United States District Court, D. Arizona
ORDER
DAVID
G. CAMPBELL SENIOR UNITED STATES DISTRICT JUDGE
Plaintiff
El Paso Natural Gas Company, LLC brings claims against
Defendants United States of America, the Department of the
Interior, the Bureau of Indian Affairs, the U.S. Geological
Survey, the Department of Energy, and the Nuclear Regulatory
Commission (collectively, the “United States”)
under §§ 107 and 113 of the Comprehensive
Environmental Response, Compensation, and Liability Act
(CERCLA). El Paso seeks to recover response costs incurred in
remediating 19 historical uranium mines located on the Navajo
Reservation (the “Mine Sites”). Doc. 55,
¶¶ 1-2. The United States has counterclaimed,
asserting that El Paso is responsible for all response costs.
Doc. 53.
The
United States moves to exclude opinions of El Paso expert
Douglas Beahm. Doc. 156. The Court will deny the motion.
II.
Legal Standard.
Under
Rule 702, a qualified expert may testify on the basis of
“scientific, technical, or other specialized
knowledge” if it “will assist the trier of fact
to understand the evidence, ” provided the testimony
rests on “sufficient facts or data” and
“reliable principles and methods, ” and
“the witness has reliably applied the principles and
methods to the facts of the case.” Fed.R.Evid.
702(a)-(d). An expert may be qualified on the basis of
“knowledge, skill, experience, training, or
education.” Id.
The
proponent of expert testimony has the ultimate burden of
showing that the expert is qualified and the testimony
admissible. See Lust v. Merrell Dow Pharm., Inc., 89
F.3d 594, 598 (9th Cir. 1996). The trial court must assure
that expert testimony “both rests on a reliable
foundation and is relevant to the task at hand.”
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,
597 (1993).
II.
Discussion.
The
United States makes five arguments: (1) Beahm lacks the
requisite knowledge, skill, experience, training, or
education to render opinions based on aerial photographs; (2)
he did not use reliable methods in his aerial photography
analysis; (3) his testimony about a February 1954 aerial
photograph is unreliable and misleading; (4) his testimony
about possible exploratory drilling by the United States is
misleading and does not aid the Court in resolving a factual
issue; and (5) his testimony is duplicative of another expert
for El Paso. Doc. 156 at 2-3.
A.
Qualification.
The
United States argues that aerial photography interpretation
involves complicated techniques that require professional
experience and training. Doc. 156-1 at 3-4. Mr. Beahm had
only limited exposure to aerial photography in connection
with three or four geology classes, and those classes were
focused on identifying geological features, not manmade
features. Id. During his 40-year career, Mr. Beahm
never sought academic or specialized training in photo
interpretation. Id. He has never published
professional papers, received awards in this discipline, or
been a member of any professional society in the field of
aerial photographic interpretation. Id. The United
States asserts that Mr. Beahm may be qualified to opine on
geology or general mining issues, but not on aerial photo
interpretation. Id.
In
response, El Paso cites portions of Mr. Beahm's
deposition that largely confirm the United States'
assertions. He testified to learning about aerial photography
analysis in three or four courses focused on other subjects,
and some fieldwork, at Colorado School of Mines. Doc. 164-2
at 6-8. He further testified such analysis “is part of
what we do” at his firm, but provided no explanation of
what he does with aerial photographs or how often.
Id. Mr. Beahm's resume does reflect a 40-year
career in natural resource exploration, mine development,
mine operations, environmental permitting, and mine
reclamation, but does not mention aerial photography
analysis. Doc.164-1 at 41-44. El Paso provides no other
information about his experience in this field.
The
Court cannot conclude that coverage of aerial photography in
three or four college classes focused on other subjects, some
college fieldwork, and the fact that Mr. Beahm's firm
engages in aerial photography analysis for clients provide a
sufficient basis for the Court to conclude that he is
qualified to provide expert opinions in this field. But the
Court cannot tell whether such qualifications are key to his
opinions. His deposition suggests that he confirmed
information from aerial photographs by field investigations
on the ground. See Doc. 164-2 at 8-9 (“Q: Was
it difficult to distinguish natural features at the mine
sites from manmade activities based on the aerial photography
that you reviewed in your first report? A: Yes. That's
why I went to the field and looked at features on the
ground.”). If Mr. Beahm's opinions are based on
features confirmed on the ground, and not solely on aerial
photographs, then his resume suggests that he likely has
sufficient expertise to provide the opinions. The Court must
resolve this issue on the basis of the foundation of and
opinions expressed during the bench trial.[1]
B.
Reliability.
The
United States argues that the methods used by Mr. Beahm to
interpret aerial photographs are not reliable. Doc. 156-1 at
5. The United States contends that Mr. Beahm did not obtain
aerial photographs of sufficient quality, prepare orthomosaic
photos, or view the photos stereoscopically using techniques
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