to offer at trial. Consistent with Fed.R.Evid. 702: To qualify as an expert, [the witness is] required to possess "such skill, experience or knowledge in that particular field as to make it appear that his opinion would rest on substantial foundation and would tend to aid the trier of fact in his search for truth." Graham v. Wyeth Labs., 906 F.2d 1399, 1408 (10th Cir.1990) (quoting Bridger v. Union Ry. Co., 355 F.2d 382, 387 (6th Cir.1966)) Lifewise Master Funding v. Telebank, 374 F.3d 917, 928 (10th Cir. 2004). See Fed.R.Evid. 702 (a witness may be "qualified as an expert by knowledge, skill,

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experience, and training or education may testify thereto in the form of an opinion or otherwise....")(emphasis added). As such, Defendant's contention that simply because Mr. Klco has the majority of his educational training as a geologist does not, in and of itself, in any way disqualify him from testifying as to the proffered opinions. Sufficient Facts or Data Defendant agues that for each opinion Mr. Klco proposes to offer, the opinion was not based on sufficient facts or data. Motion at 9-15 (Opinion Nos. 1-8). In particular, Defendant contends that for each opinion, a single in-tunnel tour of the Roosevelt Tunnel and review of existing documents is insufficient. Id. Defendant further allege that Mr. Klco "did not base [his opinions] on any reliable physical, chemical or hydrological characteristic of the Roosevelt Tunnel or any reliable water flow or chemistry data." Id. Again, EPGM never submitted a rebuttal expert report specifically challenging the facts or data upon which Mr. Klco rendered his opinions. Thus, EPGM will not be able to present any expert testimony on this objection and instead will be limited to crossexamination at any FRE 702 hearings. Defendant's arguments are also unsound. The 2000 Advisory Committee Notes for Fed.R.Evid. 702 clarify that: Subpart (1) of Rule 702 calls for a quantitative rather than qualitative analysis. The amendment requires that expert testimony be based on sufficient underlying "facts or data." The term "data" is intended to encompass the reliable opinions of other experts. See the original Advisory Committee Note to Rule 703. The language "facts or data" is broad enough to allow an expert to rely on hypothetical facts that are supported by the evidence. Id. Thus, Defendants arguments regarding the kinds of facts or data are not relevant to this element.

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With regard to Defendant's argument that Mr. Klco lacked sufficient facts or data in a quantitative sense, the argument similarly fails. Mr. Klco based his opinion on personal observations and a firsthand inspection of the interior of the Roosevelt Tunnel on August 21, 2001, and his inspection of the area at the portal of the Tunnel on at least one other occasion. While inspecting the interior of the Tunnel, he observed water "raining" down the shaft. He personally observed that the majority of the water entering the Roosevelt Tunnel was from the El Paso shaft. He also observed continuous water flow from the El Paso shaft to the portal and into Cripple Creek. He also observed that the Roosevelt Tunnel is functioning as it was designed--to drain water from connected mines, such as the El Paso, into Cripple Creek by means of gravity flow. Mr. Klco also reviewed all relevant and substantial documentation of other inspections of the Roosevelt Tunnel, a videotape taken by the Cripple Creek & Victor Gold Mining Company of an inspection of the Roosevelt Tunnel, water quality data, an interior inspection report by the State of Colorado, maps of underground workings in the Roosevelt Tunnel, as well as other documentation, including that establishing continuous flow of water from the El Paso shaft to the Roosevelt Tunnel portal and into Cripple Creek. Finally, he also reviewed the findings of an investigation by U.S. EPA and the State of Colorado concluding that the El Paso mine and shaft contributes the majority of the flow at the portal. . Thus, Mr. Klco's personal observations are corroborated by others. As such, Mr. Klco relied on sufficient facts and data to support his opinions. Reliable Methodology Again, for each and every one of the opinions offered by Mr. Klco, Defendant argues the same objection, that Mr. Klco failed to "employ chemical or hydrologic test,

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analysis, modeling or sampling to reach his conclusion..." Motion at 9-15 (Opinion Nos. 1-8). Again, EPGM never submitted a rebuttal expert report specifically challenging the methodology Mr. Klco used to render his opinions. Thus, EPGM will not be able to present any expert testimony on this objection and instead will be limited to crossexamination at any FRE 702 hearings. Contrary to Defendant's argument, Mr. Klco's firsthand observations are a reliable methodology employed to make geologic investigations. As held by the Tenth Circuit: In performing this gatekeeping function, the court's task "is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). In determining reliability, the district court may take into account the expert's personal knowledge and experience. Id. at 150, 119 S.Ct. 1167. The trial court has broad discretion to determine whether particular expert testimony is reliable. Id. U.S. v. McPhilomy, 270 F.3d 1302, 1313 (10th Cir. 2001) (emphasis added). In this case, Mr. Klco made reliable qualitative determinations based on his first hand observations and document review. In this field of expertise, there is simply no more reliable method than firsthand observation. Thus, chemical or hydrological tests are unnecessary to determine the origin and flow of the water and pollutants in the Roosevelt Tunnel.1 See U.S. v. McPhilomy, 270 F.3d at 1313 (more costly and extensive tests were unnecessary given the expert's experience and firsthand observations). As such,
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Plaintiffs have sought leave from the Court to conduct the precise chemical and hydrological tests Defendant claims are required to prove liability in this case. While Plaintiffs do not believe these tests are mandatory or necessary for a demonstration of liability in this case, they would satisfy Defendant's concerns. Defendant has states that it opposes any such additional discovery. 5

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Defendant has identified no justifiable ground upon which to disallow the competent and reliable expert testimony of Mr. Klco in this case. Robert Burm Qualifications With respect to Opinion Nos. 1 and 2, Defendant argues that Mr. Burm lacks sufficient qualifications to render these opinions because the opinions are " nothing more that a direct legal conclusion," and therefore not allowable. Motion at 17 (Opinion No. 1), 18 (Opinion No. 2). Like Mr. Klco, EPGM never submitted a rebuttal expert report challenging the qualifications of Mr. Burm to render his opinions. Thus, EPGM will not be able to present any expert testimony on this objection and instead will be limited to cross-examination at any FRE 702 hearings. However, there is no requirement that Mr. Burm have strictly legal training in order to render these opinions as to how the regulatory agencies in charge of administrating the pollution permitting program of the Clean Water Act treat properties and pollution flow conditions such as those at issue in this case. Rather, Opinions Nos. 1 and 2 expressed by Mr. Burm is a necessary component of agency permitting, which does not require a law degree. While these opinions touch on definitions contained in the Clean Water Act ("CWA"), Mr. Burm's opinions will assist the fact finder in understanding the facts at issue in this proceeding. See, Sprecht v. Jensen, 853 F.2d 805, 809 (10th Cir. 1988) (trial court not required to "exclude all testimony regarding legal issues"). Sprecht recognizes that "a witness may be called upon to aid the fact finder in understanding the facts in evidence even though reference to those facts is couched in legal terms." 853 F.2d at 809. See also, Smith v. Ingersoll-Rand

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Co., 214 F.3d 1235, 1246 (10th Cir. 2000) (witnesses allowed to focus on question of fact that "happens to touch on the law"). Thus, Defendant's assertions that Mr. Burm cannot render expert testimony that "happens to touch on the law" is unfounded. With respect to Mr. Burm's Opinion Nos. 3, 4, and 5, Defendant argues that Mr. Burm is not qualified to render the opinions because "Mr. Burm is not a hydrogeologist or an aqueous chemist." Motion at 19 (Opinion Nos. 3 & 4), 20 (Opinion No. 5) (with respect to Opinion Nos. 4 and 5, Defendant also argues that Mr. Burm need be a geologist). However, Defendant fails to make any showing that formal training as a hydrogeologist, aqueous chemist, or geologist is necessary to determine that El Paso controls property from which flow originates (Opinion No. 3), that El Paso discharges flow from Roosevelt Tunnel into Cripple Creek (Opinion No. 4), or that pollutants are discharged from El Paso's property into Cripple Creek (Opinion No. 5). Indeed, for most of his 33-year career at the U.S. Environmental Protection Agency, Mr. Burm issued water permits or oversaw the issuance of water permits by the states. His early work at the EPA involved sampling of water quality. His work then expanded to cover all permitting issues in the six state region. As such, like McKenzie v. Benton, 388 F.3d 1342, 1350-51 (10th Cir. 2004) where the court found an expert's work "for agencies in about 15 different states" made his testimony "particularly relevant," Mr. Burm is qualified to testify as to each of his proffered opinions in this case. Mr. Burm's experience in this precise field of Clean Water Act permitting qualifies him to opine as an expert as to how the relevant government agencies should regulate discharges such as that from the Roosevelt Tunnel under the Clean Water Act. Lastly, there is no requirement that Mr. Burm be a hydrologist or aqueous chemist or a

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geologist to render the proffered opinions. See Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 970 (10th Cir. 2001) ("As long as an expert stays `within the reasonable confines of his subject area,' our case law establishes "a lack of specialization does not affect the admissibility of [the expert] opinion, but only its weight"). Sufficient Facts or Data. For each of Mr. Burm's proffered expert opinions, Defendant argues that Mr. Burm "failed to identify, collect, investigate the facts and data necessary to reach the legal conclusions...." Motion at 17-21 (Opinion Nos. 1-5). Yet again, EPGM never submitted a rebuttal expert report challenging the facts and data relied upon by Mr. Klco to render his opinions. Thus, EPGM will not be able to present any expert testimony on this objection and instead will be limited to cross-examination at any FRE 702 hearings. However, Mr. Burm observed firsthand the discharge at issue on multiple dates between 2001 and 2003. Thus, Mr. Burm has first hand knowledge of the nature of the discharge because he has visited the discharge area and receiving water. In addition, Mr. Burm has reviewed relevant documents and photos, and done water quality sampling of the discharge. Reliable Methodology With respect to methodology, Defendant objects to each of Mr. Burm's proffered opinions on the bases that Mr. Burm performed no research or analysis to reach his conclusions. Motion at 17-20 (Opinion Nos. 1-5). However, this argument ignores the fact that Mr. Burm used the same methodology he used at EPA to determine if a discharge needed a permit, i.e., review documents, go to the site, observe the discharge, determine if it is emanating from a point source, and determine if it is flowing into waters

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of the United States. In U.S. v. McPhilomy,. 270 F.3d 1302, 1313 (10th Cir. 2001), the court upheld the admission of testimony from an expert who worked for an agency "for 11 years" even if he did not utilize all possible tests: While [the expert's] opinion would have been more reliable had he employed more costly and extensive tests, his opinion was sufficiently reliable to be admissible. Given his considerable experience and expertise, his use of the same methodology that he uses as a certified mineral examiner for the BLM, and his firsthand observations, it was not manifestly erroneous for the district court to admit his expert testimony ... Id. In addition, visual observations are a perfectly acceptable methodology to use for determining the necessity for a discharge to obtain a Clean Water Act permit. Finally, EPGM never submitted a rebuttal expert report challenging the methodology used by Mr. Burm to render his opinions. Thus, EPGM will not be able to present any expert testimony on this objection and instead will be limited to cross-examination at any FRE 702 hearings. Dr. Ann Maest Qualifications Defendant does not object to the qualifications of Dr. Maest to render the proffered expert opinions. Sufficient Facts or Data Defendant argues that Dr. Maest's expert opinions are not based on sufficient facts or data because Dr. Maest relies in part for her opinions on some data gathered by others. EPGM never submitted a rebuttal expert report challenging the facts and data upon which Dr. Maest used to render her opinions. Thus, EPGM will not be able to present any expert testimony on this objection and instead will be limited to cross-

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examination at any FRE 702 hearings.

Dr. Maest relied on several different facts and

data in rendering her opinions. For instance, in addition to analyzing water chemistry data to determine the source of the flows (an accepted practice in her field), Dr. Maest reviewed the 40 documents attached to her Expert Report submitted June 20, 2002 . This included background information on the mine, geologic information on the mine, mining permit application and related material, maps, photographs, water sampling data. The data and facts reviewed by Dr. Maest also includes the expert reports of Kenneth Klco (firsthand), Robert Burm, and Robert Brogden. She reviewed inspection reports conducted by representatives of the Cripple Creek & Victor Gold Mining Company and the State of Colorado. She reviewed a map showing the hydrological extent of influence of the Roosevelt Tunnel. She reviewed other maps, inspection reports, photographs, and videotape from the interior of the Roosevelt Tunnel. She reviewed water quality sampling results from water inside the Roosevelt Tunnel at locations between the portal and the El Paso shaft. She reviewed water quality data from the El Paso shaft, including samples collected both upgradient and downgradient of where the El Paso shaft water enters the Roosevelt Tunnel. She reviewed water quality data from other locations inside the Roosevelt Tunnel upgradient of the El Paso shaft. Finally, she reviewed a water quality assessment of the discharge from the Roosevelt Tunnel by the Colorado Water Quality Control Division. Dr. Maest did what Daubert requires: she "grounded [her] conclusions in `the methods and procedures of science' rather than `subjective belief or unsupported speculation.'" Hollander v. Sandoz Pharms. Corp., 289 F.3d 1193, 1205 (10th Cir. 2002) quoting Daubert, 509 U.S. at 590.

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Reliable Methodology Defendant assets that Dr. Maest's methodology is unacceptable with respect to Opinion No. 1 because she "did not analytically compare the water chemistry at different flow points," nor "base her opinion on any reliable physical, chemical or hydrologic characteristic of the Roosevelt Tunnel, perform any other chemical or hydrologic test, or prepare any models or perform any calculations to support her conclusions or to reliably establish a link between flow points with the Roosevelt Tunnel." Motion at 15-16. Again, EPGM never submitted a rebuttal expert report challenging the methodology used by Dr. Maest to render her opinions. EPGM has completely failed to offer any expert witness to testify about water chemistry issues--such as whether pollutants from the El Paso shaft reach the portal. Thus, EPGM will not be able to present any expert testimony on this objection and instead will be limited to cross-examination at any FRE 702 hearings. With respect to Opinion No. 2, Defendant asserts that the methodology is unreliable because "she compared the existence of chemical constituents but not their concentrations. She also failed to note significant differences in those constituent concentrations. In addition, she failed to prepare any models...." Motion at 16. Critically, nowhere does the Defendant substantiate any of these naked assertions of "unreliability" with respect to Dr. Maest's opinions. Likewise, Defendant fails to explain why the alleged "failures" have any bearing on the opinions offered by Dr. Maest or the elements of liability in this case. Dr. Maest did analyze the chemical concentrations of water entering the Roosevelt Tunnel between the El Paso shaft and the portal, along with the substantial additional information referenced above. Based on this

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data, Dr. Maest was able to conclude that the El Paso shaft was a source of the pollutants being discharged at the portal into Cripple Creek. Moreover, Dr. Maest's conclusions about pollution concentrations and flow does not require computer modeling. Modeling is useful to predict future conditions when current physical conditions or data is not available. In this case, there is no need for modeling because the current physical conditions exist, can be observed and water quality data exists. Thus, Dr. Maest's opinions can be reliably based on a review of documentation and an absolute comparison of chemical constituents. In any case, Dr. Maest need not rely on every possible methodology suggested by Defendants in order to reach her conclusions, especially in light of the exhaustive materials and data that were available to inform her opinion. See U.S. v. McPhilomy, 270 F.3d at 1313 (more costly and extensive tests were unnecessary given the expert's experience and firsthand observations). CONCLUSION Overall, Defendant has failed to demonstrate why this Court should reject the opinions proffered by Plaintiffs' experts, Mr. Klco, Mr. Burm, and Dr. Maest. As such, this Court should rule as a matter of law that Plaintiffs' experts should be allowed to present the proffered opinions. In the alternative, the Court should reserve judgment on these matters until it can conduct a satisfactory hearing to develop the evidentiary record in this regard.

Respectfully submitted by,

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____/s John Barth___________ John M. Barth #22957 Attorney at Law P.O. Box 409 Hygiene, CO 805333 (303) 744-8868 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 CERTIFICATE OF SERVICE I do hereby certify that on this 20th day of July 2006, a true and accurate copy of PLAINTIFF'S RESPONSE IN OPPOSITION TO DEFENDANT'S CONTINGENT MOTION TO EXCLUDE PLAINTIFFS' EXPERT WITNESS OPINIONS 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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