Legal Support And Expert Testimony

 
 

CATEGORY OF SERVICE, LOCATION:

Expert Witness for Residential Underground Storage (UST) Tank Matter, Private Residence, San Jose, Santa Clara County, California

TYPE OF CLIENT:

Law Firm – Experts in Real Estate Law

BACKGROUND:

A residential property in San Jose was purchased without either the buyer or seller knowing that a historical heating oil and/or gasoline UST was located in the backyard lawn area.

After the purchase, the new owner hired a landscape contractor to remove old landscaping and install a new concrete driveway, shed, lawn, and planter areas in the backyard. During this work, the contractor discovered the fill port along with a historical steel UST containing old fuel product.

The buyer hired a law firm to represent them and to prepare and send a demand letter to the previous owner, seeking compensation for both the loss of property value associated with the UST and the cost of its removal.

In response, the prior property owner hired a law firm to represent and defend them against the demand. The defending firm secured David Reinsma, PG and President and Principal Geologist to provide expert witness testimony for a mediation conference scheduled to be held at the ADR Services, Inc. (https://www.adrservices.com/) offices located in San Jose, California.

CLIENT GOALS:

Expert witness to provide testimony during mediation regarding the costs for removal of the UST, known impacts from the UST if it leaked, estimated costs for cleanup if the UST leaked, provide information regarding the UST Cleanup Fund (https://www.waterboards.ca.gov/water_issues/programs/ustcf/), and testify as to the potential risks to human health for the property owner for their normal use of the backyard area above and near the found UST.

PROJECT APPROACH:

Client-requested expert witness to perform the following in preparation for mediation.

  • Review a cost estimate obtained by property owner to remove the UST.

  • Attend a site meeting with opposing counsel and their environmental consulting expert to observe the UST, access the UST fill port to determine the contents of the tank, and support the drilling of hand auger borings around the tank for the purpose of collecting soil samples for laboratory analyses by opposing counsel to determine whether the UST leaked.

  • Provide detailed notes and maps for the work performed during the above site visit to the defending attorney (Client).

  • Prepare for mediation by reviewing all files, estimates, and site visit notes and maps.

RESULTS, RESOLUTION, NEXT STEPS:

  • The UST matter mediation was conducted under oath and lasted for more than two hours.

  • The hiring law firm (Client) was very pleased with the expert witness testimony provided, stated that they would hire the expert again, and noting that in 35 years of trial, mediation, and arbitration work, they had rarely encountered an expert witness who controlled and managed the process so seamlessly.

  • After several months, during which the mediating attorney reviewed the testimony of the expert witness and others, a date was set for the two sides to meet again and settle the matter.

CATEGORY OF SERVICE, LOCATION:

Expert Witness Legal Support Services, Santa Clara, California

TYPE OF CLIENT:

A Redi-Mix Concrete Company

BACKGROUND:

A Redi-Mix Concrete Company was cited for illegal discharge of “cement‑laden wash water” or “cementitious waste material” by the City of Santa Clara.  The case hinged on circumstantial observations and a single pH test of water in the gutter between the site of the supposed infraction and a storm drain.  The pH test consisted of using pH indicator paper calibrated in single-pH unit increments from 1 to 14.  A picture of the indicator paper provided by the City inspector suggested that the pH of water in the gutter at the time of the City inspection could have been between 8 and 9 pH units.

CLIENT GOALS FOR PROJECT:

Client requested Trinity to provide expert testimony regarding the pH test used to cite the concrete company for discharge of “cement-laden wash water” or “cementitious waste material”.

PROJECT APPROACH:

Trinity’s approach consisted of showing that the accuracy of the pH test utilized and the test procedure were not robust enough to determine whether the water tested by the City was unaffected tap water or water affected with cementitious waste material.

RESULTS, RESOLUTION, NEXT STEPS:

  • Trinity provided expert witness testimony at the evidentiary hearing at the Santa Clara County Court.  The case was dismissed by the Court as the City’s citation for illegal discharge of cementitious waste material was not defensible.