The Expert Witness in Biofuels and Biochemicals Litigation

When oil prices are relatively low, and the status of U.S. government incentives has continued uncertainty, a predictable downturn in biofuel and biochemical-related industries increases participant discomfort, leading to more lawsuits, and finding the right biochemical or biofuels expert witnesses becomes paramount. Those of us who have been in the “bioeconomy” for a long time have seen this cyclical nature and the natural anxieties when downturns occur.  As with any specialized area, bioeconomy-related litigation requires the assistance of experienced experts to determine what went wrong, what might have been done to prevent it, and the economic impact of these failures. This article briefly overviews the bioeconomy “expert witness,” where to find them, and the qualifications to look for.

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.  This article 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. Examples would be various types of renewable chemicals and biofuels, covering industries such as ethanol, biodiesel, 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.

In lawsuits involving biofuels, biomass, and biochemicals, and particularly in those involving emerging bioeconomy technologies, the attorney’s first order of business should be to understand how the system or process in question was designed to work.  Thus, in bioeconomy-related cases, it is crucial to understand the process involved and the technical jargon. Sometimes, the attorney’s initial education has come solely from his or her client, who may not be as knowledgeable as they believe, and who undoubtedly believes their actions or inaction were correct.  The takeaway is to identify and consult with the experts as early as possible.

Many professionals have chemical, engineering, biology, and finance backgrounds, but few have meaningful experience in these areas. Thus, the attorney should begin early, understanding that the pool of good professionals available to serve as experts in these cases is probably limited.  The attorney must also note that because these are relatively small industries, the true experts may know each other and have worked in some capacity for the companies involved. Finding a seasoned expert willing to testify in a particular case may be challenging, so search early and do conflict checks initially.  So, what should the attorney look for in these experts, and what should they expect from them? When an expert is initially retained, he is likely to review materials, perhaps visit, and give his or her thoughts on what happened and why.  This informal opinion is likely needed to know the best direction to take in the case.  However, even in this consulting capacity, it is likely that the expert will later become a disclosed “expert witness,” so counsel must look toward that end in the initial engagement.

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The bioeconomy involves many areas of expertise.  An engineering question requires a very different skill set than a chemical question, and both are very different from economic or damage questions.   Thus, one initial challenge is finding the expert(s) that fit the exact issue(s) at hand.  Counsel must determine exactly what they will need as early as possible. Before hiring any expert, it is a good idea to engage and visit with an experienced consultant to make these determinations[1].

As noted, there is not nearly as much litigation in these bioeconomy areas as in more common areas like medical malpractice and personal injury.  In the bioeconomy, there are very few, if any, good experts who derive even a substantial part of their livelihood from testimony in legal proceedings.  Many outstanding experts are not as experienced in depositions or courtroom settings as other experts, so selecting the right expert in a particular case involves the attorney addressing several matters initially.  The first inquiry is whether the professional has specialized education, experience, and skills.  Not everyone familiar with one facet of a process or industry knows all aspects.  Second, as in any case, the attorney must determine whether the expert can communicate well and articulate industry-specific knowledge.  Those with knowledge they cannot share on a level the untrained can grasp are not helpful.  Third, the attorney should determine whether the potential expert has actual or perceived conflicts.  Again, these industries have far fewer experts than most, and it is not uncommon for the top experts to have a breadth of previous engagements with many companies.

Last but not least, I would suggest that the inquiry into the expert’s familiarity with the court system is also critical.  This will vary greatly in what the attorney is seeking.  Some attorneys will want experts with much courtroom experience, as they know court processes and etiquette. It will probably be easier to qualify as an “expert.” However, like in any other litigation, these pose the potential to be viewed as “hired guns,” often having previously produced a lot 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 be more credible and less “bought.” However, inexperienced professionals can present problems by unfamiliarity with the courtroom and process, and are sometimes more inclined to be argumentative or combative.

From the perspective of the biofuels expert witness, several things should be explored before accepting an engagement. Initially, the expert will want a clearly defined scope of what is being sought to ensure they have the expertise needed.  Next, they get a list of everyone involved and expeditiously conduct a “conflicts” check to ensure they can accept the engagement.    At this point, if the expert feels they have the necessary qualifications and can proceed, they should go over their capabilities with the hiring attorney.  It is imperative to be fully candid about everything.  It is always best to deal with potential difficulties before accepting the engagement.  If everyone is satisfied the expert will fit, and the engagement is probable, the expert should ensure that the attorney is willing to prepare with them fully.  This means covering the applicable rules, going over “attorney-client” privilege and “work product.” Hence, there is a clear understanding of what will be discoverable, ensuring 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 frustrated with the process.  Some felt they were not allowed to say everything they desired.  Others were disturbed that they were not allowed to answer questions fully.  Some even expressed dismay that they were not notified about the case’s outcome 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 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.

At Lee Enterprises Consulting, we conduct mandatory training for any of our experts who wish us to recommend them as experts 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] concerning experts, and the Supreme Court’s criteria and qualifications as an “expert witness.”[4] We ask our biofuels expert witness to carefully analyze everything before rendering any opinion. This means refraining from committing to an opinion based on a single phone call. We instruct them to keep good records, never 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 conclude inconsistent with their findings.  We instruct them always to be honest and forthright, and never to compromise their integrity.   We believe following these guides makes a good “expert witness.”

Large renewable energy and biochemical consulting firms like ours certainly have experts in more common areas like biofuels, biomaterials, biomass, biomass power, bio-based chemicals, biotechnologies, and renewable fuels and chemicals in general.  Our clean energy experts are part of a larger, multidisciplinary group of green energy consultants with a wide variety of expertise in more specialized areas like biomass production, financial due diligence, organic synthesis, fuel additives, ethanol gas, biodiesel fuel including algae biofuels, solid-state and industrial fermentation, green energy grants, ag-biotech, agricultural waste, alcohol fuels, alternative proteins and animal-free products, sustainable foods, beverage fermentation, biocatalysis, biodiesel conversion, biogas production, biomass power, carbon intensity, co2 utilization, combined heat & power, Fischer-Tropsch technology, food waste, hydrothermal carbonization, industrial enzymes, landfill management, microbial fermentation, organic synthesis, plastic pyrolysis, plastic recycling, plastic waste, pyrolysis oil, reactor design, renewable identification number, the Renewable Fuel Standard (rfs2), solid recovered fuels, torrefaction and torrefied biomass, waste to energy, and waste-to-hydrogen.  Finally, members and strategic partners of these green energy consulting firms should also have the ability to do things like engineering, technical feasibility studies, techno-economic analysis, due diligence, and feasibility studies, provide expert witness testimony, and should have the contacts to assist with renewable energy finance, accounting, plant safety and insurance, legal, and virtually any other services related to the bioeconomy.

 About the author.  Wayne Lee is an internationally recognized alternative fuels consultant with over thirty years of experience.  He is the Founder Emeritus of Lee Enterprises Consulting, the world’s largest bioeconomy consulting group, with over 180 internationally recognized professionals, many of whom serve as biochemical or biofuels expert witnesses.   See other articles by this author:  The Expert Witness in Bioeconomy Litigation and Economics and Damages in Bioeconomy Litigation.

[1] As Founder Emeritus, the author personally leads the Litigation Support section at Lee Enterprises Consulting and conducts all initial interviews to determine the exact expertise needed and the best professional to render such advice. He oversees the work of the biofuels expert witness, the biochemical expert witness, and all others on litigation-related teams.

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

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

[4]  Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)