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Gulf Restoration Network v. Oscar Renda Contracting, Inc.

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

May 9, 2018

GULF RESTORATION NETWORK PLAINTIFF
v.
OSCAR RENDA CONTRACTING, INC. DEFENDANT

          MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO EXCLUDE TESTIMONY

          LOUIS GUIROLA, JR. UNITED STATES DISTRICT JUDGE.

         BEFORE THE COURT is the [30] Motion in Limine to Exclude Testimony of Kevin S. Dillon filed by the defendant Oscar Renda Contracting, Inc. The Motion has been fully briefed. After due consideration, the Court finds that the Motion should be granted in part and denied in part.

         Background

         This Clean Water Act case was initiated by Gulf Restoration Network, which is “a coalition of environmental, social justice, citizens' groups, and individuals committed to protecting and restoring the valuable resources of the Gulf of Mexico to an ecologically and biologically sustainable condition.” (Am. Compl. 4, ECF No. 14). The Network seeks 1) a declaration that the defendant, Oscar Renda Contracting, Inc., violated the Clean Water Act and its implementing regulations; 2) civil penalties for the violations; 3) an injunction requiring Oscar Renda to remediate the adverse impacts to aquatic resources; and 4) an award of attorneys' fees and costs. (Id. at 3-4).

         The Network retained as its expert Kevin S. Dillon, a coastal sciences associate professor at the University of Southern Mississippi. Dillon's report is a discussion of the probable amount and movement of sediments created by Oscar Renda's road construction project into Biloxi Back Bay. Dillon reaches the following conclusions:

1) The sediment flows from the construction project in East Biloxi to Biloxi Bay were substantial and conservatively in the tens of millions of pounds.
(2) The area affected by this sediment flow is conservatively the entire middle section of the bay.
(3) Sediment inputs have substantial and far reaching impacts on marine species and habitats. The duration of these impacts is variable, but are clearly extended by repeated sedimentation events.
(4) In the case of the unnamed bayou depicted in the photos, there are large sediment deposits directly adjacent to the storm water outfall, that are clearly not natural deposits.

(Def. Mot. Exclude Ex. B 5, ECF No. 30-2).

         Oscar Renda objects to introduction of Dillon's fourth opinion above, because it concerns geology rather than his areas of expertise - oceanography and environmental science. Oscar Renda argues that the one photograph of the site supporting Dillon's opinion, taken by someone else, is not adequate evidence from which to draw any conclusions about sediment deposits. Oscar Renda also objects that Dillon does not rely on any facts or data in drawing any of his conclusions; Dillon did not visit the site, conduct any testing, or rely on any tests done at the site. Thus, Oscar Renda argues that Dillon is not qualified to provide expert testimony in the field of geology, and his oceanography/environmental science opinions are not reliable because they are not supported by adequate data.

         Discussion

         A. Legal Standard

         “Before certifying an expert and admitting his testimony, a district court must ensure that the requirements of Federal Rule of Evidence 702 have been met.” Roman v. W. Mfg., Inc., 691 F.3d ...


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