Plaintiffs filed suit against defendants related to environmental contamination. Defendants have hired an Environmental Engineering Expert Witness to provide testimony on their behalf. Plaintiffs filed a motion to exclude expert from testifying. The motion was denied.
Facts: This case (Cooper et al v. Meritor, Inc. et al – United States District Court – Northern District of Mississippi – February 11th, 2019) involves damages to homes allegedly caused the operation of an industrial facility. The plaintiffs, former residents, seek damages for injuries to their homes and property caused by the operation of the facility. They allege that the facility was used to manufacture chrome plated wheel covers, utilizing numerous chemicals and that these chemicals were illegally placed in the environment with the defendants concealing such disposal. The defendants have hired Robert L. Powell, Ph.D. (Environmental Engineering Expert Witness) to provide testimony. The plaintiffs have filed a motion to exclude this expert witness from testifying.
Discussion: The plaintiffs argue that Powell’s opinion about the direction of groundwater flow under the facility is not reliable because his opinion is not consistent with maps showing that groundwater under the facility sometimes flowed to the north and that his opinion is based on unreliable methodology.
The plaintiffs argue that Powell’s methods are not reliable because he did not perform any ground flow studies, rather reviewed studies of other experts. The court opines that there is nothing on record which suggests that Powell did not perform his own studies of groundwater flow and while it is true that he did not create the contour maps or contamination plumes, an expert may rely on facts or data from other experts. The court opines that the materials relied on by Powell do not render his opinion unreliable.
In addition, the plaintiffs contend that Powell’s groundwater flow direction has not been evaluated in the light of the potential rate of error for that scientific methodology. The court disagrees, opining that the lack of known rate of error is of little weight.
Also, regarding peer review, Powell’s methodology involved applying his professional experience to maps and other data relevant to the area. The court opines that this type of methodology is not amenable to publication, thus the lack of publication or peer review is of little relevance to the methodology’s reliability.
Penultimately, the court opines that there is no indication that Powell’s opinions grew naturally and directly out of research he conducted independent of his litigation. The court further notes that he developed his opinions regarding groundwater flow direction under the facility expressly for the purposes of testifying.
Last, the plaintiff’s contend that Powell’s groundwater direction opinion does not account for obvious alternative explanations. The court opines that this argument that Powell failed to consider relevant data, which was previously rejected by the court.
Conclusion: The motion to exclude the methodology of Robert L. Powell, Ph.D. is denied.