Summary of a Recent
Judicial Development in
Environmental Law

Expert Opinion Must Satisfy Federal Rule of Evidence 702

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Plourde v. Gladstone, 190 F. Supp. 2d 708 (D. Vt. 2002), the United States District Court for the District of Vermont granted the defendant's motion to exclude expert testimony. Alleging that the defendant had committed fraud, conspiracy to commit fraud, intentional personal injury, battery, intentional infliction of emotional distress (IIED), negligent infliction of emotional distress (NIED), nuisance, trespass, and negligence, a dairy farmer and his family brought the instant toxic tort action stemming from the defendant's application of fertilizer on adjoining land. The court held that the plaintiffs' witness was not qualified to testify as an expert because his opinion was unreliable, and because he based his testimony on inadmissible hearsay; therefore he could not testify as to the causation of the plaintiffs' injuries.

Background

The plaintiffs, a dairy farmer and his family, lived on a dairy farm in New Hampshire. Id. at 710. Defendant Walter Gladstone owned land adjacent to the plaintiffs' dairy farm. Id. Another defendant, State Fertilizer Inc., was a company that applied fertilizers, pesticides, and herbicides to area farms. Id. On June 9, 2000, the plaintiffs brought the instant toxic tort action against the defendants arising from herbicide sprayings in 1999 and 2000. Id. They claimed that the defendants' herbicides drifted onto their property causing damages to trees and shrubs, personal illness, and injuries to the plaintiffs' dairy herd. Id. at 711, 718. They asserted claims for fraud, conspiracy to commit fraud, intentional personal injury, battery, IIED, NIED, nuisance, trespass, and negligence. Id. at 718. In response, the defendants moved to exclude the testimony of the plaintiffs' expert witnesses. Id. at 709-10.

Arguments

The defendants motioned to exclude the expert opinion testimony of Dr. Robert K. Simon, particularly on the issue of injury causation. Id. at 709.

Analysis and Holdings

The Federal Rules of Evidence (FRE) control "the admissibility of an expert's opinion on injury causation." Id. at 718. Federal Rule of Evidence 702 states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Id.

The court held that the proffered testimony of Dr. Smith had not been met the evidentiary standards of FRE 702 for the following reasons: (1) he was not a medical doctor and had "no experience or training in diagnosing and treating patients"; (2) he "offer[ed] no textual support for the proposition that toxicologists [were] qualified to evaluate the medical judgments and opinions made by doctors or veterinarians"; (3) he based his testimony on inadmissible hearsay; (4) he offered opinions on issues outside his discipline; (5) and his testimony was unreliable. Id. at 418-21. Therefore, the court granted the defendants' motion to exclude the proffered expert testimony. Id. at 421.

The case was decided on March 20, 2002.