Free Response to Motion - 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-PC-2163 (MEH) SIERRA CLUB and MINERAL POLICY CENTER, Plaintiffs, vs. EL PASO PROPERTIES, INC., Defendant. ______________________________________________________________________________ RESPONSE TO PLAINTIFFS' MOTION TO EXCLUDE EXPERT OPINIONS OF ROBERT BROGDEN ______________________________________________________________________________ Defendant El Paso Properties, Inc. ("El Paso") opposes Plaintiffs' Motion to Exclude Expert Opinions of Robert Brogden and state as follows: I. Introduction In the case of Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591 (1993), the United States Supreme Court made clear that Rule 702 of the Federal Rules of Evidence governs the admissibility of expert scientific evidence. Under FED.R.EVID. 702, for an expert opinion to be admissible the expert must rely on adequate facts and data and employ a sound methodology and the opinions must be supported by the facts and data. An expert opinion is not admissible under FED.R.EVID. 702 unless it is relevant to a disputed issue before the Court. The appropriate test of admissibility depends on the trial court's determination of a reliable foundation and relevance to the issues at trial. Pertinent evidence based on scientifically valid principles will satisfy those demands.

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Plaintiffs challenge expert opinions generated by hydrologist/geologist Robert Brogden during the summer of 2002 on the grounds of timeliness, relevance and lack of facts and data. Plaintiffs also seek to prevent Mr. Brogden from testifying to any "future opinions." In light of the fact that the Tenth Circuit Court of Appeals relied extensively on Mr. Brogden's opinions in reversing the grant of summary judgment entered in this case, it is not surprising that Plaintiffs now belatedly seek to prevent him from testifying about his opinions at trial. Plaintiffs start their Motion by selectively citing to the Tenth Circuit decision herein for their proposition that the experts agree that "at least some of the water from the El Paso shaft are discharging [sic] at the portal." Plaintiffs' Motion at 1. Plaintiffs then allege that the sole issue at trial is whether "pollutants coming from the shaft ever discharge at the portal." Id. According to Plaintiffs, the "agreement" of the experts has the effect of converting the central factual question presented from one of hydrology to one of chemistry, and since Mr. Brogden is not a chemist, he cannot testify regarding the fate and transport of pollutants in water. However, the Tenth Circuit properly recognized that "there is no agreement regarding whether pollutants coming from the shaft are ever discharged at the portal." Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1149 (10th Cir. 2005), cert. denied sub. nom. El Paso Properties, Inc. v. Sierra Club, 126 S.Ct. 1653 (2006) (emphasis in original). Furthermore, the Tenth Circuit observed that the opinions offered by Plaintiffs' experts (unlike those of Mr. Brogden) ignore "evidence showing dramatic declines in zinc levels as water flows from the El Paso shaft toward the portal" and "the apparently complex process of infiltration and exfiltration
RESPONSE TO MOTION TO EXCLUDE EXPERT OPINIONS OF ROBERT BROGDEN
Sierra Club, et al. v. El Paso Properties, Inc. (Civil Action No. 01-PC-2163)(MEH) Page 2

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that occurs along the length of the Roosevelt Tunnel." Id. As demonstrated below, evidence regarding constituent concentrations in water and infiltration and exfiltration of water are proper subjects of hydrology and groundwater geology. II. The July 15, 2002 Rebuttal Report Was Timely and Properly Responds to Plaintiffs' Expert Reports. Plaintiffs argue that Robert Brogden's July 15, 2002 rebuttal report was "an untimely attempt by [El Paso] to submit a new report introducing entirely new theories, facts, and opinions after the deadline for submitting expert reports." Plaintiffs' Motion at 8. However, Plaintiffs offer no explanation for waiting four years to challenge Mr. Brogden's report. During the intervening years, this case was considered by the Tenth Circuit, which relied extensively on Mr. Brogden's rebuttal opinions in reversing the original grant of summary judgment. Insofar as Plaintiffs failed to object to the rebuttal report within a reasonable time after the report was served, Plaintiffs have waived any objection to the timeliness or scope of that report. Even if the Court considers the merits of Plaintiffs' objections, however, the record demonstrates that Mr. Brogden's rebuttal report was timely, proper and relevant. Mr. Brogden could not challenge the sufficiency of the facts and data purportedly relied upon by Plaintiffs' experts until after he had an opportunity to review Plaintiffs' expert reports. The Scheduling Order entered in this case expressly provided that the parties could designate rebuttal experts on or before July 20, 2002. Mr. Brogden's rebuttal report was provided to Plaintiffs' counsel on or before July 20, 2002 and was thus timely on its face. III. Mr. Brogden is Qualified to Render the Opinions in His Reports.

RESPONSE TO MOTION TO EXCLUDE EXPERT OPINIONS OF ROBERT BROGDEN
Sierra Club, et al. v. El Paso Properties, Inc. (Civil Action No. 01-PC-2163)(MEH) Page 3

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Plaintiffs challenge Mr. Brogden's qualifications to render the opinions contained in his reports. However, the opinions rendered by Mr. Brogden fall squarely within his extensive knowledge and professional experience in ground water geology and hydrology. Mr. Brogden is a founding principal of Bishop-Brogden Associates, Inc., a Colorado corporation formed in 1983. Bishop-Brogden Associates is a professional consulting firm organized for the purpose of addressing problems in the development and control of surface and ground water for both public and private sector clients. Mr. Brogden is a hydrologist and ground water geologist with over 30 years of professional experience in ground water geology and hydrology. He has been qualified as an expert to testify before courts and administrative bodies in fields including ground water geology, geology, computer model applications, and surface and ground water relationships. Before forming Bishop-Brogden Associates, Mr. Brogden was employed as a ground water geologist and executive vice president at Leonard Rice Consulting Water Engineers, Inc. He also previously served as a project hydrologist for the United States Geological Survey and has authored over ten publications in the areas of hydrology, water quality, and water resources. Finally, Mr. Brodgen is a frequent lecturer on topics related to hydrology, ground water, and water rights.

RESPONSE TO MOTION TO EXCLUDE EXPERT OPINIONS OF ROBERT BROGDEN
Sierra Club, et al. v. El Paso Properties, Inc. (Civil Action No. 01-PC-2163)(MEH) Page 4

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IV.

Mr. Brogden's Opinions Are Relevant. Plaintiffs claim that "[n]one of the opinions Mr. Brogden's June 2002 expert report are

relevant to the issue of whether `pollutants coming from the shaft ever discharge at the portal.'" Plaintiffs' Motion at 7 & 9. As discussed below, not only are Mr. Brogden's opinions relevant, but they are also supported by findings of the Tenth Circuit Court of Appeals, the Colorado Water Quality Control Division ("WQCD"), the existing sampling data, a Colorado Administrative Law Judge and District Court Judge Marcia Krieger. Aafter examining the record in this case de novo, the Tenth Circuit found the opinions expressed in Mr. Brogden's rebuttal report to be persuasive. 421 F.3d at 1148. According to the Tenth Circuit, Mr. Brogden "criticizes the Plaintiffs' experts for drawing conclusions with respect to the origin and flow of pollutants at the Roosevelt Tunnel portal based on incomplete information." Id. The Tenth Circuit then proceeded to quote extensively from Mr. Brodgen's rebuttal report, including the following passage: pinpointing an exact source or sources of water that flows from the portal is difficult because of the lack of data that adequately describe the geology and hydrology of the area, and the actual movement of ground water. . . . Considerably more data are required before any quantitative conclusions can be drawn as to the exact sources of water flowing from the portal. Id. The Tenth Circuit relied principally on Mr. Brogden's rebuttal report when it concluded that "El Paso has presented compelling and unrebutted evidence that pollutants enter and exit the Roosevelt Tunnel at numerous places along the two and a half-mile route from the El Paso shaft to the portal." Id. at 1150.
RESPONSE TO MOTION TO EXCLUDE EXPERT OPINIONS OF ROBERT BROGDEN
Sierra Club, et al. v. El Paso Properties, Inc. (Civil Action No. 01-PC-2163)(MEH) Page 5

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On May 26, 1995, WQCD representative Tom Boyce inspected the Roosevelt Tunnel interior. Mr. Boyce's narrative describes tunnel water flows "being regenerated by seepage from the walls and ceiling of the tunnel" at "dozens of such seeps" along approximately 2½ miles of tunnel between the portal and the El Paso shaft. See, Exhibit 1. Mr. Boyce's report states that the water flow along the Roosevelt Tunnel flow fluctuated numerous times from lows of about 2 gallons per minute (gpm) to highs of about 15 gallons per minute between the portal and the El Paso mine. Id. Mr. Boyce stated that the varying water levels displayed evidence that water was infiltrating in areas of high porosity. Id. On July 19, 2001, less than two months before Plaintiffs sent their 60-day notice of intent to sue, EPA and WQCD technical staff acknowledged that there was insufficient information with which to determine what liabilities may exist regarding Roosevelt Tunnel flows to Cripple Creek. See, Exhibit 1 to Response to Plaintiffs' Motion to Conduct Inspection. The WQCD memorandum also notes that "the effects of the workings on the hydrology is uncertain because of the limited information." Id. In this case, the Tenth Circuit noted that the memorandum's conclusion that "more work needs to be done before the responsible parties can be identified" is consistent with Mr. Brogden's opinions. 421 F.3d at 1149. Mr. Brogden's opinions are also supported by the only water sampling data relied upon by Plaintiffs, which shows that zinc concentrations in the Roosevelt Tunnel decreased by 98.85% in less than a quarter of the distance between the El Paso shaft and the portal and then increased at a point approximately half way between the shaft and portal. The Tenth Circuit expressly
RESPONSE TO MOTION TO EXCLUDE EXPERT OPINIONS OF ROBERT BROGDEN
Sierra Club, et al. v. El Paso Properties, Inc. (Civil Action No. 01-PC-2163)(MEH) Page 6

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recognized that the opinions offered by Plaintiffs' experts ignore "the evidence showing dramatic declines in zinc levels as water flows from the El Paso shaft toward the portal." Id. No one has yet explained why zinc levels fluctuate so dramatically in the Roosevelt Tunnel--not the EPA, or the State of Colorado, or the Plaintiffs. Neither Mr. Klco nor Dr. Maest even acknowledged or mentioned this data in their reports. Mr. Brogden's opinions are also consistent with findings about Mr. Klco and Dr. Maest entered by Judge Marcia Krieger in the CC&V Case. See, Civil Action No. 00-MK-2325 (MEH) (D. Colo.). Judge Krieger agreed with Mr. Brodgen's central thesis: that the Plaintiffs' experts did not use reliable methods or consider sufficient facts and data to render the opinions that they expressed. Judge Krieger concluded that Mr. Klco either "had no methodology that he employed" or that his method was "not a reliable method customarily used by experts in the field in order to trace the flow of water in a fate and transport analysis." See, Exhibit 3 to Contingent Motion to Exclude Plaintiffs' Expert Opinions at 8-9. With respect to the opinions of Dr. Ann Maest, Judge Krieger held that "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." See, Exhibit 6 to Contingent Motion to Exclude Plaintiffs' Expert Opinions at 10. After hearing testimony from Mr. Klco and Dr. Maest, Judge Krieger ruled that the Plaintiffs failed to present any evidence "which identifies the source of the water that is discharged at the portal, or to the extent it comes

RESPONSE TO MOTION TO EXCLUDE EXPERT OPINIONS OF ROBERT BROGDEN
Sierra Club, et al. v. El Paso Properties, Inc. (Civil Action No. 01-PC-2163)(MEH) Page 7

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from a number of sources, what chemical constituents are contributed by each source." See, Exhibit 2 to Motion for Judgment on Basis of Collateral Estoppel at 23-24. Finally, the opinions rendered by Mr. Brogden are also consistent with findings made by Administrative Law Judge ("ALJ") Matthew Norwood in related WQCD proceedings. The Tenth Circuit took note of the ALJ's observations about the factual complexity of the tunnel geology and his conclusion that the WQCD "failed to prove that the zinc and manganese in the water coming out of the Roosevelt Tunnel portal has its origin in the El Paso Mine." 421 F.3d at 1150. The Tenth Circuit recognized that the ALJ based his conclusions on the fact that no reliable measuring devices or other scientific tools (such as recording weirs, flumes or dye tracer studies) have ever been used to determine the flow of water in the Roosevelt Tunnel and that experts for the State could not explain dramatic fluctuations in constituent concentrations with objective scientific data. Id. The Tenth Circuit then observed that "Plaintiffs' experts in this case are similarly silent on this point." Id. Mr. Brogden's opinions have been found to be relevant to issues related to alleged discharges of pollutants from the Roosevelt Tunnel by the Tenth Circuit, the U.S. District Court and a Colorado ALJ. It is specious for Plaintiffs to now argue that Mr. Brogden's opinions are not "relevant" to the issues presented in this case. V. Mr. Brogden's Opinions Are Based On Adequate Facts and Data and Are the Product of Reliable Methods. Plaintiffs also argue that Mr. Brogden's opinions are inadmissible because his conclusions do not logically follow from the facts and data he considered. Plaintiffs claim that
RESPONSE TO MOTION TO EXCLUDE EXPERT OPINIONS OF ROBERT BROGDEN
Sierra Club, et al. v. El Paso Properties, Inc. (Civil Action No. 01-PC-2163)(MEH) Page 8

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Mr. Brogden did not consider any facts or evidence sufficient to render any opinion of the fate and transport of pollutants in the Roosevelt Tunnel In formulating his opinions, Mr. Brogden reviewed reports of past inspections of the Roosevelt Tunnel, sampling data produced by the Plaintiffs during discovery, a videotape of the November 16, 2000 Roosevelt Tunnel inspection, and several historical, geological, and hydrological reports of the Cripple Creek Mining District. See, List of References in Exhibit 1 to Plaintiffs' Motion. Mr. Brogden also considered the Plaintiffs' expert reports and all attachments in preparing his rebuttal report. See, Exhibit 2 to Plaintiffs' Motion, at page 3. In this case, there is very little data of any sort for an expert to consider in rendering opinions about the hydrological connection between the El Paso shaft and the Roosevelt Tunnel. Mr. Brogden has opined that there is no reliable flow data at any point at any time in the Roosevelt Tunnel, and this opinion is supported by findings made by WQCD officials. In the absence of objective hydrological data, Mr. Brogden considered the limited existing water quality sampling data in evaluating the opinions of Plaintiffs' experts. Mr. Brogden is a hydrologist and ground water geologist, and experts in the fields of hydrology and ground water geology typically rely on water quality data to support their hydrologic conclusions. One method of determining whether water is flowing between two points is by examining data regarding constituent concentrations at intervening locations. Such data is the closest thing to dye tracer data that is available because constituent concentrations can serve as markers of water flow. Indeed, Plaintiffs are even now seeking to re-enter the Roosevelt
RESPONSE TO MOTION TO EXCLUDE EXPERT OPINIONS OF ROBERT BROGDEN
Sierra Club, et al. v. El Paso Properties, Inc. (Civil Action No. 01-PC-2163)(MEH) Page 9

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Tunnel to conduct water quality sampling and dye tracer studies in order to gather the very type of data regarding flow and constituent concentrations that Mr. Brogden maintains is necessary to prove a hydrological connection between the El Paso shaft and the Roosevelt Tunnel. Under these circumstances, it is specious for the Plaintiffs to argue that Mr. Brogden should not be permitted to rely on such data. VI. Mr. Brogden May Properly Rebut Opinions Related to the Fate and Transport of Pollutants Where Such Opinions are Based on Hydrologic Conclusions. Plaintiffs claim that Mr. Brogden has not offered any opinions regarding the fate and transport of pollutants in the Roosevelt Tunnel and should be excluded from doing so at trial and any Rule 702 hearing. Plaintiffs' Motion at 5. Plaintiffs falsely allege that Mr. Brogden's expert reports do not rebut Dr. Maest's opinion that pollutants from the El Paso shaft discharge from the Roosevelt Tunnel portal into Cripple Creek." Id. at 4. A careful reading of the expert reports, however, discloses that Mr. Brogden's primary opinion is that none of Plaintiffs' experts have relied on sufficient facts and data to render reliable hydrological opinions about the sources of pollutants entering Cripple Creek from the Roosevelt Tunnel portal. The fate and transport of pollutants in the water of the Roosevelt Tunnel is primarily a hydrological question, not primarily a chemical question. Mr. Brogden will not render opinions on issues of chemistry, but he is qualified to render the opinion that Plaintiffs' experts have not relied on sufficient facts and data to render the opinion that constituents leaving the Roosevelt Tunnel have the source at the El Paso shaft.

RESPONSE TO MOTION TO EXCLUDE EXPERT OPINIONS OF ROBERT BROGDEN
Sierra Club, et al. v. El Paso Properties, Inc. (Civil Action No. 01-PC-2163)(MEH) Page 10

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Dr. Maest's opinion regarding the fate and transport of pollutants is directly dependent upon hydrologic opinions expressed by Mr. Klco. Dr. Maest's expert report bases her conclusion that "the shaft and related undergrounds workings of the El Paso Mine are hydrologically connected to Cripple Creek via the Roosevelt Tunnel" primarily on her review of Kenneth Klco's expert report and reports of inspections of the Roosevelt Tunnel. See, Exhibit 4 to Contingent Motion to Exclude Plaintiffs' Expert Opinions at 2, ¶ 4. Mr. Brogden is qualified to testify and indeed has testified that Dr. Maest's opinions are flawed because they are based on flawed conclusions from Mr. Klco's report, which is itself based on insufficient facts and data and an unreliable methodology. If this Court finds that Mr. Klco's hydrologic opinions are inadmissible under Rule 702, then it follows that Dr. Maest's opinions are similarly inadmissible. Finally, Plaintiffs complain that Mr. Brogden's rebuttal report "fails to specifically identify the precise expert opinions allegedly being rebutted." See Plaintiffs' Motion at 3. It is true that Mr. Brogden's rebuttal report does not offer affirmative opinions in opposition to the Plaintiffs' experts, such as the affirmative opinion that constituents from the El Paso shaft cannot reach the Roosevelt Tunnel portal. Rather, Mr. Brogden's central thesis is that the geology and hydrology of the Roosevelt Tunnel are complex and poorly understood, and that two sampling data points and one inspection of the Roosevelt Tunnel could not reasonably form the basis for any of the Plaintiffs' expert opinions. Simply put, Mr. Brogden maintains that Plaintiffs failed to prove a hydrological connection between the El Paso shaft and the Roosevelt Tunnel portal due to gaps and uncertainties in the existing data.
RESPONSE TO MOTION TO EXCLUDE EXPERT OPINIONS OF ROBERT BROGDEN
Sierra Club, et al. v. El Paso Properties, Inc. (Civil Action No. 01-PC-2163)(MEH) Page 11

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At the very least, El Paso has the right to defend Mr. Brogden's testimony from Plaintiffs' Rule 702 challenge at an evidentiary hearing held for that express purpose. El Paso also expressly 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 pursuant to the Federal Rules of Evidence. CONCLUSION For the reasons stated above, Mr. Brogden's rebuttal report is timely, relevant and otherwise proper. El Paso respectfully requests that the Court deny Plaintiffs' Motion to Exclude Expert Opinions of Robert Brogden and enter such other and further relief as may be just, fair and equitable. Respectfully submitted this 20th day of July, 2006. _s/ Stephen D. Harris Stephen D. Harris MERRILL, ANDERSON, & HARRIS, LLC 20 Boulder Crescent Colorado Springs, Colorado 80903-3300 (719) 633-4421 (telephone) (719) 633-4759 (facsimile) [email protected] Counsel for El Paso Properties, Inc.

RESPONSE TO MOTION TO EXCLUDE EXPERT OPINIONS OF ROBERT BROGDEN
Sierra Club, et al. v. El Paso Properties, Inc. (Civil Action No. 01-PC-2163)(MEH) Page 12

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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing RESPONSE TO PLAINTIFFS' MOTION TO EXCLUDE EXPERT OPINIONS OF ROBERT BROGDEN was sent to the Clerk of Court using the ECF system, which will send notification of such filing 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. Post Office Box 349 412 High Street Lyons, CO 80540 [email protected] [email protected]

s/ Sarah D. White Sarah D. White, Staff Assistant

RESPONSE TO MOTION TO EXCLUDE EXPERT OPINIONS OF ROBERT BROGDEN
Sierra Club, et al. v. El Paso Properties, Inc. (Civil Action No. 01-PC-2163)(MEH) Page 13