Free Motion to Exclude - 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 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' MOTION TO EXCLUDE EXPERT OPINIONS OF ROBERT BROGDEN ______________________________________________________________________________

Plaintiffs Sierra Club and Mineral Policy Center (also known as Earthworks) hereby submit their Motion to Exclude Expert Opinions of Robert Brogden--the only expert witness identified in this case by Defendant El Paso Gold Mines. Inc. pursuant to Fed.R.Civ.P. 26(a)(2). I. Introduction

The Tenth Circuit Court of Appeals has already recognized that Plaintiffs and Defendants "experts agree that at least some of the water from the El Paso shaft are discharging at the portal." Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1149 (10th Cir. 2005). Thus the sole issue at trial is whether "pollutants coming from the shaft ever discharge at the portal." Id. EPGM has identified only one expert witness pursuant to Fed. R. Civ. P. 26(a)(2). That expert witness is Robert Brogden. Mr. Brogden submitted an expert 1

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report on behalf of EPGM in June 2002. (The text of which is attached hereto as Exhibit 1, not including all attachments and diagrams). Mr. Brogden also submitted a purported expert witness rebuttal report on July 15, 2002. (The text of which is attached hereto as Exhibit 2, not including all attachments and diagrams). This Motion challenges the expert opinions of Robert Brogden found in both of these reports. Mr. Brogden claims he is a hydrologist and ground water geologist. Mr. Brogden has an undergraduate degree in geology and a master's degree in civil engineering. Exhibit 1, Appendix A. Mr. Brogden does not have any degree in hydrology, chemistry, or geochemistry. a) Mr. Brogden's June 2002 expert reportMr. Brogden's June 2002 expert report focuses solely on issues of water flow in the Roosevelt Tunnel. Mr. Brogden only offers an opinion on "the source of water flowing from the Roosevelt Tunnel." Exhibit 1, p. 2. Mr. Brogden's actual opinions are found on page 15 of his June 2002 report and focus solely on the flow of water into and in the Roosevelt Tunnel. With regard to water flow in the Roosevelt Tunnel, Mr. Brogden opines that: 1) "[o]ver time, water may enter the tunnel along most of its length; 2) "some of the water that enters the tunnel from the El Paso shaft or east of it can exfiltrate before it reaches the portal"; 3) not all of the water entering the tunnel from the El Paso shaft flows from the portal"; and 4) "water flowing from the Roosevelt is derived from parts of the tunnel west of the El Paso Mine shaft and that some of the water that

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entered the tunnel from the El Paso shaft or east of it, may not be discharged at the portal at all times." Exhibit 1 p. 15. Mr. Brogden never conducted an inspection of the interior of the Roosevelt Tunnel and thus relied on the observations and measurements of others. Mr. Brogden's June 2002 report did not offer any opinions about the fate and transport of pollutants in the flow in the Roosevelt Tunnel. Mr. Brogden did not review or consider any water quality data from inside the Roosevelt Tunnel in preparing his June 2002 report. b) Mr. Brogden's July 15, 2002 rebuttal reportMr. Brogden submitted a purported rebuttal expert witness report on July 15, 2002. The rebuttal report fails to specifically identify any of Plaintiffs' experts by name and fails to specifically identify the precise expert opinions allegedly being rebutted. Again, Mr. Brogden's rebuttal expert report focuses mainly on flow of water in the Roosevelt Tunnel--not the fate and transport of pollutants from the El Paso shaft to the portal. In his rebuttal report, Mr. Brogden opines that: 1) "[v]ery likely, during times of base flow from the tunnel, little to no water that enters the tunnel from the El Paso Mine shaft flows to Cripple Creek from the portal"; 2) "[a]t times when water does not flow from the portal (such as when it is frozen), all of the water that enters the tunnel from the El Paso Mine shaft has exfiltrated the tunnel before reaching the portal"; 3) "[w]hen water does flow from the portal, a large part of the flow, and all of it at times, is derived 3

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from infiltration into the Roosevelt that occurs between the portal and the El Paso Mine shaft, because the tunnel dries up between the shaft and the portal; and. 4) "during times of peak flow, water probably flows from a large part of the tunnel, including locations east of the El Paso Mine shaft, out through the portal." Again, Mr. Brogden did not conduct any inspections of the interior of the Roosevelt Tunnel in preparation of his report and instead relied upon the observations and reports of others. Although Mr. Brogden's rebuttal report compares water flow measurements at the portal with chemical concentrations of zinc and manganese in the discharge at the portal, the rebuttal report does not specifically rebut Plaintiffs' expert opinion of geochemist Dr. Ann Maest that pollutants from the El Paso shaft discharge at the Roosevelt Tunnel portal into Cripple Creek. II. Legal background Federal Rule of Civil Procedure 26(a)(2) requires a proposed expert witness to disclose all opinions to any opposing party prior to trial. Failure to do so prohibits an expert from testifying to any undisclosed opinions at trial, a proceeding under FRE 702, or other evidentiary proceedings. Fed.R.Civ.P. 37(c); Jacobsen v. Deseret Book Co., 287 F.3d 936, 951-954 (10th Cir. 2002). An expert must be qualified to render the opinion at issue. See, Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 149 (1999) (trial court must determine whether the opinion has a "reliable basis in the knowledge and experience of [the relevant] discipline").

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Under FRE 702, for an expert opinion to be admissible the expert must rely on adequate facts and data, the expert must employ a sound methodology, and the opinions must be supported by the facts and data. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591 (1993). Moreover, an expert opinion is not admissible under FRE 702 unless it is relevant to a disputed issue before the Court. Daubert, 509 U.S. at 591. "[T]he scientific knowledge must be connected to the question at issue." In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 745 (3d Cir.1994), cert. denied sub nom., General Electric Company v. Ingram, 513 U.S. 1190 (1995). The trial court "must ensure that the proposed expert testimony is `relevant to the task at hand,' i.e., that it logically advances a material aspect of the proposing party's case." Daubert, 43 F.3d at 1315. "[T]he standard for fit is higher than bare relevance." In re Paoli, 35 F.3d at 745. Therefore, federal judges must exclude proffered scientific evidence under Rule 702 unless they are convinced that it speaks clearly and directly to an issue in dispute in the case. Daubert, 43 F.3d at 1321. III. Challenge to all Brogden opinions not previously disclosed under Rule 26 Plaintiffs challenge any future opinions of Mr. Brogden not previously disclosed under Fed.R.Civ.P. 26(a)(2). 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, a proceeding under FRE 702, or in any other pretrial proceeding. Neither of Mr. Brogden's expert reports rebut the expert opinions of Dr. Ann Maest that pollutants from the El Paso shaft discharge at the portal. Mr. Brogden did not consider any facts or evidence to render any opinion of the fate and transport of pollutants in the Roosevelt Tunnel. Mr. Brogden is not 5

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qualified to render opinions on issues of chemistry or the fate and transport of pollutants in the Roosevelt Tunnel.1 Finally, Plaintiffs also object under FRCP 26(a)(2) to any effort by EPGM to identify new expert witnesses to offer opinions or rebut the opinions of Dr. Ann Maest regarding the fate and transport of pollutants in the Roosevelt Tunnel either at trial, a proceeding under FRE 702, or any other proceeding. IV. Challenges to opinions in Mr. Brogden's June 2002 expert report Plaintiffs specifically challenge the following expert opinions contained in Mr. Brogden's June 2002 expert report. 1) "[o]ver time, water may enter the tunnel along most of its length; 2) "some of the water that enters the tunnel from the El Paso shaft or east of it can exfiltrate before it reaches the portal"; 3) "not all of the water entering the tunnel from the El Paso shaft flows from the portal"; and, 4) "water flowing from the Roosevelt is derived from parts of the tunnel west of the El Paso Mine shaft and that some of the water that entered the tunnel from the El Paso shaft or east of it, may not be discharged at the portal at all times." Exhibit 1 p. 15. Plaintiffs challenge all four of these opinions on the following grounds:

In the State administrative proceeding, EPGM recognized that Mr. Brogden was not qualified to render opinions on issues of chemistry or fate and transport of pollutants in the Roosevelt Tunnel. Thus, EPGM endorsed another expert for that proceeding for that purpose. EPGM never endorsed a chemist, geochemist, or fate and transport expert in this proceeding, nor any other expert qualified to opine on issues of chemistry or fate and transport of pollutants in the Roosevelt Tunnel. Thus, they are prohibited from offering any expert opinions on these issues at trial or during any other proceeding.

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A.

Lack of Relevance- As noted above, the 10th Circuit has acknowledge that the

"experts agree that at least some of the water from the El Paso shaft are discharging at the portal." Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1149 (10th Cir. 2005). Thus the sole issue at trial is whether "pollutants coming from the shaft ever discharge at the portal." Id. All of the opinions above address issues of flow. The Court of Appeals has ruled that "at least some of the water from the El Paso shaft are discharging at the portal." This determination is the law of the case and cannot be relitigated in the trial court on remand. EEOC v. Int'l Longshoremen's Assoc., 623 F.2d 1054, 1058 (5th Cir. 1980) cert denied 451 U.S. 917, 101 S.Ct. 1997 (1981); U.S. v. Robinson, 690 F.2d 869, 872 (11th Cir. 1982); U.S. v. Burns 662 F.2d 1378, 1384 (11th Cir. 1981). None 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." Thus, these expert opinions are not relevant and should be excluded at trial. Daubert, 509 U.S. at 591. B. The conclusions reached are not supported by the facts and data considered-

Plaintiffs object to Mr. Brogden offering these opinions because his conclusions are not supported by the facts and data considered. Mr. Brogden's conclusions do not logically follow from the facts and data. Accordingly, Mr. Brogden's opinions are inadmissible. V. Mr. Brogden's July 15, 2002 rebuttal report.

Plaintiffs challenge the following expert opinions contained Mr. Brogden's July 15, 2002 rebuttal expert report: 1) "[v]ery likely, during times of base flow from the tunnel, little to no water that enters the tunnel from the El Paso Mine shaft flows to Cripple Creek from the portal"; 7

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2) "[a]t times when water does not flow from the portal (such as when it is frozen), all of the water that enters the tunnel from the El Paso Mine shaft has exfiltrated the tunnel before reaching the portal"; 3) "[w]hen water does flow from the portal, a large part of the flow, and all of it at times, is derived from infiltration into the Roosevelt that occurs between the portal and the El Paso Mine shaft, because the tunnel dries up between the shaft and the portal; and, 4) "during times of peak flow, water probably flows from a large part of the tunnel, including locations east of the El Paso Mine shaft, out through the portal.". Plaintiffs challenge all four of these opinions on the following grounds: A. Mr. Brogden's July 15, 2002 report is not a "rebuttal" report-

Mr. Brogden's July 15, 2002 report purports to be a "rebuttal" report. The expert opinions in Mr. Brogden's July 15, 2002 report are inadmissible because they are not "rebuttal" opinions. Instead, it is an untimely attempt by EPGM to submit a new report introducing entirely new theories, facts, and opinions. More specifically, Mr. Brogden's July 15, 2002 report does not: 1) specifically refer to any opinions or methodologies in Plaintiffs' expert reports; or, 2) indicate what fact or opinion is being purportedly being "rebutted" by the report. Instead, Mr. Brogden's July 15, 2002 report is simply an untimely attempt to submit new theories, facts, and opinions after the deadline for submitting expert reports. Thus, the opinions in the July 15, 2002 Brogden report are inadmissible under Fed.R.Civ.P. 26(a)(2) and the orders of this Court. B. Lack of Relevance-

As noted above, the 10th Circuit has acknowledge that the "experts agree that at least 8

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some of the water from the El Paso shaft are discharging at the portal." Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1149 (10th Cir. 2005). Thus the sole issue at trial is whether "pollutants coming from the shaft ever discharge at the portal." Id. The Court of Appeals ruling that "at least some of the water from the El Paso shaft are discharging at the portal" is the law of the case and can not be relitigated in the trial court on remand. EEOC v. Int'l Longshoremen's Assoc., 623 F.2d 1054, 1058 (5th Cir. 1980) cert denied 451 U.S. 917, 101 S.Ct. 1997 (1981); U.S. v. Robinson, 690 F.2d 869, 872 (11th Cir. 1982); U.S. v. Burns 662 F.2d 1378, 1384 (11th Cir. 1981). None of the opinions Mr. Brogden's July 15, 2002 expert report are relevant to the issue of whether "pollutants coming from the shaft ever discharge at the portal." Thus, these expert opinions are not relevant and should be excluded at trial. Daubert, 509 U.S. at 591. C. The conclusions reached are not supported by the facts and data considered-

Plaintiffs object to Mr. Brogden offering these opinions because his conclusions are not supported by the facts and data considered. Mr. Brogden's conclusions do not logically follow from the facts and data. Accordingly, Mr. Brogden's opinions are inadmissible. CERTIFICATION OF COMPLIANCE WITH LOCAL RULE 7.1A The undersigned certifies that he consulted with Defendant's counsel in a good faith attempt to resolve the issues raised by this Motion. The parties were not able to resolve the issues.

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Respectfully submitted by, June 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 CERTIFICATE OF SERVICE I do hereby certify that on this 30th day of June 2006 a true and accurate copy of PLAINTIFFS' 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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