San Francisco Baykeeper v. Sunnyvale

Background

San Francisco Baykeeper brought citizen-enforcement lawsuits under the Federal Water Pollution Control Act, commonly called the Clean Water Act, against the City of Sunnyvale and the City of Mountain View. Baykeeper alleged that bacteria pollution was unlawfully discharged from the Cities’ municipal storm sewer systems into receiving waters. The Cities moved to exclude portions of Baykeeper’s retained expert testimony under Federal Rules of Evidence 104(a) and 702 and the Supreme Court’s expert-evidence decision in Daubert v. Merrell Dow Pharmaceuticals, Inc.

The court also granted Baykeeper’s request for judicial notice of specified materials from the Environmental Protection Agency website, an AACE International recommended practice, and an EnviroCert certification website. The court separately warned that future filings violating its page limits would be stricken.

Kevin Draganchuk

Draganchuk, an environmental engineer, offered opinions about possible sewage escaping from the Cities’ sanitary sewer systems into their storm sewer systems, the resulting pollution, recommended investigations and repairs, and costs allegedly avoided by delaying those measures.

The court held that Draganchuk had sufficient knowledge, skill, and experience to provide his cost estimates and that his lack of a California engineering license did not automatically prevent him from testifying as an expert. The court excluded Table 9 because Draganchuk lacked sufficient factual support for its estimates and had acknowledged that he did not have direct cost data. The court found a factual basis for Table 10 and treated the Cities’ criticisms of that table as matters affecting the testimony’s weight rather than its admissibility. The court also declined to exclude Draganchuk’s opinions about “high risk” sewer pipes, despite gaps in the underlying data and contrary analyses by the Cities’ experts.

The motion to exclude Draganchuk’s testimony was therefore granted as to Table 9 and denied in all other respects.

Ian Wren

Wren, a hydrologist and Baykeeper staff scientist, offered opinions about the Cities’ contributions to bacteria-standard exceedances, whether certain waterways were “waters of the United States” under the Clean Water Act, proposed remediation methods, and remediation costs.

The court granted the motion to exclude Wren’s ultimate opinions that Stevens Creek and Calabazas Creek were waters of the United States and that Sunnyvale East Channel was a point source. The court explained that those were legal conclusions for the court to decide. It denied the motion as to Wren’s underlying factual assessments, including the waterways’ hydrological characteristics.

The court rejected the Cities’ challenges to Wren’s opinions about their alleged contributions to bacteria-standard exceedances, relying on reasons stated in an earlier summary-judgment order. It also declined to exclude Wren’s opinions about a proposed remedial process and related costs. The court found his methodology—using a Los Angeles County stormwater program as a model and scaling its costs by watershed area—not so unreliable as to require exclusion, while allowing the Cities to challenge it through contrary evidence and cross-examination.

The motion to exclude Wren’s testimony was granted only as to his ultimate opinions about waters of the United States and the point source, and denied in all other respects.

Jonathan Shefftz

Shefftz, an economics expert, offered opinions about the Cities’ compliance costs, economic benefits from delaying infrastructure changes, ability to pay penalties, and the amount needed for financial deterrence.

Because the court excluded Draganchuk’s Table 9, it also excluded Shefftz’s opinions to the extent they relied on that table. The court otherwise rejected the Cities’ arguments that Shefftz improperly relied on the other experts’ information or used an unreliable method. It found that reliance on admissible expert opinions was permissible and that Shefftz’s use of high-end cost estimates was a conservative approach rather than an analytical gap.

The motion to exclude Shefftz’s opinions was granted to the extent those opinions were based on Table 9 and denied in all other respects.

Disposition

Judge Edward J. Davila granted the defendants’ motions in limine in part and denied them in part. The order limited portions of the three experts’ testimony but did not decide the underlying Clean Water Act claims.