Clausen v M/V New Carissa

No 01-35928 (9th Circuit, 12 August 2003)

Novel and unresearched expert evidence

Facts

In this American case, 3.5 million oysters had been killed in Coos Bay, Oregon. At first instance, the district court had accepted the evidence of an expert marine biologist that the oysters had been killed by an oil spillage from a freighter. That evidence was such that there was little in the way of supportive scientific literature for his theory.

Issues

What had been responsible for the death of the oysters?

Decision

The court affirmed the decision to accept the testimony of the expert. Notwithstanding the relative lack of specific support in peer-reviewed studies, there was sufficient ‘objective, verifiable evidence’ that supported the expert’s testimony. That evidence included surveys of the oyster beds carried out by the expert, clinical examinations of the dead and dying oysters, proof that spilled oil was present in the oyster beds, and in the oysters themselves, as well as the ‘fact that contact toxicity is a mechanism that occurs in every animal system studied thus far.’

Comment

A field or area for expert evidence may be novel and relatively unresearched expert evidence will nevertheless be valuable in such cases.  It is suggested that the English courts would today take a similar approach.