Environmental Expert WitnessesA property owner appealed the district court’s summary judgments in favor of defendants dismissing its claims that arose from an alleged discharge of sewage contamination.

A pond on Plaintiff’s property received runoff from a drainage ditch located on Defendants’ adjacent apartments in Baton Rouge, Louisiana. Plaintiff saw that the pond was bright green and cloudy, smelled foul, and “appeared dead.” Testing of the pond showed that it contained fecal coliform, bacteria found in sewage, at a level of more than five times the state standard for swimming. Plaintiff contacted Defendants about the sewage problem but said that Defendants did nothing in response.

At the same time, Plaintiff was in negotiations to develop its property into a residential and commercial community. Those talks subsequently terminated, and the proposed development never came to fruition.

Plaintiff sued the owners and manager of the apartment and the operator of Defendants’ wastewater treatment system (Operator). Plaintiff alleged that their negligence resulted in the discharge of harmful or hazardous substances, pollutants, or contaminants, including raw sewage, onto Plaintiff’s property. Plaintiff further alleged that the resulting contamination of its waterways, groundwater, and soil required remediation and caused the property to be unsuitable for use, development, or sale. Plaintiff sought damages for remediation and repair of its property, diminution in property value, loss of use and enjoyment of its property, and loss of a business opportunity and profits from the proposed development deal.

The most recent testing of the pond for fecal coliform and heavy metals showed that none of the detected contaminants exceeded the soil screening standards under Louisiana Department of Environmental Quality’s Risk Evaluation / Corrective Action Program (“RECAP”).

Defendants filed motions for summary judgment seeking dismissal of Plaintiff’s claims. The district court granted Operator’s motion, finding that while Operator owed Plaintiff a duty to exercise reasonable care, there was no evidence that it breached its duty.

The only element of the negligence and nuisance claims that the district court considered was Plaintiff’s claims for damage: remediation (to reduce contaminant concentrations below regulatory standards) and restoration (to restore the property to its former condition). As to remediation, the district court found that the evidence showed the pond didn’t have levels of fecal coliform or heavy metals that exceeded regulatory standards. In addition, the district court found that Plaintiff’s testimony about the property’s deterioration didn’t prove it required restoration.

Defendants filed motions in limine seeking to exclude Plaintiff’s environmental expert from offering any testimony or from testifying about federal standards or the trend analyses he conducted to assess the directional flow of the contaminants. The district court granted this motion. Plaintiff appealed to dispute the district court’s rulings.

In a per curiam decision, the Fifth Circuit wrote that the court is to assess “whether the reasoning or methodology underlying the testimony is scientifically valid and . . . whether that reasoning or methodology properly can be applied to the facts in issue.” “A lack of specialization should generally go to the weight of the evidence rather than its admissibility,” and “an expert witness is not strictly confined to his area of practice, but may testify concerning related applications,” the Court said, citing a Tenth Circuit decision.

Here, the district court found that Plaintiff’s environmental expert wasn’t qualified to offer reliable expert testimony because his experience was related to the resolution of hazardous waste matters for commercial and industrial facilities—not sewerage systems for apartment complexes or multi-family residential communities.

Plaintiff’s expert had extensive experience in analysis and evaluation of environmental contaminants, the area in which he was offered as an expert, including experience working on sewage systems for residential neighborhood communities. The Fifth Circuit found that his lack of specialization in sewage facilities for multi-family residential units like those, in this case, didn’t render his testimony unreliable. As a result, the Court held that the district court abused its discretion in excluding Plaintiff’s environmental expert ‘s testimony.

Further, the Fifth Circuit held that the district court also abused its discretion in excluding Plaintiff’s environmental expert’s testimony regarding his trend analyses. The district court found this testimony misleading because Plaintiff’s environmental expert only plotted some of the data points from the testing of the pond, which indicated a steady decline moving away from Defendants, but some of the omitted data points were inconsistent with this trend. The appellate court found that this critique of Plaintiff’s environmental expert’s method didn’t justify excluding the trend analysis testimony entirely. Rather, the issue should be addressed on cross-examination.

However, the Fifth Circuit held that the district court’s exclusion of Plaintiff’s environmental expert ‘s testimony on federal EPA standards, Toxicity Characteristic Leaching Procedure (“TCLP”) wasn’t an abuse of discretion. In his expert report, Plaintiff’s expert compared the pond test results to the regulatory standards set by the Louisiana Department of Environmental Quality, RECAP. But in Plaintiff’s environmental expert ‘s deposition, he testified that TCLP standards should apply instead.

Plaintiff’s expert failed to complete the TCLP process or obtain final results. The district court found that this testimony was unreliable, would be misleading, and would invite speculation by the jury because the expert didn’t complete the TCLP process. The Fifth Circuit agreed with the district court that because of this failure, any testimony about the process would be misleading and invite speculation. Plaintiff’s expert couldn’t be said to have “reliably applied the principles and methods to the facts of the case” because he did not apply the principles and methods in the first place.

The Fifth Circuit concluded that genuine disputes as to material fact exist regarding the Plaintiff’s claims for negligence and nuisance, including whether Plaintiff has suffered damage. Therefore, these claims were remanded to the district court. In addition, the Court vacated the district court’s ruling excluding Plaintiff’s environmental expert ‘s testimony, except with respect to TCLP testing.