United States District Court, S.D. Mississippi, Southern Division
ORDER DENYING MOTIONS TO EXCLUDE OR LIMIT EXPERT
GUIROLA, JR., UNITED STATES DISTRICT JUDGE
THE COURT are the three motions to exclude or limit the
testimony of experts designated in this case: 1) the 
Motion to Limit Testimony of James Connors filed by Plaintiff
Gulf Restoration Network (the “Network”); 2) the
 Motion to Exclude Additional Testimony of Kevin Dillon
filed by Defendant Oscar Renda Contracting, Inc.
(“Oscar Renda”); and 3) the  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.
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.) 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).
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:
scientific, technical, or other specialized knowledge will
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).
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).
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.
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 ...