Recent Developments in Environmental Law in Indiana

In this article, we explore recent developments in Indiana law in the use of expert witnesses and consider in particular the use of experts in environmental cases. The article also discusses developments in Indiana law regarding individual liability of corporate officials for environmental liabilities, as well as otherlegal developments.

A. Use of experts to prove environmental law claims

Skepticism of expert witness testimony has a long history in our nation's legal system. Nearly 150 years ago, the Supreme Court stated:

Experience has shown that opposite opinions of persons professing to be experts may be obtained to any amount; and it often occurs that not only many days, but even weeks, are consumed in cross-examinations, to test the skill or knowledge of such witnesses and the correctness of their opinions, wasting the time and wearying the patience of both court and jury, and perplexing, instead of elucidating, the questions involved in the issue.

Winans v. N.Y. & Erie R.R. Co., 62 U.S. 88, 101 (1858). Courts have struggled for a long time on how to manage expert testimony at trial, and in perhaps no other legal area do controversies over expert witnesses emerge more forcefully than in environmental law. Virtually all environmental law disputes involve contests between experts on geology, hydrology, contaminant migration modeling, human health and other areas.

This article surveys developments concerning the admissibility of expert witness testimony in Indiana in the wake of the U.S. Supreme Court's 1993 Daubert v. Merrell Dow decision. The article concludes with a discussion of a recent Indiana Supreme Court decision, Sears Roebuck v. Manuilov, which calls for relaxation in the level of scrutiny of proffered expert witness testimony in Indiana.

1. The Daubert decision

Let's begin with a recap of the decision that ignited a controversy across the United States concerning the admissibility of expert opinion testimony: Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786 (1993). The case involved the claim that the drug Benedictin caused birth defects. The U.S. Supreme Court, in a decision by Justice Blackmun, rejected the prevailing test under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) concerning the admissibility of scientific evidence. Under Frye, which concerned the admissibility of polygraph evidence, the judge was to inquire whether proposed expert testimony or the methodology underlying the testimony was "sufficiently established to have gained acceptance in the particular field in which it belongs." 293 F. at 1014. The Frye test in this respect was conservative, designed to help keep "junk science" out of the courtroom. Daubert held that Rule 702 of the Federal Rules of Evidence had superseded the "general acceptance" test and instead required the judge to inquire into whether the proposed expert testimony is scientifically reliable. Thus, Daubert requires an independent judicial examination of reliability. The ruling was intended to eliminate the "battle of the experts" that prevails in a great deal of litigation.

There is no definitive checklist of factors that a judge must assess in determining whether scientific or technical evidence is reliable and therefore admissible, but among factors identified by the Supreme Court and lower federal courts and commentators are the following:

Has the scientific theory or technique been empirically tested?

Has the scientific theory or technique been subjected to peer review and publication?

What is the known or potential error rate?

What is the expert's qualifications and stature in the relevant scientific community?

Can the technique be explained with sufficient clarity and simplicity so that the judge and the jury can understand it?

Daubert thus offers a list of flexible factors to be used as appropriate for various types of expert testimony in determining the reliability of proffered testimony. The "overarching" objective is on "the scientific validity - and thus the evidentiary relevance and reliability - of the principles that underlie a proposed submission. The focus, of course, must be solely on principles and methodology, not on the conclusions they generate." 113 S.Ct. at 2796.

Since the Daubert decision, the U.S. Supreme Court has produced several important follow-up rulings elaborating upon Daubert including:

General Electric Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512 (1997): Holds that federal appellate courts are to apply an abuse of discretion standard in reviewing a trial judge's decision applying Daubert.

Kumho Tire v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167 (1999): Holds that the basic gatekeeping obligation of Daubert applies to all specialized "expert" testimony, not just scientific testimony. In Kumho, the trial judge had excluded testimony from plaintiff's liability expert in an automobile tire failure case. The judge had not questioned the expert's qualifications but did question his conclusions. The 11th Circuit Court of Appeals reversed, holding that Daubert did not apply to cases other than those involving scientific principles. The Supreme Court reversed and affirmed the trial judge. Federal Rule 702 controls the admissibility of testimony from witnesses with "scientific, technical or other specialized knowledge" and was not confined to science experts. The Supreme Court explained that the essence of the Daubert inquiry is to "make certain that an expert, whether basing testimony upon professional studies or personal experience employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field."

Weisgram v. Marley, 528 U.S. 440, 120 S.Ct. 1011 (2000): Holds that where a federal appellate court reverses the trial judge's erroneous admission of expert evidence under Daubert, the appellate court also may mandate entry of judgment in favor of the defendant under F.R.Civ.P. 50. The plaintiff argued that in fairness to a verdict winner who may have relied on erroneously admitted expert witness evidence, the remedy on appeal should be a remand to the trial court rather than a mandated judgment for the defendant. But the Supreme Court stated that "[s]ince Daubert...parties relying on expert evidence have had notice of the exacting standards of reliability such evidence must meet." 120 S.Ct. 1021. The opinion thus leaves little doubt that in the Supreme Court's view, Daubert operates to further restrict, rather than relax, the scope of admissible expert witness testimony.

2. Indiana law on admissibility of expert evidence

Rule 702 of the Indiana Rules of Evidence provides:

(a) 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.

(b) Expert scientific testimony is admissible only if the court is satisfied that the scientific principles upon which the expert testimony rests are reliable.

Ind. Evidence Rule 703 provides:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. Experts may testify to opinions based on inadmissible evidence, provided that it is of the type reasonably relied upon by experts in the field.

These provisions read collectively require that expert opinions in Indiana must be:

(1) helpful to the trier of fact,

(2) offered by a witness who is qualified through education, training or experience as an expert,

(3) based upon evidence that experts in the same field would reasonably rely upon, and

(4) in the case of scientific evidence, based upon principles that the court determines are reliable.

The Indiana Supreme Court has held that Daubert and its progeny are helpful but not controlling in applying Ind. Evidence Rule 702. See Steward v. State, 652 N.E.2d 490, 498 (Ind. 1995) (evidence of child sexual abuse syndrome would not be admissible to prove that child abuse had occurred). Rule 702 assigns to the trial court a gatekeeping function of ensuring that an expert's testimony rests both on a reliable foundation and is relevant to the task at hand. When faced with a proffer of expert scientific testimony, the court must make a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology properly can be applied to the facts in issue. Hottinger v. Trugreen Corporation, 665 N.E.2d 593 (Ind. Ct. App. 1996), citing Porter v. Whitehall Laboratories, Inc., 9 F.3d 607, 613 (7th Cir. 1993). The trial court's determination regarding the admissibility of expert testimony under Rule 702 is a matter within its broad discretion which will not be disturbed unless the trial court's application of the Daubert framework is manifestly erroneous. Cook v. State, 734 N.E.2d 563, 570 (Ind. 2000); McGrew v. State, 682 N.E.2d 1289, 1292 (Ind. 1997).

3. Evidence rules in other states

About half the states, including Indiana and Kentucky, have accepted or generally approved of Daubert. The Frye test remains the rule in many states, including Illinois and Michigan. A few states, including Wisconsin and Minnesota, have fashioned their own admissibility tests, which have nothing to do with the reliability of the science underlying the expert's opinion. For example, in Wisconsin the court determines first whether the evidence at issue is relevant; then the court decides whether the witness qualifies as an expert; and finally the court determines if the evidence will be helpful to the trier of fact. State v. Peters, 534 N.W.2d 867 (Wis. Ct. App. 1995).

Among the states that have approved of Daubert, it is less clear whether the law is evolving into a more exacting or a more relaxed assessment of...