Free Brief - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 00-MK-2325 (OES) SIERRA CLUB and MINERAL POLICY CENTER, Plaintiffs, v. CRIPPLE CREEK AND VICTOR GOLD MINING COMPANY, ANGLOGOLD ASHANTI (COLORADO) CORP., ANGLOGOLD ASHANTI NORTH AMERICA INC. and GOLDEN CYCLE GOLD CORPORATION Defendants. and Civil Action No. 01-MK-2307 (OES) SIERRA CLUB and MINERAL POLICY CENTER, Plaintiffs, v. CRIPPLE CREEK AND VICTOR GOLD MINING COMPANY, et al., ANGLOGOLD ASHANTI (COLORADO) CORP., ANGLOGOLD ASHANTI NORTH AMERICA INC. and GOLDEN CYCLE GOLD CORPORATION Defendants. ____________________________________________________________________________ PLAINTIFFS' HEARING BRIEF REGARDING ADMISSIBILITY OF OPINIONS OF EXPERT ROBERT BURM THAT REFER TO ELEMENTS OF THE LAW ____________________________________________________________________________

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Defendants have challenged certain opinions of Plaintiffs' proposed expert witness, Robert Burm, as "legal conclusions." The Court has scheduled a hearing on the challenges for Tuesday, September 27. This Brief addresses the law surrounding Defendants' challenges. 1 In their Renewed Motion to Exclude Expert Witness Opinions Pursuant to F.R.E. 702, filed January 18, 2005, Defendants challenged five of Mr. Burm's opinions as "a direct legal conclusion purporting to resolve two of the Plaintiffs' claims in this case in their favor." In a footnote, Defendants also assert that each of these opinions "purport to resolve these issues for the Court ­ rather than assisting the Court in resolving them by explaining the evidence." INTRODUCTION There is nothing impermissible about an expert rendering an opinion that "embraces an ultimate issue to be decided by the trier of fact." Fed.R.Evid. 704. By abolishing the so-called "ultimate issue" rule, Rule 704 specifically aims to eliminate an objection to expert testimony on that basis. Fed.R.Evid. 704 advisory committee's note. The Tenth Circuit has repeatedly found admissible expert testimony which addresses the ultimate issues in the case, i.e., whether allegedly unlawful conduct complies with legal standards. Expert testimony that addresses whether allegedly unlawful activities meet statutory definitions has likewise been found admissible in two Tenth Circuit cases. Prior agency employees have also been permitted to testify about the policies and procedures that the agency applies.

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This Court has determined that this issue is not a 702 issue. Transcript of Hearing, Sept. 16, 2004, at 8. The party seeking to disqualify an expert has the burden of proving the grounds of the disqualification. English Feedlot v. Norden Laboratories, 833 F.Supp. 1498, 1506 (D.Colo. 1993); Mitchell v. Wilmore, 981 P.2d 172, 175 (Colo. 1999).

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When the confusing label of "legal conclusion" is removed from Defendants' challenges, it becomes clear that Mr. Burm's opinions will not impermissibly impact the authority of the Court, and thus are admissible. LEGAL FRAMEWORK The Tenth Circuit has issued numerous decisions addressing an expert's discussion of law in his testimony. The leading case on the topic is Specht v. Jensen, 853 F.2d 805 (10th Cir. 1988), a case in which both the majority and dissenting opinions are heavily cited. The issue in Specht was narrow: does Rule 702 permit an attorney, called as an expert witness, to state his views of the law and whether defendant's conduct violated that law. Id. at 806. The Court gave two reasons for ruling inadmissible certain testimony by a legal expert on ultimate issues of law. First, it invaded the fact-determining province of the jury, who could infer that such a legal expert was "more knowledgeable than the judge." Id. at 809. Second, the expert's attempt to apply and define the law could result in confusion for the jury if it receives different instructions from the Court. Id. 2 The Court expressly noted that the line it was drawing was a "narrow" one. Id. We do not exclude all testimony regarding legal issues. We recognize that a witness may refer to the law in expressing an opinion without that reference rendering the testimony inadmissible. Indeed, a witness may properly be called upon to aid the jury in understanding the facts in evidence even though reference to those facts is couched in legal terms. Specht v. Jensen, 853 F.2d at 809 (emphasis added). The dissenting opinion in Specht added clarification. It noted that the "labeling" of testimony as a "legal conclusion" is "confusing" and provides no meaningful guidance. Id. at
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The expert also "invade[d] the court's authority by discoursing broadly over the entire range of the applicable law" rather than focusing on "a specific question of fact." Id.

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814-15. Rather, it is the impact of the testimony on the jury that need be examined. Id. at 81415. The dissent reiterated the majority view that an expert can "appl[y] the principles of his expertise to the facts in evidence, thereby testifying to his view of the ultimate issue..." Id. at 814. Testimony which tells a jury how to decide a case are not objectionable because "the undisputed purpose of Rule 704 is to eliminate an objection to expert testimony on this basis." Id. at 813 (citing Fed.R.Evid. 704 advisory committee's note). Some of the numerous decisions subsequent to Specht still use the "confusing" label of "legal conclusion." However, each of the decisions can be understood in terms of the impact of the challenged testimony, i.e., whether it will confuse the jury (factual confusion) or impinge on the Court's ultimate authority to define and apply the law (court's authority). In Zuchel v. City and County of Denver, 997 F.2d 730, 743 (10th Cir. 1993), an expert in police training, who had retired from the police department after 16 years as an officer, was allowed to testify that the challenged police conduct violated police procedures based on his understanding of generally accepted police custom and practice. The court noted that the expert was not an attorney simply stating "his belief of what law should govern the case." Id. at 742 (citing Specht). Because he was not an attorney, there was a "significant difference" between the impact of his testimony and that of the attorney's in Specht. Id. Karns v. Emerson Elec. Co., 817 F.2d 1452 (10th Cir. 1981) ruled admissible testimony that embraced the ultimate issues in the case because the expert explained the basis for his opinion in sufficient detail to allow the jury to make an independent judgment. Id. at 1459. The only Tenth Circuit case in which a non-attorney witness was limited in his testimony is U.S. v. Simpson, 7 F.3d 186 (10th Cir. 1993), cited by Defendants. In that case, an expert in 4

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banking practices and operations was precluded from stating whether the activity was in direct violation of the criminal law on misapplication or concealment of funds, as this would "take the issue away from the jury." Id. at 188. He was, however, allowed to testify on "whether the transactions conformed with standard banking practices." Id. at 188, n.4. In U.S. v. Dazey, 403 F.3d 1147, 1171-72 (10th Cir. 2005), a Federal Reserve Board official was permitted to testify that the challenged activity constituted bank fraud, "even if his testimony arguably embraced the ultimate issue." Id. at 1171. Jury confusion was avoided because he "did not simply tell the jury to reach a particular verdict based on his own say-so," but based his opinions on his extensive knowledge in the area. Id. ARGUMENT Rule 704 permits Mr. Burm to render an opinion that "embraces an ultimate issue to be decided by the trier of fact." Fed.R.Evid. 704. As made clear in Specht, Mr. Burm is permitted to aid the Court in understanding facts in evidence, "even though reference to those facts is couched in legal terms." Specht, 853 F.2d at 809. Whether or not his testimony can be labeled as a "legal conclusion" provides no meaningful guidance. The issue is whether Mr. Burm's testimony could adversely impact the authority of the Court in applying and defining the law or the fact-finding duties of a jury. His testimony will have no such impact. In the first place, Mr. Burm is not being asked the ultimate question of whether Defendants are violating the Clean Water Act. Rather, he will testify concerning his investigation of conditions at the specific discharge locations and whether in his opinion these discharge points would be subject to regulation under the CWA based on his knowledge of EPA 5

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standards and procedures. See Simpson, 7 F.3d at 188, n.4 (while expert could not opine on the ultimate issue of the defendant's liability, he was permitted to testify as to "whether the transactions conformed with standard banking practices"). Like the retired police officer in Zuchel, Mr. Burm will be testifying as to agency policy and procedures based on his 33-year career at the U.S. Environmental Protection Agency. See Zuchel at 743 (ex-officer permitted to testify as to whether police conduct violated standard police practices). Second, Mr. Burm is not an attorney. Courts have exhibited far less concern about the legal pronouncements of non-attorney experts. Zuchel, 997 F.2d at 742; Specht, 853 F.2d at 808. As in the Zuchel, Karns, McEwen, Simpson, and Dazey cases discussed above, this nonattorney expert can refer to the law in expressing an opinion without invading the province of the Court or confusing the jury. See Lewis v. New Mexico Dept. of Health, 275 F.Supp.2d 1319, 1331 (D.N.M. 2003) ("since this case is being tried by the Court, there is little danger the [expert's] evidence will confuse the issues"). Mr. Burm is also not undermining the Court's authority by stating bald legal conclusions, as did the expert in Specht. In each case, Mr. Burm's testimony is tied to specific situations observed by himself and others at the mine. See Specht, 853 F.2d at 809 (testimony admissible if it "focuses on a specific question of fact"); U.S. v. McSwain, 197 F.3d 472, 483 (10th Cir. 1999) (ultimate issue testimony admissible "because it addressed a specific factual question"). Moreover, Mr. Burm is not "invad[ing] the court's authority by discoursing broadly over the entire range of the applicable law" as did the legal expert in Specht. 853 F.2d at 809. Rather, he will address whether specific activities he and others have observed at Defendants'

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mining operations should be regulated. His opinions are based on the normal course of his duties as an agency employee and permitting consultant. It is also not objectionable that Mr. Burm's opinions are tied to definitions found in the Clean Water Act. See A.E. By And Through Evans v. Indep. School District, 936 F.2d 472, 476-77 (10th Cir. 1991) (expert permitted to testify concerning definitions in a federal statute dealing with handicapped children). In Evans, the "challenged testimony arose due to confusion over the psychological, lay, and legal definitions of the terms used in the federal regulation." Id. at 477 (emphasis added). The expert, a child psychologist, properly testified about whether certain conduct "was of such a magnitude as to meet the federal definition ...." Id. (emphasis added). See also Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1246 (10th Cir. 2000) (testimony that "happens to touch on the law" concerning a legal definition is admissible); Specht, 853 F.2d at 809 (evidence "couched in legal terms" is proper). Finally, and contrary to Defendants' assertions, Mr. Burm's fact specific opinions are meant to assist the Court in reaching the ultimate decision as to Defendants' liability. See SilFlo, Inc. v. SFHC, Inc., 917 F.2d 1507, 1517 (10th Cir. 1990) (doubts about whether an expert's testimony will be useful should generally be resolved in favor of admissibility..."); Specht, 853 F.2d at 810-11 (Seymour, J. dissenting). Moreover, whether Mr. Burm's testimony will assist the Court is part of a Rule 702 analysis that should be analyzed as part of a Rule 702 hearing, when the extent of Mr. Burm's testimony is revealed. In any event, the usefulness of Mr. Burm's testimony is underscored by Defendants' tendering of their own expert witness on "environmental compliance with permits" in a related State of Colorado appeal. See Reporter's 7

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Transcript, In the Matter of the Appeal of the Cripple Creek & Victor Gold Mining Company, Case No. WQ-96-02 (Colo. Water Quality Control Division 1997) at 12 (attached as Exhibit 1). CONCLUSION For the reasons heretofore set forth, Mr. Burm's testimony as to facts in evidence is entirely admissible, even though reference to those facts is in some cases couched in legal terms." 3 Dated this 22nd day of September, 2005. LAW OFFICES OF RANDALL M. WEINER, P.C.

By: _______________________ Randall M. Weiner, #23871 1942 Broadway, Suite 408 Boulder, CO 80302 (303) 938-3773 E-mail: [email protected] John M. Barth, #22957 Attorney at Law P.O. Box 409 Hygiene, CO 80533 (303) 774-8868 E-mail: [email protected] Roger Flynn, Esq # 21078 Jeffrey C. Parsons, Esq. #30210 WESTERN MINING ACTION PROJECT P.O. Box 349 Lyons, CO 80540 303-823-5738 E-mail: [email protected]

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Mr. Burm's lack of legal training is irrelevant to the question of whether a witness can or cannot opine on regulatory definitions. In Sprecht, the witness' qualification as an attorney expert did not insulate him from later disqualification for making a legal conclusion concerning what constituted a reasonable search. 853 F.2d at 806.

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COUNSEL FOR PLAINTIFFS

CERTIFICATE OF SERVICE I hereby certify that on this 22nd day of September, 2005, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected], [email protected], [email protected], [email protected], [email protected], [email protected] /s Randall M. Weiner

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