Dialysis Clinic, Inc. et al v. City of Dothan, Alabama et al

Filing 123

MEMORANDUM OPINION AND ORDER directing that: (1) the Clinic's 90 MOTION Exclude Expert Opinions of Chester Rhodes and Burl Daniel is GRANTED as to the opinions challenged in that motion; (2) the Clinic's 91 MOTION to exclude the testimony of Larry Young is GRANTED as to the opinions challenged in that motion, as further set out in order. Signed by Chief Judge William Keith Watkins on 11/9/12. (djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
DIALYSIS CLINIC, INC., et al.,
Plaintiffs,
v.
BAY LINE RAILROAD, LLC,
et al.,
Defendants.

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CASE NO.1:10-CV-1051-WKW
[WO]

MEMORANDUM OPINION AND ORDER
On March 28, 2009, heavy rains flooded a business in Dothan, Alabama.
Plaintiffs Dialysis Clinic, Inc., and Beazley Insurance Company, Inc., (collectively
“the Clinic”) claim Defendants Bay Line Railroad, LLC, and Chattahoochee Bay
Railroad, LLC, (collectively “the Railroads”) are to blame. The parties have filed
motions seeking to exclude all or part of the testimony of six expert witnesses. This
order will address only the Clinic’s motions to exclude the testimony of Chester
Rhodes and Burl Daniel (Doc. # 90), and Larry Young (Doc. # 91). For the reasons
that follow, the motions are due to be granted.
I. JURISDICTION AND VENUE
28 U.S.C. § 1332(a) confers subject matter jurisdiction. Personal jurisdiction
and venue are uncontested, and there are allegations sufficient to support both.

II. STANDARD OF REVIEW
The admissibility of expert testimony is governed by Rule 702 and Daubert,
and its progeny. Rule 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise
if:
(a) the expert’s scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in
issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts
of the case.
Fed. R. Evid. 702.
In Daubert, the Supreme Court made it clear that Rule 702 assigns the trial
court a gatekeeping role to “ensure that any and all scientific testimony or evidence
admitted is not only relevant, but reliable.” Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579, 589 & 597 (1993); see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S.
137, 141 (1999) (“[T]he Federal Rules of Evidence ‘assign to the trial judge the task
of ensuring that an expert’s testimony rests both on a reliable foundation and is
relevant to the task at hand.’” (quoting Daubert, 509 U.S. at 596)). This gatekeeping
responsibility is the same when the trial court is considering the admissibility of
expert technical evidence. Kumho Tire, 526 U.S. at 147.

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In the Eleventh Circuit, expert testimony is admissible under Rule 702 if it
satisfies three broad requirements:
(1) the expert is qualified to testify competently regarding the matters he
intends to address; (2) the methodology by which the expert reaches his
conclusions is sufficiently reliable as determined by the sort of inquiry
mandated in Daubert; and (3) the testimony assists the trier of fact,
through the application of scientific, technical, or specialized expertise,
to understand the evidence or to determine a fact in issue.
United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (quoting City of
Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1999)). These
requirements are known as the “qualifications,” “reliability,” and “helpfulness”
prongs. See id.
Moreover, whether the expert testimony will assist the trier of fact in
understanding the evidence or a fact in issue “goes primarily to relevance.” Daubert,
509 U.S. at 591. “Expert testimony which does not relate to any issue in the case is
not relevant and, ergo, non-helpful.” Id. (citation and internal quotation marks
omitted). The Fifth Circuit said it this way: Assisting the trier of fact means that “the
trial judge ought to insist that a proffered expert bring to the jury more than the
lawyers can offer in argument.” Salas v. Carpenter, 980 F.2d 299, 305 (5th Cir.
1992).

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In the end, however, the court’s gatekeeping role under Daubert “is not
intended to supplant the adversary system or the role of the jury.” Allison v. McGhan,
184 F.3d 1300, 1311 (11th Cir. 1999). Where the basis of expert testimony satisfies
Rule 702, “[v]igorous cross-examination, presentation of contrary evidence, and
careful instruction on the burden of proof are the traditional and appropriate means of
attacking [debatable] but admissible evidence.” Daubert, 509 U.S. at 596.
III. BACKGROUND
This case hinges upon resolution of a relatively simple question: Did the
Railroads cause the Clinic’s flood damage by improperly maintaining a culvert? To
answer that question, the parties have enlisted a slew of experts , and each side of this
dispute has moved to exclude select expert testimony of the other. This matter comes
before the court on two of those motions, which challenge the opinions of three
defense experts. (See Docs. # 90, 91.)
IV. DISCUSSION
At issue here is the expert testimony of Chester Rhodes, Burl Daniel, and Larry
Young. This opinion addresses each in turn.
A. Chester Rhodes
Chester Rhodes, an expert for the Railroads, has been involved in the railroad
industry for over forty years. In his report, Mr. Rhodes reaches three conclusions: (1)
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there were no issues with the culvert prior to the storm;1 (2) the corrugated metal pipe
was properly installed in the culvert prior to the storm; and (3) prior to the storm, the
Railroads were in full compliance with all applicable regulations.
1. On the Culvert’s Uneventful History
In his report, Mr. Rhodes’s bases his first conclusion on “review of depositions
by Dewayne Swindall and Jeff Richardson and my own personal knowledge.” (Doc.
# 101-1, at 6.) Mr. Rhodes’s personal knowledge is not a sufficient ground for this
opinion; even if there was a history of problems with the culvert, there is no reason
Mr. Rhodes would have known. Indeed, the Railroads could call virtually anyone to
testify that, based on his own personal knowledge, there was no history of issues with
the culvert. Absent some explanation of how Mr. Rhodes would have known of
problems with the culvert, his lack of such knowledge cannot be used to suggest
affirmatively there were none.
Mr. Rhodes’s first conclusion, then, is supported only by the deposition
testimony of two of the Railroads’ employees. One of those employees has been
designated as a witness who will testify at trial (Doc. # 110, at 2), and presumably the
other will be called to do so as well. Mr. Rhodes’s expertise does not appear to add

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Mr. Rhodes’s report actually says “no exceptions were taken to the subject culvert prior
to the flood.” (Doc. # 101-1, at 6.) The court follows the Railroads’ lead to paraphrase that
opinion as saying there were no issues with the culvert. (See Doc. # 101, at 4–5.)
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anything to that testimony; rather, his report and the Railroads’ brief do not indicate
he did anything more than take the employees at their word and conclude there was
no history of issues with the culvert. Allowing Mr. Rhodes’s testimony on his first
conclusion would be needlessly cumulative and would not “help the trier of fact to
understand the evidence,” so it is due to be excluded. See Fed. R. Evid. 403, 702.
2. On the Corrugated Metal Pipe’s Proper Installation
Next, Mr. Rhodes concludes that the corrugated metal pipe extension was
properly installed before the storm of 2009. Even assuming Mr. Rhodes is qualified
to render an opinion on the installation of the pipe, nothing in his report suggests he
had any basis for concluding the pipe was properly installed before the flood. Mr.
Rhodes’s report states only that he visited the culvert in May of 2012. (See Doc. #
101-1, at 5.) By then, the old corrugated metal pipe that allegedly caused the flood
had been removed and replaced with a new one, which was properly installed in Mr.
Rhodes’s opinion. (See Doc. # 101-1, at 5.)
The court must act as a gatekeeper to ensure expert testimony is the product of
“reliable principles and methods.” Fed. R. Evid. 701. Nothing in Mr. Rhodes’s report
or the Railroads’ arguments sheds any light on the methodology Mr. Rhodes
employed to conclude the old corrugated metal pipe was properly installed before the

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storm by inspecting a different pipe installed after the fact. As a result, Mr. Rhodes’s
second opinion must be excluded.
3. On the Railroads’ Regulatory Compliance
Finally, Mr. Rhodes concludes that “Chattahoochee Bay Railroad was in full
compliance with all applicable Federal Railroad Administration Regulations” prior to
the flood. (Doc. # 101-1, at 6.) In this circuit, however, it is well settled that “[a]
witness . . . may not testify to the legal implications of conduct; the court must be the
jury’s only source of law. Montgomery v. Aetna Cas. & Sur. Co., 898 F.2d 1537,
1541 (11th Cir. 1990); see also Nicholson v. McCabe, No. CV-02-H-1107-S, 2003
WL 25676474, at *1 (N.D. Ala., June 2, 2003) (finding an expert’s opinion that a
defendant violated a federal regulation was an inadmissible legal conclusion).
Further, as far as regulatory compliance is concerned, it does not appear that Mr.
Rhodes’s testimony would “bring to the jury more than the lawyers can offer in
argument.” Salas, 980 F.2d at 305. Accordingly, Mr. Rhodes’s legal conclusion that
the Railroads were in full compliance with federal regulations must be excluded.
B. Burl Daniel
Burl Daniel, an expert for the Railroads, opines that the Clinic could have
obtained renewal flood insurance had it chosen to repair the old building. (Doc.
# 101, at 22.) According to the Railroads, Mr. Daniel’s opinions are relevant to this
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case because the Clinic argued replacement costs define the proper measure of damage
to the Clinic’s building. Because the court has now rejected that argument (see Doc.
# 122), Mr. Daniel’s testimony is no longer relevant. As a result, the Clinic’s motion
to exclude Mr. Daniel’s testimony is due to be granted.
C. Larry Young
In a twenty-three-page brief supported by 460 pages of exhibits, the Clinic
moves to exclude the testimony of Larry Young to the extent he would estimate the
cost of replacing storm-damaged dialysis machines. The Clinic does not move to
exclude Mr. Young’s calculation of the value of the damaged dialysis machines using
a cost-per-hour valuation. (See Doc. # 113, at 2.)
The Railroads oppose the motion in a ten-page brief supported by forty-two
pages of exhibits, arguing that “Young’s ‘cost-per-hour’ calculation is an essential
element in determining the diminution value of [the Clinic’s] property.” (Doc. # 105,
at 2 n.1.) The Railroads concede, however, that the “‘cost-per-hour’ calculation is the
more accurate reflection of the fair market value of the dialysis machines” when
compared to Mr. Young’s estimated replacement costs. (Doc. # 105, at 3 n.2.)
The Clinic’s six-page reply is largely devoted to pointing out that the lack of
disagreement between the parties on this point. Both the Clinic and the Railroads
agree Mr. Young should be allowed to testify on the cost-per-hour valuation of the
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dialysis machines; neither the Clinic nor the Railroads have argued Mr. Young’s
testimony on replacement value should be admitted. The court will not second-guess
583 pages of filings that show no hint of meaningful disagreement, so the Clinic’s
motion to exclude Mr. Young’s testimony on replacement costs is due to be granted.
V. CONCLUSION
Accordingly, it is ORDERED that
(1)

The Clinic’s Motion to Exclude the Expert Opinions of Chester Rhodes
and Burl Daniel (Doc. # 90) is GRANTED as to the opinions challenged
in that motion;

(2)

The Clinic’s Motion to Exclude the Testimony of Larry Young (Doc.
# 91) is GRANTED as to the opinions challenged in that motion.

DONE this 9th day of November, 2012.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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