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<br /> Disputes and negotiations that require the Commissioner of the Department Judge Williams was the first judge
<br /> expert witnesses include regulatory had broad authority to determine to hear the case. Following his ruling,
<br /> interpretation, permitting requirements, whether or not a significant threat to the the case was appealed to the Appellate
<br /> construction standards, liability, environment exists when hazardous Division and then to the Court of
<br /> compliance, and criminal prosecutions wastes are identified at an inactive site. Appeals, and it was upheld in both
<br /> where laws may have been violated. The criteria and the conditions under courts. The role of the witnesses
<br /> Collecting data, sorting through infor- the regulations were, according to the eliminated the need for an expensive
<br /> mation and interpreting the findings are plaintiffs (the Coalition),unacceptably and lengthy process of an actual test
<br /> the work of experts. When asked to broad and unfocused, allowing the State case.
<br /> provide input to an environmental/legal to require remediation wherever hazard- Expert testimony doesn't always have
<br /> question, they find themselves serving ous waste was found regardless of the such a direct bearing on decisions,but
<br /> as technical consultants to attorneys and "threat." there is no doubt that without it,judges
<br /> their clients during settlement negotia- The Commissioner's authority as and juries often wouldn't have the
<br /> tions or preparations for trial, and later stated could have been applied without specific technical knowledge needed to
<br /> become involved in depositions, restraint and without a mechanism understand the ramifications of highly
<br /> writing briefs, testifying, and defending for consistent application of the rules technical arguments. Expert witnesses
<br /> their interpretations. across the State. Thus, different provide this link.
<br /> One of the key roles of the expert members of the NYSDEC staff with It is crucial to the credibility of the
<br /> consultant is to assist counsel with differing points of view and differing witness and of the arguments presented
<br /> finding weaknesses,errors, and contra- levels of expertise could demand one that the testimony be of good quality.
<br /> dictions in the professional background, site to be cleaned up, while another Both sides in a dispute often have
<br /> writings, and testimony of opposing similar site might require little action. their own witnesses; the knowledge,
<br /> experts. So it is that adversarial trials As part of his responsibility to his accuracy, and honesty of the witnesses
<br /> become battles between opposing teams client,Gerry prepared an affidavit for are all key factors. To this end,EA
<br /> of experts. The objective of the battle the court which explained the inherent has created an internal expert witness
<br /> is to win by being more persuasive than difficulties of the rules and described training program exclusively for EA
<br /> the opposing witnesses. The tools of the potential effects on owners of staff. Using an actual court case and
<br /> battle are: properties regulated under these rules. associated documentation, senior
<br /> • Truthfulness and credibility Normally, the courts require a com- personnel take the part of regulators
<br /> • Breadth and depth of technical plaint arising from perceived unfair and the regulated before a judge and
<br /> knowledge and experience application of a regulation before they give testimony that is challenged by
<br /> • Thorough preparation with counsel will review the case and make a ruling. practicing attorneys.
<br /> • Effective communication of the In this instance,however, the courts ac-
<br /> theme and facts to the decisionmaker cepted the case because of the potential An Expert's Guide
<br /> • Ability to stay calm and to exercise extent of its impact on hundreds of
<br /> quick, incisive thinking under the businesses and property owners. 1. Expert witnesses must document
<br /> pressure of intensive cross- The Plaintiffs consisted of two their findings, show references, and
<br /> examination. groups: the New York State Superfund perform quality checks.
<br /> Gerald J. Lauer,Ph.D., is the expert's coalition and a group of utilities. The 2. The expert witness must make an
<br /> expert when it comes to environmental Superfund Coalition group was repre- objective and accurate assessment of
<br /> litigation and permitting. Gerry, a sented by Thomas West and Robert the data, analyzing all sides of the
<br /> Senior Vice President at EA,has been Alessi who were with Nixon,Hargrave argument, evaluating the quality of
<br /> an expert witness for more than 20 at the time of the proceedings. Mr. the data, and supporting the
<br /> years. His role is one of advisor, West and Mr. Alessi have since joined conclusions reached.
<br /> strategist, critic, devil's advocate, the firm of LaBoeuf, Lamb, Leiby & 3. The integrity of the witness must be
<br /> mentor, friend, and defender. MacRae and continue to be actively based on the individual's ability to
<br /> An example of the knowledge and involved in this area. meet all these criteria in the context
<br /> perspective needed for expert testimony The decision of Judge Robert C. of the "truth...and nothing but..."
<br /> is a recent case involving New York Williams of the New York State 4. The witness must be able to
<br /> State's Superfund law. In this complex Supreme Court included recognition communicate clearly, listen to the
<br /> case, the expert's testimony was of the role of affidavits from the expert question being asked, understand
<br /> critical to the outcomes, and the results witnesses in this case. He stated the testimony already given, and
<br /> promised to be significant to the State, As properly detailed in the affidavits must also be able to think about the
<br /> its staff, and the businesses affected by of S.W. Kaczmer, Ph.D., CIH, and impact of the statement about to
<br /> the regulations. Gerry was working for Gerald J. Lauer,Ph.D., the above be made before speaking.
<br /> a coalition of industry groups challeng- regulations are so vague and over
<br /> ing New York regulations regarding broad as to encompass virtually Contact:
<br /> inactive hazardous waste disposal sites. any presence of a hazardous waste Gerry Lauer 914-565-8100
<br /> Under the regulations promulgatetby at a site, irrespective of whether a Emil Morhardt 415-483-7077
<br /> the New York State Department of En- significant threat to the environment Tom Blair 214-484-1420
<br /> vironmental Conservation (NYSDEC), exists due to its presence.
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