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Palmer v. Sun Coast Contracting Services, Inc.

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

July 19, 2017

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

          MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS' MOTIONS TO STRIKE THE OPINIONS OF EXPERT WITNESSES JIM MARTIN [242], ANDY JOHNSON [244], CHRIS ROBERTSON, AND ANGIE HENDRIX [248]

          HALIL SULEYMAN OZERDEN, UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT are Plaintiffs' Motions to Strike the Opinions of Defendants' Expert Witnesses Jim Martin [242], Andy Johnson [244], Chris Robertson, and Angie Hendrix [248]. These Motions are fully briefed. Having considered the Motions, related pleadings, the record, and relevant legal authority, the Court is of the opinion that Plaintiffs' Motions [242] [244] [248] should be denied.

         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 or 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 inquiries 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. Plaintiffs' Motion to Strike [242] Defendant Linfield Hunter & Junis, Inc.'s Expert Jim Martin, Ph.D., P.E.

         On March 21, 2017, Plaintiffs filed a Motion to Strike [242] Defendant Linfield Hunter & Junis, Inc.'s (“LH&J”) expert Jim Martin, Ph.D., P.E. (“Martin”). LH&J designated Martin as an expert in the field of hydrology to testify that “LH&J's designed drainage and detention system are adequately sized to reduce post-development peak runoff to a level that is less than the pre-development peak runoff for a 10 year design storm.” Martin Report [258-1] at 4. Plaintiffs assert that Martin is not qualified under Federal Rule of Evidence 702 or Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), to offer his opinions about Defendant LH&J's design of the retention pond at the Plant because he did “no research on whether or not the retention pond was built as designed or functions as designed.” Mot. Exclude Martin [242] at 1; Mem. Exclude Martin [243] at 2.

         LH&J responds that Martin is “well qualified in the field of hydrology, ” that he holds “a Bachelor of Science degree in Civil Engineering from the University of Alabama and a Master of Science in Environmental Engineering, ” and that he obtained a Coastal Engineering Certificate from Old Dominion University. Mem. in Opp'n [290] at 1-2. LH&J attaches as Exhibit “A” to its Response a copy of Martin's Curriculum Vitae [290-1] at 1-2. LH&J asserts that Plaintiffs have proffered no basis for striking the opinions Martin has offered, and that their only argument is that Martin's opinions should be stricken because he did not proffer further opinions on whether the retention pond was built as designed or functions as designed. Mem. in Opp'n [290] at 1-2.

         C. Plaintiffs' Motion to Strike [244] Defendants Drying Facility Asset Holdings, LLC, and Shale Support Service's Expert Andy K. Johnson

         Plaintiffs also challenge Defendants Drying Facility Asset Holdings, LLC (“Drying Facility”) and Shale Support Services, LLC's (“Shale”) expert Andy K. Johnson (“Johnson”). Johnson was designated as an expert in the area of appraising residential real estate to offer opinions on the estimated value of Plaintiffs' houses as of May 13, 2016. Plaintiffs allege that Johnson is not qualified to testify regarding his opinions on the 2016 value of Plaintiffs' houses because Mississippi law requires that an appraisal opinion of damaged but not destroyed property must be “the diminution in value of the Plaintiffs' property as a function of its before and after value.” Mot. Exclude Johnson [244] at 1; Mem. Exclude Johnson [245] at 2. In this case, Johnson purports to opine only on the May 2016 value of Plaintiffs' houses, not a value before and after the construction and operation of the Plant and rail spur.

         Defendants Drying Facility and LH&J[2] maintain that Johnson is a highly qualified appraiser who produces approximately 150 residential real estate appraisal reports a year. Resp. in Opp'n [265] at 1; Mem. in Opp'n [266] at 1-4. Johnson's Resume, Exhibit “B” [265-2] at 1, reflects that from 1998-2007 he was a Mississippi State Certified Licensed Appraiser, and that since 2007 he has been a Mississippi State Licensed Certified Residential Appraiser. Defendants contend that in forming his opinions, Johnson utilized the “sales comparison approach to value, ” and that “[t]he methodology that Mr. Johnson employed to arrive at his 2016 opinions of fair market value of each of the Plaintiffs' homes is the same methodology he uses in his appraisal practice.” Resp. in Opp'n [265] at 1; Mem. in Opp'n [266] at 1-4.

         D. Plaintiffs' Motion to Strike [244] Defendants Drying Facility, LH&J, and Shale's Experts Chris Robertson, MSPH, CIH, CSP (“Robertson”), and Angie Hendrix, MSPH (“Hendrix”)

         Plaintiffs have also moved to strike Defendants Drying Facility, LH&J, and Shale's “monitoring” experts Chris Robertson (“Robertson”) and Angie Hendrix (“Hendrix”) of Technical Environmental Services, Inc., on grounds that neither are qualified to testify regarding their opinions as to the “ambient levels of noise, volatile organic compounds (“VOC”), and dust” found in Ravenwood because “they only provide an opinion for one twenty[-]four hour period since the nuisance started in 2012.” Mot. Exclude Robertson and Hendrix [248] at 1; Mem. Exclude Robertson and Hendrix [249] at 2. Plaintiffs also maintain that their opinions are not “reliable” because Hendrix, who allegedly has minimal expertise in noise and dust, reviewed the data collected by a technician and wrote the entire expert report, while Robertson, who does have expertise in dust and noise, simply reviewed the report. Mem. Exclude Robertson and Hendrix [249] at 4-9.

         Defendants Drying Facility and Shale respond that Plaintiffs did not challenge either Hendrix or Robertson's “education or training, their ‘data gathering' or their methodology.” Mem in Opp'n [270] at 2. Defendants point out that Hendrix has been an environmental consultant for twelve years and holds a “Bachelor's of Science in biology and a Master of Science in public health with a focus in environmental toxicology and risk assessment.” Id. at 3. Robertson holds a “Master of Science of public health and is a certified industrial hygienist.” Id. Defendants contend that it is clear from both Hendrix and Robertson's deposition ...


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