Opinion
Case No. 2:99-CV-1181
February 24, 2003
OPINION AND ORDER
On February 14, 2003, during the course of trial, this Court considered the admissibility of the proposed expert testimony of Defense witness Mr. Kenneth Schweers. Plaintiffs filed a motion in limine to exclude the testimony on the basis that it is unreliable because the witness seeks to offer a legal opinion. Defendants oppose exclusion of the testimony.
Mr. Schweers is a consultant who performed independent work for the United States Environmental Protection Agency ["EPA"] from 1976 to 1994. Schweers performed "sophisticated economic modeling studies of the impact on the coal and utility industries of many CAA legislative and regulatory proposals, including the NSR program." ( Defendants' Memorandum contra at 5). According to Defendants, Schweers has specialized knowledge as to the methods and assumptions used by the EPA in promulgating regulations applicable to the coal-fired utilities industry in the 1970s and 1980s. Defendants assert that Schweers' testimony is reliable because it provides contemporaneous insight into the EPA's application of the regulations at the time the projects at issue were undertaken. Plaintiffs maintain that the proposed testimony amounts to the offering of a legal conclusion and should not be permitted.
Fed.R.Evid. 702 requires that the trial judge perform a "gatekeeping role" when considering the admissibility of expert testimony. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993). The rule provides:
If 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.
Fed.R.Evid. 702. It is well-settled that testimony which offers a legal conclusion "`[i]nvades the province of the court to determine the applicable law. . . ." Torres v. County of Oakland, 758 F.2d 147, 150 (6th Cir. 1985), quoting F.A.A. v. Landy, 705 F.2d 624, 632 (2nd Cir. 1983).
A review of Schweers' expert report reveals that his proposed testimony pertains exclusively to legal rather than factual issues. The interpretation of EPA regulations is function that rests solely with this Court. Witnesses testimony as to the EPA's interpretation, even by one who worked contemporaneously with the EPA at the time the CAA regulations were promulgated, improperly invades the province of the Court to determine the applicable law. Consequently, to the extent Schweers' testimony is offered to demonstrate the EPA's interpretation and application of the CAA and the accompanying regulations, the testimony is excluded.
The Court will, however, allow Defendants to offer Schweers' expert report as to the merits of the defenses of fair notice and selective prosecution. Schweers' opinions are admissible to this limited extent since the EPA's application of the CAA and accompanying regulations is relevant to the issue of whether the Defendant had notice that its conduct was allegedly in violation of the CAA and whether Defendant was selectively prosecuted for the conduct.
After the Court announced this ruling in open-court, the Defendants decided not to offer the testimony of Schweers on these issues.
In sum, the Government's Motion in limine ( Doc. #224) is GRANTED in part and DENIED in part.
The Court notes that the Government's motion also seeks to exclude the testimony of Walter C. Barber, who worked for the EPA at the time the regulations at issue in this case were promulgated. Barber would offer similar testimony as Mr. Schweers. Defendants have withdrawn Barber as a witness in this case. Consequently, as to Barber, the Government's motion in limine is rendered MOOT.
The Court notes that at the close of Defendants' case-in-chief, the reports of Schweers and Barber were proffered for the record.