Water Treatment Expert WitnessesA non-profit environmental organization, on behalf of its members, brought an action against Defendant water treatment plant under the citizen enforcement suit provision of the Clean Water Act (“CWA”), 33 U.S.C. § 1365.  

Plaintiff sought declaratory and injunctive relief, the assessment of civil penalties, as well as costs and fees for alleged violations of CWA. Plaintiff asserted that Defendants failed to comply with effluent limits and performance standards for industrial wastewater discharge under the National Pollution Discharge Elimination System (“NPDES”), regarding the discharge of wastewater pollutants into the waters of the State of Ohio.  

U.S. District Judge Benita Y. Pearson was asked whether the affidavits of purported experts were admissible. 

To support its opposition to summary judgment, Plaintiff cited four affidavitsamong them were those of its natural-resources expert and its environmental-science expert 

In its reply to Plaintiff‘s opposition, Defendants asked the Court to strike the Plaintiff’s experts’ affidavits because, they argued, those affidavits failed to conform with the requirements of Federal Rules of Civil Procedure Rule 56.  

Defendants made two arguments in support of that request, both arising under Rule 56(c)(4). Pursuant to that rule, a court may only consider evidence at the summary judgment stage that will ultimately be admissible at trial.  

Defendants argued that the Plaintiff’s two expert affidavits weren’t admissible evidence because the two individuals hadn’t been qualified as experts under Rule 702, and the two experts’ affidavits weren’t based on “personal knowledge,” as that term is used in Rule 56(c)(4). However, the Court wasn’t “taken” with either contention. 

In her decision, Judge Pearson wrote that under Daubert, Rule 702 imposes on the Court an obligation to ensure that all expert testimony is both relevant and reliable. For that reason, the Court must ensure an expert witness is qualified before allowing the jury to hear his testimony. Expert testimony is admissible only if the expert’s purported qualifications survive the rigors of the Court’s Rule 702 inquiry. 

That kind of analysis should be imitated, the judge explained, when assessing admissibility for purposes of Rule 56(c)(4). However, “ordinarily it cannot be perfectly replicated. Rule 56(c)(4) isn’t a perfect substitute for adversarial motion practice, she noted 

If Defendant genuinely took issue with Plaintiff’s two experts expert qualifications, the judge said it could have pointed to specific concerns about their expertise or methodology. It still could challenge Plaintiff’s experts’ qualifications through motions in limine as the proceedings continued. 

But for the moment, Judge Pearson found nothing objectionable about the two individuals being presented as experts. According to the facts stated in their affidavits, both were well-educated and experienced in their respective fields, and both their fields were relevant to the litigation. And both of Plaintiff’s experts familiarized themselves with appropriate literature.  

Defendants didn’t challenge their education, expertise, or methodology—only that the legitimacy of their expertise has not been explored.” The judge held that for purposes of admissibility under Rule 56(c)(4), she tentatively ruled that Plaintiff’s natural-resources expert and Plaintiff’s environmental-science expert were experts in their respective fields. 

Defendants also argued that, even if Plaintiff’s natural-resources expert and Plaintiff’s environmental-science expert were deemed admissible experts, their affidavits should nevertheless be stricken because they weren’t based on “personal knowledge.” They claimed that the two expert affidavits were “really ‘expert’ opinions masquerading as factual testimony.They cited three cases from the Sixth Circuit, all suggesting that affidavits must be stricken if based on “statement[s] of belief.” 

Judge Pearson wrote that “[t]o equate expert testimony with a “statement of belief” misapprehends the nature of expert testimony. The Sixth Circuit agreed and emphasized that an expert, in contrast to a lay witness, gains “personal knowledge” for purposes of Rule 56(c)(4) by familiarizing himself with the record and other relevant materials. A contrary conclusion would appear to eliminate expert testimony from summary judgment briefing altogether, Judge Pearson opined. 

In this case, Judge Pearson found that both of Plaintiff’s experts familiarized themselves with the record and other relevant material, thereby gaining the personal knowledge necessary to testify, and they applied their education and professional experience to arrive at a conclusion. As a result, the judge said she would consider the expert affidavits. 

The Court denied Defendant’s motions for summary judgment.