Opinion
EHB 2020-014-R
03-25-2022
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 MOTION IN LIMINE TO EXCLUDE ALL SAMPLING RESULTS AND DATA
THOMAS W. RENWAND CHIEF JUDGE AND CHAIRMAN
Synopsis
Appellant's motion in limine seeking to exclude all of the Department's sampling results and data on the basis of hearsay is denied where the Department has identified witnesses who are able to lay a foundation for a business records exception. Additionally, expert witnesses may base their opinions on hearsay pursuant to Pa.R.E. 703 if the information is of a type reasonably relied upon by experts in the field. With regard to Appellant's claim that certain data is unreliable, it will have an opportunity to attack the reliability of the data at the hearing.
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 has been scheduled in this matter. Range has filed nine motions in limine, and the Department has filed one.
This Opinion addresses Range's Motion in Limine to Exclude All Sampling Results and Data relied upon by the Department. The Department has filed a response in opposition to the motion.
Range also filed motions in limine seeking to exclude fact and opinion testimony by the Department's expert witnesses. Those motions have been addressed in two Opinions issued by the Board at Range Resources - Appalachia, LLC v. DEP, EHB Docket No. 2020-014-R (Opinion and Order on Range's Motion in Limine to Exclude Fact Testimony from Non-Produced Witnesses issued March 17, 2022) (Range I) and Range Resources - Appalachia, LLC v. DEP, EHB Docket No. 2020-014-R (Opinion and Order on Range's Motions in Limine to Exclude Testimony and Opinions of the Department's Expert Witnesses issued March 18, 2022) (Range II).
Motion in Limine
A motion in limine is the proper vehicle for addressing evidentiary matters in advance of trial. The Delaware Riverkeeper Network v. DEP, 2016 EHB 159, 161. The purpose of a motion in limine is to provide the trial court an opportunity to consider potentially prejudicial and harmful evidence and preclude such evidence before it is referenced or offered at trial. Commonwealth of Pennsylvania v. Padilla, 923 A.2d 1189, 1194 (Pa. Super. 2007) (cited in Kiskadden v. DEP and Range Resources - Appalachia, LLC, 2014 EHB 634, 635). Motions in limine are better suited to address specific and narrow evidentiary matters that focus on particular exhibits or testimony. See Dauphin Meadows, Inc. v. DEP, 2002 EHB 235, 237 ("One clue to determining whether a motion [in limine] is properly limited is whether it cites to specific pieces of evidence and asks that they be excluded.") Motions in limine that contain sweeping claims aimed at eliminating an opposing party's case are rarely successful and generally not a productive use of the Board's resources on the eve of trial.
Discussion
Through its motion, Range seeks to exclude all sampling results and data on which the Department intends to rely in presenting its case. In effect, Range is seeking dismissal of the Department's case since the parties have indicated that they intend to rely heavily on the use of data, sampling results and expert testimony in this matter. We note that the parties have been aware of much of the evidence in this case for years. In addition, Range has conducted some of the most extensive discovery ever conducted in a case like this.
Range states as follows:
The Department's and its experts' assertions depend on the purported results of geochemical laboratory analyses conducted over the past decade by various commercial laboratories and the Department's Bureau of Laboratories (the "BOL") on water and gas samples collected from the Green Valley area and beyond. Those sampling results and data are supposedly contained in data compilations, summaries, reports, figures, tables, and other records, as well as a purported "database" of sampling results supposedly compiled from unidentified documents submitted to the Department by unidentified third parties (collectively, the "Data at Issue"). None of the Data at Issue is admissible. All of the Department's experts' opinions and proposed exhibits that incorporate or otherwise rely on the Data at Issue, therefore, are also inadmissible. And, as a result, the Department is fundamentally unable to meet its burden of proof in this appeal.(Range's Memorandum of Law in Support of Motion, p. 1-2.)
Range seeks to exclude the following, which it refers to as the "Data at Issue":
1) Sampling data generated by the Department's Bureau of Laboratories.
2) Field data sheets completed by Department inspectors.
3) Sampling data generated by commercial laboratories.
4) Isotopic sampling data.
5) Data referenced in two of the Department's expert reports.
Range's grounds for excluding the Data at Issue are as follows:
1) The Data at Issue constitutes hearsay.
2) None of the Department's witnesses can provide testimony to allow the Data at Issue to be admitted as a business record exception to the hearsay rule.
3) The Data at Issue is untrustworthy.
Finally, Range argues that all of the Department's exhibits that contain or rely upon the Data at Issue are inadmissible.
Business Records
Pennsylvania Rule of Evidence 803(6) provides an exception to the rule against hearsay for "records of a regularly conducted activity," provided that the following conditions are met: 1) the record was made at or near the time of the event by someone with knowledge or from information transmitted by someone with knowledge; 2) the record was kept in the course of a regularly conducted activity of a business; 3) making the record was a regular practice of that activity; 4) these conditions are shown by the testimony of the custodian of the records or other qualified witness; and 5) the opponent does not show that the source of the information indicates a lack of trustworthiness. Likewise, the Uniform Business Records as Evidence Act states:
A record of an act, condition or event shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the tribunal, the sources of information, method and time of preparation were such as to justify its admission.42 Pa.C.S. § 6108(b).
Due to the subject matter of appeals before the Environmental Hearing Board, hearings almost always involve the use of sampling results, laboratory reports and data. This information is generally introduced into evidence as a business record. In many cases, the parties stipulate to the admission of this type of information as a business record. To the extent that Range is claiming that the Data at Issue is not the type of evidence that may be admissible as a business record, we reject that argument.
Bureau of Laboratories Reports and Field Data
Range argues that none of the Department's witnesses can provide the necessary testimony to demonstrate that the Data at Issue is admissible under the business records exception to the hearsay rule. In response, the Department identifies a number of witnesses in its prehearing memorandum as being able to establish the requirements of the business records exception. The Department provides the names of witnesses who will testify as to the identity of documents, how they are prepared and how they are maintained in the Department's records. It provides the names of witnesses who acted as sample collectors who will testify as to the mode and method of sample collection, how the samples are transported to the lab and how the lab reports are maintained. Some of those individuals have been identified as fact witnesses and others as expert witnesses. For example, the Department names a number of individuals who completed the field data sheets that are a subject of Range's motion; they are listed in the Department's prehearing memorandum as potential fact witnesses. The Department notes that Range is well aware of those witnesses, having deposed them. With regard to authenticating reports from the Department's Bureau of Laboratories, the Department has identified June Black, who, according to the Department's response, served as the Bureau's Organic Chemistry Section Chief from 2007 to 2021 and as the Bureau's Acting Technical Director in 2020.
Ms. Black has been identified by the Department as an expert witness, and Range argues that none of the Department's expert witnesses may authenticate the Department's business records because "the Department has never disclosed or identified that any of its expert witnesses would provide factual testimony to prove the Data at Issue as trustworthy business records under Rule 803(6)." To the extent that Range is challenging the experts' ability to provide factual testimony, we considered and rejected this argument in our Opinion on Motion in Limine to Exclude Fact Testimony from Non-Produced Witnesses. Range I. Range further argues that "none of the Department's proffered experts has the actual, personal knowledge necessary to prove that the Data at Issue are trustworthy business records under the Rule 803(6) elements." As we explained in Range I, expert witnesses may base their opinions on facts they have "been made aware of or personally observed." Id. at 4-5 (quoting Pa.R.E. 703). According to the Department, this factual knowledge was disclosed in the expert reports and forms the basis of the experts' opinions.
Based on the parties' filings, we find that the Department has sufficiently identified witnesses who may establish the elements of a business record exception for the field reports and Bureau of Laboratory reports it intends to introduce at the hearing.
Data Provided by Commercial Laboratories
Range states that some of the data relied on by the Department in this case was generated by commercial laboratories other than the Department's Bureau of Laboratories. It is Range's argument that the Department has identified no witnesses who can authenticate this data as a business record exception and, further, that the data is inconsistent and unreliable. According to the Department's response, the data provided by commercial laboratories falls into two categories: 1) isotopic data and 2) data and reports submitted by Range during the investigation of this matter.
According to the Department, during the course of this investigation, it collected isotopic methane samples and sent them to a commercial laboratory called Isotech for analysis. Range argues that because the Department has not identified an employee of Isotech as a fact witness, it has no means of authenticating this information as a business record exception to the hearsay rule and, therefore, this data must be excluded. The Department disputes Range's contention and argues that its experts may rely on this data, even if not admissible, as long as the facts and data are of a type reasonably relied upon by experts in the field.
We agree with the Department's statement of the law. Pennsylvania Rule of Evidence 703 states as follows:
An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted.Thus, an expert may rely on hearsay facts or data if they are of a type reasonably relied upon by experts in the field. Borough of St. Clair v. DEP, 2015 EHB 764, 767 (citing Pa.R.E. 703). As we explained in Borough of St Clair, "This rule is not really an exception to the hearsay rule because the facts and data being cited are not evidence in and of themselves but merely describe the underlying basis for the expert's opinion." Id.
The Department further argues that, if it chooses to seek admission of the Isotech data at the hearing, it has the ability to lay an adequate foundation for admission of the data through the testimony of one of its experts, William Kosmer. The Department states that Mr. Kosmer is familiar with Isotech's process for recording and transmitting isotopic results and he has experience with relying on Isotech's reports. Rather than making a determination on the admissibility of the Isotech data at this time, we believe that it will be helpful to hear testimony to aid us in our decision. If the Department chooses to seek admission of the Isotech data, it will be required to lay an adequate foundation for admission of the data, and Range will have the opportunity to challenge its admission. That said, we caution both parties that we expect this testimony to be short, concise and to the point.
In addition to the Isotech data, Range also challenges the trustworthiness of data and reports generated by other commercial laboratories during the investigation of the matter at issue here. Based on the parties' filings, it appears that data and reports were generated by commercial laboratories and submitted to the Department by Range. In support of its argument that the data and reports are unreliable, Range cites a number of Department sources discussing variability and discrepancies among commercial laboratories and the Department's Bureau of Laboratories. In particular, Range asserts that in the course of the investigation of this matter, the Department's Bureau of Laboratories and Range-contracted commercial laboratories "collected and analyzed split samples and arrived at very divergent results." (Range Memorandum of Law in Support of Motion, p. 21.) Based on the alleged unreliability and untrustworthiness of the data, Range argues that it cannot be admitted as a business record exception to the hearsay rule.
In response, the Department argues that the commercial laboratory data and reports submitted by Range during the course of the investigation are admissible, not as a business record exception, but as admissions of a party opponent. The Department points out that the sampling, data compilation and reports were all conducted and submitted at Range's direction. The Department also argues that because the data and reports were submitted to the Department by Range during the course of the Department's investigation, they constitute part of the Department's record in this matter. As such, the Department argues they "are admissible if for no other purpose than to explain why the Department acted the way it did." (Department's Memorandum in Support of Response, p. 25) (citing Pine Creek Valley Watershed Assoc., Inc. v. DEP, 2011 EHB 98, 101).
Rather than making a determination on the reliability of the aforesaid data and reports in the context of this motion, we believe we will benefit from hearing testimony on this matter at the hearing. As we noted earlier, we expect any such testimony to be short, concise and to the point.
Data Referenced in Pelepko Report, Tables Included in Kosmer Report, All Other Exhibits
Finally, Range argues that all of the Department's exhibits "containing hearsay within hearsay are inadmissible." In particular, Range points to a raw data spreadsheet referenced in the expert report of Seth Pelepko and three tables in the expert report of William Kosmer. According to the Department, the spreadsheet is a water quality database developed by Mr. Pelepko for comparison of the alleged impacted water supplies in this matter. According to Range, "[t]he Department must…prove that a distinct hearsay exception separately applies to each of the 1, 506 rows of data [contained in the spreadsheet] because each row represents one or more assertions of fact by unidentified declarants from unidentified underlying documents." (Range Memorandum of Law in Support of Motion, p. 34.) Range goes on to state that "the Department must further independently prove that a valid hearsay exception applies also for each assertion of each data point in each unidentified 'pdf report' and 'Excel workbook' that predicates each row in its database tracing all the way back to the original laboratory reports - which likely comprises at least three layers of hearsay, if not more." (Id.) (emphasis in original). We disagree. Range's argument goes to the weight of the evidence rather than the admissibility. The same applies to the tables of samples and readings contained in Mr. Kosmer's report. Experts are free to extrapolate and render their opinions based on their review of the applicable data. Pa.R.E. 703.
Finally, Range argues that all of the Department's exhibits containing the aforesaid laboratory reports and data are inadmissible. Because we have rejected Range's arguments regarding the admissibility of the reports and data in question, we find no basis, at this time, for excluding exhibits that rely on this information.
ORDER
AND NOW, this 25th day of March 2022, it is hereby ordered that Range's Motion in Limine to Exclude All Sampling Results and Data is denied. The parties shall have an opportunity to address the reliability and/or admissibility of certain data at the hearing, as set forth in this Opinion.