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Trickett v. Ochs, No. 267-11-00 Ancv (Reiss, J., Mar. 10, 2005)

[The text of this Vermont trial court opinion is un official. It has been reformatted from the original. The accuracy of the text and the accompan ying data included in the Vermont trial court opinion database is not guaranteed.]

STATE OF VERMONT ADDISON COUNTY, SS.

) GEORGE TRICKETT and ) CAROL TRICKETT ) Addison Superior Court ) v. ) Docket No. 267-11-00 Ancv ) PETER OCHS and ) CARLA OCHS ) )

OPINION AND ORDER REGARDING ADMISSIBILITY OF PROPOS ED

EXPERT TESTIMONY

This matter came before the court on February 16, 2005, for an evidentiary hearing on Defendants’ motion in limine. Defendant s request the court to exclude expert witness testimony from Craig Stead, P.E., pursuant to Rule 702 of the Vermont Rules of

Evidence.

Plaintiffs have brought an action against Defendan ts for, among other claims, nuisance and trespass resulting from Defendants’ fa rm operation near Plaintiffs’ home. 1
Plaintiffs allege that this operation includes the use of tractors and trucks that emit diesel fumes onto Plaintiffs’ property and into Plaintiffs ’ home, which is approximately 130 feet from the farm’s packing shed. Plaintiffs allege th at, while in their home, they smell these fumes five to seven times a day, seven days a week, during all seasons of the year. Accordingly, they assert that the diesel fumes inte rfere with their use and enjoyment of

1 Plaintiffs have also pled emotional distress claim s, but they indicated to the court that they do not intend to pursue these.2

the property and thus constitute a nuisance. They contend that the particulate in the fumes constitutes a trespass.

Plaintiffs seek to introduce testimony from Mr. St ead to demonstrate that the alleged diesel fumes pose health hazards. Mr. Stea d has opined that the diesel tractors that idle near the apple packing operation produce diesel smoke and large amounts of diesel soot. He intends to testify about the compo sition and toxicity of this diesel exhaust. He also intends to testify that this exha ust has been classified as a toxic air

contaminant and has been found to cause numerous ad verse health effects, including eye, nose, and throat irritation; cough; headache; light -headedness; nausea; allergies and infection; aggravated chronic respiratory symptoms; and increased asthma attacks. Mr. Stead will testify that if the smell of diesel is p resent in a home, there is an elevated exposure to the diesel exhaust by individuals occup ying the home. Therefore, he intends to offer the opinion that Plaintiffs, because they smell diesel exhaust in their home, face

an unreasonable health risk because of Defendants’ farm operation.

Mr. Stead is a professional engineer, and his work focuses on waste water treatment. His education includes a Bachelor’s Deg ree and a Master’s Degree in chemical engineering, as well as a Master’s Degree in Business Administration. Mr. Stead testified that he studied petroleum refining as part of his degree in chemical engineering. His alleged expertise concerning dies el fumes is the result of his examination of scientific literature on the subjectsince 1992. Mr. Stead, whose selfstudy was prompted by his own asthma, claims to hav e amassed a substantial body of research, including articles from several medical a nd scientific journals, as well as books and technical papers. This literature, which was n ot introduced into evidence, allegedly concerns the composition and toxicity of diesel exh aust and the health effects of diesel fuel and exhaust, including animal model studies an d human epidemiological studies. He also alleges that he has communicated with individu als involved with diesel exhaust

research.

Mr. Stead testified that part of his theory regard ing the particulate concentrations in Plaintiffs’ home is that the topography of the s urrounding land creates a “bowl effect,” whereby diesel fumes settle into the area surroundi ng Plaintiffs’ house. Mr. Stead concedes he is not an expert in geography, topograp hy, meteorology, or any other related field, and he testified that he did not conduct any studies of the “bowl effect” phenomena. He testified that he simply observed the land conto urs.

Mr. Stead visited Plaintiffs’ property on one occa sion for three to four hours. He did not smell any diesel fumes at the time and did not take any air samples. He testified that there is equipment capable of measuring diesel particulate but its cost is prohibitive. He has not conducted any studies or proffered any t ests but bases his testimony on three photos taken on a single day in January 2004 in whi ch horizontal plumes of diesel fumes3

were allegedly visible. These photos were not intr oduced into evidence at the hearing.

Mr. Stead also watched a video that Plaintiffs had taken; this video was also not

introduced into evidence.

Mr. Stead was uncertain as to the number of diesel tractors that visited Plaintiffs’ property on a weekly basis, noting that it appears to be between four and seven diesel trucks at a time, although it may be 15 trucks a we ek. He testified that it did not matter because “the odor may be from one lousy tractor.”

Mr. Stead also testified that Plaintiffs’ exposure is 10 to 20 times higher than common exposure, but he did not provide a basis for this estimate.

Mr. Stead has no medical training or experience, a nd he does not intend to testify regarding any of Plaintiffs’ alleged health conditi ons.

Mr. Stead testified that he has voiced his concern s regarding the health effects of diesel exhaust before several legislative and regul atory bodies, including the U.S. House of Representatives Committee on Government Reform a nd Oversight, the Environmental Protection Agency, the Presidential Advisory Commit tee on Gulf War Veterans’ Illnesses, and the U.S. Centers for Disease Control and Prevention. He was not retained as an expert witness in any of these proceedings, h e was not compensated for his testimony or services, and none of the identified r egulatory bodies or agencies required him to establish any qualifications similar to thos e required by Rule 702 of the Vermont Rules of Evidence as a condition precedent to testi fying.

Mr. Stead has also consulted with certain organiza tions studying petroleum toxicology. He consulted with the Agency for Toxic Substances and Disease Registry (an agency of the U.S. Department of Health and Hum an Services) on a toxicology profile of petroleum, but he was not paid for his s ervices. He also produced a 10-page report on petroleum toxicology for Region IX of the Environmental Protection Agency in San Fransisco. The EPA paid Mr. Stead $5700 for hi s services.

Mr. Stead alleges that he testified as an expert w itness in a single proceeding

before the Vermont District II Environmental Commis sion and in a single proceeding

before the Vermont Environmental Board. The court finds that in neither instance was Mr. Stead accorded expert witness status and permit ted to testify in that capacity. 2

2 The court notes that Mr. Stead was denied party st atus as an individual who could materially assist the Environmental Board in In re Northeast Cooperatives & L & S

Assocs. , Land Use Permit No. 2W0434-11-EB, slip op. at 3–4 (Vt. Envtl. Bd. Jan. 29, 1999). In the other proceeding, there is no mentio n of Mr. Stead in the decision he cites as evidence that he was permitted to testify as an expert witness before the District II4

Instead, he was an interested party advancing his o wn rights and interests in these proceedings. Accordingly, the court finds that no court or regulatory agency has previously permitted Mr. Stead to testify as an exp ert witness.

Rule 702 of the Vermont Rules of Evidence provides that:

[i]f scientific, technical, or other specialized kn owledge 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, experie nce, training, or education, may testify thereto in the form of an op inion or otherwise, if (1) the testimony is based upon sufficient facts or dat a, (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.

In applying Rule 702, the court is guided by the st andards set forth in Daubert v. Merrill Dow Pharm., Inc. , 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael , 526 U.S. 137 (1999). See USGen New England, Inc. v. Town of Rockingham , 2004 VT 90, ¶ 18.

Under Daubert , the court provides a “gatekeeper function to dete rmine that novel scientific or technical evidence is sufficiently re liable and relevant before it is

admissible.” State v. Kinney , 171 Vt. 239, 248 (2000). Daubert ’s gatekeeping objective is thus “to make certain that an expert . . . emplo ys in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho

Tire , 526 U.S. at 152. Accordingly, before a witness i s permitted to offer an expert scientific opinion, the court must find his or her testimony both reliable and relevant. USGen New England , 2004 VT 90, ¶ 15.

“Reliability is assured if the expert testimony is supported by ‘scientific knowledge,’ defined as information that is more tha n a subjective belief or unsupported speculation, and that is grounded in the methods an d procedures of science.” State v.

Streich , 163 Vt. 331, 343 (1995). Daubert provides four nonexclusive factors to assist a trial court in determining whether an expert opinio n is “sufficiently rooted in ‘scientific knowledge’ to be admissible”: (1) whether the exper t’s theory or technique is capable of being tested, (2) whether the theory or technique h as been subjected to peer review and publication, (3) whether the theory or technique ha s a known or potential rate of error, and (4) whether the theory or technique has been ge nerally accepted in the scientific community. Id . at 343 (citing Daubert , 509 U.S. at 593–94). “‘ Daubert ’s list of specific factors neither necessarily nor exclusively applies to all experts or in every case.’” Kinney , 171 Vt. at 250 n.2 (quoting Kumho Tire , 526 U.S. at 141).

Environmental Commission . See In re L & S Assocs. , Land Use Permit No. 2W0434-8- EB, slip op. at 36, ¶ 119 (Vt. Envtl. Bd. Sept. 21, 1993).5

“Relevancy . . . is essentially determined by cons idering if the expert’s testimony

‘will assist the trier of fact to understand or det ermine a fact in issue.’” USGen New England , 2004 VT 90, ¶ 16 (quoting Daubert , 509 U.S. at 592). “[S]peculative expert testimony is irrelevant and is not admissible.” Everett v. Town of Bristol , 164 Vt. 638, 639 (1996) (mem.).

From Mr. Stead’s deposition and hearing testimony, as well as documentary evidence that the parties submitted at the hearing, the court finds that Mr. Stead’s testimony is not sufficiently rooted in scientific knowledge to be reliable for the following reasons. First, Mr. Stead’s knowledge of the effects of diesel fume pollution on human health has been acquired purely through in formal self-study. He has never testified as an expert witness in this capacity und er V.R.E. 702 or a similar rule or standard, and his theories have never been tested. In particular, his theory about the

correlation between diesel fume odors and the actua l particulate concentration levels has not been tested. Indeed, Mr. Stead conceded that n o specific studies recognize such a correlation. Instead, he relied on representations made in an e-mail authored by Dr. Scott Fruin, a researcher in California. Dr. Fruin state d only that, “[smell] is a good indicator of a high concentrations of particulate, but [resea rchers in California] did not have enough occurrences of this to come up with reliable numbers.” Dr. Fruin also stated that he thought “many people can notice diesel smell at lower concentrations” than the concentrations that Mr. Stead suggests are present in Plaintiffs’ residence. 3 “However,” Dr. Fruin wrote, “we have also seen the nose gets a ccustomed to whatever concentrations it has been exposed to for a few minutes, and sensi tivity goes down, similar to nearly all

smells.” Dr. Fruin’s statements do not amount to a ny decisive conclusions or theories about the link between smell and particulate concen trations. 4 Without a scientific foundation for and adequate testing of the alleged correlation between smell and a

3 Mr. Stead also testified at his deposition that th e lowest observable adverse effects level (LOAEL) for diesel fume particulate m atter is 5 μg/m 3 , which, he stated, was odorless. Though precise numbers are not possi ble, he stated, a “rough number” is 80–100 μg/m 3 when the Tricketts smell diesel. Particulate leve ls where one can smell diesel fumes are therefore much higher than the LOA EL, according to Mr. Stead. He did not, however, provide any scientific research or te sting to support this claim.

4 The court notes that Dr. Fruin’s representations a lso do not fall within Daubert standards of reliability. Plaintiffs offer no evid ence that Dr. Fruin’s representations are capable of being tested, have been (or could be) pu blished or subjected to peer review, have known or potential rates of error, or have bee n generally accepted in the scientific community. Plaintiffs offer no evidence of Dr. Fru in’s qualifications beyond the fact that

he worked with the California Air Resources Board.6

specific concentration of diesel particulate, Mr. S tead’s proffered testimony is not the type that would be deemed reliable in the scientifi c community. 5

Mr. Stead’s testimony also fails the second Daubert reliability factor in that his opinions have not been published or subject to peer review. Mr. Stead’s testimony and consultations for regulatory and legislative bodies were not reviewed by a relevant scientific community. His specific theory regardin g the particulate concentration level in this case has not been published or peer reviewed. There are no regulations that reflect Mr. Stead’s findings with regard to the threat dies el fumes pose to human health. Accordingly, Mr. Stead’s theory regarding the risk to human health remains pure supposition.

In addition, Mr. Stead proffers no known or potent ial rates of error with regard to his theories about particulate concentrations in di esel fumes or their effects on human health. According to Mr. Stead, there are no scien tific studies on the correlation between odor and particulate concentrations. Mr. Stead’s h ypothesis that diesel fumes pose a risk if they can be smelled is thus not made within the confines of any scientific formula which can be re-tested and to which a potential rat e of error can be ascribed.

Finally, Plaintiffs present no evidence regarding the general acceptance of Mr. Stead’s theories in the scientific community. Alth ough Mr. Stead appears knowledgeable in the field of diesel exhaust, he does not offer a ny evidence that has been generally accepted by others. Mr. Stead’s testimony thus fai ls the fourth Daubert factor.

For the foregoing reasons, the court finds that Mr . Stead’s opinions are not sufficiently reliable and relevant to permit him to testify as an expert witness under Rule

702 and Daubert . Defendants’ motion in limine is hereby GRANTED.

SO ORDERED.

Dated at Middlebury, Vermont, March 10, 2005.

5 Mr. Stead also offers support for his theory of th e particulate concentration in Plaintiffs’ home based on the topography of the lan d and the weather conditions, both of which, he states, allow the diesel exhaust to settl e in the an area surrounding Plaintiffs’ home. Mr. Stead’s lack of expertise in the appropr iate fields indicates that he is not qualified to render expert opinion on particulate c oncentration to the extent his opinion is based on his theories of topography and weather con ditions. He did not conduct any studies or tests to verify this effect, and his the ory merely amounts to an observation of a topographical bowl. He does not explain how his ob servation is different from any lay observation of the topographical features surroundi ng the house.7

_________/s/________________

Hon. Christina Reiss Addison Superior Court