Opinion
2023-074-W 2022-072-W
12-24-2024
PROTECT PT v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION and APEX ENERGY (PA), LLC, Permittee
DEP, General Law Division: Attention: Maria Tolentino (via electronic mail) For the Commonwealth of PA, DEP: Forrest M. Smith, Esquire Kathleen Anne Ryan, Esquire Jeffrey Bailey, Esquire (via electronic filing system) For Appellant: Lisa Johnson, Esquire (via electronic filing system) For Permittee: Megan S. Haines, Esquire Jeffrey Wilhelm, Esquire Casey Snyder, Esquire Allison L. Ebeck, Esquire (via electronic filing system)
DEP, General Law Division: Attention: Maria Tolentino (via electronic mail)
For the Commonwealth of PA, DEP: Forrest M. Smith, Esquire Kathleen Anne Ryan, Esquire Jeffrey Bailey, Esquire (via electronic filing system)
For Appellant: Lisa Johnson, Esquire (via electronic filing system)
For Permittee: Megan S. Haines, Esquire Jeffrey Wilhelm, Esquire Casey Snyder, Esquire Allison L. Ebeck, Esquire (via electronic filing system)
OPINION AND ORDER ON PERMITTEE'S MOTION IN LIMINE TO EXCLUDE THE USE OF GRAND JURY REPORT, UNIVERSITY OF PITTSBURGH STUDIES, PENNSYLVANIA CASE LAW, AND EXPERT REPORTS
MARY ANNE WESDOCK, JUDGE
Synopsis
The Permittee's motion in limine to preclude the admission of certain exhibits listed in the Appellant's prehearing memorandum, including expert reports, is denied at this time. The Board does not have a rule or specific practice regarding the admissibility of expert reports, but, rather, it is left to the discretion of the judge presiding at the hearing. As to the other contested exhibits, the Permittee may raise its objections again at the hearing.
OPINION
On August 17, 2022, the Department of Environmental Protection (Department) issued permits to Apex Energy (PA) for the drilling of the Drakulic 1H and 7H wells (the permits) in Penn Township, Westmoreland County. The permits were appealed to the Environmental Hearing Board (Board) by Protect PT, a grassroots nonprofit organization formed "to ensure the safety, security, and quality of life for people in Penn Township, Trafford and surrounding areas from unconventional natural gas development." (Notice of Appeal, Docket No. 2022-072-W, para. 7.) The permits were renewed in August 2023, and Protect PT appealed the renewal of the permits. The appeals are consolidated at Docket No. 2023-074-W.
This matter is scheduled for hearing beginning on January 15, 2025. Protect PT filed its prehearing memorandum on November 15, 2024 and the Department and Apex filed their prehearing memoranda on November 25, 2024. Following submission of the prehearing memoranda, several motions in limine were filed with the Board. This Opinion addresses Apex's Motion in Limine to Exclude the Use of Grand Jury Report, University of Pittsburgh Studies, Pennsylvania Case Law and Expert Reports.
Standard of Review
A motion in limine is the proper vehicle for addressing evidentiary matters in advance of a hearing. 25 Pa. Code § 1021.121; Liberty Township v. DEP, 2023 EHB 43, 44. The purpose of a motion in limine is to provide the Board an opportunity to consider potentially prejudicial evidence and preclude such evidence before it is referenced or offered at hearing. Kiskadden v. DEP, 2014 EHB 634, 635. A motion in limine should generally be used to challenge whether certain evidence relative to a given point is admissible, not whether the point itself is a valid one. Morrison v. DEP, 2020 EHB 404, 405. In evaluating a motion in limine, the Board is asked to determine whether the probative value of the proposed evidence is outweighed by considerations such as undue delay, waste of time, or needless presentation of cumulative evidence. McCauley v. DEP, 2020 EHB 448, 450 (quoting Delaware Riverkeeper Network v. DEP, 2016 EHB 159, 161).
Discussion
Apex has challenged various exhibits listed in Protect PT's prehearing memorandum, asserting that they constitute hearsay or are otherwise inadmissible. We address each of the exhibits and evidentiary items challenged by Apex below:
Expert Reports
In its prehearing memorandum, Protect PT lists the reports of its expert witnesses in Schedule 1, its List of Exhibits. Apex argues that the expert reports may not be admitted as evidence at the hearing on the grounds that they are inadmissible hearsay.
We note that 25 Pa. Code § 1021.104(5) and paragraph l.E. of Prehearing Order No. 2 require parties to provide a copy of their expert reports (or answers to interrogatories or summary of expert testimony) with their prehearing memoranda, which Protect PT has done. In its response to Apex's motion, Protect PT states that it simply listed the expert reports in compliance with the Board's rules and order and not necessarily because it intends to seek admission of the reports. However, we take this opportunity to address Apex's request that we presumptively deny the admission of expert reports ahead of the hearing.
The Commonwealth Court has held that an expert report constitutes hearsay when it is being offered for the truth of the matter asserted "unless the expert who prepared the report is available for cross-examination regarding the accuracy and reliability of his opinion." Lower Makefield Township v. Lands cfDalgewicz, 4 A.3d 1114, 1122 (Pa. Cmwlth. 2010) (citing Pa.R.E. 801(c); Columbia Gas Transmission Corp. v. Piper, 615 A.2d 979 (Pa. Cmwlth. 1992)).However, in a recent unreported single-judge memorandum opinion by now-President Judge Renee Cohn Jubelirer in William Penn School District v. Pa. Department of Education, 2021 Pa.Commw. Unpub. LEXIS 695, the Court held that, while an expert's testifying at trial is necessary for admission of the expert's report, it is not necessarily sufficient. In that case the petitioners sought an order from the Court declaring that expert reports were presumptively admissible when offered during the authoring expert's direct testimony at trial. The Court held that the petitioners could not "simply introduce the expert reports in their entirety and have those reports be presumed to be admissible in their entirety without full consideration of the Rules of Evidence and the limitations set forth therein." Id. at * 17. The opinion noted that:
The Court noted the exception to this hearsay rule which permits experts to testify regarding reports of others which are not in evidence, but upon which they relied in reaching a professional conclusion. Lower Maktfield, 4 A.3 at 1122 (citing Primavera v. Celotex Corp., 415 Pa. Super. 41, 608 A.2d 515 (Pa. Super. 1992)).
As per Commonwealth Court guidelines, this opinion is cited for its persuasive value and not as binding precedent.
...even if an expert testifies and is available for cross-examination, the proffered report remains subject to the Rules of Evidence, and other evidentiary issues may be found within the report, such as hearsay within hearsay, whether a foundation is adequately laid, or whether an expert improperly repeats the opinion of another.Id. at *12. The opinion found that the presumptive admission of the reports placed a "burden on [the respondents] to find all potentially inadmissible evidence within the expert reports and to object in order to prevent the consideration of that inadmissible evidence." Id. at *17-18. The opinion concluded by noting that "the technically complex nature of the reports at issue counsels in favor of admitting them only alongside expert testimony that provides a foundation and helpful context to aid in the Court's understanding." Id. at *18.
Although not binding, the reasoning of William Penn is persuasive for the proposition that expert reports should not be presumptively admitted into evidence, but in appropriate circumstances where the Rules of Evidence are met, they may be a helpful tool alongside expert testimony.
The Board does not have a specific procedural rule or practice on whether to allow the admission of expert reports at hearing. See, e.g., Delaware Riverkeeper Network v. DEP, 2016 EHB 159, in which now-Chief Judge Beckman stated:
While the Board does not have a rule governing this issue, as a general matter, I do not admit a copy of an expert report as evidence in hearings and do not consider expert reports that have been filed to the Board's docket to constitute evidence that may be cited in post-hearing briefs or relied on by the parties. Parties are free, of course, to introduce exhibits from an expert report and provide testimony regarding the opinions contained within an export report, but the expert report itself will not be admitted. Mr. Fisher's expert report was not admitted as evidence in the supersedeas hearing and, consistent with my past practice, it will not be admitted as evidence if we proceed to a full hearing.Id. at 162.
In some instances, the Board has recognized that the admission of expert reports may aid the Board in understanding the expert's testimony. The following discussion in Pine Creek Pine Creek Township v. DEP, 2011 EHB 98, is particularly instructive:
The relatively common practice in administrative proceedings of experts submitting written testimony in lieu cf direct testimony is not followed by this Board. See 25 Pa. Code § 1021.123(d) (superseding 1 Pa. Code §§ 35.138 and 35.166 (relating to prepared expert testimony). Pine Creek is technically correct that expert reports, as such, are hearsay. They are, after all, out-of-court statements offered for the truth of the matters asserted. Pa.R.E. 801(c). They typically are not made under oath. They are essentially discovery tools that may be used as alternatives to detailed answers to interrogatories and expert testimony summaries in pre-hearing memoranda. They serve to define the four comers of the expert's testimony. Pa. R. Civ. P. 4003.5 (c). They should not, however, be thought of as trial exhibits. DEP v. Angino, 2006 EHB 278, 283; Sunoco, [Inc.] 2003 EHB [482] at 484; Kleissler v. DEP, 2002 EHB 617, 621; Land Tech Engineering v. DEP, 2000 EHB 1133, 1138. [footnote omitted]
Having said that, parties can and often do agree to the admission of expert reports. Kleissler, 2002 EHB at 621. We encourage that practice because the reports are a very helpful tool in understanding
experts' testimony when we prepare our Adjudications. Even without agreement, parts of reports are often independently admissible as demonstrative evidence. This case, for example, involves complex mathematical formulae. We tremble at the thought of trying to follow those calculations based upon oral testimony alone.Id. at 99-100 (emphasis added).
The presiding judge in the present case agrees with the philosophy set forth in Pine Creek, and declines Apex's invitation "to create an absolute, across-the-board prohibition on the admission into evidence of expert reports." Id. at 100. So long as the report's author testifies at the hearing and is subject to cross-examination and the Rules of Evidence, I believe it is prudent to exercise judgment regarding the admissibility of expert reports on a case-by-case basis. Though an expert report does not take the place of expert testimony, there may be instances where admitting all or a portion of the report serves to aid the judge in understanding the testimony, particularly where graphs, diagrams, equations or data contained within the report are referenced. I agree with the opinion expressed in William Penn that where the subject matter is "technically complex," admission of all or a portion of the report alongside expert testimony may provide a "helpful context to aid in the [Board's] understanding." William Penn, at *18.
Therefore, Apex's motion to presumptively preclude the admission of expert reports at the hearing is denied.
University of Pittsburgh/Pennsylvania Department of Health Studies
In its prehearing memorandum, Protect PT lists as exhibits various studies prepared by the University of Pittsburgh for the Pennsylvania Department of Health entitled, "Hydraulic Fracturing Epidemiology Studies" (Pitt/Department of Health studies). (Exhibit Z to Protect PT Prehearing Memorandum). Apex argues that Protect PT should be prohibited from using the Pitt/Department of Health studies as evidence in its case because they are hearsay and because they do not refer specifically to the Drakulic well site or Apex's activities as an operator. In response, Protect PT argues that experts are permitted to rely on the reports of others, and it states that two of its experts, Ms. Mackenzie White and Mr. Marc Glass, relied on the Pitt/Department of Health studies in forming their opinions.
Pursuant to Pa. R.E. 703, an expert may rely on the facts or data of others if they are of a type reasonably relied upon by experts in the field. Apex has provided no argument as to why the Pitt/Department of Health studies do not fall within this rule.
As to Apex's contention that the studies are general and do not pertain to Apex or the Drakulic site, Apex cites the Board's adjudication in R.E. Gas Development, LLC v. DEP, 2018 EHB 447, 486. However, in R.E. Gas, the expert was permitted to rely on the studies in question during his testimony. The issue was not that the studies themselves should be precluded, but that the expert's testimony stated only general concerns regarding unconventional gas extraction.
Without further information as to how Protect PT intends to utilize the Pitt/Department of Health studies in the presentation of its case, we find no basis for granting Apex's motion.
Grand Jury Report
Likewise, Apex seeks to preclude Protect PT's use of Report 1 of the 43rd Statewide Investigating Grand Jury (the Grand Jury Report) at the hearing on the basis that it is hearsay and irrelevant.
In response, Protect PT argues that the Grand Jury Report is admissible pursuant to Pa. R. E. 803(8) which allows an exception to the rule against hearsay in the case of public records. It also argues that the report is admissible pursuant to 42 Pa. C.S. § 6104 which addresses official records and states as follows:
(a) General rule. - A copy of a record of governmental action or inaction authenticated as provided in section 6103 (relating to proof
of official records) shall be admissible as evidence that the governmental action or inaction disclosed therein was in fact taken or omitted.
(b) Existence cf facts.-A copy of a record authenticated as provided in section 6103 disclosing the existence or nonexistence of facts which have been recorded pursuant to an official duty or would have been so recorded had the facts existed shall be admissible as evidence of the existence or nonexistence of such facts, unless the sources of information or other circumstances indicate lack of trustworthiness.
Protect PT also points out that the Department filed an official response to the Grand Jury Report and argues that it should be permitted to use the Department's response to the Grand Jury Report in examining Department witnesses at the hearing in this case.
Without further information as to how Protect PT intends to rely on the Grand Jury Report or related documents at the hearing, we decline to rule on Apex's motion at this time. Apex may renew its objection if and when Protect PT raises the Grand Jury Report or related documents at the hearing.
Citations to Case Law
Finally, with regard to Apex's argument that Protect PT is attempting to rely on various Pennsylvania Supreme Court decisions in support of its claims, we read Protect PT's citations as simply attempting to provide legal support for its claims.
Accordingly, we enter the following order:
ORDER
AND NOW, this 24th day of December, 2024, it is ordered that Apex's Motion in Limine to Exclude the Use of Grand Jury Report, University of Pittsburgh Studies, Pennsylvania Case Law, and Expert Reports is denied without prejudice to raise these issues at the hearing.