Opinion
2020-014-R
03-18-2022
RANGE RESOURCES - APPALACHIA, LLC v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION
DEP, General Law Division: Attention: Maria Tolentino (via electronic mail) 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 (via electronic filing system) For Appellant: Kimberly A. Brown, Esquire Benjamin T. Verney, Esquire Leon DeJulius, Esquire Eric P. Stephens, Esquire (via electronic filing system)
DEP, General Law Division: Attention: Maria Tolentino (via electronic mail)
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 (via electronic filing system)
For Appellant: Kimberly A. Brown, Esquire Benjamin T. Verney, Esquire Leon DeJulius, Esquire Eric P. Stephens, Esquire (via electronic filing system)
OPINION AND ORDER ON APPELLANT'S MOTIONS IN LIMINE TO EXCLUDE TESTIMONY AND OPINIONS OF THE DEPARTMENT'S EXPERT WITNESSES
Thomas W. Renwand, Chief Judge
Synopsis
The Appellant's motions in limine to exclude the testimony of all of the Department's expert witnesses are denied. We believe that the Appellant's objections go to the weight to be accorded the testimony rather than the admissibility. With regard to the Appellant's allegation that the scientific methodology relied on by the Department's experts does not meet the Frye standard, we find that the credibility of the expert witnesses is best resolved by live testimony rather than in the context of a motion.
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.
This Opinion addresses six Motions in Limine filed by Range seeking to exclude the testimony and opinions of all six of the Department's expert witnesses in this matter. Range seeks to exclude each of the Department's experts on all or some of the following grounds: 1) The data or sampling on which the expert relies is inadmissible; 2) the Department cannot meet its burden of demonstrating that the expert's testimony is based on generally accepted scientific methodology; 3) the testimony does not meet the standard of professional certainty; and 4) the testimony does not have a proper factual basis. The Department disputes each of Range's arguments and asserts that the only basis for Range's motions is that Range's experts simply disagree with the opinions of the Department's experts.
The motions seek to exclude the testimony and opinions of June Black, William Kosmer, Seth Pelepko, Bruce Jankura, Bryce McKee and Thomas Darrah, Ph.D.
Discussion
Pennsylvania Rule of Evidence 702(c) states that an expert "may testify in the form of an opinion or otherwise" if "the expert's methodology is generally accepted in the relevant field." When determining whether expert testimony may be offered on a particular scientific subject, Pennsylvania courts have adopted the standard set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), known as the Frye test. Grady v. Frito Lay, Inc., 839 A.2d 1038, 1045 (Pa. 2003); Kiskadden v. DEP and Range Resources - Appalachia, LLC, 2014 EHB 618, 619. Under Frye, "novel scientific evidence is admissible if the methodology that underlies the evidence has general acceptance in the relevant scientific community." Grady, supra at 1044-45 (citing Commonwealth v. Blasioli, 713 A.2d 1117, 1119 (Pa. 1998). As we explained in Kiskadden, "The requirement of general acceptance in the scientific community assures that those most qualified to assess the general validity of a scientific method will have the determinative voice." 2014 EHB at 619-20 (citing Commonwealth v. Topa, 369 A.2d 1277, 1282 (Pa. 1977) (quoting United States v. Addison, 498 F.2d 741, 744 (D.C. Cir. 1974)).
In Pine Creek Valley Watershed Assn. v. DEP, 2011 EHB 90, 93-94, we addressed the difficulty of applying a Frye analysis based solely on arguments presented in a motion and response:
In a way, resolving a Frye dispute itself requires expert opinion. The experts need to tell us whether a method is generally accepted in their field. There is certainly no prohibition against the expert who is proposing the use of allegedly novel methods testifying that the methods are generally accepted. Opposing experts may of course disagree. We evaluate the credibility of the testimony just like any other expert testimony, and a meaningful evaluation of credibility is difficult without taking live testimony. Thus, where there are conflicting expert views, this is simply another version of a battle of the experts…While we do not wish to entirely rule out the possibility of a Frye motion in limine being an appropriate vehicle for resolving the question in an EHB appeal, we suspect that resolving such questions at the hearing itself will almost always be the better approach.A Frye motion is rarely successful in a case before the Environmental Hearing Board. As we explained in Kiskadden, 2014 EHB at 623:
The Frye test is designed to ensure that opinions based upon unaccepted science are not presented to impressionable jurors. Blum v. Merrell Dow Pharm., Inc., 705 A.2d 1314, 1317 (Pa. Super. 1997), aff'd, 764 A.2d 1 (Pa. 2000). However, the Board "operates in a nonjury setting. We deal with scientific theories every day." Pine Creek Watershed Adjudication 2011 EHB [761] at 778-79. The judges of the Environmental Hearing Board have a level of expertise far above that of the average jury and can more easily determine how much credibility should be given to expert testimony presented at trial.
That is not to say that the Board will never entertain a Frye motion. As we stated in Kiskadden, "where opinions are founded upon scientific theories that amount to 'junk science' it wastes precious time at trial and does not aid us in our adjudication of a matter." 2014 EHB at 623. However, based on our review of Range's motions and the Department's responses, we do not find that to be the case here. There is clearly a great deal of dispute among the parties' experts in this matter. In this case, we believe that a determination of which expert testimony is more credible is best resolved at the hearing.
Range has also raised a number of other reasons why we should exclude the testimony of the Department's experts, including the admissibility of the underlying data, whether the opinion is supported by a proper factual basis, and whether the opinion is held to the requisite standard of professional certainty. We find that Range's arguments go to the weight that should be accorded the testimony and not its admissibility.
Range also argues that the rebuttal expert report provided by June Black retracts or disclaims opinions stated in her affirmative report. The Department disagrees with Range's characterization. We hold that Ms. Black may testify at trial within the fair scope of her affirmative and rebuttal expert reports. Range may attack the weight the Board should give her testimony at trial.
Therefore, we enter the following order:
ORDER
AND NOW, this 18th day of March, 2022, it is hereby ordered that Range's Motions in Limine to Exclude the Testimony of June Black, William Kosmer, Thomas Darrah, Seth Pelepko, Bruce Jankura and Bryce McKee are denied.