Geology Expert’s Testimony on Arsenic Admitted per Reliance on Published Paper

The defendant had dumped lime sludge, contaminated with arsenic, in a vacant field many years ago. The plaintiff sued the defendant city for imminent and substantial endangerment after the city removed the sludge.

Zach Barreto

Written by
— Updated on April 25, 2022

Geology Expert’s Testimony on Arsenic Admitted per Reliance on Published Paper

Court: United States District Court for the Middle District of Florida, Fort Myers Division
Jurisdiction: Federal
Case Name: Miller v. City of Fort Myers
Citation: 2020 U.S. Dist. LEXIS 1356

The plaintiff argued the defendant’s investigation and remediation of contamination were insufficient to abate the threat of harm. The defendant retained a geology expert witness who opined on the efficacy of the city’s remedial methods. The plaintiff argued the court should exclude the expert’s opinions for various reasons.

Facts

Years ago, the defendant city dumped around 25,000 cubic yards of lime sludge in a vacant field it owned. The sludge was contaminated with arsenic. Over time, a neighborhood grew around the site, but the sludge remained in the earth for about 50 years. The Florida Department of Environmental Protection took an interest in the property in 2007. The city then constructed irrigation wells and began testing groundwater. The department supervised the process and reviewed annual reporting reports. It continued for years until the plaintiff told the city that she wanted to sue. The city decided to remove the sludge. However, the sludge was still on the property as the plaintiff sued in 2018. Earlier that year, the city began digging and extracting it. The city had removed nearly 30,000 tons of sludge and dirt by then. All the sludge was out by the summer of 2019.

According to the city, soil sampling showed there was no residual contamination of the soil above the Soil Cleanup Target Level near the surface of the site. The plaintiff maintained that there was still an immediate and severe risk. Additionally, the plaintiff opposed the city’s investigation and remediation of pollution in the city. The plaintiff argued that both were inadequate to minimize the threat of harm. Therefore, the plaintiff moved the court to compel the city to remediate further in the neighborhood. The city retained a geology expert witness to support its case, whose testimony the plaintiff challenged.

The Defendant’s Geology Expert Witness

The geology expert witness had over 40 years of experience in assessing toxicological and environmental risk. Much of this experience includes the evaluation of the health and environmental effects of different toxins on soil, sediments, air, water, and other environmental media. The expert also published a paper on using groundwater and soil evidence to assess the impact of arsenic. The expert opined on the background levels of arsenic in the county as compared to the rest of the state. Additionally, the expert opined on the efficacy of the city’s remedial methods.

The plaintiff sought to exclude a variety of the geology expert witness’s opinions on three points. First, the plaintiff claimed the expert gave views on geology and hydrogeology but lacked the qualification to do so. According to the city, the study of surface and groundwater levels is an integral part of the toxicity and risk assessment. The defendant asserted that the expert often carried out this assessment as a toxicologist over the last four decades. Second, the plaintiff claimed the expert’s comments on the efficacy of the city’s remediation were inadmissible. The city did not respond to this challenge.

Then ultimately, the plaintiff tried to exclude the expert’s observations on background levels of arsenic in the soil. The plaintiff argued that the expert failed to demonstrate that his research was accurate. However, as the city reports, the expert did not opine on the real background levels of arsenic in the county. Instead, the expert generally discussed studies on background arsenic levels in Florida. The plaintiff did not dispute these reports, some of which contained evidence from the county.

Discussion

The court disagreed on the expert’s alleged lack of qualification. Much of the opinions the expert made, in this case, were similar to his published paper on arsenic. The city’s other geology expert, who was unchallenged, shared many of the opinions. The court noted that the plaintiff provided nothing to contradict the expert’s experience and ability to provide clear testimony on the movement of arsenic here. Therefore, the court rejected the plaintiff’s motion to exclude an opinion on these subjects

The court received the plaintiff’s second point. However, the court noted that courts typically consider Daubert motions to decide on summary judgments. The effectiveness of the city’s remedial efforts was not dispositive. The court said it would not rely on any opinion given by the expert on the city’s clean-up efficacy. Therefore, the court did not need to consider whether to exclude the opinion on that basis.

Regarding the third argument, the court further noted that the expert stated that sample sizes were too small to draw definitive conclusions about the level of natural arsenic. In brief, the court believed the expert did not form a view on background levels in the disputed county. The expert only said that some background level was likely. For this reason, the court found no methodology that the plaintiff could attack.

Ruling

The court denied the plaintiff’s motion to exclude the geology expert witness testimony.

Key Takeaways for Experts

Aligning your expertise and background knowledge to the case at hand is critical. In this case, the court found the expert qualified because his opinions were similar to his published paper on arsenic. Experts should offer opinions that are supported by their expertise and, if possible, on literature that is generally accepted by their community.

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