Expert opinions in environmental litigation gatekeeping 10 years after daubert

Abstract

Environmental litigation almost always involves scientific issues and expert opinions, often with multiple experts in different disciplines. In 1993, the United States Supreme Court issued its landmark decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), which made significant changes in the standards for admissibility of expert opinions in federal courts. The Supreme Court established a gatekeeping requirement under which courts must screen expert opinions for reliability and exclude junk science. The Court also established a new, more flexible test to be used in this process. These standards have now become better defined through their application by courts over the ten years since Daubert, including a number of environmental cases. A recent example of the application of these standards to an environmental case is Freeport-McMoran Resource Partners, L.P. v. B-B Paint Corp., et al., 56 F.Supp. 2d 823 (E.D. Mich. 1999), a private party CERCLA case in which one of the authors successfully argued a motion to exclude expert testimony for a group of 12 defendants, resulting in exclusion of the opinions and a judgment for the defendants. The expert in the case was a PhD. chemist and had served as an expert witness in over 180 cases. While admissibility of expert opinions is primarily the responsibility of attorneys, it is important for environmental professionals to understand the issues, both to assist attorneys and to take them into consideration in projects which may later result in litigation. This paper explores current standards for expert opinions in environmental litigation in both federal and state courts. © 2005 Springer Science + Business Media, Inc.