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Palmer v. Sun Coast Contracting Services, Inc.

United States District Court, S.D. Mississippi, Southern Division

July 7, 2017

JEFFERY CHAD PALMER, PLAINTIFFS
v.
SUN COAST CONTRACTING SERVICES, INC., DEFENDANTS

          ORDER GRANTING DEFENDANTS DRYING FACILITY ASSET HOLDINGS, LLC, SHALE SUPPORT SERVICES, LLC, AND LINFIELD, HUNTER & JUNIS, INC.'S JOINT MOTION [230] TO EXCLUDE OR LIMIT THE TESTIMONY OF PLAINTIFFS' PROFFERED EXPERT, JAMIE SAXON, UNDER FEDERAL RULE OF EVIDENCE 702 AND DAUBERT

          HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE.

         BEFORE THE COURT is the Joint Motion [230] of Defendants Drying Facility Asset Holdings, LLC, Shale Support Services, LLC, and Linfield, Hunter & Junis, Inc., to Exclude or Limit the Testimony of Plaintiffs' Proffered Expert, Jamie Saxon, under Federal Rule of Evidence 702 and Daubert. This Motion is fully briefed. Having considered the Motion, related pleadings, the record, and relevant legal authority, the Court is of the opinion that Defendants' Motion should be granted, and Jamie Saxon will be prohibited from testifying at trial.

         I. BACKGROUND

         A. Facts and Procedural History

         Plaintiffs Jeffery Chad Palmer, Brenda and Mark Rody, Donald and Jennifer Juan, David and Karen Taporco, Kimberly and Milton J. Jacobs, Jr., Mary and Nicholas Sciambra, and Anthony Pressley (“Plaintiffs”) are owners of houses in the Ravenwood Subdivision (“Ravenwood”) located in an “unincorporated section of Pearl River County, Mississippi (“PRC”)[, ] just south of the city limits of Picayune, Mississippi.” Am. Compl. [68] at 2, 6. Plaintiffs allege that at the time they purchased their houses in Ravenwood, the land comprising Ravenwood together with a larger parcel of land served as a watershed for the Alligator Branch waterway and allowed the overflow of that waterway to move “east and west away from” Ravenwood. Id. at 6-7.

         Plaintiffs contend that beginning on February 23, 2012, their houses began “vibrating violently” when Defendants began driving pilings into the ground on a section of land contained within the watershed. Id. at 8-9. Plaintiffs complained to the Pearl River County Board of Supervisors (the “Board”) and the contractors but the construction/vibrations continued. Id. Plaintiffs also questioned the Board about the dump trucks that were coming and going from the property. Id.

         The Board allegedly did not respond to Plaintiffs' complaints or inquires until at a meeting held on March 5, 2012, when the Board announced that Defendant Alliance Consulting Group, LLC (“Alliance”), had previously been granted permission to construct a “frac sand plant” (“the Plant”) on a section of land contained within the watershed that Alliance had leased from Defendant AHG Solutions, LLC. Id. at 6, 8. Later in 2015, “a multi-track railroad spur” was constructed at the Plant. Linfield, Hunter & Junis, Inc., Mem. Summ. J. [233] at 3.

         On February 5, 2015, Plaintiffs filed a Complaint [1] in this Court against a number of Defendants, alleging they had suffered damages to their houses and quality of life due to the construction and operation of the Plant and the associated rail spur. Plaintiffs filed an Amended Complaint on February 4, 2016, naming as Defendants Sun Coast Contracting Services, LLC; Integrated Pro Services, LLC; Ranger Contracting, LLC; H&H Trucking, LLC; AHG Solutions, LLC; Linfield, Hunter & Junius, Inc.; Shale Support Services, LLC; Drying Facility Asset Holdings, LLC; and ELOS Environmental, LLC.[1] Am. Compl. [68] at 2-4.

         Plaintiffs allege that vibrations from pile-driving during construction caused “obvious and visible cracks in the brick veneer of their homes, cracks in the stucco, separations of the walls in comers (sic) and around doors and windows, windows that would no longer open, and cracks” in the foundations of the houses; that development of the land increased flooding in their subdivision; that the Plant produces continuous loud noises as it runs throughout the night; that the Plant emits a “nauseating foul smell;” and that dust from the Plant's operations settles over their property. Id. at 9-13. The Amended Complaint asserts claims against Defendants in four separate counts, specifically for: (1) Negligence; (2) Trespass; (3) Private Nuisance; and (4) a Declaratory Ruling. Id. at 11-13.

         B. Expert Report of Jamie L. Saxon, P.E. [230-1]

         Plaintiffs designated Jamie L. Saxon, P.E., as a “qualified structural engineer” to opine on the causal relationship between the construction/operation of the Plant and the damages to Plaintiffs' houses. Saxon submitted an original Report on March 24, 2016, and a Revised Report on April 29, 2016. Saxon Dep. [230-2] at 20.[2] Saxon's original Report does not appear within the record here, and Saxon testified at his deposition that it was no longer relevant in light of his April 29, 2016, Revised Report. Id. Saxon's Revised Report reflected that his opinions were based upon his “understanding of structures and the interaction of the foundation to the supporting soils, the effects of vibrations on structures.” Saxon Revised Report [230-1] at 4.

         Saxon based his opinion on documents he received from Plaintiffs and Plaintiffs' counsel, his April 21, 2016, “visit” to the Plant and the houses, and his review of a study done for the “New Zealand Transport Agency . . . [and] applicable extracts from German Standard DIN 4150-3:1999 and British Standard BS 7385-2:1993.” Id. at 1-4. Saxon's opinion is that

the intermittent pounding vibrations from driving pipe and sheet piles and continuous low vibrations caused by other construction activity and daily operations of the adjacent plant and rail spur augmented by more frequent and longer lasting flooding has resulted in the densification of the fill material placed below each of the houses and this has resulted in the damages noted.

Id. at 4.

         Saxon concludes that his opinion is based “upon his observations and review of supplied materials and reports.” Id.

         C. Defendants' Joint Motion to Exclude [230]

         On March 20, 2017, Defendants filed the present Joint Motion [230] to Exclude or Limit Saxon's testimony. Defendants assert that Saxon is not qualified under Federal Rule of Evidence 702 or Daubert to testify regarding his opinions that Defendants' construction and operation of the Plant caused any damage to Plaintiffs' houses from either vibrations or the alleged increase in flooding, that Saxon did not employ a “sound methodology” in formulating his opinions, and that his opinions are not “founded on sufficient facts or data.” Joint Mot. [230] at 1; Mem. in Supp. [231] at 1.

         Defendants argue that Saxon performed no “independent investigation and instead relied wholly on the information provided to him by the Plaintiffs.” Mem. in Supp. [231] at 7-17. According to Defendants, when asked at his deposition if he relied upon Plaintiffs' allegations to form his opinion, Saxon admitted that he had, as follows:

Q. Okay. So your opinion is based on the plaintiffs' description of what they experienced during construction; the fact that there are various degrees of damage, cracks, things like that at their homes that they claim weren't there before; and then the fact that pile driving and construction actually occurred; and the correlation between those led you ...

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