The Process of Employing Expert Witnesses in a Municipal Environmental Litigation Case

Imagine, after a heavy down pour of rain, that your local wastewater treatment plant failed. And this failure resulted in a lagoon overflowing. Thus causing sewage to spill onto your land and contaminating your drinking well water. Then, after searching the public records, you discovered that the wastewater treatment plant was out of compliance for a number of years. Additionally, the treatment plant might have been accepting illegal drilling fluid in violation of the Clean Water Act and the NPDES permit.

After consulting with an attorney, you are told that because the treatment plant was operated by the Municipality, its entitled to immunity. So, you’re left with a limited number of options to recover damages in order to clean up your well. In addition, you are limited in the amount of damages you may collect from the Municipality. The only hope you have to remediate your well is to implicate third parties to the lawsuit, e.g. the design engineer, the contractor, the drilling fluid company, and possibly the intentional acts of the Municipality.

This blog post is designed to discuss the involvement of expert witnesses in an environmental litigation case involving the assessment of liability. First the article will examine what is an expert witness and what qualifies someone as an expert witness. Then the article will show how the expert witness could be used in each scenario above for implicating a third party’s liability. Lastly, the article will discuss where to find expert witnesses.

1. What is an expert witness and how to be qualified to be an expert witness?

An expert witness is any one who has special “knowledge, skill, experience, training, or education.”. Typically an expert witness is a person who can interpret scientific, technical, or specialized knowledge to the everyday person not working in that field. The expert witness normally gives his or her testimony in the form of an opinion that is based on the facts or data of the case. Those either supplied or personally observed. And the expert witness has reliably used and applied accepted methods and principles for reaching his or her opinion. Naturally when one hears the phrase expert witness the image of a licensed professional comes to mind; however, an expert witness could be someone who is so familiar with the field from informal training and years of experience in his or her profession.

There are three stages in qualifying a person as an expert witness. The first stage is when the expert is first called to testify. The foundation of his or her credentials and qualifications are given in court. The second stage is where the opposing attorney challenges the expert’s credentials and qualifications. Lastly, the third stage is where the judge will either certify the expert or exclude the expert as a witness.

1. How an expert witness would be used in the hypothetical to assess liability.

In the above hypothetical of the overflowing sewage from the treatment plant, an expert witness will almost certainly be needed in order to sue the engineer, contractor, drilling fluid company, and the municipality. In each situation either a professional or an informally trained expert, or both, could be used to prove causation. Therefore, discussed first will be applying professional experts to each scenario, followed by applying informal experts to each scenario.

1. An expert witness would be used to show the engineer is strictly liable for the design.

The expert witness would be used to show that the engineer committed malpractice in the design of the lagoons. This concept was first recognized in Rylands v. Fletcher, 3 L.R. 330 (H.L. 1868), when a mill owner was held liable for flooding the neighboring mineshaft after his water reservoir failed. Over time this concept was developed into product liability and strict liability. And when it comes to strict liability for a defective design the defendant is normally not held liable. Unless (1) the defective condition was unreasonably dangerous and (2) the risk of harm that caused the injury was reasonably anticipated.

Therefore, when an engineer does not follow “generally accepted design standards,” he or she can be held liable for malpractice. This was exactly what happened in Dupree. A pedestrian was killed attempting to cross an intersection that had defective traffic control devices installed. A similar event happened in Herzog v. Town of Thompson, 216 A.D.2d 801, 871 (N.Y. App. Div. 1995), when an engineering consultant miscalculated the municipal sewage plant’s capacity, which resulted in a failure. Here, in our hypothetical it is easy to see that getting another design engineer would prove malpractice. This is because of the required science and technical background. The engineering license guaranteed and confirmed the fundamental skills required to properly design a lagoon. Therefore, it would be unrealistic to expect a layman to isolate any possible defects in a lagoon design without help of translating the information first.

However an unsuspecting expert witness is a construction worker in order to prove engineering malpractice. Construction workers have “an extensive knowledge and expertise of the construction industry who can discuss and describe industry standards, and technical language.”. They are well diversed “and up-to-date on the methodologies, processes, and materials used in the case at hand, especially as new technologies and processes are constantly being introduced and improved on.”.

So, an expertise construction worker could testify that during the construction process, in his opinion, the embankment for the lagoon was not wide enough to handle the water pressure during a heavy rainstorm. Based on the fact that the construction worker has built many embankments, and knows what a properly constructed embankment look like, the construction worker would probably be certified as an expert witness.

1. The same expert witness’s used to prove the engineer’s malpractice could be used for the contractor negligence.

The same principles for the engineer’s malpractice would apply for proving the contractor negligence. Except the engineer would testify that the contractor did not build to the design specifications. And the construction worker would testify that the contractor cut corners to increase its profits.

1. Expert witnesses would analyze the contaminated well for drilling fluids in order to determine the impact.

The use of an expert here is to determine the environmental impact and the relevant scientific and medical evidence of the drilling fluid. Drilling fluid is normally a mixture of different chemicals, which may or may not be Synthetic. And depending on what kind of drilling fluid was deposited into the treatment plant, the side affects from exposure range from dizziness to the possibility of developing cancer.

When there is a contamination of an environmental media, the EPA has recommended an analysis protocol. However, when the analysis protocol is not followed, it does not necessarily exclude the expert opinion. The expert’s sampling procedure should ensure there is no contamination of samples and contains a field blank. Also it should account for time and space. Lastly, there should be quality control precaution.

The sampling procedure provides the basis for toxicology and epidemiology. Toxicology is the study of the effects of chemicals and physical agents on the human body. Epidemiology is the modeling of the chemical’s movement and the disease.

Here, in our hypothetical, in order to determine whether there was any drilling fluid coming out of the treatment plant, and if so what kind of drilling fluid, the expert would do a chemical analysis of the water. Once the chemicals are known, then a modeling can be done to determine the likelihood of where the contamination will spread and the risk of cancer. Therefore, an expert witness would be required. They would to do a chemical analysis of the well water and explain the results to the trier of facts.

1. Proving the Municipality had intent to take the well water without just compensation requires an expert witness.

Depending on the State, negligence can merge into an intentional taking when the municipality has knowledge of an ongoing problem, but refuses to do anything to remediate the problem. Robinson v. City of Ashdown, 301 Ark. 226, 231-232 (1990) (citing Rest. Torts 2d, § 825(b), comment (d). In Robinson, there was nine years of complaints about the municipal sewage system backing up into the plaintiff’s house. This caused property damage and created a health hazard. The plaintiff eventually hired an engineer to determine the exact design defect. However, the Municipality’s Mayor, who was an engineer and experienced in designing sewage systems, rebutted the plaintiff’s expert testimony. However, the foreman of the city’s water department reconfirmed the findings of the plaintiff’s expert.

Here in our hypothetical, the expert witness would have to show that as a result of the Municipality’s refusal to make any repairs, it diminishes the life of the treatment plant. The best way for this is to get a structural engineer or a construction worker to testify. Either one would be about to demonstrate, either through calculations or personal experience of doing repairs, that the city benefited from not doing the repairs. The city kept the money it should have been using to maintain the treatment plant. Therefore, the expert witness could calculate the estimated value of the damages suffered.