Clausen v. M/V New Carissa
| Decision Date | 12 August 2003 |
| Docket Number | No. 01-36079.,No. 01-35928.,01-36079.,01-35928. |
| Parties | Max Clausen, dba Clausen Oysters; Lilli Clausen, dba Clausen Oysters, Plaintiffs-Appellees, v. M/V New Carissa, its engines, apparel, electronics, tackle, furniture, boats, appurtenances, etc of Panamania flag in rem; Taiheiyo Kaiun Co. Ltd., a Japanese corporation in personam; Green Atlas Shipping Sa, a Panamanian corporation in personam; Tmm Co. Ltd., a Japanese corporation in personam, Defendants-Appellants. Max Clausen, dba Clausen Oysters; Lilli Clausen, dba Clausen Oysters, Plaintiffs-Appellees, v. M/V New Carissa, its engines, apparel, electronics, tackle, furniture, boats, appurtenances, etc of Panamania flag in rem; Taiheiyo Kaiun Co. Ltd., a Japanese corporation in personam; Green Atlas Shipping Sa, a Panamanian corporation in personam; Tmm Co. Ltd., a Japanese corporation in personam, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Todd A. Zilbert, Wood Tatum Sanders & Murphy, Portland, OR, argued the cause and filed briefs for the appellants. Robert I. Sanders and Craig C. Murphy were on the briefs.
James P. Walsh, Davis Wright Tremaine LLP, San Francisco, CA, and Eric L. Dahlin, Davis Wright Tremaine LLP, Portland, OR, argued the case and filed a brief for the appellees.
Appeal from the United States District Court for the District of Oregon; Thomas M. Coffin, Magistrate Judge, Presiding. D.C. No. CV-00-06078-TC.
Before: O'SCANNLAIN, FERNANDEZ, and FISHER, Circuit Judges.
"Bitter tears were shed over the slaughter of the oyster, but as usual, crying didn't help."*
In this case, involving the destruction of oyster beds which allegedly occurred as a result of an oil spill on the Oregon coast, we must determine the admissibility of expert testimony on the issue of causation.
Our story begins on February 3, 1999, when the M/V New Carissa, a Panama-registered and Japanese-owned freighter carrying 400,000 gallons of bunker and diesel fuel, bound for Coos Bay, Oregon, to pick up a load of wood chips, anchored two miles off the Coos Bay North Spit because the bar was too rough to cross. The next day, the ship's anchor began to drag, and while its crew attempted to raise the anchor and move the ship to deeper water, rough weather pushed the ship toward shore, and it ran aground. The Coast Guard airlifted the twenty-three crew members and a bar pilot from the ship the next day. The vessel began to leak oil as pounding waves widened cracks in its hull. With an approaching storm threatening to tear the ship asunder with seventy mile-per-hour winds, federal and state authorities responding to the crisis feared an environmental catastrophe. They decided to try a maneuver never previously attempted in the contiguous forty-eight states — to burn the vessel and its fuel, rather than risk trying to bring the ship out intact. On February 12, using plastic explosives and napalm, United States Navy and Coast Guard demolition crews detonated an explosion that cracked the fuel tanks and ignited the fuel oil as it spilled into cargo holds. The daring attempt worked, the fire consumed approximately 200,000 gallons of the ship's fuel and the blast ripped the ship into two pieces, which listed about 100 feet apart in the sea.
While a major environmental disaster was averted, the ship nonetheless spilled 70,000 gallons of oil, and oil from the New Carissa was soon detected inside Coos Bay. In addition to being a wood products port, Coos Bay, with its cool waters that reduce the risk of disease and sloughs that provide ample space for growing, is the richest oyster growing area in Oregon. Oyster farming plays a major part in the economic life of Oregon's south coast, and at the time of the spill, the four largest oyster farms had approximately $10 million worth of young oysters seeded in Coos Bay. Sure enough, oil was soon detected in the oyster beds themselves, prompting the Oregon Department of Agriculture to close Coos Bay's commercial oyster farms. Within weeks, approximately 3.5 million oysters died. A subsequent report prepared by federal and state agencies responding to the spill concluded that oil from the New Carissa was present in the tissues of every Coos Bay oyster that had been tested.
The plaintiffs in this action are Max and Lilli Clausen, owners and operators of Clausen Oysters, a commercial oyster farm located in Coos Bay. The Clausens brought suit against the New Carissa and its corporate owners and operators in federal district court, alleging claims under the Federal Oil Pollution Act, 33 U.S.C. § 2701, and the Oregon Oil Spill Act, Or.Rev.Stat. § 468B.300.1 Under the Oregon Spill Act and the Federal Oil Pollution Act, parties responsible for oil spills are strictly liable without regard to fault for damages caused by the spill, subject to certain exceptions not at issue here. See 33 U.S.C. § 2702(a)("[E]ach responsible party for a vessel ... from which oil is discharged ... is liable for the ... damages ... that result from such incident."); Or.Rev.Stat. § 468B.310(1) (). Thus, the only disputed issue in this litigation was the cause of the 3.5 million oyster deaths, and the jury was ultimately presented with a murder mystery worthy of Hercule Poirot himself: who, or what, killed the oysters?
The case quickly boiled down to a classic battle of the experts, involving two heavy-weights in the field of shellfish disease. In presenting their case, the Clausens relied on Dr. Ralph Elston, a distinguished marine biologist with considerable expertise in the field of aquatic toxicology and the study and diagnosis of shellfish disease. He laid the blame for the oyster deaths squarely at the feet of the ship owners, his theory being that the oysters had died as a result of coming into contact with New Carissa oil particulates, which caused lesions in the gills of the shellfish, leading to bacterial infection, ultimately resulting in their deaths.
The ship owners relied on a similarly renowned and well credentialed expert in this field, Dr. Jerry Neff. Dr. Neff testified that the oysters did not die due to their contact with oil. According to Dr. Neff, the villain of the piece was mother nature—the oysters were killed by low salinity levels (salt per thousand parts of water) in Coos Bay, which was caused by heavy rainfall leading to increased freshwater streamflow into the estuary. Dr. Neff rejected Dr. Elston's theory of contact toxicity because, at relatively low levels of oil exposure, where there was no bioaccumulation of petroleum hydrocarbons in the tissues of the oysters, the theory had no support in the scientific literature.
While the experts in this case would reach differing conclusions with respect to the ultimate cause of the oyster deaths, the area of agreement between Drs. Neff and Elston was nevertheless quite large. Both experts agreed that the deaths were caused by bacterial infection, and both agreed the infection was a direct result of gill lesions the oysters had developed. Both experts agreed that the possible causes of the gill lesions were finite and identifiable, and in conducting their diagnostic evaluations, both identified six possible suspects: (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. As they gathered and evaluated the available data, both of the experts ruled out suspects one through four as the ultimate cause of the oyster deaths.
Dr. Neff ultimately pointed to suspect number five, low salinity. He explained at trial that the natural environment for oysters is the ocean, where salinity levels are approximately 34-35 parts per thousand (ppt). The ocean is no good for farming however, since the oysters' natural predators —oyster drills, rock shells, whelks, starfish, and the like—would ravage the beds. Hence, farming takes place for the most part in estuaries like Coos Bay that experience influxes of ocean water through tidal action as well as fresh water from rivers and streams flowing into the bay. The idea is to plant the oyster beds where the salinity level is such that the oysters are safe from their natural predators, but the oysters will nonetheless thrive.
According to Dr. Neff, oysters do quite well in water that has a salinity level of 20 ppt or above. At lower than 20 ppt, oysters will become slightly stressed and their filtration rate — their ability to pump water and feed through the gills — decreases. At 13 ppt or lower, severe stress occurs, and at prolonged exposure to salinity levels at 8 ppt or below, oysters will die. Dr. Neff further explained that oysters can tolerate low salinity levels for extended periods of time. When salinity levels fall below safe levels, oysters will clam up—pun intended —and cease to feed and to filter water. This way, the oyster protects itself from dangerously low salinity levels, but the disadvantage is that it deprives its tissues of needed oxygen, and eventually it will use up its natural resources and die. When so-called anaerobic low-salinity mortality occurs, the oyster's tissue putrifies, and the oyster emits a rotting odor. Additionally, the tissue, depleted of oxygen turns acidic, resulting in an etching on the inside of the shell.
The oysters at the Clausen farm did not present the strong odor or the etching that are the salient characteristics of anaerobic low salinity mortality. Rather, Dr. Neff's theory was that the oysters were exposed to low salinity, "not sufficiently low to cause this anaerobic response,...
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Commonly Used Experts
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