Expert Witness Profiler

Tag: Odor

  • Environmental Engineering Expert’s Failure to Consider Mitigation Efforts Renders His Opinions Unreliable

    Environmental Engineering Expert’s Failure to Consider Mitigation Efforts Renders His Opinions Unreliable

    Plaintiffs Tonya Clayton and Hazel Stroble allege that an automobile assembly plant operated by Defendant FCA US LLC (“FCA”) near their homes in Detroit, Michigan (the “Detroit Plant”) emitted noxious odors into their neighborhood. They said that these odors unreasonably interfere with their ability to use and enjoy the residences that they own and depreciate the values of those residences. 

    In this putative class action, Clayton and Stroble asserted claims of nuisance and negligence against FCA based on FCA’s operation of the Detroit Plant.

    Plaintiffs asked the Court to certify the following class: “All owner-occupants and renters of residential property located, in whole or in part, within one mile (1.0) of [the Detroit Plant], located at 2101 Connor Street/4000 St. Jean Street, Detroit, Michigan from March 1, 2021 to the present.”

    FCA filed two motions to exclude the opinions of Plaintiffs’ expert witnesses, Dr. Mark P. Cal and Orell C. Anderson. Plaintiffs relied upon Cal and Anderson
    in support of their class certification motion.

    Environmental Engineering Expert Witness

    Dr. Mark P. Cal obtained a B.S. in Chemical Engineering and a M.S. and Ph.D. in Civil & Environmental Engineering from the University of Illinois at Urbana-Champaign (UIUC). He is currently the Campus Director and Vice President for Academic Affairs and a Professor of Civil and Environmental Engineering at New Mexico State University (NMSU) Alamogordo. For nearly 12 years, he was Chair and Professor in the Department of Civil and Environmental Engineering at New Mexico Tech (NMT).
    Cal’s research and consulting experience spans 36-years, and he has worked on projects in the areas of air pollution control, air quality science, atmospheric dispersion modeling (odors, gases and particles), chemical fate and transport, water resources engineering, and heat and mass transfer.

    Want to know more about the challenges Mark Cal has faced? Get the full details with our Challenge Study report. 

    Appraisal and Valuation Expert Witness

    Orell C. Anderson is a valuer and expert forensic consultant with extensive experience in appraisal, diminution-in-value and litigation support matters involving commercial, industrial, subdivisions, and vacant land properties, as well as single- and multi-family residences. 

    He specializes in real property damage economics and property value diminution on a local to global basis and has worked on some of the most notable environmental, social justice, and terrorist cases in recent times.

    Get the full story on challenges to Orell Anderson’s expert opinions and testimony with an in-depth Challenge Study. 

    Discussion by the Court

    Mark Cal

    Cal did not acknowledge or account for the mitigation efforts that FCA undertook beginning in the fall of 2021

    Cal opined that (1) “the entire 1.0-mile proposed class area displayed some level of elevated odor concentrations above [one odor unit per cubic meter]” and (2) “there is clear and convincing evidence that odors were dispersed throughout [the] proposed class area at an odor threshold level that residents would find offensive.”

    It is not clear from Cal’s report whether he is offering these opinions with respect to the limited time period for which he had actual sampling data (October and November of 2021) or, alternatively, with respect to the entire time frame covered by Plaintiffs’ proposed class definition (March of 2021 to the present).

    To begin with, Cal did not acknowledge or account for certain mitigation efforts that FCA undertook beginning in the fall of 2021. According to the Court, his failure to consider those mitigation efforts, and to explain what effect, if any, those efforts had on the odor unit level in the proposed class area during the class period (March 1, 2021, through the present), rendered his opinions unreliable.

    Next, if Cal’s opinion is limited to the time period for which he had sampling data, then it must be excluded because it is not an appropriate fit for the proposed class. As noted above, Plaintiffs are seeking to certify a class that spans from March 1, 2021, to the present. But an opinion covering only a small fraction of that period – i.e., the two-month period in the fall of 2021 for which Cal had sampling data – says little, if anything, about whether the criteria for class certification are satisfied for the entire proposed class period.

    There is no reliable basis for Cal’s opinion that all of the members of the proposed class would find the odor level emitted from the Detroit Plant to be offensive

    Cal bases that opinion solely on the fact that the odor emanating from the Detroit Plant was measured at one odor unit per cubic meter. But as Cal acknowledged, at that level, only “50 percent of the people” would even be able to “smell” the odor.

    The Court ruled that Cal has not sufficiently explained how an odor that only 50 percent of people can even detect could reasonably be considered offensive to the entire proposed class. Moreover, his opinion that the class members would find the odor offensive because it measured one odor unit per cubic meter is at odds with his acknowledgment that five odor units per cubic meter, not one, is “generally” the “threshold level that residents would find offensive.”

    Orell Anderson

    The Court next turns to Anderson’s opinion that he could develop a reliable model to determine the economic damages suffered by the proposed class members.

    Plaintiffs sought to certify a class that includes both “owner-occupants and renters” in the class area. But Anderson’s proposed model does not apply to renters. Instead, he intended to measure only the diminution in property values caused by the odors emanating from the Detroit Plant, and it is only property owners that could have suffered such a potential diminution.

    That Anderson’s proposed model does not apply to renters is a significant problem because FCA has presented evidence that approximately 45% of the proposed class members are renters, not owners. Because Anderson’s proposed model did not apply to the many renters in the proposed class, the Court held that it is not a proper fit for that class.

    Held

    The Court granted  FCA’s motions to exclude Plaintiffs’ expert witnesses, Dr. Mark Cal and Orell C. Anderson.

    Key Takeaways:

    • To be clear, Cal certainly was not required to agree with FCA that its mitigation efforts meaningfully decreased the odors emitted from the Detroit Plant. But to be reliable, his analysis had to at least acknowledge those efforts and explain how, if at all, those efforts impacted the odor levels and his analysis.
    • Anderson’s proposed model has a major flaw—it doesn’t apply to renters. This is a serious issue because FCA has shown that about 45% of the proposed class members are renters, not owners.

    Case Details:

    Case Caption: Clayton V. FCA US LLC
    Docket Number: 4:21cv12995
    Court Name: United States District Court, Michigan Eastern
    Order Date: August 07, 2025

     

  • Law Enforcement Expert Witness Testimony on Marijuana Odor Rejected

    Law Enforcement Expert Witness Testimony on Marijuana Odor Rejected

    On July 1, 2020, Officer Jack Gilboy (“Gilboy”) of the St. Charles Parish Sheriff’s Office approached Plaintiff Cedric Otkins (“Otkins”) while Otkins was sitting alone in his parked car at the East Bank Bridge Park in St. Charles Parish, Louisiana. Otkins filed this civil rights action alleging a violation of his Fourth Amendment right to be free from unreasonable search and seizure.

    Officer Gilboy claimed that he smelled marijuana emanating from Otkins’ vehicle after Otkins exited his vehicle.

    Plaintiff sought to exclude the Defendant’s expert witness, Craig Wiles, from testifying at trial. In his expert report, Wiles opined that under the circumstances of the traffic stop on July 1, 2020, Gilboy could smell marijuana odors emanating from the interior of Plaintiff’s vehicle.

    Law Enforcement Expert Witness

    Craig M. Wiles is a career law enforcement officer and narcotics agent with over forty years of experience. He joined the Drug Enforcement Administration as a special agent in 1995. He has been a part of several such investigations which have resulted in hundreds of arrests for drug violations, including marijuana possession and trafficking.

    Discussion by the Court

    Wiles is a career law enforcement officer and narcotics agent retained to opine on Defendant Gilboy’s ability to detect the odor of marijuana.

    The Court Cannot Test Wiles’ Determination of Whether Gilboy Smelled Marijuana

    In Wiles’ expert report, he opined that marijuana had an unmistakable odor that “became part of the user’s life” and that Gilboy “could smell the odor of marijuana coming from the interior of Otkins’ vehicle.” Because this opinion was not based on any reliable principles or methods and did not assist the trier of fact, the Court excluded Wiles from testifying at trial in this matter.

    Moreover, Wiles’ purported expertise stemmed from his years working in law enforcement as a narcotics agent. Plaintiff questioned the Defendant’s statement claiming that Wiles was an expert in olfactory science despite not being proffered as such by the Defendant. Plaintiff argued that even if Wiles relied upon his own experience in law enforcement, the Defendant still had to demonstrate that Wiles applied a methodology that was reliable, verifiable, and generally accepted in the relevant community. Instead, Defendant claimed that Wiles was not rendering a “scientific expert opinion” but an opinion based on his specialized knowledge and expertise.

    The Court held that Defendant failed to show that Wiles is an expert in the olfactory sciences or in the human ability to detect certain odors.

    Wiles’ expert report lacks any discernable methodology or principle

    Wiles’ opinions were based on what he deemed a “vacuum effect” caused by the opening and closing of Plaintiff’s car door, allegedly pushing the odors toward Gilboy, as well as the weather conditions at the time of the stop, which allegedly helped to enhance the smell. He provided no support for either of these opinions other than a general invocation of his years of experience. Wiles also relied on and quoted at length a blog post from a hydroponics company regarding the smell of cannabis plants without considering how the odor of cannabis plants, the subject of the article, might differ from the odor of marijuana fit for consumption.

    Wiles’ opinions were not helpful to the trier of fact

    Although couched as expert opinion based on years of experience, much of Wiles’ report mainly consisted of commonsense conclusions that did not require expert testimony.

    For example, Wiles’ opinion that marijuana has a distinct and strong odor is not an expert opinion. Indeed, as Wiles recognizes in his report, “all who visit” New Orleans can receive “an education on the smells of marijuana” whether through “[a] drive on the Interstate through the City, a walk through the streets or a day shopping in a grocery store,” underscoring that his opinions are based on common sense and practical experiences within the realm of the average juror. Further, his opinions that the odor of marijuana can remain trapped on the clothing and skin of a user and in a user’s vehicle was likewise a common sense opinion that did not require expert testimony, especially where, as here, Wiles provided no evidence or sources to support his claims or to provide greater detail.

    Wiles’ opinions that the closing of Plaintiff’s car door could have fanned marijuana odors toward Gilboy and that “the environmental conditions of a light to mild wind at night in a secluded area, under a bridge in the Park would enhance the smells for two people at a distance of 3–15 feet” were similarly unhelpful to the jury. It followed that this opinion was within the common sense of the jury as well. Likewise, Wiles’ opinion about the wind blowing and enhancing any odors required no expertise and thus was unhelpful to the jury.

    The Court held that they were essentially lay opinions that do not require any expertise to reach.

    Held

    The Court excluded the testimony of Defendant’s expert witness, Craig Wiles. It has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways:

    1. Lack of Demonstrated Expertise: The court scrutinized the qualifications of the expert, highlighting the necessity for a demonstration of expertise in the relevant field. In this case, Wiles’ background as a law enforcement officer did not inherently qualify him as an expert in olfactory science.
    2. Absence of Reliable Methodology: Wiles’ expert report lacked a discernible methodology or principle, with opinions often based on subjective observations rather than verifiable principles. This underscored the importance of experts employing reliable and verifiable methodologies in their analyses.
    3. Commonsense Conclusions vs. Expert Opinions: The Court distinguished between commonsense conclusions and expert opinions, emphasizing that expert testimony should offer insights beyond what an average juror could discern. The Court deemed Wiles’ opinions, such as the distinct odor of marijuana, common knowledge rather than expert analysis.
    4. Limited Utility to the Trier of Fact: The Court deemed many of Wiles’ opinions unhelpful to the trier of fact, as they either echoed common knowledge or were based on subjective assessments that did not require specialized expertise. The Court emphasized the need for expert testimony to provide insights beyond lay understanding.

    Case Details:

    Case Caption: Otkins V. Gilboy Et Al
    Docket Number: 2:21cv1275
    Court: United States District Court, Louisiana Eastern
    Citation: 2024 U.S. Dist. LEXIS 44958
    Order Date: March 14, 2024