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

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the
original. The accuracy of the text and the accompanying 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 PROPOSED
                      EXPERT TESTIMONY

       This matter came before the court on February 16, 2005, for an evidentiary
hearing on Defendants’ motion in limine. Defendants 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 Defendants for, among other claims,
nuisance and trespass resulting from Defendants’ farm 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 that, 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 interfere with their use and enjoyment of


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

                                                1
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. Stead to demonstrate that the
alleged diesel fumes pose health hazards. Mr. Stead 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 composition and toxicity of this diesel
exhaust. He also intends to testify that this exhaust has been classified as a toxic air
contaminant and has been found to cause numerous adverse 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 present in a home, there is an elevated
exposure to the diesel exhaust by individuals occupying 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 Degree 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 diesel fumes is the result of his
examination of scientific literature on the subject since 1992. Mr. Stead, whose self-
study was prompted by his own asthma, claims to have amassed a substantial body of
research, including articles from several medical and scientific journals, as well as books
and technical papers. This literature, which was not introduced into evidence, allegedly
concerns the composition and toxicity of diesel exhaust and the health effects of diesel
fuel and exhaust, including animal model studies and human epidemiological studies. He
also alleges that he has communicated with individuals involved with diesel exhaust
research.
        Mr. Stead testified that part of his theory regarding the particulate concentrations
in Plaintiffs’ home is that the topography of the surrounding land creates a “bowl effect,”
whereby diesel fumes settle into the area surrounding Plaintiffs’ house. Mr. Stead
concedes he is not an expert in geography, topography, 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 contours.
        Mr. Stead visited Plaintiffs’ property on one occasion 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 tests but bases his testimony on three
photos taken on a single day in January 2004 in which horizontal plumes of diesel fumes


                                              2
were allegedly visible. These photos were not introduced 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 week. 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, and he does not intend to testify
regarding any of Plaintiffs’ alleged health conditions.
       Mr. Stead testified that he has voiced his concerns regarding the health effects of
diesel exhaust before several legislative and regulatory bodies, including the U.S. House
of Representatives Committee on Government Reform and Oversight, the Environmental
Protection Agency, the Presidential Advisory Committee 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, he was not compensated for his
testimony or services, and none of the identified regulatory bodies or agencies required
him to establish any qualifications similar to those required by Rule 702 of the Vermont
Rules of Evidence as a condition precedent to testifying.
       Mr. Stead has also consulted with certain organizations studying petroleum
toxicology. He consulted with the Agency for Toxic Substances and Disease Registry
(an agency of the U.S. Department of Health and Human Services) on a toxicology
profile of petroleum, but he was not paid for his services. 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 his services.
       Mr. Stead alleges that he testified as an expert witness in a single proceeding
before the Vermont District II Environmental Commission 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 permitted to testify in that capacity.2



       2
         The court notes that Mr. Stead was denied party status 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 mention of Mr. Stead in the decision he cites
as evidence that he was permitted to testify as an expert witness before the District II

                                             3
Instead, he was an interested party advancing his own 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 expert witness.
       Rule 702 of the Vermont Rules of Evidence provides that:
              [i]f 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.
In applying Rule 702, the court is guided by the standards 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 determine that novel
scientific or technical evidence is sufficiently reliable 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 . . . employs 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 is 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 than a subjective belief or unsupported
speculation, and that is grounded in the methods and 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 opinion is “sufficiently rooted in ‘scientific
knowledge’ to be admissible”: (1) whether the expert’s theory or technique is capable of
being tested, (2) whether the theory or technique has been subjected to peer review and
publication, (3) whether the theory or technique has a known or potential rate of error,
and (4) whether the theory or technique has been generally 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).

                                              4
       “Relevancy . . . is essentially determined by considering if the expert’s testimony
‘will assist the trier of fact to understand or determine 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 informal self-study. He has never
testified as an expert witness in this capacity under 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 actual particulate concentration levels has
not been tested. Indeed, Mr. Stead conceded that no 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 stated only that, “[smell] is a good indicator
of a high concentrations of particulate, but [researchers 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 accustomed to whatever concentrations
it has been exposed to for a few minutes, and sensitivity goes down, similar to nearly all
smells.” Dr. Fruin’s statements do not amount to any decisive conclusions or theories
about the link between smell and particulate concentrations.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 the lowest observable adverse
effects level (LOAEL) for diesel fume particulate matter is 5 µg/m3 , which, he stated,
was odorless. Though precise numbers are not possible, he stated, a “rough number” is
80–100 µg/m3 when the Tricketts smell diesel. Particulate levels where one can smell
diesel fumes are therefore much higher than the LOAEL, according to Mr. Stead. He did
not, however, provide any scientific research or testing to support this claim.
       4
        The court notes that Dr. Fruin’s representations also do not fall within Daubert
standards of reliability. Plaintiffs offer no evidence that Dr. Fruin’s representations are
capable of being tested, have been (or could be) published or subjected to peer review,
have known or potential rates of error, or have been generally accepted in the scientific
community. Plaintiffs offer no evidence of Dr. Fruin’s qualifications beyond the fact that
he worked with the California Air Resources Board.

                                             5
specific concentration of diesel particulate, Mr. Stead’s proffered testimony is not the
type that would be deemed reliable in the scientific 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 regarding 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 diesel 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 potential rates of error with regard to
his theories about particulate concentrations in diesel fumes or their effects on human
health. According to Mr. Stead, there are no scientific studies on the correlation between
odor and particulate concentrations. Mr. Stead’s hypothesis 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 rate of error can be ascribed.
        Finally, Plaintiffs present no evidence regarding the general acceptance of Mr.
Stead’s theories in the scientific community. Although Mr. Stead appears knowledgeable
in the field of diesel exhaust, he does not offer any evidence that has been generally
accepted by others. Mr. Stead’s testimony thus fails 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 the particulate concentration in
Plaintiffs’ home based on the topography of the land and the weather conditions, both of
which, he states, allow the diesel exhaust to settle in the an area surrounding Plaintiffs’
home. Mr. Stead’s lack of expertise in the appropriate fields indicates that he is not
qualified to render expert opinion on particulate concentration to the extent his opinion is
based on his theories of topography and weather conditions. He did not conduct any
studies or tests to verify this effect, and his theory merely amounts to an observation of a
topographical bowl. He does not explain how his observation is different from any lay
observation of the topographical features surrounding the house.
                                             6
      _________/s/________________
Hon. Christina Reiss
      Addison Superior Court




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