Whodunit: Using Expert Witnesses in Environmental Litigation

Experts, like many of the speakers at the SME Annual Conference, are frequently called upon by lawyers to assist them in litigation. Due to the technical nature of many cases, the testimony of an expert with knowledge and experience in a particular field is necessary to help a judge or jury understand and decide certain issues. Environmental litigation is no exception. Experts routinely are called upon to offer testimony to establish the existence of contamination and its source, as well as the potential health and environmental risks associated with the contaminants. This article will briefly discuss the factors courts apply to determine whether to admit expert testimony after the recent Supreme Court decision in Daubert v. Memell Dow Pharm., Inc., 509 U.S. 579 (1993). The Court's decision in Daubert overruled a long-standing test that had based the admissibility of scientific evidence on its "general acceptance" in the field in issue. Next, the article will discuss in general terms what a party must do to "link a particular defendant's conduct to the contamination involved in order to recover from that defendant. This link, known as causation, varies depending upon the type of claim being asserted. Expert witnesses are used extensively to help establish causation. JUNK SCIENCE OR GOOD SCIENCE- HOW DOES A COURT DETERMINE WHAT TO LET IN A frequent complaint in litigation involving technical or scientific issues is that one party or another is trying to use so-called "junk science" to prove its case. While some expert testimony might be so clearly lacking in support or so "off the wall" that a court can easily determine to exclude it, other testimony, especially testimony on the "cutting edge," is much more problematic. In 1923, the District of Columbia Circuit Court of Appeals decided the case of Frye v. United States, 293 E 1013 (1923). In deciding whether to admit certain expert testimony, the court in Frye stated that while a court will "go a long way in admitting expert testimony deduced from a well-recognized scientific