Area of Law:
Common law trespass, common law nuisance, and nuisance per se. Plaintiff alleged that defendants denied him the use and enjoyment of his home by operating a wind-turbine facility nearby.
Defendants moved to exclude the testimony of three of plaintiff’s experts: James, Punch, and Ironside, arguing improper methodology, insufficient data, and lack of qualifications.
Granted in part and denied in part.
Richard James’s testimony:
Richard James’s testimony concerned (i) measuring acoustic outputs of wind turbines and creation of a wind turbine signature (WTS) and (ii) whether the noise and infrasound produced by the wind turbines caused plaintiff adverse health effects and annoyance that caused him to move out of his home.
The court excluded testimony of James regarding measuring acoustic outputs of wind turbines and WTS to the extent it was based on a Board of Health minutes, which did not present any relevant data or scientific method and an unpublished and not peer-reviewed statement that lacked independent data or analysis, failed to account for its limitations, and did not cite any corroborating studies. The court accepted the testimony to the extent it was based on the findings of a case study whose methods were generally accepted in the field, reviewed by specialists around the world, and successfully replicated. James was also qualified and used proper methodology to testify that wind turbines produce broad-spectrum acoustic outputs, including audible noise and infrasound, that can be measured; and that he reliably applied generally-accepted methodology to measure the broad-spectrum sound pressure present in plaintiff’s home.
The court excluded James’s causation testimony because he was a mechanical engineer and not a doctor or epidemiologist, and thus was not qualified to testify on causation of health effects. Further, this testimony was premised on another study that was limited to seven subjects, not peer-reviewed, and studied only whether low frequencies produce “annoyance” in the subjects, without studying broader adverse health effects.
Jerry Punch’s testimony:
Punch’s testimony concerned the general causal connection between wind-turbine acoustic outputs and adverse health effects in humans.
Punch’s testimony was based, in part, on a questionnaire plaintiff filled out regarding his symptoms, without a personal interview. The court admitted the questionnaire, finding it neither suggestive nor unreliable.
The court found that Punch, who was neither a medical doctor nor an epidemiologist, could not opine on the cause of the symptoms solely on the basis of his qualifications, and needed to support his causation opinion with reference to foundational literature. Because the sources on which Punch relied were not scientifically reliable, the court excluded his testimony regarding the relationship between wind-turbine infrasound and human adverse health effects or the prevailing hypotheses regarding the physiological mechanisms underlying that alleged causal relationship. The court allowed (unchallenged) testimony that wind turbines produce audible noise which may disturb individuals and interfere with sleep.
Dr. Keith Ironside, Jr.’s testimony:
Dr. Ironside opined that infrasound was a cause of plaintiff’s short-term insomnia. The court found that he had neither the qualifications nor the expertise for that opinion. The expert admitted at deposition that he was not an expert in infrasound and could not parse the relative contribution of audible noise and infrasound to plaintiff’s sleep disturbance. He also relied on the inadmissible parts of the James report. The court allowed (unchallenged) testimony regarding the causal relationship between audible noise produced by the wind turbines and plaintiff’s sleep disturbances, given the expert’s specialty in sleep medicine and the typical factors associated with sleep disturbance.