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Palmer v. Sun Coast Contracting Services, Inc.

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

July 27, 2017

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

          ORDER GRANTING DEFENDANT LINFIELD HUNTER & JUNIUS, INC.'S MOTION [324] IN LIMINE, AND GRANTING IN PART AND DENYING IN PART DEFENDANT DRYING FACILITY ASSET HOLDINGS, LLC'S MOTION [326] IN LIMINE

          HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT are Defendant Linfield Hunter & Junius, Inc.'s Motion [324] in Limine to Exclude Non-Disclosed Expert Opinions, Improper Lay Opinions, and Hearsay Opinions regarding Damages, and Defendant Drying Facility Asset Holdings, LLC's Motion [326] in Limine to Preclude Improper Testimony on Damages and Defendant's Operations.[1] Plaintiffs have filed a Response [343] in Opposition to Defendant Linfield Hunter & Junius, Inc.'s (“LH&J”) Motion, and an Amended Response in Opposition [354] to Defendant Drying Facility Asset Holdings, LLC's (“Drying Facility”) Motion. Having considered the Motions, Responses, the record, and relevant legal authority, the Court finds that LH&J's Motion [324] should be granted, and that Drying Facility's Motion [326] should be granted in part and denied in part.[2]

         I. BACKGROUND

         On July 6, 2017, Defendants LH&J and Drying Facility filed their Motions in Limine [324] [326] seeking to prohibit Plaintiffs from offering any testimony in two basic areas: (1) those expert opinions of Plaintiffs' expert hydrologist Gillian S. Butler (“Butler”) that were not contained in her Report; and (2) lay opinions of Plaintiffs concerning mold, mildew, and termite damage to their houses and soil damage to their properties. LH&J Mot. in Lim. [324] at 1-3; Drying Facility Mot. in Lim. [326] at 1-2. Drying Facility further requests that Plaintiffs be prohibited from offering lay opinions on the subject of the construction or operation of the frac sand plant (the “Plant”) which is at the center of this dispute. Drying Facility Mot. in Lim. [326] at 1-2. Defendants contend that any testimony by Plaintiffs on the latter two of these three issues should be precluded because Plaintiffs are not experts qualified to testify on such subjects. LH&J Mot. in Lim. [324] at 1-3; Drying Facility Mot. in Lim. [326] at 1-2.

         Plaintiffs respond that Butler is not offering new opinions and that Plaintiffs can offer lay opinions as to their perception that the damage to their houses and properties was caused by Defendants through the alleged improper construction and operation of the Plant. Mem. in Opp' [344] at 1-16; Mem. in Opp'n [352] at 1-23.

         II. DISCUSSION

         A. LH&J and Drying Facility's Motions [324] [326] should be granted as to their request that Butler's testimony be limited to the opinions expressed in her Report.

         At the July 20, 2017, Pretrial Conference in this case, the Court addressed Defendants' Motions as they pertained to Butler's testimony. For the reasons stated into the record by the Court, and in accordance with the Federal Rule of Civil Procedure 26(a)(2) and Local Uniform Civil Rule 26(a)(2)(D), Butler may only testify to those actual opinions disclosed in her April 25, 2016, Report, as updated in her January 27, 2017, Report. See Fed. R. Civ. P. 26; L. U. Civ. R. 26(a)(2)(D). Simple production of underlying data will not be sufficient grounds for Butler to offer opinions not expressly stated in her Reports.

         B. LH&J and Drying Facility's Motions [324] [326] should be granted as to their request that Plaintiffs be prohibited from offering lay testimony concerning alleged mold, mildew, and termite damage to their houses and soil damage to their properties.

         Plaintiffs claim that their houses and yards were damaged due to the negligence of Defendants.

A plaintiff advancing a negligence claim against a defendant in Mississippi must show by a preponderance of the evidence that the defendant had a duty, breached that duty, causing the plaintiff to suffer damages, and a causal connection between those damages and the breach of duty such that the breach is the proximate cause of the damages to establish a cause of action for negligence.

Robbins v. Computer Sciences Corp., 486 F.Supp.2d 581, 586 (S.D.Miss. 2007) (citing Gulledge v. Shaw, 880 So.2d 288, 292-93 (Miss. 2004)).

         In the present case, Plaintiffs appear to be asserting that Defendants' negligence in constructing and operating the Plant and corresponding rail spur has caused mold, mildew, and termite damage to their houses and soil damage to their property. Even assuming, without deciding, that Plaintiffs could establish the existence of a duty and a breach of that duty at trial, Plaintiffs have presented no expert opinion that causally relates either the alleged mold, mildew, or termite damage, or the alleged soil damage to a breach of any duty owed by either LH&J or Drying Facility.

         Also, Plaintiffs offer no legal authority to support their position that they themselves as lay witnesses are qualified to offer opinions on causation as it pertains to these particular categories of damages. To the contrary, the lay testimony Plaintiffs seek to offer violates Rule 701(c) because it is clearly “based on scientific, ...


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