---
title: "Court rejects the opinions of Environmental Engineering Expert Witness citing Lack of Demonstrable Testing or Modeling based specifically on Mining Sites"
meta:
  "og:description": "Report presented by Environmental Engineering Expert Witness rejected after it falls victim to the kind of &quot;anecdotal evidence&quot; and &quot;improper extrapolation&quot; that warrants exclusion"
  "og:title": "Court rejects the opinions of Environmental Engineering Expert Witness citing Lack of Demonstrable Testing or Modeling based specifically on Mining Sites"
  author: "Expert Witness Profiler"
  description: "Report presented by Environmental Engineering Expert Witness rejected after it falls victim to the kind of &quot;anecdotal evidence&quot; and &quot;improper extrapolation&quot; that warrants exclusion"
---

# Court rejects the opinions of Environmental Engineering Expert Witness citing Lack of Demonstrable Testing or Modeling based specifically on Mining Sites

Posted on February 21, 2024 by Expert Witness Profiler

Blackhawk Mining, LLC and Pine Branch Mining, LLC (“the Mining Companies”) had operations in Breathitt County, Kentucky. Between July 25 and July 30, 2022, communities across eastern Kentucky suffered historic rainfall that led to “one of the most significant, deadly floods” in the Commonwealth’s history. The floods resulted in significant damage to property and the tragic loss of life. The Plaintiffs, including Eugene Baker, in this matter owned property in the River Caney Watershed, a mountainous community in Breathitt County. Each property was alleged to have experienced damage from the flooding. Many property owners resided along Caney Creek, which was situated down the mountain from where the Mining Companies maintained operations.

About a month after the floods had ravaged the area, the Plaintiffs filed this action alleging that the Defendants’ mining activities had increased stormwater runoff into the watershed during the historic rainfall, thus playing a causal role in the damage. In other words, they claimed that the Mining Companies had caused the damage they experienced from the floods by failing to operate safely.

Prior to the expert disclosure deadline, the Plaintiffs identified one expert witness, D. Scott Simonton, together with his report entitled “Preliminary Opinion, Caney Creek Flooding, Breathitt County, KY.” Simonton was retained to opine as to whether mining activities in the watershed increased flood peak flows and flood damage during the event.

Simonton’s preliminary report contained the following five parts: (i) a background section describing the event; (ii) an analysis of mining impacts and hydrology; (iii) an overview of mining in the Caney Creek Watershed; (iv) initial opinions on the Caney Creek flood; and (v) a summary of initial conclusions.

The Mining Companies argued that Simonton’s opinions lacked reliability under Rule 702 of the Federal Rule of Evidence because they were not based on reliable principles and methods, nor were they supported by sufficient facts and data. Additionally, they claimed that the opinions outlined in the report failed to meet the disclosure requirements of Rule 26(a) of the Federal Rules of Civil Procedure.

## **Environmental Engineering Expert Witness**

[D. Scott Simonton](https://expertwitnessprofiler.com/expert-witness/David-Simonton/1541911) is a professional engineer having received a Ph.D. from the University of New Mexico. He has more than 30 years of experience “in state environmental and public health protection regulatory agencies, private consulting, and academia.” He specializes in environmental forensics, environmental site and risk assessment, mining impacts, hydrology, and environmental engineering design, as well as regulatory compliance including permitting, compliance plans, inspections and audits. He has provided expert testimony and project management for complex environmental cases.

## **Discussion by the Court**

The Mining Companies argued that Simonton’s opinions were not reliable as he did not conduct flood modeling, which they claimed is the accepted methodology for determining if land disturbances caused or worsened flooding. They pointed out that computer-based hydrologic models have been deemed essential in various water disputes by many courts. Additionally, the studies reviewed and conducted by Simonton in his preliminary report also highlighted flood modeling as a useful tool, indicating its potential as an industry standard. Although the Court observed that the method was not required for a Court to admit an expert’s opinions, Simonton himself recognized the enlarged importance of hydrologist modeling to show that changes in surface land conditions from mining operations caused an increase in water runoff considering three of the five studies he cited involved hydrologic modeling. It was noted that Simonton previously testified that an expert in his field cannot reach conclusions about the impacts of surface disturbances on flooding without first conducting modeling of some kind.

The Plaintiffs responded by claiming that hydrologic modeling “was not an end-all requirement of the admissibility of expert testimony.” They even described the assertion that modeling was the industry standard in cases like this one as a “gross misunderstanding of industry practices.” However, the Court observed that they offered no reliable authorities to support this assertion.

The Plaintiffs defended Simonton’s methods, asserting that they involved classical engineering techniques such as aerial observation, third-party eye-witness accounts, and a review of his own modeling and permit files. However, they did not specifically assure the Court of the reliability of these methods. Instead, they dedicated a significant portion of their brief to argue that Simonton’s findings suggested _per se_ negligence.

The Court found it challenging to support the reliability of an expert whose opinions lacked sophisticated modeling or site-specific testing regarding the impacts of water flows on mined surfaces. It noted that the absence of testing was a red flag against certifying the expert’s opinions. Without more than citations of past studies and unscientific opinions based solely on first-hand observations, the Court raised concerns about the reliability of the expert’s conclusions. It suggested that supplementing the expert’s report with additional data might have strengthened the reliability of the opinions.

The Mining Companies then contended that Simonton’s opinions were primarily based on examinations of water flows impacting terrain in locations other than the River Caney Watershed. They questioned the relevance of the studies upon which Simonton purportedly relied, arguing that he could not apply the principles and methods tested in separate locations with unique topological characteristics and conditions to the instant case without some form of testing in order to provide a connection. Essentially, the Mining Companies argued that Simonton’s report failed across the board, as he attempted to use results from studies and publications regarding other locations to establish a link between mining and flood damage in this case. Notably, the Plaintiffs did not dispute this observation. However, they claimed that the Mining Companies neglected to acknowledge Simonton’s firsthand analysis of the site and the generally acknowledged usefulness of outside studies to confirm or deny a scientific hypothesis. In other words, the Plaintiffs claimed that the studies provided Simonton with a reliable basis to form conclusions because they examined storm water’s impacts on similar topography in the Appalachian Mountains subject to surface and strip mining. But the Court observed that the studies Simonton briefly detailed in his preliminary report were presented in remarkably general terms–and often involved hydrologic testing or modeling to reach conclusions.

The Court observed that though Simonton cited first-hand aerial observations of the Caney Creek flooding in the weeks after the event, as well reviews of relevant precipitation data and examinations of Google Earth imaging over an extended period, a lack of demonstrable testing or modeling based specifically on the mining sites that purportedly led to the devastation was why Simonton’s report fell victim to the kind of “anecdotal evidence” and “improper extrapolation” that warranted exclusion.

The Mining Companies claimed that Simonton presented no analysis of water flows (pre or post mining) and completely failed to consider an obvious alternative cause of the Plaintiffs’ claimed damages other than waterflow caused by a land disturbance. To sum it up, the Mining Companies contended that Simonton’s report failed to properly exclude potential alternative causes of the damage that Plaintiffs had suffered. However, the Plaintiffs argued that Simonton’s consideration of how “the heavy rainfall had a disparate effect when compared to an undisturbed watershed” amounted to his exclusion of the rainfall as the primary causal factor in causing the flood damage. While Simonton may have implicitly ruled out alternative causes in the process of concluding that the Mining Companies were to blame for exacerbating the flooding, the fact that his report was merely preliminary may explain why he did not explicitly rule out, for example, the historic rainfall as causal in clearer detail.

Simonton’s preliminary report was found to be deficient in several key aspects: it lacked sufficient data regarding the specific mining sites in question, did not employ any scientific modeling or testing, and struggled to reliably apply principles and methods to the case’s facts with the reliance on extrapolations from studies conducted on sites outside of the River Caney Watershed held to be problematic.

The Mining Companies argued that Simonton’s report lacked a complete statement of his opinions, along with a clear basis and reasons for those opinions. Despite being labeled as “preliminary,” Simonton’s report provided a summary of opinions based on his initial evaluation of the terrain, sediment control structures, and sedimentary conditions in the Caney Creek area. However, the issue arose because Simonton presented these opinions as an “summary of _initial_ preliminary opinions” without further supplementation. Rule 26 of the Federal Rules of Civil Procedure mandates the disclosure of a complete statement of all opinions the witness will express, which the Plaintiffs failed to fulfill. The Court emphasized that requiring the full disclosure of expert opinions enables opposing parties to adequately prepare their cases and helps triers of fact ensure that the expert’s opinion does not mislead or confuse the jury. Therefore, the Court found the Plaintiffs’ disclosure to be deficient in this regard.

The Mining Companies argued that Simonton’s preliminary report was not only incomplete but also reached various conclusions without identifying the reasoning behind them. They observed that Simonton concluded that mining had occurred in the River Caney Watershed, hydrologic modeling had been conducted in areas outside of this particular watershed, erosion had occurred in the watershed, and the surface area of a nearby sediment pond had experienced a reduction. However, Simonton did not provide a direct basis regarding how he reached these conclusions. It was noted that the studies Simonton referenced indicated that surface mining and improper design, construction, or maintenance of sediment and runoff controls may lead to additional damage caused by flooding. To the extent he relied upon that body of information (which was presented in an entirely separate section of his report) in forming his conclusions, Simonton’s report likely complied with the rule’s subpart. But compliance here did not change the fact that Simonton provided only a “preliminary” summary of conclusions despite the command that experts must disclose opinions they may offer in their entirety.

The Mining Companies argued that the Plaintiffs failed to produce all the facts and data considered by Simonton or the exhibits which Simonton claimed supported his opinions. In response, the Plaintiffs claimed the counsel had forwarded all information referenced in Simonton’s report. However, the Mining Companies noted that this information was provided only after they filed their motion to exclude, and months after the deadline for providing expert disclosures had passed. Despite the Plaintiffs’ assertion that much of the information considered by Simonton was available in the public domain, the Court emphasized that the duty to produce relevant information during discovery is enforced by a deadline. The Court held that deadlines are significant, regardless of any belief by the Plaintiffs that disclosing selective information at their chosen time could remedy a Rule 26(a) deficiency.

The Court also noted that Simonton failed to provide a full accounting of the cases in which he participated during the previous four years as per the requirements of Rule 26.

The Court held that the Plaintiffs’ failure to comply with this disclosure requirement was not harmless considering they failed to provide a complete statement of all opinions that Simonton planned to express, the facts and data he considered in reaching his opinions, and an accurate list of all other cases in which he testified as an expert.

## **Held**

The Court granted the Defendants’ motion to exclude the proposed expert opinions of D. Scott Simonton.

The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

## **Key Takeaways:**

Experts should employ accepted methodologies relevant to the case, and failure to consider alternative causes of damages can undermine the credibility of their opinions. Parties have a duty to disclose all relevant facts, data, and opinions of their expert witnesses in a timely manner as per Rule 26 of the Federal Rules of Civil Procedure. Experts should provide a clear and transparent account of their findings, including the basis for their conclusions and any supporting evidence or data. Deadlines for expert disclosures and the production of relevant information during discovery are enforceable and significant, and courts may not overlook non-compliance with these requirements, even if the party believes the deficiency to be harmless. Additionally, experts should disclose their participation in relevant cases during the previous four years as required by Rule 26. Overall, expert witnesses should maintain impartiality and objectivity in their analysis and conclusions to ensure their testimony is not misleading or confusing to the trier of fact.

## **Case Details**

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