Hiring an expert witness in bioeconomy litigation
By Wayne Lee, CEO, Lee Enterprises Consulting, Inc.
In August 2017, I published an articlewhich focused on important things that attorneys involved in biofuels or biochemical litigation should look for when choosing an expert witness. This article explores the subject of expert witnesses in a bit more depth, including where to find the best experts, the different roles an expert might assume in pre-litigation and litigation cases, and hypothetical examples.
The term “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, I define the term as encompassing the following non-exhaustive list:
- Biotechnologies such as anaerobic digestion, bio-oil extraction, bioreactors, carbon capture & storage, catalysis, catalysis, cellulosic ethanol, fermentation, Fischer-Tropsch, gasification, genetic engineering, nano technology, pyrolysis/carbonization, synthetic biology, synthetic biology, thermochemical conversion, torrefaction, and wastewater treatment.
- Biofuels and biochemicals/materials such as ethanol, biodiesel, sustainable aviation fuels, biogas, syngas, renewable diesel, renewable natural gas, biobutanol, biochar, bioplastics, bio-fertilizers, enzymes, industrial chemicals and solvents, cellulose, nutraceuticals, biomaterials related to animal health or aquaculture health, bio lubricants, and virtually anything powered by biomass power.
- Feedstocks such as algae, biogas, construction waste, cooking oils, energy crops, fermentation waste, forest products, lignins, municipal solid waste, palm waste, railroad ties, sludge and wood wastes.
- Bio industry specialty items such as bio-based product development, carbon credits, due diligence matters, equipment failures, IP and patent issues, RINS and LCFS matters, and techno economic analyses.
In seeking an expert witness in the bioeconomy, one must begin with an initial question and a concrete premise. The question is what the party wants the expert to do. Is this purely for helping the parties understand the matters at hand in order to resolve some issue at hand, or is it with an eye toward testimony in depositions and court proceedings? If it is purely for understanding and advice, the expert is simply a consultant to the legal team. If there is a potential for depositions and testimony, the aspects of previous court experience, ability to be qualified as an expert witness, etc. will take center stage. When in doubt, obviously one should assume that being qualified as an expert witness is at least a possibility and approach selection on that basis.
The premise from which selection of an expert in the bioeconomy should begin is that these are highly specialized areas, not normally within the knowledge of the average person. While there are certainly quite a number of “experts” with backgrounds in chemistry, biology, engineering and related fields, these educational credentials are wholly insufficient to being a qualified expert in specific areas of the bioeconomy. Experts must have specific industry experience in the process, system, technology or bioproducts in question, and since many of these are new and emerging markets, this specific experience may be difficult to find. Even in the more “established” bioeconomy industries like ethanol and biodiesel, there are somewhat limited pools of truly capable experts. Effectively assisting and advising an attorney, and particularly in educating judges and juries as to what happened, why it happened, and what might have been done to prevent it, any good expert must have a working knowledge of the industry and specific experience to draw upon.
In order to see some potential problem areas, let’s look at a few hypothetical examples:
- The plaintiff buys gasification equipment that does not perform as he believes was represented to him, and he is litigating against the manufacturer/seller. Certainly there are many “experts” that could describe the chemical process by whichgasification turns the feedstock into a higher value product. But a more knowledge and experience will be needed depending on some variables. What was the feedstock – coal, biomass, waste, petroleum coke, or some other product? Was the resulting syngas represented to be burned to produce electricity, or was there an intention that it be further processed to manufacture chemicals, fertilizers, liquid fuels, or some substitute natural gas? Was this a more common Fischer-Tropsch process or some less tested one? I want to know if the expert has experience in the specific equipment in question, or alternatively, if this is such a completely new technology, that he or she has experience as close to it as possible.
- The owner of a biomass plant believes that it did not meet the supplier’s performance guarantees and is litigating against the supplier. Some initial variables might include whether the alleged performance guarantee was defined by the use of some unique analysis of the biomass feedstock, or simply by some band of acceptable analyses. If the matter involves an inability to get proper feedstock in sufficient quantities, where does fault lie? Did the owner not look hard enough, or did the supplier make false representations about the availability?
- The owner of a biomass conversion facility contracts for certain amounts of feedstock supplies based upon a continuous “full load operation”, but later must significantly reduce operations to around fifty percent capacity, thus causing feedstock shipments to start being rejected. Owner is sued by feedstock supplier, but claims that the quality and source of the feedstock were not as defined by the feedstock supply contract. Questions we will need to know initially are whether the expert can make the determination as to whether the feedstock delivered complied with the contract specifications. Can an expert develop more practical feedstock specifications and contract procedures to avoid these types of problems, and if so why was that not done initially?
- The owner purchases a process to manufacture pharmaceutical intermediate, and receives a technical package with the purchase.The owner, however, is unable to run the process and sues the manufacturer alleging that the technical package documentation is not complete. My initial question will be whether the expert has both knowledge as to the production of pharmaceutical intermediates, and experience with process documentation of this kind.
- Take the above example in another direction.Suppose that owner in the above example had a patent on his production equipment of the pharmaceutical intermediate, and the process involves both biological and chemical process steps – including purification and crystallization process steps. The owner has identified another company producing what appears to be the same intermediate via the same process and believes this is an infringement on a number of the patents, so he sues. The opposing party maintains that the process they employ is different than the owner’s patented process, but even if not substantially different, that the steps in such a process are common knowledge and available to the public in open literature. Now we need an expert with both industry experience, and patent experience. We need to know if the other process is, in fact, using steps that are within the public domain, and/or whether they infringe on owners patents. We now seek an expert with experience in IP, and in processes involving both biological and chemical steps.In all these examples, the expert must possess both educational knowledge and experience. He or she not only must be able to ascertain what is “normal” and what is not in these types of processes, but also must be able to do so both in technical terms and in clear, concise and understandable terms that a layman can understand. Sometime, this latter ability is the most difficult, especially with an expert who normally deals only with other experts.
Where does an attorney or party find these bioeconomy experts? A quick perusal of the internet provides literally hundreds of “expert witness services. Most often, these are simply services that allow those that believe they are experts, to list their resumes or CVs with the service. Upon request, the services enter a keyword and pull all the “matching” experts. While this system may work in more litigated areas like personal injury or medical malpractice cases, it is a very dangerous path in the newer industries of the bioeconomy.
In searching for an expert, I believe it is imperative to find one who is an active practitioners in the field. While I may desire experts with experience testifying, believing that they might be easier to qualify, I believe given a choice, it would be better to have one whose has never testified but has “hands on” experience with the subject matter. Finding experts with industry experience is easily done through bioeconomy consulting groups whose members are experts actively engaged in the bioeconomy, and whose primary source of income is not testifying. I believe this is where one engages the more knowledgeable and credible witness, who best serves the attorneys, courts and juries.
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 and most established bioeconomy consulting group, with over 100 internationally recognized professionals worldwide. Lee Enterprises Consulting was established in 1995, and handles all areas of the bioeconomy, including both the established industries such as biodiesel, ethanol, biomass power, biogas/AD, water treatment, and renewable chemicals, and the vast array of emerging technologies. Mr. Lee personally directs the corporate finance, and litigation support groups within the firm. Contact: Lee Enterprises Consulting, (501) 833-8511. Email: [email protected].
The Expert Witness in Biofuels and Biochemicals Litigation, Biofuels Digest, August 30, 2017