ML20095G685

Motion to Strike Testimony of Il Goldstein.Testimony Unreliable,Incompetent & W/O Foundation to Resolve Issues. Certificate of Svc Encl.Related Correspondence

ML20095G685
Person / Time
Site:	Comanche Peak
Issue date:	08/27/1984
From:	Downey B BISHOP, COOK, PURCELL & REYNOLDS, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC)
To:	Atomic Safety and Licensing Board Panel
References
OL-2, NUDOCS 8408280156
Download: ML20095G685 (9)

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UNITED STATES OF' AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD DOCKETED USHRC In~the Matter of )

) Docket Nosgp0g g -2 and TEXAS UTILITIES ELECTRIC ) 50a44W-2A9 :13 COMPANY, ET AL. )

) (Application (for3 0per,ating (Comanche Peak Steam Electric ) Licenses) " H'SaSEM4 UIO~

Station, Units 1 and 2) )

APPLICANTS' MOTION TO STRIKE TESTIMONY OF IRWIN L. GOLDSTEIN Applicants move to strike the testimony of Intervenor's expert witness Irwin L. Goldstein frdm the record in this pro-ceeding because, on its face the testimony is wholly unreliable, incompetent, and without foundation.

Goldstein based his testimony almost exclusively on matters which are not part of the evidentiary record in this proceeding and which, if of fered into evidence, would be rejected as inadmis-sible. On this basis alone, his testimony should be stricken.

The Board already has ruled that due to the nature of the allegations here having to do with charges of harassment, intimi-dation and threats, hearsay relating to those charges is inadmis-sible. The rationale of that ruling is sound. Hearsay evidence involving exchanges between individuals on which a claim of intimidation is based, by definition, is unreliable. Alleged

, incidents of intimidation require the trier of fact -- or an expert witness -- to reconstruct a conversation or other exchange between individuals and to account for circumstances which would O

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' bear on how one or both parties ' perceived the - exchange. ,

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- hand knowledge.is essential for evidence of. intimidation to be

- reliable. JYet such inadmissible hearsay as the "1979 interviews, "

an-otherwise unidentified "QA Audit Report," and the "1983 Survey referred to as the White Paper Report," is precisely what Gold-stein. relies upon in his testimony. See Goldstein Testimony at 6, ll, 18.

Even' more disturbing is- Goldstein's reliance on various so-

' called'" facts," not of record here, relating to-incidents involving a t-shirt and employees Dunham, Neumeyer and Messerly (see Goldstein Testimony at 10-12) . It turns out that these are not facts at:all. Instead, -- as counsel for the Intervenor has represented to the Board and counsel for Applicants -- Goldstein's knowledge about these matters is limited to a review of Inter-ve nor 's ' proposed findings of fact on these issues. An attorney's j proposed findings may of course be of considerable assistance to the Board, but they are not, as such, admissible as evidence to J

show the truth of any allegation. -

Under the Federal Rules of Evidence, expert witnesses are permitted to base their testimony on inadmissible evidence.

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. E xpe rts , however, cannot roam free of constraints in their fact-gathering. This is emphasized by the text of Rule 703, which requires that, whether or not based on admissible evidence, expert testimony must be based on evidence that is trustworthy and reliable

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type rea-l 1

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sonably relied upon by experts in the particu-lar field in forming opinions or inferences upon the sub ject, the facts or data need not be admissible in e vide nce .

Fed. R. E vid . 703 (emphasis added). Thus, before Goldstein may be permitted to testify upon the basis of " facts" not admissible in e videnc e, the Board must find that the data underlying his opinions is the kind that is. reasonably relied upon by experts in Goldstein's field. The trustworthiness of the resulting opinion is the main concern. The appropriate test is set out in Judge Weinstein's treatise on evidence:

[T]he judge should not allow the opinion if the expert can show only that he customarily relied upon such material or that it is relied upon only irt preparing for litigation. He must establish that he as well as others would act upon the information for purposes other than testifying in a lawsuit.

3 WEINSTEIN & BERGER, WEINSTEIN'S EVIDENCE T 703[03] (1981)

(emphasis in original). Goldstein has not, and cannot, meet this test.

, Obviously, to the extent Goldstein has relied on proposed findings prepared by counsel for Intervenor, his testimony is inadmissible. Courts have of ten recognized this principle. See, e.g., Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 505 F.

Supp. 1313, 1340 (E.D. Pa. 1981), rev'd on other grounds, 723 F.2c}

,238 (3d Cir. 1983) (" Plaintiff's answers to interrogatories, although sworn, are essentially statements of plaintiff's conten-tions with respect to Can issue], and, as such, are certainly not appropriate material to serve as a factual basis for an . ..

opinion [by plaintif f's expert] . "); Soden v. Freightliner Corp.,

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t714.F.2d 498,'503 (5th Cir. 1983) (opinion properly excluded as

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based on ' statistics not of the type ' reasonably relied upon by

. experts . in the field, in part, because prepared strictly in anti-Tcipation of litigation).- Proposed findings are advocacy docu-ments, and reliance upon them -by an- expert -- to the exclusion of

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the factual' record compiled on the issue -- casts grave doubt on~

the. trustworthiness of the resulting opinions.

. Nor has Goldstein shown in his testimony that he would i ordinarily rely -- outside of this litigation ---on the 1979 interviews or the 1983 survey. Indeed, Goldstein has himself confirmed his inability to rely on the 1983 survey -- even in the context of this proceeding -- in reaching any opinions, because he lacks sufficient knowledge regarding the procedures used to col-lect the data contained in that survey. (Goldstein Testimony at 18.)- He of fers no opinion as to the reliability or validity of the data contained in the 1979 interviews. This failure, coupled with his unwillingness to rely on the 1983 survey, points up the .

fact that both sets of data are inadequate as a basis for his testimony because they are not "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences. . .

Goldstein's failure to endorse these studies is not alto-gather surprising. An industrial psychologist of his reputation must be as careful as this Board when determining the kind and quality of information on which he will rely. This inherently untrustworthy information can no more serve as a basis for his

. testimony than it can serve as evidence before this Board.

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s LIn-addition, by aaking Goldstein'to' base his testimony on L theirL proposedi findings and on these. inadmissible studies and-

~ reports, Intervenor is . attempting to : import into evidence through -

-the "back door" of this expert 's testimony ~ the very evidence already . ruled inadmissible and the very findings proposing what

'the-Intervenor would like the record to show. Moreover, basing Goldsteins testimony on Intervenor's proposed findings and inad-missible reports cannot be justified on the basis of necessity.

Only if.the information on which he relied were practically unob-tainable by other means, United States v. Aluminum Co. of America, 35 F. Supp. 820, 823 (S.D.N.Y. 1940), should such reliance be accepted. Goldstein very* well could have reviewed testimony in the record of this proceeding and reached his own independent conclusions, rather than relying, for his only source of informa-tion, on conclusory statements in the form of proposed findings prepared by counsel, and on reports selected by counsel seeking to prove a point.

Even a cursory review of Goldstein's prepared testimony shows ,

that the Board cannot determine, from one statement to the next, just what inadmissible evidence or conclusory statements of coun-sel are being relied upon as a basis for a particular opinion or conclusion. It is impossible to separate those opinions and

conclusions that may be based on a proper foundation from those that clearly are not. Nor can the weight given in Goldstein's testimony to such things as conclusory statements of counsel or inadmissible hearsay evidence be discerned so that the Board might otherwise assess a greater or lessor value to particular opinions.

In other .words, the = infirmity pervades the entire testimony, precludes the Board from admitting it while assessing its weight

- as reliable e vidence,' anda requires that Goldstein's testimony be

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. stricken from the record in 'its entirety.

CONCLUSION For all-of its fatal infirmities, Goldstein's prepared testi-many does serve one purpose: His testimony demonstrates.that Intervenor has failed to meet its burden of going forward on the issue whether there _ is a pervasive chilling ef fect, . due to harass-ment, intimidation, or threats, on the ability of Applicant's QC

. personnel properly to do their work. Goldstein -- an undoubtedly reputable industrial psychologist -- was shown Intervenor's best case: the case reflected in Intervenor's proposed findings and in helpful, albeit inadmissible, studies already excluded from the record. Despite this, and despite the opportunity to carefully draf t objectionable leading quesitons to which Goldstein could respond with as little information as possible (see, for e xample, the page-long, seven-part question followed by Goldstein's answer of "yes," Goldstein Testimony at 8), the witness was unable to conclude that there was a "ma jor problem" with QC personnel at the Comanche Peak Steam Electric Station " feeling that they were not able to freely carry out their work" (Goldstein Testimony at 14).

All Goldstein could conclude was that, given the information he had reviewed, a further study would have to be conducted to deter-mine whether, indeed, there was "a pervasive atmosphere at Comanche Peak Nuclear Plant since 1979 which inhibits QC inspec-l

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g. tors from carrying out their work" (Goldstein Testimony at 15).

.At that, he would focus his efforts on 1984, because finding anything cist about 1979 would -- from .Goldstein's perspective as an industrial psychologist -- be very difficult (Goldstein Testi-mony at 15). In ef fect, Goldstein confirms that Intervenor has not proved what it set out to prove.

From his careful recitation of what would be required of a study such as he might conduct, Goldstein clearly implies that what he did review is not the sort of information he would reason-ably rely upon outside the context of this litigation, in his regular work as an industrial psychologist. This fatal flaw in his testimony -- which must result in its exclusion from the record in this proceeding -- underscores the fundamental unreli-ability of his opinions and the fact that, when stripped of leading questions and double negatives, his conclusions are of no value to the Board in resolving the issues at hand.

Respectfully submitted, Truce L. Downey Joseph Tasker, J BISHOP, LIBERM , COOK, PURCELL

& REYNOLDS 1200 Seventeenth Street, N.W.

Washington, DC 20036 (202) 857-9800 Dated: August 27, 1984

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-UNITED STATES OF. AMERICA NUCLEAR REGULATORY COMMISSION-LBEFORE THE ATOMIC SAFETY AND LICENSING BOARD-

. n-In the Matter ofI ) ,

TEXAS UTILITIES ELECTRIC- .)- Docket Nos.- 50-445-2 and COMPANY, _et _al. .

-) 446 ).

. (Comanche.PeakLSteam Electric -) (Application ^for

. Station, Units l'and-2). ) Operating Licenses)

-CERTIFICATE OF SERVICE- i

.I hereby certify that copies of the foregoing " Applicants' Motion to Strike. Testimony of Irwin.L. Goldstein" in the above-captioned matter were served upon the following persons by hand--

delivery,* overnight delivery,** or by deposit in the United

- States mail,*** first class, postage prepaid, this 27th day of August,.1984:

• Peter B. . Bloch, Esq. *** Chairman, Atomic Safety and Chairman, Atomic Safety and Licensing Appea? Panel '

Licensing Board U. S. Nuclear Regulatory

-U.S.~6tclear Regulatory Commission '

Commisuion Washington, D.C. 20555 ,

Washington, D.C. 20555

• Mr. William L. Clements

• • Dr. Walter H. Jordan Docketing & Services Branch  !

881 West Outer Drive U. S. Nuclear Regulatory i Oak Ridge, Tennessee 37830 Commission I Washington, D.C. 20555 i

• Herbert Grossman, Esq.

U. S. Nuclear Regulatory

• Stuart A. Treby, Esq.

Commission Office of the Executive Washington, D.C. 20555 Legal Director U. S. Nuclear Regulatory

• • • Mr. John Collins Commission Regional Administrator

• Washington, D. C. 20555 Region IV U.S. Nuclear Regulatory *** Chairman, Atomic Safety and  ;

. Commission Licensing Board Panel r

. 611 Ryan Plaza Drive U.S. Nuclear Regulatory suite 1000 Commission Arlington, Texas 76011 Washington, D.C. 20555 i

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• • • Renea Hicks, Esq. Anthony Z. Roisman, Esq.

Assistant Attorney General Executive Director Environmental Protection- Trial Lawyers for Public Justice Division 2000 P. Street, N.W.

P.O. Box 12548 Suite 600 Capitol Station Washington, D. C. 20036 Austin, Texas 78711

• Ellen Ginsberg, Esq.

• • • Lanny A. Sinkin Atomic Safety and Licensing 114 W. 7th Street Board Panel Suite 220 U. S. Nuclear Regulatory Austin, Texas 78701 Commission Washington, D. C. 20555 Bruce L. Downey cci Homer C. Schmidt Robert Wooldridge, Esq.

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