Opinion
EHB 2020-014-R
03-17-2022
RANGE RESOURCES - APPALACHIA, LLC v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION
For the Commonwealth of PA, DEP: Michael A. Braymer, Esquire Douglas G. Moorhead, Esquire Kayla A. Despenes, Esquire Angela N. Erde, Esquire Dearald Shuffstall, Esquire For Appellant: Kimberly A. Brown, Esquire Benjamin T. Verney, Esquire Leon DeJulius, Esquire Eric P. Stephens, Esquire
For the Commonwealth of PA, DEP:
Michael A. Braymer, Esquire
Douglas G. Moorhead, Esquire
Kayla A. Despenes, Esquire
Angela N. Erde, Esquire
Dearald Shuffstall, Esquire
For Appellant:
Kimberly A. Brown, Esquire
Benjamin T. Verney, Esquire
Leon DeJulius, Esquire
Eric P. Stephens, Esquire
OPINION AND ORDER ON APPELLANT'S MOTION IN LIMINE TO EXCLUDE FACT TESTIMONY FROM NON-PRODUCED WITNESSES
THOMAS W. RENWAND CHIEF JUDGE AND CHAIRMAN
Synopsis
The Board denies the Appellant's Motion in Limine to Exclude Fact Testimony by four individuals the Department has designated as expert witnesses. Pa.R.C.P. 4003.5 allows the discovery of expert witnesses' factual knowledge and opinions by interrogatories or the exchange of expert reports. Depositions of expert witnesses may be permitted in limited circumstances. The Appellant did not demonstrate that such circumstances were warranted here, where the parties have exchanged detailed and extensive expert reports. Because there were no circumstances warranting the deposition of the Department's experts, there is no basis for precluding their testimony based on the inability to depose them.
OPINION
Introduction
This matter involves an appeal filed by Range Resources - Appalachia, LLC (Range) challenging an order issued by the Pennsylvania Department of Environmental Protection (Department) contending that natural gas leaked from Range's Harman - Lewis Unit 1H gas well and affected ground water and surface water in Lycoming County, Pennsylvania. The order directs Range to take a number of actions, including the restoration and replacement of affected water supplies, investigation of the migration of natural gas from the gas well, and submission of a remedial investigation plan and well plugging plan. A six-week hearing in this matter is scheduled to begin April 5, 2022, and the parties have filed numerous motions in limine.
The motion addressed in this Opinion is Range's Motion in Limine to Exclude Fact Testimony by Non-Produced Witnesses (Motion to Exclude), filed on January 14, 2022. Specifically, Range seeks to preclude the Department's expert witnesses from testifying as to personal factual knowledge since the experts were not produced for deposition. The Department filed a response in opposition to the motion on February 25, 2022.
The witnesses at issue are the following: William Kosmer, a licensed professional geologist employed by the Department; Bruce Jankura, Section Chief of the Department's Bureau of District Oil and Gas Operations, Subsurface and Operations Support Section; Seth Pelepko, Environmental Program Manager, Division of Subsurface Activities, Bureau of Oil and Gas Planning and Program Management; and Bryce McKee, an oil and gas professional geologist previously employed by the Department. The Department has named each of these individuals as expert witnesses. Range argues that because these individuals were involved at various stages in the creation and issuance of the order that is the subject of this appeal, it should have had the opportunity to depose them as to their personal factual knowledge of these subjects.
Discussion
Discovery of experts is governed by Pa.R.C.P. 4003.5 which states that "[d]iscovery of facts known and opinions held by an expert" may be obtained through interrogatories or the exchange of expert reports. Pa.R.C.P. 4003.5 also states, "Upon cause shown, the court may order further discovery by other means…"
Range sought on two occasions to depose the aforenamed individuals. Those motions were denied, and Range has now filed a Motion in Limine to preclude the Department's experts from testifying as to their personal factual knowledge. Range argues that because it was not provided an opportunity to depose the aforementioned individuals, in addition to the exchange of expert reports, it has been deprived of its due process right to present a meaningful case.
Range's argument has been addressed in two prior opinions issued in this matter. In November 2020, Range sought to depose Mr. Jankura, Mr. Kosmer and Mr. McKee as to their factual knowledge. In an Opinion and Order issued on January 27, 2021, the Board relied on Pa.R.C.P. 4003.5 and previous Board case law in denying the Motion to Depose. The Board held:
Over a period of many years the Board has overseen a practice that requires any individual who is identified as an expert to adhere to the requirement set forth in Rule 4003.5 regarding expert testimony. Therefore, a proposed expert must either answer expert interrogatories or in the alternative serve a detailed expert report…Although the Board has allowed partial depositions as the circumstances warranted in the past we continue to believe that such depositions should be the exception rather than the rule.Range Resources - Appalachia, LLC v. DEP, 2021 EHB 37, 39-40 (Range I) (citing Primrose Creek Watershed Assoc. v. DEP, 2013 EHB 196, 200, and Groce v. DEP, 2005 EHB 951, 955). In denying Range's motion without prejudice, we noted that expert reports had not yet been exchanged by the parties and there appeared to be no cause for ordering the deposition of the expert witnesses at that time.
On April 30, 2021, after receiving the Department's initial expert reports, Range filed a second Motion to Depose, again seeking to depose Mr. Jankura, Mr. Kosmer and Mr. McKee, as well as Mr. Pelepko. In an Opinion and Order denying this second motion, we explained:
The important trigger in most instances, as we said in our earlier Opinion, is, first, the exchange of expert reports. However, the mere exchange of reports is not the deciding factor. Instead, it is both a substantive and procedural hurdle. Stated another way, only after the expert states "the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion" is the other side potentially entitled to "further discovery by other means." Pa. R.C.P. 4003.5(a)(1)(B) and 4003.5(a)(2). The analysis is focused on what is set forth in the expert reports and whether those reports comply with Rule 4003.5.
***
Range's Second Motion to Depose does not analyze the initial expert reports filed by the Department. Instead, Range doubles down on the same arguments that we declined to adopt in its First Motion to Depose. The factual knowledge and opinions possessed by an expert witness are discoverable pursuant to Rule 4003.5 which provides for this information to be provided either in an expert report or by answers to expert interrogatories. "Discovery by other means," including depositions, is not permissible absent an agreement of counsel or in the Board's sound discretion after a showing of cause that the information set forth in the expert reports is not sufficient. By not providing us with the expert record including the reports, let alone an analysis of why the reports are inadequate, Range has given us nothing to conclude that additional discovery, including depositions of Department experts, is warranted.
The Department not only provided us with its expert reports but also an analysis of why the expert reports satisfied the requirements of Rule 4003.5. The Department makes a strong argument that its initial expert reports extensively set forth each expert witness' detailed factual knowledge and how those facts serve as the basis of the respective expert's opinions. Indeed, our review leads us to conclude that "further discovery by other means" is not warranted.Range Resources - Appalachia, LLC v. DEP, 2021 EHB 182, 185-86 (Range II).
Range now seeks to preclude the aforenamed expert witnesses from presenting factual testimony at the hearing based on its inability to depose them. For the same reasons we denied the motions to depose, we find no basis for precluding the experts' testimony. Pennsylvania Rule of Evidence 703 allows an expert to base his or her opinion "on facts or data in the case that the expert has been made aware of or personally observed." Pursuant to Pa.R.C.P. 4003.5, the proper means for discovering this information is through interrogatories or the exchange of expert reports. There is no right to depose an expert witness. Range II, 2021 EHB at 186, 188-89; Range I, 2021 EHB at 39.
Pa. R.C.P. 4003.5 allows for "discovery by other means" "upon cause shown" as ordered by the court. In other words, the deposition of expert witnesses may be ordered, in addition to the production of expert reports or answers to expert interrogatories, where the court finds cause for doing so. However, as we held in our prior Opinion, we do not believe Range has provided sufficient cause as to why the Department's expert reports were inadequate to provide the information requested. On the contrary, the expert reports provided by the Department "extensively set forth each expert witness' detailed factual knowledge and how those facts serve as the basis of the respective expert's opinions." Range II, 2021 EHB at 186. We agree with the Department that "Range's Motion to Exclude asks the Board to preclude properly identified experts from testifying about factual knowledge that was properly disclosed in discovery. This does not make legal or practical sense." (Department's Memorandum of Law, p. 5.)
Nor do we accept Range's argument that allowing the Department's experts to testify will deprive Range of its due process rights. The Pennsylvania Rules of Civil Procedure are very clear that the discovery of experts is to be conducted through interrogatories or, in the alternative, the exchange of expert reports. Pa.R.C.P. 4003.5 allows the deposition of experts in limited circumstances, and as the Board explained in its two prior opinions, we do not believe Range has demonstrated that such circumstances exist here. As we held in Range II: "The detailed and extensive discovery that has been conducted by Range in this case refutes any argument that it has been denied due process. Stated simply, Range has not demonstrated good cause to take additional discovery of the Department expert witnesses." Id. at 189. As we further held: "The fact that expert witness discovery does not normally include expert witness depositions is not a violation of due process because of the requirements of Pa.R.C.P. 4003.5." Id.
Therefore, we find no basis for excluding the factual testimony of the Department's expert witnesses.
ORDER
AND NOW, this 17th day of March, 2022, it is ordered that Range's Motion in Limine to Exclude Fact Testimony from Non-Produced Witnesses is denied.