Ninth Circuit Says No To Excluding Expert Opinion to Fast Track Trial
Courts must reasonably allow expert witness supplements proffering new scientific evidence — unavailable when the original expert opinion was submitted — when that evidence directly impacts key criticisms of the original opinion, the Ninth Circuit has held.
In City of Pomona v. SQM North America Corp., No. 15-56062 (9th Cir. 2017), Pomona appealed a jury judgment that SQM was not liable for causing contamination of the city's drinking water system, arguing that the district court abused its discretion by denying a supplement to its expert's opinion.
In 2010, Pomona filed a products-liability action against SQM, claiming that SQM's fertilizer had contaminated the city's water wells with perchlorate, a chemical that interferes with the ability of the thyroid gland to produce hormones. Pomona shut down the excessively contaminated wells and sought $32 million to recover past and future costs associated with the contamination.
Pomona‘s case rested on the research of its primary expert witness, Dr. Neil Sturchio, then the Head of the Department of Earth and Environmental Sciences at the University of Illinois1. Sturchio had developed a peer-reviewed methodology for collecting and analyzing perchlorate isotopes from groundwater. His research found that 90% of the perchlorate in Pomona's water was from the Atacama Desert in Chile. SQM had imported sodium nitrate (a fertilizer component) from the Atacama Desert since 1927, and SQM‘s fertilizer was used in areas around Pomona's wells.
In 2012, the district court conducted a Daubert hearing to consider whether or not Sturchio's testimony should be excluded. In a half-page order, the district court found Sturchio's opinions had “not been generally accepted by the scientific community” and his test had not been confirmed by other laboratories. Sturchio's opinions being essential, the case was dismissed.
Pomona appealed, and in December 2014 the US Court of Appeals for the Ninth Circuit found the district court's reasoning “unpersuasive” and reversed the exclusion of Sturchio's testimony.
In January 2015, the district court ordered a status conference at which Pomona requested to reopen expert discovery and allow the city to supplement Sturchio's original report as perchlorate isotope research had advanced significantly over the three years the case was on appeal.
The district court denied Pomona‘s motion, finding that the city failed to demonstrate that the information was material and that updating Sturchio's report would “create bank-and-forth discovery, which could delay trial.” However, the Ninth Circuit found that any delay would have been the result of the court's own delays in ruling on motions.
As the supplement was barred, at trial Sturchio was prohibited from testifying about any scientific advances since his original report. He could only testify about 16 perchlorate samples from Atacama, and that his laboratory was the only one to use his technique. He could not testify that, along with other scientists, he had now amassed 50 samples from Atacama, 55 samples from other locations and 79 samples of synthetic percholorate. He could not testify that a number of laboratories had now used his technique and verified the methods used and the results of his previous research.
SQM criticized those original weaknesses in Sturchio's opinion, even though SQM “had to know they were false,” the appellate court found.
While the Ninth Circuit was “sympathetic with the district court's desire to keep this case on a fast track,” it found that the court went too far when it clearly barred evidence fundamental to Pomona's case.
“Fast track” seems a misnomer. After seven years in litigation, the Ninth Circuit vacated the district court's judgment and remanded the case for yet another trial.