The Expert Witness in Biofuels and Biochemicals Litigation

August 30, 2017 |

By Wayne Lee, CEO Lee Enterprises Consulting

Special to The Digest

While oil prices remain relatively low, and the status of U.S. government incentives remains uncertain, the predictable downturn in biofuel and biochemical related industries brings with it increased participant discomfort. Those that have been in these “bioeconomy” industries for some time have seen their cyclical nature, but quite naturally when downturns occur, anxieties rise. When projects fail to meet expectations, the participant discontent inevitably leads to increased litigation. As with any specialized area, bioeconomy litigation requires the assistance of experienced experts to assist in determining what went wrong, what could have been done to prevent it, and the economic impact of these failures. This article provides an overview of the bioeconomy “expert witness”.

At the outset, we need to define the terms. “Bioeconomy” refers to the production of renewable biological resources, and the conversion of these resources and waste streams into value added products, such as food, feed, fuel, bio-based products and bioenergy.  For the purposes of this article, we will speak of the bioeconomy as including commercial or industrial products composed in whole, or in part, of biological products – including renewable agricultural and forestry materials. Example of these would be renewable chemicals, renewable energy, alternative energy, and sustainable energy. The industries covered are biodiesel, ethanol, biomass power, renewable chemicals, renewable jet fuels, pyrolysis, hydrolysis, gasification, waste-to-energy, anaerobic digestion, torrefaction, wastewater treatment, butanol, steam reformation, biochar, carbonization and biogas.

The first order of business

In lawsuits involving biofuels, biomass, biochemicals, and particularly emerging bioeconomy technologies, the first order of business is to obtain a good understanding as to how the system or process in question was supposed (designed) to work. While there are many professionals with chemical, engineering, biology, and finance backgrounds, there are proportionately few that deal in the bioeconomy to any meaningful degree. So, we must start with the fact that the pool of professionals available to serve as experts in these cases is limited. We must also realize that those that are in these industries likely know each other, and often have worked in some capacity for many of the companies involved. The result is that it may be somewhat difficult to find a seasoned expert willing to testify in a particular case. The question become, what to look for and where to find it.

The first questions that almost always arise in bioeconomy cases involve what went wrong, how it might have been prevented, and the economic impact of the failure. Thus, in bioeconomy cases, it is crucial to gain a good understanding of both the process involved and the technical jargon as early in the process as possible. Unfortunately, the representing attorney’s initial education often comes solely from the client, who might not be as knowledgeable as they believe, and who probably believes that their action or inaction was correct. The takeaway here is to identify and consult with the experts as early as possible.

The process begins

When an expert is initially retained, it will probably be to review material, perhaps make a site visit, and to give his or her thoughts as to what happened and why, to the party hiring. This informal opinion is often needed to decide what direction to take in the case, and since it is quite likely that professional will later become a disclosed “expert witness”, it is obviously important that counsel look toward that end in the initial engagement. The bioeconomy involves many different areas of expertise. An engineering question requires a very different skill set than a chemical question, both very different from economic or damages questions.   One of the initial challenges is to find the expert that fits the exact issue(s) at hand. Counsel must determine exactly what they need as early as possible, and thus, before hiring any expert, it is a good idea to visit with an experienced consultant to make these determinations[1].

As noted above, there is much less litigation in these bioeconomy areas than in more common areas like medical malpractice and personal injury. In the bioeconomy, there are very few, if any, experts who derive even a substantial part of their livelihood in legal proceedings, and most are not experienced in depositions or courtroom settings. Selecting the right expert in a particular case involves the attorney addressing several matters initially. The obvious first inquiry is whether the professional has the specialized education, experience and skills about the particular subject in question. Not everyone who is familiar with one facet of a process or industry is familiar with all facets. The second criteria will be to determine whether the expert has the ability to communicate well and articulate industry-specific knowledge. Those with knowledge that cannot communicate on a level the untrained can grasp are not helpful. The third inquiry would be to determine whether the potential expert has any actual or perceived conflicts. These industries have far fewer experts than most. It is not uncommon for the top experts to have a breadth of previous engagements with lots of companies. Last, but not least, I would suggest that the expert’s familiarity with the court system is also very important. This will vary greatly. Some attorneys want experts with a great deal of courtroom experience as they are familiar with the court process and etiquette, and are probably easier to qualify as an “expert”. However, they pose the potential to be viewed as “hired guns,” and quite often having a great deal of cross examination material. On the flip side, some attorneys prefer the professional who has seldom or never testified, knowing that his or her testimony may come across as more credible and less “bought”. However, inexperienced, untrained professionals can present their own problems. They are not be familiar with the courtroom and will likely be more inclined to be argumentative or combative.

From the Expert’s Perspective

From the expert’s perspective, several things should be explored before accepting an engagement. Initially, the expert will want a clearly defined scope of what is being sought to make certain they have the proper expertise needed. Next, they get a list of everyone involved and expeditiously conduct a “conflicts” check to make certain they are able to accept the engagement.  At this point, if the expert feels that they have the qualifications and are clear to proceed, they should go over their qualifications with the hiring attorney. It is imperative to be fully candid about everything. It is always best to deal with any potential difficulties before accepting the engagement. If everyone is satisfied that the expert will fit, and the engagement is probable, the expert should make certain that the attorney is willing to take the time to fully prepare with them. This means covering the applicable rules that apply, going over “attorney-client” privilege and “work product” so there is a clear understanding of what will be discoverable, and making certain the expert will be given the materials and time to be fully prepared for all depositions and trial testimony.

Over the years, I have seen many “experts” who appeared very frustrated with the process. Some felt they were not allowed to say everything they desired. Others were disturbed that they were not allowed to fully answer questions. Some even expressed dismay that they were not notified as to the outcome of the case, or whether their opinion was well received. Hearing these complaints leads me to believe that many potential experts have a grave misunderstanding about the process itself and their role in it. This leads me to the conclusion that the best experts in bioeconomy matters are working consultants who have some familiarity with the process.

We conduct a mandatory training for any of our experts who wish us to recommend them in litigation matters. In this training we give them a basic understanding of the process and their role in it, an overview of the Rules of Evidence[2] and Rules of Procedure[3] with respect to experts, and the Supreme Court’s criteria and qualifications as an “expert witness”.[4]   We ask that our experts carefully analyze everything before rendering any opinion, which most often means refraining from committing to an opinion based on a single phone call unless they are absolutely certain. We instruct them to keep good records, never to hesitate to ask if more information is needed, and to be meticulous in their reports. We tell them to carefully evaluate each matter and never feel pressured to come to a conclusion inconsistent with their findings. We instruct them always be honest and forthright, and never to compromise their integrity.   In our opinion, this is what makes a good “expert witness”.

About the author. Wayne Lee is an internationally recognized alternative fuels consultant with over thirty years’ experience. He is the CEO of Lee Enterprises Consulting, the world’s largest bioeconomy consulting group, with over 100 internationally recognized professionals. The company has nine divisions – biodiesel, ethanol, biomass power, biogas/AD, water treatment, renewable chemicals, emerging technologies, corporate finance, and litigation support. Lee also owns National Business Brokerage, Inc., a full service business brokerage firm specializing in evaluation, buying, and selling of alternative fuels plants.    

[1] As CEO, the author personally leads the Litigation Support section at Lee Enterprises Consulting, Inc. and conducts these initial interviews to determine the exact expertise needed and the best professional to render such advice.

[2] Federal Rules of Evidence and applicable state rules.

[3] Federal Rules of Civil Procedure and applicable state rules.

[4]  Daubert v. Merrell Dow Pharmaceuticals509 U.S. 579 (1993)

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