Marine Biologists

Clausen v. M/V New Carissa, 339 F.3d 1049 (9th Cir. 2003). Vessel spills 70,000 gallons of crude oil near Oregon's Coos Bay, state's richest oyster-growing area. Within three weeks, 3.5 million oysters have died. Oyster farmers sue vessel owners and operators to recover damages for loss of their stock. To prove causation, oyster farmers offer testimony from marine biologist Dr. Ralph Elston, who opines that contact with oil particulates caused oysters to develop lesions, which became infected, causing their death. Defendants counter with their own marine biologist, Dr. Jerry Neff, who opines that oysters' lesions were caused by low salinity in bay due to heavy rainfalls. District court denies defendants' motion to strike Dr. Elston's testimony, and jury awards damages to plaintiffs. Admissibility affirmed. Both experts performed differential diagnosis in which they first "ruled in" six potential causes: (1) infectious disease; (2) freezing trauma; (3) acute toxic effects of non-oil contaminants; (4) acute toxic effects of oil; (5) low salinity; and (6) low-level toxic effects of oil. Both then "ruled out" causes (1) through (4). Dr. Elston also "ruled out" cause (5), settling on cause (6) -- contact toxicity. Defendants complain on appeal that Dr. Elston lacked sufficient scientific basis to "rule in" contact toxicity, but defendants' own expert did the same, and had previously written that oil exposure can cause gill lesions in fish. It is true, as Dr. Elston conceded, that support for his theory in published literature relating specifically to shellfish is sparse, but experts need not always rely on peer-reviewed literature in "ruling in" potential causes, and may rely on other objective, verifiable evidence. Here, in "ruling in" contact toxicity, Dr. Elston relied on histopathological investigations, detailed history of oyster site, government reports re oil spill, temporal and physical proximity of spill, and literature on contact toxicity in other species. Similarly, in "ruling out" low salinity, he relied on historic rainfall patterns, government salinity tests, and failure of oysters to exhibit characteristics of anaerobic low salinity mortality. No abuse of discretion.

Marine Biologists