The U.S. Virgin Islands Department of Planning and Natural Resources and the Government of the Virgin Islands brought an action against companies that had owned an alumina refinery and an oil refinery on St. Croix. Judge Harvey Bartle wrote the opinion in Barnes v. Century Aluminum Company, Slip Copy, 2013 WL 3356421 (D.Virgin Islands June 28, 2013) after considering the motion of Lockheed to exclude the opinion testimony of Dr. Bradley Sample.
Judge Bartle noted that the Third Circuit had stated on numerous occasions that the Federal Rules of Evidence Rule 702 was comprised of three requirements: qualification, reliability, and fit.
In order to judge reliability, the court should concentrate on whether the expert’s conclusion is “based on the methods and procedures of science rather than on subjective belief or unsupported speculation,” rather than looking only at the expert’s conclusion itself. This analysis may include factors such as:
(1) whether the method has a testable hypothesis;
(2) whether the method has been peer reviewed;
(3) the known or potential rate of error;
(4) the existence and maintenance of standards controlling the technique’s operation;
(5) whether the method is generally accepted;
(6) the relationship of the technique to established reliable methods;
(7) the qualifications of the expert witness testifying based on the methodology; and
(8) the non-judicial uses to which the method has been applied.
Judge Bartle said that as long as an expert’s scientific testimony was based on good grounds, that is—"based on what is known"—it should be tested by "the adversary process. That process is any competing expert testimony as well as an active cross–examination, rather than excluding the expert’s testimony from a jury’s consideration in a concern that it may not understand its complexities or satisfactorily weigh its issues. Expert testimony must also bear some relation to the “particular disputed factual issues in the case.” This, the judge explained, was described as question of relevance.
The plaintiffs retained Dr. Bradley Sample to evaluate ecotoxicity and ecological risks associated with contamination by hazardous substances from bauxite ore processing at the old St. Croix Alumina plant. Dr. Sample earned a doctorate degree in wildlife ecology and a Masters degree in entomology. He authored more than 100 peer-reviewed publications and presentations in ecotoxicology and ecological risk assessment.
Judge Bartle explained that Dr. Sample purposefully selected sampling locations with high concentrations of contaminants in order to gather information about its toxicity. This type of risk assessment, the judge noted, was the same methodology Dr. Sample applied for the EPA. His methodology was reliable under Daubert for these goals. If Lockheed sought to challenge the methodology being used in this context, Judge Bartle said that it could do so on cross-examination.
Lockheed also argued that Dr. Sample ignored evidence of impacts from other sources of contamination. However, the judge believed that he did not ignore that evidence, and as a result, there was no reason to exclude his testimony.
Quoting a Third Circuit case, Judge Bartel wrote:
"As long as an expert’s scientific testimony rests upon good grounds, based on what is known, it should be tested by the adversary process—competing expert testimony and active cross–examination—rather than excluded from jurors’ scrutiny for fear that they will not grasp its complexities or satisfactorily weigh its inadequacies."
Dr. Sample’s testimony was important for the plaintiffs at trial, and the judge would not strike it without valid grounds.