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Clausen v. M/V New Carissa

ELR Citation: 33 ELR 20255
Nos. Nos. 01-35928, -36079, (9th Cir., 08/12/2003)

The court upholds a trial court's decision to admit expert testimony on the issue of causation in a case involving the destruction of oyster beds that allegedly resulted from an oil spill off the Oregon coast. The testimony presented by the oyster bed owners' expert was properly admitted under Rule 702 of the Federal Rules of Evidence and under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 23 ELR 20979 (1993). The expert followed a universally accepted method for establishing the root cause of the oyster death—differential diagnosis. Differential diagnosis is a common scientific technique, and federal courts, generally speaking, have recognized that a properly conducted differential diagnosis is admissible under Daubert. In addition, the expert’s testimony that low-level toxic effects of oil was a possible cause of the oyster mortality was supported by scientific knowledge. Although he lacked supporting peer-reviewed literature specific to the subject, he relied upon a variety of objective, verifiable evidence. The record indicates that he surveyed the oyster beds, conducted clinical examinations of the diseased and dead oysters, relied on reports from the government response teams showing that the oil at issue was in the oyster beds and in the oysters themselves, and relied on the fact that contact toxicity is a mechanism that occurs in every animal system studied thus far. The expert's reasons for reaching the conclusion, by process of elimination, that contact toxicity was the specific cause of the oyster deaths were similarly reliable. In addition, the trial court did not err in awarding attorney fees and expert witness fees to the owners of the oyster beds under the Oregon Oil Spill Act.

Counsel for Plaintiffs
James P. Welch
Davis, Wright & Tremaine
One Embarcadero Center, Ste. 600, San Francisco CA 94111
(415) 276-6500

Counsel for Defendants
Todd A. Zilbert
Wood, Tatum, Sanders & Murphy
1001 SW 5th Ave., Ste. 1300, Portland OR 97204
(503) 224-5430