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Gulf Restoration Network v. Oscar Renda Contracting, Inc.

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

December 13, 2018




         BEFORE THE COURT are the three motions to exclude or limit the testimony of experts designated in this case: 1) the [99] Motion to Limit Testimony of James Connors filed by Plaintiff Gulf Restoration Network (the “Network”); 2) the [103] Motion to Exclude Additional Testimony of Kevin Dillon filed by Defendant Oscar Renda Contracting, Inc. (“Oscar Renda”); and 3) the [105] Motion in Limine to Exclude or Limit Testimony of Renee Robertson filed by Oscar Renda. Each Motion has been fully briefed and carefully considered. In all instances, the Court finds that the challenged testimony should not be excluded. The Motions will be denied.


         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 complains that Defendant Oscar Renda has allowed “massive flows of polluted water into Biloxi Bay” and connected bayous while performing work on the East Biloxi Street Repair Program. (Am. Compl. 2, ECF No. 14.) The Network seeks 1) a declaration that Oscar Renda 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 provided Oscar Renda with the pre-suit notice required by the Clean Water Act, alleging that Oscar Renda “has violated and remains in continued violation of the terms of the Large Construction Storm Water Permit . . . and eight phase-specific Storm Water Prevention Plans . . . associated with the City of Biloxi Street Repair Program.” (Compl. Ex. 1, at 1, ECF No. 1-1.)[1] The Network states that the “violations began shortly after the August 4, 2014 start date of the 55-mile linear construction project and have continued with each subsequent rain event of significance through the present.” (Id. at 9).


         1. 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 686, 692 (5th Cir. 2012) (citations omitted). Rule 702 provides:

         If scientific, technical, or other specialized knowledge will assist the

trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Fed. R. Evid. 702. The party offering the expert has the burden of proving, by a preponderance of the evidence, that the proffered testimony satisfies Rule 702. Mathis v. Exxon Corp., 302 F.3d 448, 459-60 (5th Cir. 2002).

         “An expert witness's testimony should be excluded if the district court ‘finds that the witness is not qualified to testify in a particular field or on a given subject.'” Carlson v. Bioremedi Therapeutic Sys., Inc., 822 F.3d 194, 199 (5th Cir. 2016) (quoting Wilson v. Woods, 163 F.3d 935, 937 (5th Cir. 1999)). Generally, “questions relating to the bases and sources of an expert's opinion affect the weight of the evidence rather than its admissibility and should be left for the finder of fact.” United States v. 14.38 Acres of Land, 80 F.3d 1074, 1077 (5th Cir. 1996). “Unless wholly unreliable, the data on which the expert relies goes to the weight and not the admissibility of the expert opinion.” Rosiere v. Wood Towing, LLC, No. 07-1265, 2009 WL 982659, at *1 (E.D. La. Apr. 8, 2009) (citing 14.38 Acres of Land, 80 F.3d at 1077). Accordingly, expert opinions which overlook certain data are not typically excluded on that basis. Moss v. Ole South Real Estate, LLC, 933 F.2d 1300, 1307 (5th Cir. 1991). Rather, they are admitted to allow the jury to fulfill its role as the proper arbiter of disputes between conflicting opinions. 14.38 Acres of Land, 80 F.3d at 1077. “Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Pipitone v. Biomatrix, Inc., 288 F.3d 239, 250 (5th Cir. 2002) (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 597, 592-93 (1993)). Rejection of expert testimony is the exception rather than the rule. See Fed. R. Evid. 702, adv. Comm. Notes (2000).

         2. James Connors

         James Connors, retained by Oscar Renda, is a Mississippi-licensed professional geologist specializing in hydrology, hydrogeology, and environmental science. (Connors Rep. 1, ECF No. 84-7.) He formulated the following opinions about the effects of the project: 1) Oscar Renda is adequately managing stormwater; 2) the large-scale environmental damage claimed is not possible; 3) the sediment deposit claimed is unsupported and unlikely; and 4) even if true, the claimed sediment deposit is insignificant.

         Connors' report describes the characteristics of the Biloxi Back Bay affecting sediment movement and deposit. Broadly summarized, Connors' report explains that the soils in the Back Bay area are about seventy-five percent sand with high potential for water infiltration rather than runoff during rainfall. The relatively small silt and clay content of the soil requires very high water velocities to mobilize, and these intense rainfall events occur rarely in the area. Sand requires less energy to mobilize, and if there is sand in the runoff, it precipitates out within a few yards of the discharge pipes into the Back Bay. Connors visited fourteen stormwater outfalls and saw almost no evidence of run-off related sedimentation; most locations were completely free of sediment. Connors' observations were in line with the Mississippi Department of Environmental Quality's site inspection earlier in the year. Connors saw no evidence that any sediment was carried into the Back Bay. Even if all of the deposition into the Back Bay described by the Network occurred, the ...

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