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United States v. Apex Oil Co.

March 15, 2007

UNITED STATES OF AMERICA, PLAINTIFF,
v.
APEX OIL COMPANY, INC. DEFENDANT.



The opinion of the court was delivered by: Herndon, District Judge

MEMORANDUM AND ORDER

I. Introduction

Pending before the Court is the United States' motion to strike testimony of Eric L. Butler (Doc. 82) and the United States' motion for summary judgment (Doc. 65). For the reasons below, the Court denies both of the United States' motions. (Docs. 65, 82)

II. Background

Defendant Apex Oil Company, Inc. ("Defendant") is a successor-by-merger to corporate entities - both named Clark Oil and Refining Corporation - that owned and operated a refinery and associated pipelines and sewers in Hartford, Illinois (the "refinery"). The United States alleges that there were multiple leaks of petroleum in the pipelines running from the refinery and that eventually the leaks resulted in contaminated groundwater and dangerous levels of vapor-phase hydrocarbons in the soil and the air. This subsurface hyrdocarbon contamination, the United States alleges, may present an imminent and substantial endangerment to health or the environment and, therefore, injunctive relief pursuant to the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6973(a) to abate the alleged endangerment, is appropriate. Defendant disagrees. Defendant disputes the degree of contamination and the potential endangerment any such contamination might pose to the public or the environment.

III. Analysis

A. United States' Motion to Strike Testimony of Eric L. Butler

The United States is seeking pursuant to FEDERAL RULE OF EVIDENCE 702 to strike the declaration of Defendant's expert, Eric L. Butler, Ph.D., and to exclude from trial Dr. Butler's expert report and related testimony. The United States argues that the Court should bar Dr. Butler's testimony because Dr. Butler is not qualified to offer an opinion on topics such as toxicology and statistics and that his opinions are unreliable because the methodology he employs cannot be tested, has not been subjected to peer review, and is not generally accepted in the relevant scientific communities. Defendant counters that the United State's motion should be denied because it is not supported by an affidavit and that the claimed deficiencies go to weight and not admissibility. The Court agrees with Defendant.

The admissibility of expert testimony in federal court proceedings is governed by FEDERAL RULE OF EVIDENCE 702.*fn1 RULE 702,the codification of the Supreme Court's decision in Daubert, requires the trial judge to perform a gatekeeping function with respect to expert testimony. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The trial judge must "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Id. at 589. This inquiry is also required for technical and other specialized expert testimony. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999). The Seventh Circuit, interpreting Daubert, has established that when evaluating the admissibility of the proffered testimony, district courts are to undertake a two-step inquiry:

Daubert first "directs the district court to determine whether the expert's testimony pertains to scientific knowledge. This task requires that the district court consider whether the testimony has been subjected to the scientific method; it must rule out 'subjective belief or unsupported speculation.'" Second, the district court must "determine whether the evidence or testimony assists the trier of fact in understanding the evidence or in determining a fact in issue. That is, the suggested scientific testimony must 'fit' the issue to which the expert is testifying."

O'Conner v. Commonwealth Edison Co., 13 F.3d 1090, 1106 (7th Cir. 1994) (quoting Porter v. Whitehall Labs., Inc., 9 F.3d 607, 613 (7th Cir. 1993)(citations omitted)).

While the Supreme Court did "not presume to set out a definitive checklist or test," it did list several factors that should be considered including: (1) whether a scientific theory or technique has been or can be tested; (2) whether the scientific theory has been subjected to peer evaluation and publication; (3) the actual or potential error rate and existence of any standards controlling the technique's operation; and (4) whether the theory has been generally accepted in a particular field. Daubert, 509 U.S. at 595. The test of reliability, however, is flexible and there is no requirement that the district judge consider each one of the factors when making an admissibility ruling. Id.; Bourelle v. Crown Equip. Corp., 220 F.3d 532, 535 (7th Cir. 2000).

When considering the reliability of proposed expert testimony, a court must also determine whether the expert is qualified in the relevant field and examine the methodologies the expert employed in reaching his or her conclusions. See Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000). Furthermore, "a court should consider a proposed expert's full range of practical experience as well as academic or technical training when determining whether that expert is qualified to render an opinion in a given area." Id.

The purpose of the rule in Daubert "was to make sure that when scientists testify in court they adhere to the same standards of intellectual rigor that are demanded of their professional work." Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 318 (7th Cir.), cert. denied, 519 U.S. 819 (1996). FEDERAL RULE OF EVIDENCE 703 explicitly permits reliance on material "reasonably relied upon by experts in the particular field forming opinions or inferences." FED.R.EVID. 703. "[Seventh Circuit] case law has recognized that experts in various fields may rely properly on a wide variety of sources and may employ a similarly wide choice of methodologies in developing an expert opinion." Cooper v. Nelson, 211 F.3d 1008, 1020 (7th Cir. 2000). An expert must be limited to opinion testimony in the area of expertise for which the proffering party can qualify the expert. Goodwin v. MTD Products, Inc., 232 F.3d 600 (7th ...


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