Hiring an Expert Witness in Bioeconomy Litigation

Understanding the Bioeconomy

The bioeconomy encompasses the production of renewable biological resources and their conversion into value-added products, including food, feed, fuel, and bio-based materials. This broad field includes various sectors, such as biotechnologies, biofuels, biochemicals, feedstocks, and specialized bio-industry items. Attorneys seeking expert witnesses in the bioeconomy must grasp the nuances of these areas to effectively navigate litigation.

Hiring an expert witness in the bioeconomy can be a bit tricky.  In August 2017, I published an article that focused on the important things attorneys involved in biofuels or biochemical litigation should look for when choosing an expert witness. [1] This article explores the subject of expert witnesses in a bit more depth, including where to find the best experts, the 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 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, nanotechnology, 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 include algae, biogas, construction waste, cooking oils, energy crops, fermentation waste, forest products, lignins, municipal solid waste, palm waste, railroad ties, sludge, and wood waste.
• Bio industry specialty items include bio-based product development, carbon credits, due diligence matters, equipment failures, IP and patent issues, RINS and LCFS topics, and techno-economic analyses.

Identifying the Right Expert

Selecting an expert witness in the bioeconomy requires a clear understanding of the specific expertise needed for the case. While educational credentials are essential, practical industry experience is paramount. Expert witnesses must possess in-depth knowledge of relevant processes, technologies, and bioproducts to provide credible testimony. In seeking these experts, one must begin with an initial question and a concrete premise.  The question is “What do I desire from the expert”.  Is the expert being hired purely to help the parties understand matters to help resolve some issue, or is it with an eye toward testimony in depositions and court proceedings?  If it is purely for understanding and advice, the expert engagement can probably be simply as a consultant to the legal team.  However, if there is potential for depositions and testimony, the expert is truly an “expert witness,” and his or her previous court experience, and ability to be qualified as an expert, take center stage.  When in doubt, we always assume that serving as a formal “expert witness” is at least possible, and thus we approach the selection of experts on that basis.

While there are certainly many “experts” with backgrounds in chemistry, biology, engineering, and related fields, these educational credentials are often insufficient to be qualified as an expert in specific bioeconomy areas.  Bioeconomy experts must have specific industry experience in the process, system, technology, or bioproducts in question. As many are new and emerging markets, finding this particular experience may be challenging. Even in the more “established” bioeconomy industries like ethanol and biodiesel, there are limited pools of competent experts. To educate the attorneys, judge and/or jury about what happened, why it happened, and what might have been done to prevent it, requires a working knowledge of the industry and specific experience to draw upon.

Hypothetical Examples

To illustrate the complexities, consider the following hypothetical scenarios:

1. Gasification Equipment Dispute, where the expert is asked to examine the feedstock, process variables, and equipment specifications to determine performance discrepancies. The plaintiff buys gasification equipment that does not perform as he believes was represented to him, and he is litigating against the manufacturer/seller. Indeed, many “experts” can likely describe the chemical process by which gasification turns the feedstock into higher-value products.  However, the variables will require more knowledge and experience.  What was the feedstock – coal, biomass, waste, petroleum coke, or other products?  Was the resulting syngas represented to be burned to produce electricity, or was there an intention to 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?  Does the expert have experience in the specific equipment in question? Alternatively, if this is such a new technology, does he or she have direct experience in a very close technology?
2. Biomass Plant Performance Evaluation, where the expert is asked to assess performance guarantees and liability in cases of inadequate feedstock supply. The biomass plant owner believes it did not meet the supplier’s performance guarantees and is litigating against the supplier. Initial variables here might include whether the alleged performance guarantee was defined by using some unique analysis of the biomass feedstock or simply by some band of acceptable analyses.  Where does the fault lie if the matter involves inability to get proper feedstock in sufficient quantities?  Did the owner not look hard enough, or did the supplier make false representations about the availability?
3. Feedstock Supply Contract Dispute, where the expert is asked to analyze contract specifications and operational challenges to resolve disputes between parties. The owner of a biomass conversion facility contracts for specific amounts of feedstock supplies based upon a continuous “full load operation”, but later must significantly reduce operations to around fifty percent capacity, causing feedstock shipments to start being rejected. A feedstock supplier sues the owner, who claims the quality and source of the feedstock were not as defined by the feedstock supply contract.  Initially, we will need to know whether the expert can determine whether the feedstock delivered complied with the contract specifications. Can an expert develop more practical feedstock specifications and contract procedures to avoid these problems, and if so, why was that not done initially?
4. Pharmaceutical Intermediate Manufacturing Issue where the expert is asked to evaluate process documentation completeness and technical knowledge in pharmaceutical production. The owner purchases a process to manufacture pharmaceutical intermediate and receives a technical package with the purchase. The owner, however, cannot run the operation and sues the manufacturer, alleging that the technical package documentation is incomplete.  The initial question will be whether the expert has both knowledge of the production of pharmaceutical intermediates and experience with process documentation of this kind.
5. Intellectual Property Infringement Case.  Take the above example in another direction, and assume the expert is asked to assess patent validity and infringement claims in complex bioprocesses involving biological and chemical steps. Suppose the 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 of many patents, so he sues.  The opposing party maintains that the process they employ differs from the owner’s patented process, and that even if not substantially different, the steps in such a process are common knowledge and available to the public in the open literature.  Now, we need an expert with both industry experience and patent experience.  We need to know if the other process uses steps that are, in fact, within the public domain, and whether they infringe on the owner’s patents.  We are now seeking an expert with experience in IP and one with process experience involving biological and chemical steps.

In each of these examples, the expert must possess both educational knowledge and experience.  He or she must determine what is “normal” and what is not in these types of processes, and must be able to describe his or her findings in technical terms and in clear, concise, and understandable terms that laymen can understand.  Sometimes, this latter ability is the most difficult, especially with an expert who typically deals only with other experts.

Finding Qualified Experts

To locate credible expert witnesses in the bioeconomy, attorneys should prioritize active practitioners with hands-on experience in the field. A quick perusal of the internet provides hundreds of “expert witness services”. Most often, however, these services allow people who believe they are experts to list their resumes or CVs with the service. The services enter a keyword and pull all the “matching” experts upon request.  While this system may work in more litigated areas, like personal injury or medical malpractice cases, it is a dangerous path in the newer industries of the bioeconomy. A much safer bet might be to contact bioeconomy consulting groups like ours that offer access to industry experts with extensive practical knowledge, enhancing the credibility and effectiveness of expert testimony.

In searching for an expert, I believe finding an active practitioner in the field is imperative.  While I may desire experts with experience testifying, thinking they might be easier to qualify, I would rather have a working expert who has never testified but has “hands-on” experience with the subject matter.  Finding experts with industry experience is quickly done through bioeconomy consulting groups, such as Lee Enterprises Consulting, whose members are experts actively engaged in the bioeconomy, and whose primary source of income is not expert witness testimony.  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 a seasoned alternative fuels consultant and the Founder Emeritus of Lee Enterprises Consulting. With over three decades of experience, he leads the firm’s corporate finance and litigation support groups, providing invaluable expertise to clients worldwide.

[1] The Expert Witness in Biofuels and Biochemicals Litigation, Biofuels Digest, August 30, 2017