NAVELSKI et al v. INTERNATIONAL PAPER COMPANY

Filing 93

ORDER Plaintiffs Motion for Class Certification, ECF No. 61, is GRANTED in part and DENIED in part; Defendants Motion to Exclude Expert Testimony from Tom Fruitticher, MAI, ECF No. 77, is GRANTED; Defendants Motion to Exclude Exper t Testimony from Mark Ross Ph.D., P.E., ECF No. 78, is DENIED; Plaintiffs amended Motion to Limit or Exclude Expert Testimony of Richard J. Roddewig, ECF No. 80, is DENIED; and Defendants Motion for Summary Judgment, ECF No. 81, is GRANTED as to classwide stigma damages and DENIED as to causation and/or liability. Signed by CHIEF JUDGE M CASEY RODGERS on 03/25/2017. (Jacobs, Tevenia)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
JOHN NAVELSKI, et al.,
Plaintiffs,
v.

Case No. 3:14cv445/MCR/CJK

INTERNATIONAL PAPER
COMPANY,
Defendant.
/
ORDER
This matter is before the Court on five motions: (1) Plaintiffs’ Motion for
Class Certification, ECF No. 61; (2) Defendant’s Motion to Exclude Expert
Testimony from Tom Fruitticher, MAI, ECF No. 77; (3) Defendant’s Motion to
Exclude Expert Testimony from Mark Ross, Ph.D., P.E., ECF No. 78; (4) Plaintiffs’
Motion to Limit or Exclude Expert Testimony of Richard J. Roddewig, ECF No. 80;
and (5) Defendant’s Motion for Summary Judgment, ECF No. 81. The Court’s
rulings are set forth below.
I.

Background
A heavy, slow-moving rainstorm entered Escambia County, Florida on the

afternoon of April 29, 2014, where it remained through the early hours of April 30,
2014. The events that led to this litigation occurred during the course of this

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extraordinary storm, when the Elevenmile Creek overflowed its banks and
approximately 160 homes in the Bristol Park, Bristol Woods, Bristol Creek, and
Ashbury Hills subdivisions of Cantonment, Florida were flooded. The Elevenmile
Creek is a 13-mile stream located within the Elevenmile Creek watershed in
Escambia County.

The watershed has a 47.97-square-mile drainage area that

reaches from Cantonment to Perdido Bay, Florida. Defendant International Paper
Company, a New York corporation, owns and operates a paper mill in Cantonment.
The Elevenmile Creek runs through Defendant’s property. Prior to 2012, the paper
mill’s wastewater was filtered through various holding ponds on Defendant’s
property and then discharged into the Elevenmile Creek through the Kingsfield Road
Dam, which was also located on Defendant’s property.1 In 2012, Defendant stopped
using the Dam to discharge wastewater and, instead, began moving it by pipeline to
the wetlands above Perdido Bay. The Dam, however, remained in place and
continued to impound storm water runoff from Defendant’s property.

It is

undisputed that, during the subject storm, the Dam collapsed, discharging the
stormwater impounded behind it into the Elevenmile Creek.

1

The Kingsfield Road Dam was a “large concrete structure with earthen embankments on
each side” that was located on the southern edge of Defendant’s property, where Elevenmile Creek
intersects Kingsfield Road in Escambia County, Florida. See ECF No. 62 at 8. The parties refer
to the Dam, interchangeably, as the Elevenmile Creek Dam, the Kingsfield Road Dam, and the
International Paper Dam. The Court will refer to this structure as either the “Kingsfield Road
Dam” or the “Dam.”
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Plaintiffs are current and former property owners in the Bristol Park, Bristol
Woods, Bristol Creek, and Ashbury Hills subdivisions. Their properties are situated
along the Elevenmile Creek, approximately two miles downstream from
Defendant’s paper mill and the Dam.2 Plaintiffs allege that the flooding they
experienced was caused or made more severe by the collapse of the Dam, which
they claim resulted from Defendant’s failure to properly maintain or remove it.
Plaintiffs filed this action against Defendant in the Circuit Court of Escambia
County, Florida on May 13, 2014. ECF No. 1-1. On September 2, 2014, Defendants
removed the action to this Court under the Class Action Fairness Act and diversity
jurisdiction. See ECF No. 1. In their First Amended Complaint, Plaintiffs assert
claims for negligence, trespass, nuisance, and strict liability. ECF No. 38. Plaintiffs
now move for class certification, ECF No. 61, which Defendant opposes, ECF No.
65. Both the motion and the response in opposition are supported by expert
testimony. Each side challenges the other’s experts as unreliable and those motions
are also pending. ECF Nos. 77, 78, 80. Finally, Defendant has moved for summary
judgment. ECF No. 81. The Court held a three-day evidentiary hearing on all

2

In its motion for summary judgment, Defendant stated that it had applied for the
appropriate permits to remove the remnants of the Dam and stabilize the stream banks to allow the
Elevenmile Creek to flow unimpeded, as if the Dam never existed. ECF No. 81 at 5.
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motions.3 Now, having fully considered the law, the voluminous record, and the
arguments of the parties, the Court rules as follows.
II.

Expert Challenges
In support of their motion for class certification, Plaintiffs have proffered Dr.

Mark A. Ross as an expert on the cause of the flooding in the subject neighborhoods.
Plaintiffs have also proffered Tom Fruitticher as an expert on damages. Defendant
has proffered Richard J. Roddewig as an expert to rebut Fruitticher’s opinions. Each
side now moves to exclude the other’s expert testimony under Federal Rule of
Evidence 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
Because this expert testimony is challenged as unreliable and is also critical to class
certification, the Court must perform a full Daubert analysis before resolving the
class certification motion.4 See Sher v. Raytheon Co., 419 Fed App’x 887, 890 (11th

3

At the hearing, Plaintiffs presented live testimony from Kyle Moore, Christopher
Quackenbush, Richard Bullard, Jacob Hutchins, Jeanne Henderly, Linda Navelski, Erick
Alexander, Richard Tarbox, David Pavlock, Cynthia Kersey, Dr. Mark Ross, and Tom Fruitticher.
Defendant presented live testimony from William “Gene” Yuhasz, Stephen Wistar, Christopher
Curb, Dr. Frank Lan, and Richard Roddewig.
4

Some courts have noted that in the class certification context, the Daubert analysis may
be narrower than that conducted for purposes of trial because “the inquiry is limited to whether or
not the expert reports are admissible to establish the requirements of Rule 23.” Braggs v. Dunn,
2:14cv601-MHT, 2016 WL 6917203, at *5 (M.D. Ala. Nov. 25, 2016) (quoting Fort Worth
Employees’ Ret. Fund v. J.P. Morgan Chase & Co., 301 F.R.D. 116, 126 (S.D.N.Y. 2014)). The
Eleventh Circuit, however, has not expounded further on the practical application of the “full
Daubert” standard in the class certification context in a case involving a bifurcated discovery
procedure, such as in this case. The Eighth Circuit applies a “focused Daubert” standard to
scrutinize expert testimony necessary to class certification issues, not necessarily requiring a
conclusive determination of admissibility at trial. See In re Zurn Pex Plumbing Prod. Liab. Litig.,
644 F.3d 604, 614 (8th Cir. 2011). The Third Circuit recently found it unnecessary to determine
whether differences exist between the “full” Daubert standard articulated in the Seventh Circuit
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Cir. 2011) (quoting Am. Honda Motor Co. v. Allen, 600 F.3d 813, 815-16 (7th Cir.
2010) (per curiam)). For the reasons that follow, the Court finds that the expert
testimony of both Dr. Ross and Roddewig is admissible; however, Fruitticher’s
testimony must be excluded.
A.

Legal Standard

Rule 702,5 as explained by Daubert and its progeny, governs the admissibility
of expert testimony. Rink v. Cheminova, Inc., 400 F.3d 1286, 1291 (11th Cir. 2005).
Under Rule 702 and Daubert, district courts are compelled to act as “gatekeepers”
to ensure the reliability and relevancy of expert testimony. Id. (quoting Daubert,
509 U.S. at 589).

Expert testimony is reliable and relevant—and, therefore,

admissible—when the following criteria are met: (1) the expert is sufficiently
qualified to testify about the matters he intends to address; (2) the methodology used
is “sufficiently reliable as determined by the sort of inquiry mandated in Daubert;

(adopted by the Eleventh) and the standard applied in the Eighth Circuit, stating that under either
articulation, courts limit the Daubert inquiry to expert testimony necessary to prove the
requirements of Rule 23. In re Blood Reagents Antitrust Litig., 783 F.3d 183, 188 n.8 (3d Cir.
2015) (declining to examine whether there might be some variation between the Seventh and
Eighth Circuit formulations of the relevant Daubert inquiry, noting only that a plaintiff cannot rely
on expert testimony to establish class certification without satisfying Daubert). This Court
likewise finds no reason to speculate on the potential differences among the circuits on this matter
but instead will endeavor to apply the “full” Daubert analysis as set forth in American Honda,
which the Eleventh Circuit has twice cited with approval in Sher and Local 703.
5

Rule 702 provides that a witness qualified as an expert in “scientific, technical, or other
specialized knowledge” may testify thereto if: (a) his expertise will help the factfinder “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.
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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.”

Id.

The Eleventh Circuit refers to these criteria separately as

“qualification, reliability, and helpfulness,” United States v. Frazier, 387 F.3d 1244,
1260 (11th Cir. 2004), and has emphasized that they are “distinct concepts that courts
and litigants must take care not to conflate,” Quiet Tech. DC-8, Inc. v. Hurel-Dubois
UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003). The party offering the expert has
the burden of showing, by a preponderance of the evidence, that each of these
requirements is met. Rink, 400 F.3d at 1292.
To meet the qualification requirement, a party must show that its expert has
sufficient “knowledge, skill, experience, training, or education” to form a reliable
opinion about an issue that is before the court. Hendrix ex rel. G.P. v. Evenflo Co.,
Inc., 609 F.3d 1183, 1193 (11th Cir. 2010) (citing Fed. R. Evid. 702) (“Hendrix II”).
The qualifications standard for expert testimony is “not stringent” and “[s]o long as
the witness is minimally qualified, objections to the level of [his] expertise [go] to
credibility and weight, not admissibility.” Hendrix v. Evenflo Co., Inc., 255 F.R.D.
568, 585 (N.D. Fla. Jan. 28, 2009) (“Hendrix I”).
To meet the reliability requirement, an expert’s opinion must be based on
scientifically valid principles, reasoning, and methodology that are properly applied
to the facts at issue. Frazier, 387 F.3d at 1261–62. The reliability analysis is guided

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by several factors:

(1) whether the scientific technique can be or has been

tested; (2) whether the theory or technique has been subjected to peer review or
publication; (3) whether the technique has a known or knowable rate of error; and
(4) whether the technique is generally accepted in the relevant community. Daubert,
509 U.S. at 593-94. “[T]hese factors do not exhaust the universe of considerations
that may bear on the reliability of a given expert opinion, and a federal court should
consider any additional factors that may advance its Rule 702 analysis.” Quiet Tech.,
326 F.3d at 1341. The court’s focus must be on the expert’s principles and
methodology, not the conclusions they generate. Daubert, 509 U.S. at 595. The test
for reliability is “flexible” and courts have “broad latitude” in determining both how
and whether this requirement is met. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S.
137, 141-42 (1999).
Finally, to satisfy the helpfulness requirement, expert testimony must be
relevant to an issue in the case and offer insights “beyond the understanding and
experience of the average citizen.” United States v. Rouco, 765 F.2d 983, 995 (11th
Cir. 1985). Relevant expert testimony “logically advances a material aspect of the
proposing party’s case” and “fits” the disputed facts. McDowell v. Brown, 392 F.3d
1283, 1298-99 (11th Cir. 2004). Expert testimony does not “fit” when there is “too
great an analytical gap” between the facts and the proffered opinion. Gen. Elec. Co.
v. Joiner, 522 U.S. 136, 147 (1997). When scrutinizing the reliability and relevance

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of expert testimony, a court must remain mindful of the delicate balance between its
role as a gatekeeper and the jury’s role as the ultimate factfinder. Frazier, 387 F.3d
at 1272. The court’s gatekeeping role “is not intended to supplant the adversary
system or the role of the jury.” Allison v. McGhan Med. Corp., 184 F.3d 1300, 1312
(11th Cir. 1999). Only the jury may determine “where the truth in any case lies” and
the court “may not usurp this function.” Frazier, 387 F.3d at 1272. Thus, a court
may not “evaluate the credibility of opposing experts” or the persuasiveness of their
conclusions, Quiet Tech, 326 F.3d at 1341; instead, its duty is limited to “ensur[ing]
that the fact-finder weighs only sound and reliable evidence,” Frazier, 387 F.3d at
1272.
B.

Dr. Mark A. Ross

Plaintiffs have proffered the expert testimony of Mark A. Ross, Ph.D., P.E.6
(“Dr. Ross”), a civil engineer and professor at the University of South Florida with
extensive experience in the areas of hydrologic and hydraulic modeling.7 Dr. Ross
has offered his opinion that the flooding of Plaintiffs’ properties was caused or made
more severe by the failure of the Kingsfield Road Dam. Defendant does not dispute

6

“P.E.” stands for “professional engineer.”

7

Hydrologic and hydraulic modeling use a mathematical construct to simulate and predict
how a water system will respond to various environmental conditions. The hydrologic model in
this case estimated, inter alia, the rate at which rainfall became surface runoff at the relevant crosssections of the Elevenmile Creek under conditions approximating those of the subject storm. The
hydraulic model simulated the movement of floodwaters through the Elevenmile Creek, and
calculated the timing and depth of flood levels.
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Dr. Ross’s qualifications to opine as an expert on flood causation. Nor does
Defendant deny that expert testimony regarding the cause of the flooding in this case
would assist the factfinder in determining Defendant’s liability. Defendant’s sole
challenge is to the reliability of Dr. Ross’s methodology.

More specifically,

Defendant argues that Dr. Ross’s testimony should be excluded because he did not
reliably apply a differential etiology in reaching his opinions.
As an initial matter, Defendant characterizes Dr. Ross’s methodology as a
species of differential etiology, which is a well-recognized “scientific technique of
identifying the cause of a medical problem by eliminating the likely causes until the
most probable one is isolated.” Kilpatrick v. Breg, Inc., 613 F.3d 1329, 1336 n.7
(11th Cir. 2010) (quoting Westberry v. Gislaved Gummi AB, 178 F.3d 257, 262 (4th
Cir. 1999)).

The Eleventh Circuit has explained that “when applied under

circumstances that ensure reliability, the differential etiology method can provide a
valid basis for medical causation opinions.” 8 Hendrix II, 609 F.3d at 1195. The

8

The parties do not cite, and the Court has been unable to find, a single Eleventh Circuit
case in which differential etiology was offered as the basis for causation testimony from a
nonmedical expert. Other courts, however, have considered the reliability of differential etiology
in support of expert testimony on causation in a broad range of nonmedical contexts. See Bitler v.
A.O. Smith Corp., 400 F.3d 1227 (10th Cir. 2005) (cause of gas explosion); Curran v. Werner Co.,
No. 12-CV-1221, 2016 WL 1090919 (S.D. Ohio March 21, 2016) (cause of ladder collapse); Roper
v. Kawasaki Heavy Industries, Ltd., No. 1:13-CV-03661-ELR, 2015 WL 11236553 (N.D. Ga. June
29, 2015) (cause of mechanical failure that led to a motor vehicle accident); Brotherhood Mut. Ins.
Co. v. ADT, LLC, No. 13-1870(DSD/JJK), 2014 WL 2993728 (D. Minn. July 2, 2014) (cause of
sprinkler head activation); Dean v. Thermwood Corp., No. 10-cv-433-CVE-PJC, 2012 WL 90442
(N.D. Okla. Jan. 11, 2012) (cause of router machine accident); Dow v. Rheem Mfg., No. 09-13697BC, 2011 WL 4484001 (E.D. Mich. Sept. 26, 2011) (cause of water heater explosion); Kerns v.
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instant case, however, does not involve medical causation and the traditional
evidentiary foundations that have proven reliable in that context are unsuitable for
analyzing the causation question presented here.9 This is, in part, because the
reliability of medical causation opinions often turns on a challenge to the core
science on which the opinions are based. See, e.g., Chapman v. Procter & Gamble
Distributing, LLC, 766 F.3d 1296, 1308 (11th Cir. 2014) (affirming exclusion of
expert testimony where no “recognized methodology” or evidence established
generally that Fixodent is capable of causing myelopathy); Hendrix II, 609 F.3d
1183 (affirming exclusion of expert testimony where no scientifically reliable
evidence supported conclusion that traumatic brain injury can cause autism).
In this case, the core science is not in dispute, as Defendant concedes the
general scientific proposition that a dam failure can cause a river or stream to
overflow its banks and flood adjoining neighborhoods. Notably, Dr. Ross did not
himself refer to his methodology as differential etiology or any variation of that
technique. Moreover, as discussed in greater detail below, Dr. Ross’s analysis relied
primarily on data specific to the subject storm and watershed, whereas a traditional
Sealy, No. 06-0431-WS-B, 2007 WL 2012867 (S.D. Ala. July 6, 2007) (cause of fire); McGuire
v. Davidson Mfg. Corp., 238 F. Supp. 2d 1096 (N.D. Iowa 2003) (cause of stepladder collapse).
9

Eleventh Circuit Daubert jurisprudence in toxic tort and product liability cases outlines a
number of different types of medical evidence—for example, dose-response relationship,
epidemiological studies, background risk, clinical studies, and case reports—that have provided
reliable bases for inferences of general causation. See Christopher R.J. Pace, General Causation
Expert Testimony: The Eleventh Circuit Construct, 37 Am. J. of Trial Advoc. 47 (2013) (collecting
cases).
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differential analysis ordinarily is based on more generalized scientific assumptions
extrapolated from external sources. Thus, while the Court finds that Dr. Ross’s
approach bears some resemblance to differential etiology, it is “more aptly
characterized as a process of reasoning to the best inference,” in which logical
inferences “are drawn about a particular proposition or event by a process of
eliminating all other possible conclusions to arrive at the most likely one, the one
that best explains the available data.”10 See Bitler v. A.O. Smith Corp., 400 F.3d
1227, 1237 n.5 (10th Cir. 2005). Even so, because the two approaches share broadly
analogous analytical frameworks, the Court will evaluate the reliability of Dr. Ross’s
causation testimony using the differential etiology construct adopted by the parties.
An expert whose opinions are the product of differential etiology must show
that the technique was reliably employed in the context of a particular case. See
Hendrix II, 609 F.3d at 1195; see also, Kilpatrick, 613 F.3d at 1342. A reliable
differential analysis is performed in two steps. Id. First, the expert identifies the
scientifically possible explanations for the harm at issue. See id. The issue at this
“ruling in” stage is general causation, which focuses on whether a mechanism or
event is “generally capable of causing” the type of harm alleged by the plaintiff. See
id.; see also McClain v. Metabolife Int’l, Inc., 401 F.3d 1233, 1239 (11th Cir. 2005).

10

There is more than a semantic difference between these terms. Expert opinions based
on differential etiology generally must be supported by very specific categories of medical
evidence. See supra note 10.
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Second, the expert systematically and scientifically rules out each potential
explanation “until reaching one that cannot be ruled out or determining which of
those that cannot be excluded is the most likely.”

Guinn v. AstraZeneca

Pharmaceuticals LP, 602 F.3d 1245, 1253 (11th Cir. 2010). This second step
focuses on specific causation, which requires a showing that the mechanism or event
in question actually did cause the plaintiff’s harm. Chapman, 766 F.3d at 1308. In
this case, Defendant contends that Dr. Ross’s methodology does not reliably
establish either general or specific causation. The Court disagrees.
1.

General Causation

With respect to general causation, the Court finds that Dr. Ross appropriately
“ruled in” the failure of the Kingsfield Road Dam as a possible cause of the flooding
in the subject neighborhoods. General causation is established by a demonstration,
through a scientifically valid methodology, that a mechanism or event can cause a
particular result. Hendrix II, 609 F.3d at 1196. The core science with respect to
general causation in this case—that the failure of a dam can cause a river or stream
to overflow its banks and flood adjoining neighborhoods—is well-established and
uncontroverted.11 This fact alone would suffice to establish general causation under
Daubert. See McClain, 401 F.3d at 1239 (“The court need not undertake an

11

Indeed, during the Daubert hearing, Defendant expressly conceded the “common sense”
observation that a dam breach can cause elevated water levels and flooding in downstream areas.
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extensive Daubert analysis on the general toxicity question when the medical
community recognizes that the agent causes the type of harm a plaintiff alleges.”);
see also Chapman, 766 F.3d at 1303 (“In cases where the cause and effect or
resulting diagnosis has been proved and accepted by the medical community, federal
judges need not undertake an extensive Daubert analysis on the general toxicity
question.”); Bitler, 400 F.3d at 1235-37 (expert’s theory that copper sulfide particles
caused propane explosion sufficiently reliable where supported by physical
evidence, fire investigator’s professional experience, and undisputed “core science”
of copper sulfide particulate contamination as a cause of propane gas leaks). But, it
is noteworthy in this case that Dr. Ross based his causation opinion on considerably
more evidence than just the universally accepted science of dam failures and water
flow, as his methodology also accounts for the specific drainage characteristics of
this dam and real-time rainfall data from this storm. More specifically, Dr. Ross
testified that he examined the Dam site, the subject neighborhoods, and the
topographic, hydrologic, and vegetation characteristics of the Elevenmile Creek
watershed. Dr. Ross also analyzed historical rain gauge data collected by the United
States Geological Survey (USGS) in conjunction with Next-Generation Radar
(NEXRAD) precipitation data to calculate the spatial and temporal distribution of
the rainfall over the Elevenmile Creek watershed during the Storm. Additionally,
he calculated the dimensions of the Dam, its static storage and its dynamic storage,

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using a computer-based hydrologic model (Hydrological Simulation Program-Fortran, or HSPF) of the actual rainfall conditions during the Storm.12
From this physical evidence and empirical data, Dr. Ross was able to conclude
that the flooding in the subject neighborhoods could have been caused by either: (1)
the amount and distribution of the rainfall during the Storm, alone; or (2) the amount
and distribution of the rainfall, together with the failure of the Kingsfield Road Dam.
Defendant has offered no evidence or even argument to question the core science
underlying Dr. Ross’s opinion or the reliability of his models. On the contrary,
Defendant’s expert, Dr. Frank Lan, confirmed that Dr. Ross used appropriate
industry models to analyze the rainfall and water flow in this case, and he took no
issue with the data on which the models were based. The Court, therefore, finds that
Dr. Ross’s reliance on the known science of dam failures and water flow, together
with the data he gathered with respect to the unique characteristics of the subject
watershed, dam, and rainfall event, constitutes a scientifically valid methodology for
“ruling in” the failure of the Kingsfield Road Dam as a possible cause of the subject
flooding.

Dr. Ross’s opinion is “properly grounded, well-reasoned, and not

speculative.” See Frazier, 387 F.3d at 1296. Nothing in Rule 702 or Daubert

12

Static storage means the normal amount of water that was artificially impounded, or
stored, in the reservoir behind the Dam when it was filled to storage capacity, but in a stable
condition, with no additional water flowing in. Dynamic storage, as used by Dr. Ross, refers to
the volume and motion of water behind the Dam during high flow events, such as the Storm in this
case.
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requires more. The appropriate way to assess the validity and strength of Dr. Ross’s
conclusions is through “[v]igorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof.” See Daubert, 509 U.S. at
596.
Defendant insists that Dr. Ross’s general causation opinion is unreliable
because he did not “model or test his dam failure hypothesis” by designing an exact
simulation of the process by which the Kingsfield Road Dam could have failed and
flooded the subject neighborhoods. Taking this argument to its logical conclusion,
Defendant would have Plaintiffs prove causation to a scientific certainty before
expert testimony could be admitted.

The Court finds this argument wholly

inconsistent with Daubert and the fundamental premise of Rule 702. See Daubert,
509 U.S. at 590 (“Of course, it would be unreasonable to conclude that the subject
of scientific testimony must be ‘known’ to a certainty; arguably, there are no
certainties in science.”). “[T]esting is not necessary in all instances to establish
reliability under Daubert,” particularly where an expert’s conclusion is premised on
well-established and undisputed scientific knowledge. Bitler, 400 F.3d at 1236. On
this point, the Tenth Circuit’s decision in Bitler v. A.O. Smith Corp., is instructive.
In Bitler, the plaintiffs’ experts opined that a propane explosion in a home was
caused by copper-sulfide contamination of the safety valve seat of a water heater.
Id. at 1231. The defendants challenged the admission of plaintiffs’ experts’ opinions

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for, among other reasons, failure to test their theory that copper sulfide had passed
through a mesh screen before lodging on the safety valve seat. Id. at 1235. The
Tenth Circuit observed that the experts’ theory of the accident was based on the
“known science of copper sulfide particulate contamination as a cause of propane
gas leaks” and that testing of this established scientific principle would generally be
unnecessary. Id. at 1236. The court reasoned that while the presence of a mesh
screen designed to filter out those particles may have changed the jury’s causation
determination, it did not “fundamentally and necessarily change[] the nature of the
underlying science.” Id. Thus, because the “core science—that copper sulfide
particles are the kind of thing that when lodged on the valve seat can cause leaks—
[was] sufficiently well-established,” the court concluded that testing was not
required to permit the plaintiffs’ experts to opine on the cause of the explosion. Id.
The same is true here.
2.

Specific Causation

With respect to specific causation, Defendant argues that Dr. Ross did not
reliably “rule out” alternative explanations for the flooding in the subject
neighborhoods. In particular, Defendant claims that Dr. Ross failed to consider and
eliminate the possibility that the flooding was caused or impacted by either: (1) the
actual distribution of the rainfall during the Storm alone; or (2) the increased
vegetation along the path of the flood. According to Defendant, Dr. Ross’s analysis

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thus is not sufficiently reliable to support his opinion on specific causation. This is
incorrect.
Contrary to Defendant’s assertion, the evidence shows that Dr. Ross did
account for the distribution of the rainfall during the Storm, as that data drove the
computer-based modeling programs he used to simulate the rainfall event. Dr. Ross
testified that he collected data about the amount, duration, and varying intensities of
the rainfall over the Elevenmile Creek watershed during the subject storm from both
the USGS and the National Oceanic and Atmospheric Administration (NOAA). 13
Dr. Ross compared radar rainfall data with rain gauge measurements to estimate the
spatial and temporal rainfall distribution over the Elevenmile Creek watershed
during the Storm. He input these rainfall estimates into his hydrologic model, along
with details about the physical characteristics of the Elevenmile Creek watershed, to
compute the volume and timing of surface water runoff. These runoff calculations
were combined with cross-sectional and frictional values from the Elevenmile Creek
channel to produce a computerized hydraulic model (Hydraulic Engineering Center
River Analysis System, or HEC-RAS) that could simulate the Storm’s effect on the
Elevenmile Creek watershed, in terms of the potential depths and duration of

13

The USGS, in cooperation with the Florida Department of Environmental Protection
(FDEP) and the Community Collaborative Rain, Hail & Snow Network (CoCoRaHS) provided
rainfall measurements from three separate rain gauge stations within the Elevenmile Creek
watershed. The NOAA published NEXRAD radar accumulated rainfall values for the area, which
Dr. Ross accessed online.
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floodwaters, under two hypothetical scenarios—one approximating water flow
conditions had the Kingsfield Road Dam remained intact and fully functioning
during the Storm, and the other approximating the result had there been no dam in
place and the Elevenmile Creek existed in a natural, unobstructed state. Under both
hypothetical scenarios, the hydraulic model predicted a three to five-foot decrease
in water depths during the Storm, which likely would have resulted in the flooding
of no more than six houses in the subject neighborhoods. Because, together, the
hydrologic and hydraulic models digitally approximated the actual rainfall
conditions in the Elevenmile Creek watershed during the storm, these findings
support Dr. Ross’s conclusion that the rainfall alone could not have caused the
flooding.
The evidence also shows that Dr. Ross properly considered and ruled out the
possibility that vegetation growing within the Elevenmile Creek channel caused or
significantly contributed to the flooding of Plaintiffs’ homes. According to both
parties’ experts, the density and distribution of vegetation along a river channel can
impact the rate at which water flows through it. Dense vegetation and undergrowth,
for example, can impede the flow of water, causing higher flood elevations. In
hydraulic modeling, the collective effect of a channel’s resistance to water flow is
represented by a “roughness” parameter called a Manning’s coefficient, also known
as a frictional value. Dr. Ross testified that, to account for vegetation along the

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Elevenmile Creek main channel and flood plain, he selected frictional values of .03
and .05, respectively. Dr. Ross indicated that the procedure for estimating frictional
values is relatively subjective, but that the figures he used were based on the
vegetative characteristics he observed at the Elevenmile Creek and were “typical
values for forested coastal-plain sub-tropical floodplains” like this one. See ECF
No. 78-1 at 25. With the inclusion of these frictional values, Dr. Ross’s hydraulic
model accounted for the impact of vegetation on flood levels during the Storm. Dr.
Ross did not test other, theoretical frictional values because he was satisfied that the
values he selected accurately represented the roughness characteristics of
Elevenmile Creek. That Defendant’s expert disagrees and chose different, higher
frictional values for use in his own hydraulic model does not render Dr. Ross’s
methodology unreliable. This objection goes to the weight of Dr. Ross’s testimony,
not its admissibility. The Court finds Dr. Ross’s testimony admissible.
C.

Tom Fruitticher

Plaintiffs seek classwide damages for the diminished values of their homes as
a result of the alleged stigma that attaches to real property that has experienced
flooding. In support of this claim, Plaintiffs have proffered the expert testimony of
Tom Fruitticher, a state-certified general appraiser with over thirty years’ experience
appraising and valuating real property. Fruitticher has offered his opinion as to the
expected percentage of reduction in the fair market value of Plaintiffs’ properties as

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a result of the flooding.

Defendant challenges Fruitticher’s testimony on

qualification, reliability, and helpfulness grounds.
1.

Qualification

Fruitticher performed a series of statistical analyses, namely, multiple
regression and linear regression analysis, to reach his conclusion as to stigma
damages. Defendant contends that Fruitticher is not qualified to provide expert
testimony based on multiple regression analysis because he is not a statistician, has
not routinely employed this technique in valuing real properties, and lacks extensive
training in its use and application in the mass appraisal context. In essence,
Defendant argues that Fruitticher’s general education and experience in the field of
real property appraisal do not translate into qualifications that enable him to testify
competently based on regression analysis in this case.

Defendant reads the

“qualification” prong of Rule 702 too stringently. “An expert is not necessarily
unqualified simply because [his] experience does not precisely match the matter at
hand.” Furmanite America, Inc. v. T.D. Williamson, Inc., 506 F. Supp. 2d 1126,
1129 (M.D. Fla. 2007) (citing Maiz v. Virani, 253 F.3d 641, 665 (11th Cir. 2001)).14

14

See also Kipperman v. Onex Corp., 411 B.R. 805, 843 (N.D. Ga. 2009) (“[A]n expert’s
training does not always need to be narrowly tailored to match the exact point of dispute in a
case.”); Trilink Saw Chain, LLC v. Blount, Inc., 583 F. Supp. 2d 1293, 1304 (N.D. Ga. 2008)
(“[A]n expert with the education or background to permit him to analyze a given set of
circumstances…can through reading, calculations, and reasoning from known scientific principles
make himself very much an expert [regarding a] particular product even though he has not had
actual experience with the product.”).
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Again, “so long as the [expert] is minimally qualified, objections to the level of [his]
expertise go to credibility and weight, not admissibility.” Hendrix I, 255 F.R.D. at
585. The critical question for qualification purposes is whether the proffered expert
has such “knowledge, skill, experience, training, or education” that his opinion will
aid the trier of fact in understanding the evidence or resolving a factual issue. See
Fed. R. Evid. 702.
In this case, the Court finds Fruitticher at least minimally qualified to use
statistical analysis to assist the trier of fact in determining whether and to what extent
Plaintiffs are entitled to so-called stigma damages.

The record reflects that

Fruitticher has spent thirty years appraising residential properties in the Pensacola
area and, in that time, has performed “numerous” disaster-related diminished value
assessments. This background equips him for the task of evaluating the impact of
the subject flood on Plaintiffs’ property values. Moreover, Fruitticher has formal
training in the application of multiple regression analysis and has used the technique
once before in connection with a mass appraisal valuation project. His experience
with multiple regression analysis, though limited, is sufficient to support his
proposed testimony in the area of statistics. A witness need not be the best or most
qualified authority in a field to be admitted as an expert. See, e.g., Burgett v. TroyBilt LLC, 579 Fed. App’x 372, 378 (6th Cir. 2014) (“[I]t is an abuse of discretion to
exclude testimony simply because the trial court does not deem the proposed expert

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to be the best qualified or because the proposed expert does not have the
specialization that the court considers most appropriate.”) quoting Pineda v. Ford
Motor Co., 520 F.3d 237, 244 (3d Cir. 2008); Robinson v. GEICO Ins. Co., 447 F.3d
1096, 1101 (8th Cir. 2006) (same); Bracey v. Jolley, No. 1:10-cv-4064-TCB, 2012
WL 12870257, at *3 (N.D. Ga. 2012) (“Rule 702 does not require a party to produce
the ‘most qualified’ expert.”).

Fruitticher need only possess enough general

knowledge of a subject that his testimony would likely assist the trier of fact. See,
e.g., Maiz, 253 F.3d at 665 (economist was properly qualified to estimate damages
resulting from real estate investment scheme even though he had no experience in
real estate development); United States v. Hensel, 711 F.2d 1000, 1006 (11th Cir.
1983) (holding that trial court did not err in allowing witness with extensive
background in arson investigation to testify as an expert on admiralty arson although
most of his experience involved fires on land). Given Fruitticher’s extensive
experience in the appraisal industry, his knowledge of multiple regression analysis,
and the liberal standard for admission of expert testimony under Rule 702, see
Frazier, 387 F.3d at 1294, the Court concludes that he is qualified to offer his
opinion as to stigma damages in this case. Objections to the level of his expertise
go to the credibility and weight of his opinion, not its admissibility. See Hendrix I,
255 F.R.D. at 585.

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2.

Reliability

Defendant challenges the reliability of Fruitticher’s methodology on multiple
grounds.15 First, Defendant argues that Fruitticher’s methodology constitutes an
improper combination of two different methodologies, rather than the proper
application of a single methodology. Second, Defendant objects to Fruitticher’s
multiple regression analysis as an “impermissible black box opinion.”

Third,

Defendant objects to the reliability of Fruitticher’s linear regression model and the
data that he used to support his trend line analysis.
a.

Fruitticher’s Methodology

Fruitticher used a series of different techniques to evaluate the impact of the
subject flooding on Plaintiffs’ homes. First, he used multiple regression analysis to
estimate the pre-flood market values of the homes in the subject neighborhoods.
Next, he conducted two separate linear regression analyses of the actual sales prices
of flooded and non-flooded homes within the subject neighborhoods during the oneyear periods immediately before and after the subject flood.16 Fruitticher’s linear
regression analyses revealed a downward trend in home values in the year following
the flood. More specifically, under his linear regression model, the homes that

15

During the Daubert hearing, Defendant raised reliability arguments that are not
contained in its motion. This opinion addresses all of Defendant’s arguments.
16

Linear regression analysis is also referred to as either trend line analysis and time series

analysis.
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flooded during the Storm exhibited a nine percent decline in value and the nonflooded homes exhibited a three percent decline. Finally, Fruitticher performed two
additional linear regression analyses of home sales in two neighboring subdivisions
during the same two-year period.

According to Fruitticher, because of these

subdivisions’ close proximity to the subject neighborhood, home values there are
driven by the same market forces that drive the values in the subject neighborhood.
However, none of the homes in these two subdivisions experienced flooding during
the Storm. The linear regression analyses of home sales in these areas reflected an
upward trend in values of approximately nine percent.17 Fruitticher attributes the
divergence in market trends between Plaintiffs’ neighborhood and the two
comparable, nearby communities to the stigma that attaches to properties that have
experienced flooding. Fruitticher calculated the percentage decrease in market value
due to flood stigma as the difference between the upward trend in the subdivisions
outside the stigma area and the downward trend within the stigma area. Thus,
according to Fruitticher, the flood stigma has resulted in a 12 percent decline in the
value of non-flooded homes in the subject neighborhood and an 18 percent decline
17

Fruitticher first analyzed 85 home sales in the area immediately north of the subject
neighborhoods, which did not experience flooding during the Storm. Sale prices in that area
reflected an average eight percent increase over the relevant time period. Fruitticher then analyzed
home sales in the Nature Trail subdivision, which is another residential area located near the
subject neighborhoods that did not experience flooding during the Storm. The Nature Trail home
sales reflected an average 11 percent increase in value over the same two-year period. Fruitticher’s
“conservative” average of the upward trend in market growth experienced by the two
neighborhoods was nine percent.
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in the value of homes that actually flooded. Applying these percentages to the preflood market values generated by his multiple regression analysis, Fruitticher
concluded that the total stigma damages amount for the subject neighborhood is
$9,034,000.18 See ECF No. 77-1 at 94.
b.

Mixed Methodology

Defendant first argues that Fruitticher’s methodology is unreliable because he
used a combination of two distinct statistical techniques—multiple regression
analysis and linear regression analysis—to calculate Plaintiffs’ stigma damages,
when he should have analyzed the issue using only one of the techniques, preferably
multiple regression analysis. Defendant does not offer any legal support for this
argument, nor does it point to any generally accepted standard in the appraisal
industry establishing that a stigma damages evaluation should be performed using a
single method alone.19 Defendant’s damages expert, Richard Roddewig, testified
that when applied properly, both multiple and linear regression analysis are
mainstream tools in the real estate valuation industry and that each is an accepted
method for determining the effect of a natural disaster, such as the subject flooding,
on property values. See also ECF No. 80-1 at 8. Indeed, courts have routinely found

18

By Fruitticher’s calculations, flooded homes in the subject neighborhood experienced a
combined stigma loss of $5,669,000. ECF No. 77-1 at 94. Non-flooded homes experienced a
combined loss of $3,365,000. Id.
19

Roddewig testified that multiple regression analysis was inappropriate for individual
home valuations, but this is not a single valuation case.
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that properly constructed regression models can provide reliable support for expert
conclusions in a broad range of subjects. See, e.g., Bazemore v. Friday, 478 U.S.
385, 400-01 (1986) (holding that a properly performed multiple regression analysis
is an accepted method for determining damages and causation); City of Tuscaloosa
v. Harcros Chemicals, Inc., 158 F.3d 548, 566 (11th Cir. 1998) (finding use of
multiple regression analysis reliable in antitrust conspiracy case); Cook v. Rockwell
Intern. Corp., 580 F. Supp. 2d 1071, 1136 (D. Colo. 2006) (admitting expert opinion
as to effect of environmental contamination on real property values based on analysis
of price trends in comparable markets). An expert’s analysis on diminution in value
damages has also been admitted when it “incorporated five different, multidisciplinary approaches” to the question of whether property values in a class area
had been impacted by environmental contamination. Cook, 580 F. Supp. 2d at 1130
(admitting real estate appraiser’s expert opinion as to stigma damages based on
combination of real estate market research, review of analogous case studies,
analysis of market sales data and information, multiple regression analysis, and
review of public opinion surveys). In light of these authorities, the Court finds no
grounds for excluding Fruitticher’s expert opinion as unreliable simply because it
incorporates two statistical methods, provided that each, taken in isolation, contains
sufficient analytical rigor to satisfy Daubert.

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In this case, Fruitticher did not, as Defendant asserts, perform “half” of a
multiple regression analysis and “half” of a linear regression analysis. Instead,
Fruitticher’s multiple regression analysis was complete when it generated estimates
of the pre-flood market values of homes in the subject neighborhood. His linear
regression analysis was complete when it calculated the market trends in the subject
neighborhood and in nearby communities during the years before and after the flood.
Synthesizing the findings from the two analyses does not render the opinion
unreliable. Defendant’s expert may disagree with this approach, but the experts’
conflicting opinions reveal only a factual dispute, not a flaw in Fruitticher’s
methodology. Under the circumstances, it would be improper for the Court to pick
and choose which variant of the methodology it prefers, to the exclusion of the other.
See generally Kumho Tire, 526 U.S. at 153 (stating that if an expert’s testimony is
within “the range where experts might reasonably differ,” the jury, not the trial court,
should be the one to “decide among the conflicting views of different experts”);
Rink, 400 F.3d at 1293 n.7 (observing that “a district court may not exclude an expert
because it believes one expert is more persuasive than another expert”). This issue
may be explored vigorously through cross-examination, but it does not preclude the
admissibility of Fruitticher’s opinion.

See Quiet Tech., 326 F.3d at 1341

(“[V]igorous cross-examination, presentation of contrary evidence, and careful

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instruction on the burden of proof are the traditional and appropriate means of
attacking shaky but admissible evidence.”).
c.

Multiple Regression Analysis

Defendant challenges Fruitticher’s multiple regression analysis on the ground
that, because he cannot explain or manually perform the mathematical calculations
that are built into his regression model, his use of the technique amounts to the sort
of “black box” damages analysis that several district courts have found unreliable
under Rule 702. See, e.g., Open Text S.A. v. Box, Inc., No. 13-cv-04910-JD, 2015
WL 349197, *6 (N.D. Cal. Jan. 23, 2015); Lawrence v. Raymond Corp., No. 3:09cv-1067, 2011 WL 3418324, at *7-8 (N.D. Ohio Aug. 4, 2011) (stating that experts
may not be “a black box into which data is fed at one end and from which an answer
emerges at the other”); Fail-Safe, L.L.C. v. A.O. Smith Corp., 744 F. Supp. 2d 870,
888 (E.D. Wis. 2010) (rejecting expert analysis that was “in a black box out of the
view of the court . . . [because] the court cannot simply take an expert’s word for a
specific proposition). The Court disagrees. A “black box” expert opinion, as that
term is used in the cases cited by Defendant, is one in which an expert’s conclusion
is stated without any reasoned explanation that would enable the Court, a jury, or an
opposing party to meaningfully evaluate the process by which it was reached. See
id. Such an opinion is, essentially, an expert’s ipse dixit, which the Supreme Court
has admonished district courts against admitting into evidence. See Joiner, 522 U.S.

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at 146 (“[N]othing in either Daubert or the Federal Rules of Evidence requires a
district court to admit opinion evidence that is connected to existing data only by the
ipse dixit of the expert. A court may conclude that there is simply too great an
analytical gap between the data and the opinion.”)(internal citations omitted). In
Open Text, for example, the Northern District of California excluded royal rate
testimony where the expert failed to “spel[l] out the steps she took to go from the
data to the royalty rate opinion” because “the jury [could not] see how the pieces fit
together or how the data [drove] the conclusion.” 2015 WL 349197 at *6. The
expert’s opinion in Open Text was supported only by her professional experience,
which is an “abstraction” not “testable in the crucible of cross-examination.” Id.;
see also GPNE Corp. v. Apple, Inc., No. 12-CV-02885-LHK, 2014 WL 1494247, at
*4 (N.D. Cal. Apr. 16, 2014) (excluding royalty rate testimony where expert
“advance[d] no reasoned basis for deriving his $1 per unit royalty from the $86
average net incremental profit” and instead stated that his opinion was based on “all
of the evidence in the record” and his “30 years of experience”). Understandably,
the court in Open Text found that the expert’s opinion was a classic “black box,” in
which she asserted that her proposed royalty rate was reasonable simply because she
said so. Id.
In contrast, Fruitticher’s opinion is based on the application of a widely
accepted statistical technique to empirical data drawn from the Multiple Listing

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Service (MLS) and the public property records of Escambia County, Florida. See
Tuscaloosa, 158 F.3d at 566 (reversing exclusion of expert testimony based on data
compilations and estimated damages that were “the products of simple arithmetic
and algebra and of multiple regression analysis, a methodology that is wellestablished as reliable”). Fruitticher’s report describes exactly how he used multiple
regression analysis to determine the pre-flood market value of the subject homes and
how that determination fits into his overall stigma damages opinion. See ECF No.
77-1. Fruitticher also articulated the precise steps he took to select the independent
variables for his model and to confirm the accuracy of its results. Id. Perhaps the
best evidence that Fruitticher’s multiple regression analysis is not ipse dixit comes
indirectly, however, from Defendant’s own expert witness, Richard Roddewig.
During the Daubert hearing, and also in his 175-page report, see ECF No. 80-1,
Roddewig explained, in meticulous detail: (1) the various inputs Fruitticher used in
his regression analysis; (2) information that he believed Fruitticher should have
included in the analysis, but did not; (3) various problems that he identified in
Fruitticher’s modeling (e.g., allegedly faulty assumptions); and (4) how and why
certain data points used by Fruitticher produced results that were skewed and lacking
in statistical significance.

Roddewig even explained how, after reviewing

Fruitticher’s report, he was able to “replicate” Fruitticher’s statistical model and
“correct” the perceived flaws. Thus, this is clearly not a case where the expert failed

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to follow any “discernible methodology,” see GPNE Corp., 2014 WL 1494247, at
*4, as Fruitticher’s methodology was sufficiently transparent for Roddewig to
highlight its myriad alleged deficiencies. Because the Court has already found
Fruitticher qualified to testify on the basis of statistical analysis in this case, the fact
that Fruitticher “cannot perform the statistical functions personally” does not
undermine the reliability of his methodology for admissibility purposes.20
d.

Linear Regression Analysis

Finally, Defendant raises several objections to Fruitticher’s linear regression
methodology, each premised on inherent principles of statistical analysis that
Defendant contends must be satisfied in order for the analysis to be valid. More
specifically, Defendant first argues that the explanatory power of Fruitticher’s linear
regression model, as indicated by its R2 value, is too low for his trend lines to have
statistical significance. Second, Defendant argues that Fruitticher failed to remove
a statistical outlier from his dataset, which renders the analysis invalid under
standard, accepted techniques for performing regression analyses. Because this
latter objection identifies a reliability problem that the Court finds dispositive, the
merits of the former objection are not addressed.

20

The Court notes that if the standard for admissibility depended on an expert’s ability to
manually perform statistical calculations, then the testimony of Defendant’s expert necessarily
would be excluded by virtue of his own concession that he is not a statistician and does not know
the math behind various calculations performed by a multiple regression model.
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Expert testimony must be based on “sufficient facts or data” and “the product
of reliable principles and methods” that have been “reliably applied . . . to the facts
of the case.” Fed. R. Evid. 702. Every step of an expert’s analysis must be
“supported by good grounds,” which “means that any step that renders the analysis
unreliable under the Daubert factors renders the expert’s testimony inadmissible.”
McClain, 401 F.3d at 1245; see also Heller v. Shaw Industries, Inc., 167 F.3d 146,
155 (3d Cir. 1999) (“[T]he reliability analysis applies to all aspects of an expert’s
testimony: the methodology, the facts underlying the expert’s opinion, the link
between the facts and the conclusion, et alia.”). To meet this standard, “[a]n expert’s
method need not be perfect, nor must he apply it perfectly.” Banta Props., Inc. v.
Arch Specialty Ins. Co., No. 10-61485-CIV, 2011 WL 13096149, at *4 (S.D. Fla.
Dec. 20, 2011); see also Best v. Lowe’s Home Ctrs., Inc., 563 F.3d 171, 181 (6th
Cir. 2009) (“Admissibility under Rule 702 does not require perfect methodology.”).
Thus, a minor flaw in an expert’s reasoning or a slight modification of an otherwise
reliable method will not render an expert’s opinion per se inadmissible. See Quiet
Tech., 326 F.3d at 1345-46. However, where “the flaw is large enough that the
expert lacks ‘good grounds’ for his or her conclusions,” exclusion of the expert’s
testimony is warranted. In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 746 (3d Cir.
1994). For the reasons that follow, the Court concludes that Fruitticher’s erroneous

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inclusion of an outlier data point that significantly distorted the results of his linear
regression analysis renders his stigma damages opinion unreliable.
Linear regression is an analytical tool used to examine the relationship
between two variables—a dependent variable, which is the variable to be explained,
and an independent variable, which is the variable believed to explain the dependent
variable—by plotting data on the X (horizontal) and Y (vertical) axes of a graph and
then finding the straight line, called a regression line, that best fits through the data
points.21 Federal Judicial Center, Reference Manual on Scientific Evidence 305,
336–38 (3d ed. 2011). The regression line, also called a trend line, reflects the extent
to which a change in the independent variable is associated with a change in the
dependent variable.22 Id. at 264. The existence of a trend does not necessarily imply
that a change in one variable causes the change in the other; rather, it only indicates
that there is some significant association between the two variables. A regression
line can be used, as it was in this case, to predict the value of a dependent variable
based on the known value of an independent variable.23

Fruitticher’s linear

21

The “best fit” is the straight line that minimizes the sum of the squared vertical distances
between each data point and the line. ATA Airlines, Inc. v. Federal Exp. Corp., 665 F.3d 882, 890
(7th Cir. 2011).
22

Stated differently, the regression line shows how much and in what direction the
dependent variable changes when the independent variable changes.
23

The mathematical equation relating the independent variable to the expected value of the
dependent variable, known as the regression equation, is Y = a + bX. Reference Manual at 335.
In this case, Y represents the sales price of a home, which is the dependent variable to be explained.
See id. X represents the date of each home sale, which is the explanatory variable. See id. The a
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regression model was designed to evaluate the extent to which property values in
various neighborhoods (the dependent variable) changed over the one-year periods
immediately before and after the subject flood (the independent variable). This
information was then used to calculate the percentage of reduction in the fair market
value of Plaintiffs’ properties as a result of the flooding
Most data points on a given graph, called a scatterplot or scatter diagram, will
not lie directly on the regression line. This is because the regression line is a
mathematical representation of the best linear relationship between all of the data
points, based on their respective vertical distances from the line. “An ‘outlier’ is an
extreme data point that lies far from a regression line [that fits] the remaining data
points.” Estate of Bud Hill v. ConAgra Poultry Co., No. 4:94-CV-0198-HLM, 1997
WL 538887 (N.D. Ga. Aug. 25, 1997). Outliers can significantly impact the slope
of the regression line and, ultimately, distort the results of an otherwise accurate
regression analysis.24 See Reference Manual at 345. This does not mean that outliers
should be automatically excluded or that a regression analysis that includes outliers
is necessarily unreliable. See Best-Practice at 284. Outliers may convey important,

is the point at which the regression line intercepts with the Y-axis when X equals 0. See id. The
b is the slope of the regression line, which represents the change in the dependent variable (sales
price) associated with a change in the explanatory variable (the passage of time). See id.
24

See also, Herman Aguinis, et al., Best-Practice Recommendations for Defining,
Identifying, and Handling Outliers, 16(2) Org. Research Methods 270, 271 (2013) (“Outliers, by
virtue of being different from other cases . . . usually exert disproportionate influence on
substantive conclusions regarding relationships among variables.”).
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legitimate information about the data sample as a whole, in which case, their
inclusion is entirely appropriate. See Hill, 1997 WL 538887, at *9. But when
outliers result from inaccuracies or errors in the data selection process, “the correct
procedure is to either adjust the data points to correct their values or remove such
observations from the data set.” Best-Practice at 284. The key is to carefully
examine what causes a data point to be an outlier. Reference Manual at 327.
In this case, Fruitticher’s regression analysis of sales in the subject
neighborhood included an outlier data point representing the sale of a home located
at 3639 Hwy 297 A for $33.32 per square foot, or $64,500. See ECF No. 77-1 at 80.
This price differed markedly from all other transactions during the relevant time
period, which ranged from $66.56 to $102.44 per square foot, or $160,000 to
$248,000. Id. Fruitticher testified that he recognized the 3639 Hwy 297 A data point
as an extreme outlier, but included it in his regression analysis anyway because it
represented a sale in the area. Fruitticher stated that he did not attempt to determine
the cause of the apparent anomaly. With the outlier, Fruitticher’s regression model
calculated a nine percent decline in the market values of flooded homes in the subject
neighborhood after the flood.

ECF No. 77-1 at 80–81.

Richard Roddewig,

Defendant’s damages expert, replicated Fruitticher’s linear regression model using
the same data set relied on by Fruitticher. It is uncontroverted that when Roddewig
identified the outlier and removed it from the analysis, the model calculated a nine

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percent incline (as opposed to a decline) in the trend line during the same period. In
other words, without the outlier, the market values of flooded homes actually
increased rather than decreased. Like Fruitticher, Roddewig does not appear to have
sought an explanation for the aberrant sales price. The Court has, however.
As part of its requisite “rigorous examination” of Fruitticher’s analysis, the
Court reviewed the Escambia County Property Appraiser’s online real property
records for 3639 Hwy 297 A.25 See Amorgianos v. Nat’l R.R. Passenger Corp., 303

25

The Court takes judicial notice of the Escambia County Property Appraiser’s real
property records with respect to transactions involving 3639 Hwy 297 A in Cantonment, Florida.
A court may take judicial notice of appropriate adjudicative facts at any stage of a proceeding,
whether or not the notice is requested by the parties. Fed. R. Evid. 201(c); see also United States
v. Harris, 331 F.2d 600, 601 (6th Cir. 2008) (explaining that a district court may take judicial
notice sua sponte). In general, a court may judicially notice a fact not subject to reasonable dispute
because it is capable of accurate and ready determination by resort to sources whose accuracy
cannot reasonably be questioned. Fed. R. Evid. 201(b). Documents that are public records are the
proper subject of judicial notice. Universal Express, Inc. v. U.S. S.E.C., 177 Fed. App’x 52, *2
(11th Cir. 2006). Also, it is not uncommon for courts to take judicial notice of factual information
found on official governmental agency websites. See, e.g., Marshek v. Eichenlaub, 266 Fed.
App’x 392 (6th Cir. 2008) (holding that court is permitted to take judicial notice, sua sponte and
at the appeals stage, of information on the Inmate Locator, which enables the public to track the
location of Federal inmates, is maintained by the Federal Bureau of Prisons and is accessed through
the agency’s website, to discover that appellant has been released since the filing of his appeal and
conclude that there remains no actual injury which the court could redress with a favorable decision
and, thus, dismiss the appeal as moot); Denius v. Dunlap, 330 F.3d 919, 926-27 (7th Cir. 2003)
(holding that district court erred when it refused to take judicial notice of information on official
federal agency website that maintained medical records on retired military personnel; that fact was
appropriate for judicial notice because it is not subject to reasonable dispute). Accordingly, the
Court may take judicial notice of the documents related to the sale of 3639 Hwy 297 A in
Cantonment, Florida, which are publicly recorded with the Escambia County Property Appraiser’s
Office and publicly available on that agency’s website. See, e.g., Champlaie v. BAC Home Loans
Servicing, LP, 706 F. Supp. 2d 1029, 1039 (E.D. Cal. 2009) (taking judicial notice of, inter alia,
publicly recorded Deed of Trust, Notice of Default, Notice of Trustee’s Sale, and Trustee’s Deed
Upon Sale); Mann v. Wells Fargo Bank, No. C12-03014 DMR, 2012 WL 6025781, *3 (N.D. Cal.
Dec. 4, 2012) (taking judicial notice, as matters of public record, of documents recorded in the
County Recorder’s Office related to two deeds of trust and a foreclosure); Glover v. Wachovia
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F.3d 256, 267 (2d Cir. 2002) (“In deciding whether a step in an expert's analysis is
unreliable, the district court should undertake a rigorous examination of the facts on
which the expert relies, the method by which the expert draws an opinion from those
facts, and how the expert applies the facts and methods to the case at hand.”). These
records are publicly available and, importantly, they were Fruitticher’s primary
source of information for data about home sales in the subject neighborhood.26 The
public records indicate that this property sold for $197,000 in April 2006. In August
2014, Wells Fargo Bank received title to the property after purchasing it for $5,100
through a judicial foreclosure sale.27 Two months later, in October 2014, Wells
Fargo sold the property to its current owner for $64,500. This final sales transaction
is the outlier data point that Fruitticher selected for inclusion in his linear regression
model, without any meaningful explanation. The public records for this transaction
make clear, however, that this sale was not a traditional, arm’s length sale that

Equity Servicing LLC, No. 03:11-cv-00210 (D. Or. July 18, 2011) (taking judicial notice of county
real property records filed in separate state court and bankruptcy actions).
26

In his report, Fruitticher stated that he obtained “building size, land size, age and amenity
information from the Escambia County Property Appraisers office” and that he was “relying on”
these property records “for the values provided in th[e] report.” ECF No. 77-1 at 9.
27

The Court notes that the Wells Fargo transaction in August 2014 does not appear in
Fruitticher’s data set, despite his insistence that he included “every sale that was available” in his
analysis. The August 2014 transaction would have been an extreme outlier and, for obvious
reasons, a candidate for elimination. In a proper regression analysis, the existence of each data
point, even those which are excluded, still must be noted and disclosed to ensure transparency.
See Best Practices at 287.
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appropriately reflected the depressed state of the market after the flood.28 Instead,
the transaction followed a judicial foreclosure and therefore, by Fruitticher’s own
standard with respect to homes sales before the flood, it should have been
“eliminated from consideration” because such transactions “noticeably skew[]” the
results of a regression analysis. See Fruitticher’s Appraisal Report, ECF No.77-1 at
9. This is not an insignificant or minor flaw. On this record, this single data point
is the difference between a finding of classwide stigma and a finding of no classwide
stigma.
Generally, criticisms of an expert’s decision to include or exclude particular
data points and variables affect the probative value of the methodology, not its
admissibility. Bazemore, 478 U.S. at 400 (“Normally, failure to include variables
will affect the analysis’ probativeness, not its admissibility.”). But where a “flaw is
large enough that the expert lacks ‘good grounds’ for his or her conclusions,” the
expert’s opinion should be excluded. See Paoli, 35 F.3d at 746; Amorgianos, 303
F.3d at 267 (same); Hendrix I, 255 F.R.D. at 578 (“[T]he court must undertake an
independent analysis of each step in the logic leading to the expert’s conclusions; if
the analysis is deemed unreliable at any step the expert’s entire opinion must be
excluded.”). In this case, the flaw in Fruitticher’s methodology is significant enough

28

This sales price also is not an indication that the flood damage to the property still needed
to be remediated. Fruitticher testified that every flooded home in this data set was repaired before
it was sold.
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for the Court to conclude that his stigma damages opinion is unreliable—correcting
the error by removing the outlier from his data set essentially negates his conclusion.
Because of this flaw, Fruitticher’s linear regression results are skewed, misleading,
and overall unreliable for demonstrating that market values declined in the subject
neighborhood after the flood. Therefore, his testimony must be excluded.
D.

Richard Roddewig

Plaintiffs have moved to exclude the testimony of Richard Roddewig,
Defendant’s proposed rebuttal damages expert. In his Summary Appraisal Review
Report, Roddewig stated that he had been retained to assess the “general accuracy,
reliability, and appropriateness” of Tom Fruitticher’s stigma damages analysis. ECF
No. 80-1 at 5. Plaintiffs argue that Roddewig is not qualified to offer an opinion on
stigma damages in this case because he lacks sufficient “local knowledge” of the
real estate market in Escambia County, Florida. See ECF No. 80 at 2. Plaintiffs also
challenge what they characterize as Roddewig’s “methodology,” which they contend
is unreliable because he draws on professional experience and case studies that are
too “disconnected” from the local market to provide any insight into the
appropriateness of stigma damages in this case. Id. at 9. During the Daubert
hearing, the Court ruled that Roddewig was qualified to testify as a rebuttal expert
on generally accepted methods in the appraisal industry for determining the effect
of a natural disaster on property values and to critique Fruitticher’s stigma damages

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opinion. On further review, the Court again concludes that Roddewig’s proposed
expert testimony satisfies Daubert.
Roddewig’s qualifications to testify as a rebuttal expert are aptly
demonstrated by his broad experience in the real estate appraisal industry and, in
particular, in analyzing the impact of flooding and other natural disasters on property
values. Like Fruitticher, Roddewig is a certified general real estate appraiser in
Florida and holds an MAI designation from the Appraisal Institute.29 He has taken
and taught numerous courses on real property appraisal, and has written extensively
on the topic. For this case, Roddewig consulted with Eugene Pressley, a local real
estate appraiser, regarding market trends specific to the Cantonment area. Roddewig
clearly possesses the “knowledge, skill, experience, training, [and] education” to
critique Fruitticher’s stigma damages opinion. See Fed. R. Evid. 702.
Roddewig prepared a standard rebuttal report of the type the Court would
expect to see in response to Fruitticher’s Appraisal Report. Roddewig does not offer
a stand-alone appraisal or opinion on stigma damages in this case; rather, his report
is limited to a critique of Fruitticher’s methodology. This was entirely appropriate.
The task of a rebuttal expert is different from that of an affirmative expert. A rebuttal

29

MAI stands for “Member, Appraisal Institute.” The MAI designation is awarded to
professional appraisers who meet certain education and experience requirements. Appraisal
Institute, http://www.appraisalinstitute.org/our-designations/ (March 21, 2007); see also U.S. v.
25.202 Acres of Land & Bldg. Affixed to Land Located in the Town of Champlain, Clinton Cnty,
N.Y., 860 F. Supp. 2d 165, 173 n.10 (N.D.N.Y. 2010).
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expert, by definition, criticizes or rebuts the methodology and opinions of another
expert. Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 759 (8th Cir. 2006) (“The
function of rebuttal testimony is to explain, repel, counteract or disprove evidence
of the adverse party.”). There is no requirement that a rebuttal expert offer a
competing damages analysis, for example; his opinions properly may be limited to
criticizing the analysis and conclusions presented by another party. See, e.g., Clark
v. Edison, 881 F. Supp. 2d 192, 212 (D. Mass. 2012) (admitting rebuttal expert
testimony that directly contradicted plaintiff’s expert’s testimony because both
experts’ testimony fell “within the range where experts might reasonably differ); In
re Zyprexa Products Liability Litigation, 489 F. Supp. 2d 230, 285 (E.D.N.Y. 2007)
(“[D]efendant’s experts have a less demanding task, since they have no burden to
produce models or methods of their own; they need only attack those of plaintiff’s
experts.”); 1st Source Bank v. First Res. Fed. Credit Union, 167 F.R.D. 61, 65 (N.D.
Ind. 1996) (noting that “as a rebuttal witness, [an expert] may criticize [plaintiff’s]
damage theories and calculations without offering alternatives”). In this case,
Roddewig stated that he reviewed Fruitticher’s report and the data referenced within
it, replicated and tested Fruitticher’s regression models, visually inspected the
subject homes and the surrounding neighborhoods, reviewed literature on appraisal
standards and statistical modeling, and prepared a rebuttal report. See ECF No. 801 at 41-42. In his report, Roddewig identified alleged errors and inconsistencies in

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Fruitticher’s methodology, provided a reasoned basis for each criticism, and
furnished reference materials in support of his positions. Thus, the Court is satisfied
that Roddewig’s opinion is sufficiently grounded in his expertise and analysis of the
facts of the case to render it reliable. Plaintiffs’ challenges to Roddewig’s lack of
prior experience with Escambia County real estate and to the applicability of various
case studies go to the weight of Roddewig’s testimony, not its admissibility.
III.

Class Certification
Plaintiffs are pursuing class certification on claims of negligence, trespass,

nuisance, and strict liability, pursuant to Rule 23 of the Federal Rules of Civil
Procedure. Class actions are an exception to the rule that litigation is ordinarily
conducted only on behalf of individually named parties. See Wal-Mart Stores, Inc.
v. Dukes, 564 U.S. 338, 348 (2011). A district court has discretion to certify a class
if, after “a rigorous analysis,” the court is satisfied that the requirements of Rule 23
of the Federal Rules of Civil Procedure are met. See Comcast Corp. v. Behrend, 133
S. Ct. 1426, 1432 (2013) (citing Dukes, 564 U.S. at 351); Carriuolo v. Gen. Motors,
Co., 823 F.3d 977, 981 (11th Cir. 2016). The party seeking to certify the class bears
the burden to establish the requirements of Rule 23 by a preponderance of the
evidence, and remaining doubts are resolved against class certification. See Brown
v. Electrolux Home Prods., Inc., 817 F.3d 1225, 1233 (11th Cir. 2016). The district
court must resolve all conflicts in the evidence necessary to make the requisite

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determinations under Rule 23. See Comcast, 133 S. Ct. at 1432 (noting Rule 23 is
not a mere pleading standard and it may be necessary for the court to “probe behind
the pleadings” to determine the certification issue); Eisen v. Carlisle & Jacquelin,
417 U.S. 156, 178 (1974) (the class action inquiry is not whether the plaintiff has
stated a cause of action or will prevail on the merits but whether Rule 23 is satisfied);
Sher, 419 F. App’x at 891 (“[A] district court must make the necessary factual and
legal inquiries and decide all relevant contested issues prior to certification.”).
“Although the trial court should not determine the merits of the plaintiffs’ claim at
the class certification stage, the trial court can and should consider the merits of the
case to the degree necessary to determine whether the requirements of Rule 23 will
be satisfied.” See Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181, 1188 n.
15 (11th Cir. 2003); see also Amgen Inc. v. Connecticut Retirement Plans and Trust
Funds, 133 S. Ct. 1184, 1194–95 (2013) (cautioning that, although a “classcertification analysis must be ‘rigorous’ and may ‘entail some overlap with the
merits of the plaintiff's underlying claim,’” quoting Dukes, 564 U.S. at 351, there is
“no license to engage in free-ranging merits inquiries at the certification stage”)
(securities fraud).
Before a class is certified, the plaintiff must establish all four prerequisites of
Rule 23(a), plus at least one of the alternatives listed in Rule 23(b). See Valley Drug,
350 F.3d at 1188 (“Failure to establish any one of these four factors and at least one

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of the alternative requirements of Rule 23(b) precludes class certification.”). The
Rule 23(a) prerequisites of “numerosity, commonality, typicality, and adequacy of
representation,” Little v. T–Mobile USA, Inc., 691 F.3d 1302, 1304 (11th Cir. 2012),
require Plaintiffs to show, and the Court to find, by a preponderance of the evidence
that:
(1)

the class is so numerous that joinder of all members is
impracticable;

(2)

there are questions of law or fact common to the class;

(3)

the claims or defenses of the representative parties are typical of
the claims or defenses of the class; and

(4)

the representative parties will fairly and adequately protect the
interests of the class.

Fed. R. Civ. P. 23(a). Additionally, because Plaintiffs in this case seek certification
under Rule 23(b)(3), they must prove that:
questions of law or fact common to class members predominate over
any questions affecting only individual members, and that a class action
is superior to other available methods for fairly and efficiently
adjudicating the controversy.
Fed. R. Civ. P. 23(b)(3).
In addition to the Rule 23 requirements, at least one named plaintiff seeking
class certification must have standing.30 See Prado-Steiman ex rel. Prado v. Bush,

30

“[A]ny analysis of class certification must begin with the issue of standing.” Griffin v.
Dugger, 823 F.2d 1476, 1482 (11th Cir. 1987). At least one named plaintiff must have standing
in the constitutional sense to represent the class, which requires a showing of a redressable injury
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221 F.3d 1266, 1279-80 (11th Cir. 2000). The plaintiffs must also demonstrate that
the proposed class is “adequately defined and clearly ascertainable.” Carriuolo, 823
F.3d at 984 (quoting Little, 691 F.3d at 1304). The district court has discretion to
redefine the class to cure a deficiency in the proposed class, see Benefield v. Int’l
Paper Co., 270 F.R.D. 640, 645 (M.D. Ala. 2010), but the Plaintiffs “must propose
an administratively feasible method by which class members can be identified,”
Karhu v. Vital Pharms., Inc., 621 F. App’x. 945, 947 (11th Cir. 2015) (unpublished).
A.

Ascertainability

“Although not explicit in Rule 23(a) or (b), courts have universally recognized
that the first essential ingredient to class treatment is the ascertainability of the
class.” Grimes v. Rave Motion Pictures Birmingham, L.L.C., 264 F.R.D. 659, 663
(N.D. Ala. 2010). This threshold issue requires a showing that “the class definition
contains objective criteria that allows for class members to be identified in an
administratively feasible way.” Karhu, 621 Fed. App’x at 946; see also Manual for
Complex Litigation (Fourth) § 21.222 (2004) (class definition must be “precise,
objective, and presently ascertainable . . . by reference to objective criteria”).

that is fairly traceable to the defendant’s conduct. See id. Standing is not challenged in this case,
but the Court has considered the issue. There is evidence that at least one proposed class
representative, John Navelski, owns real property within the proposed class area that experienced
flooding during the subject storm, which was allegedly caused or made severe by the failure of the
Kingsfield Road Dam. This evidence is sufficient to establish that John Navelski has suffered a
redressable injury that is traceable to Defendant’s conduct. Accordingly, the Court finds that at
least one named plaintiff has Article III standing to raise each class claim.
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Identifying class members is administratively feasible when doing so is a
“manageable process that does not require much, if any, individual inquiry.” Id. In
this case, the proposed class boundaries are defined in objective terms as including
only individuals who were homeowners in the Bristol Park, Bristol Woods, Bristol
Creek, and Ashbury Hills subdivisions in Cantonment, Florida as of April 29, 2014.
The names and addresses of the proposed class members are easily ascertainable by
reference to the real property records of Escambia County, Florida. Accordingly,
because Plaintiffs have sufficiently demonstrated that the members of the class may
be identified in an administratively feasible way, the Court finds that the
ascertainability requirement is satisfied.
B.

Rule 23(a) Requirements
1.

Numerosity

The numerosity requirement is met when “the class is so numerous that
joinder of all members is impracticable.” Fed. R. Civ. P. 23(a). While there is no
predetermined threshold number of plaintiffs required to certify a class, in the
Eleventh Circuit, a prospective class consisting of more than forty members is
generally deemed sufficient. Cox v. American Cast Iron Pipe Co., 784 F.2d 1546,
1553 (11th Cir. 1986). In this case, Plaintiffs’ proposed class consists of more than
300 property owners in the subject neighborhoods. See ECF Nos. 62 at 16, 62-4 at
2-3. Joinder of this number of claims would be unmanageable and costly. The Court

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thus finds, as Defendant concedes, that the proposed class is sufficiently numerous
to satisfy Rule 23(a).
2.

Commonality

To satisfy the commonality requirement, plaintiffs must show the presence of
questions of law or fact that are common to the entire class. Fed. R. Civ. P. 23(a)(2).
A “common” question is one that has a classwide answer or resolution, “which
means that determination of its truth or falsity will resolve an issue that is central to
the validity of each one of the claims in one stroke.” Carriuolo, 823 F.3d at 984.
Commonality also requires the plaintiffs to demonstrate that the class members have
all suffered the same injury. Dukes, 564 U.S. at 350. Individual claims of the class
members do not need to be factually or legally identical, however, and differences
among them will not defeat commonality if common questions of law exist. Cox v.
American Cast Iron Pipe Co., 784 F.2d 1546, 1557 (11th Cir. 1986). Ultimately,
the commonality test is a “low hurdle” that is easily surmounted, Williams v.
Mohawk Indus., Inc., 568 F.3d 1350, 1356 (11th Cir. 2009), because “for purposes
of Rule 23(a)(2) even a single common question will do,” Carriuolo, 823 F.3d at
984.
In this case, Plaintiffs have alleged questions of fact for which there are
common answers pertaining to Defendant’s maintenance or abandonment of the
Kingsfield Road Dam and to whether the flooding of homes in Plaintiffs’

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neighborhoods was caused or made more severe by the failure of the Dam. Plaintiffs
have also presented questions of law, for which there are common answers,
regarding whether Defendant is liable, under four separate legal theories, for its
alleged course of conduct with respect to the Dam and for the alleged consequences
therefrom. These are issues that underlie every claim and they are common not only
to the representative plaintiffs, but also to the rest of the class. The Court thus finds,
as Defendant concedes, that Plaintiffs have met the commonality requirement.
3.

Typicality

To satisfy the typicality requirement of Rule 23(a)(3), the class
representatives’ claims or defenses must be typical of the claims or defenses of the
class.

This inquiry focuses on the relationship between the interests of the

representative parties and the interests of the class as a whole. See Prado-Steiman,
221 F.3d at 1279. “A class representative must possess the same interest and suffer
the same injury as the class members in order to be typical.” Busby v. JRHBW
Realty, Inc., 513 F.3d 1314, 1322-23 (11th Cir. 2008). This is established by a
showing that the claims of the class and its representatives arise from the same
events, practice, or conduct and are based on the same legal theories. Kornberg v.
Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir. 1984). This does not
mean that the claims of the class representatives and those of the class must be
identical, however. Id. Once the class representatives demonstrate that the same

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unlawful conduct affected both them and the rest of the class, factual variations
among the individual claims generally will not defeat typicality. Id.
The claims of the class representatives in this case are typical since they are
based on the same legal theories—negligence, trespass, nuisance, and strict
liability—and arise from the same event, practice, or course of conduct—the
collapse of the Kingsfield Road Dam as a result of Defendant’s alleged failure to
properly maintain or abandon it—that give rise to the claims of the other class
members. The fact that individual homes within the proposed class area did not all
flood at the exact same time does not, as Defendant argues, render Plaintiffs’ claims
atypical. All individual homes within the proposed class area are alleged to have
experienced stigma damages and/or flooding that was either caused or made more
severe by the Dam’s failure, regardless of the time it occurred. Individual variations
among class members’ claims with respect to the extent of their damages do not
defeat typicality for purposes of class certification. Id. (“Differences in the amount
of damages between the class representative and other class members does not affect
typicality.”). The Court will not need to make highly individualized legal or factual
determinations to assess Defendant’s liability. On this record, there is plainly a
sufficient nexus between the claims of the class representatives and those of the class
as a whole to satisfy the typicality requirement.

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4.

Adequacy of Representation

Rule 23(a)(4) requires that both the named plaintiffs and their counsel will
“fairly and adequately protect the interests of the class.” To satisfy the adequacy
requirement, the named plaintiffs must show (1) that their interests are not
“antagonistic” to the interests of other class members; and (2) that class counsel is
“qualified, experienced, and generally able to conduct the proposed litigation.”
Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 726 (11th Cir. 1987). This inquiry
is meant to identify any substantial conflicts of interest between the named plaintiffs
and the rest of the class. Amchem Products, Inc. v. Windsor, 521 U.S. 591, 625
(1994). Minor conflicts among class members, however, will not defeat class
certification. Valley Drug, 350 F.3d at 1189. To render representative plaintiffs
inadequate, a conflict must be “fundamental” and “go[] to the specific issues in
controversy.” Id. A fundamental conflict exists where a defendant’s alleged conduct
has benefitted some class members, but harmed other members. Id. Alternatively,
there is a fundamental conflict when the economic interests and objectives of the
named representatives differ significantly from those of other class members. Id.
Defendant contends there are two conflicts in this case that make class
certification inappropriate. First, Defendant argues that since not every flooded
home was deluged with water at exactly the same time, class members have mutually
antagonistic interests with respect to proving the precise time that the Kingsfield

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Road Dam actually failed. Second, Defendant asserts, without elaboration, that class
representatives who experienced flooding cannot adequately represent the interests
of members whose homes did not flood. Both of these arguments fail because
neither involves an intra-class divergence of interests so substantial that it amounts
to a “fundamental conflict” for adequacy purposes. As discussed with respect to
typicality, all class members’ claims arise from a common nucleus of facts and all
members are alleged to have experienced stigma damages and/or flooding that was
either caused or made more severe by the failure of the Dam, regardless of the time
it occurred. The economic interests and litigation objectives of all class members
are therefore entirely consistent in that they each seek a judgment from this Court
that Defendant’s alleged inaction with respect to the Dam was unlawful and that
their consequent damages entitle them to monetary relief. The class members’
damages will differ in degree, perhaps, but not in nature. Under any reasonable
application of Rule 23(a)(4), it is clear that the incentives of the representative
plaintiffs are aligned with those of the rest of the class in a manner that ensures they
will fully and adequately protect the interests of all members. Any individual
inquiries necessary to determine damages need not be addressed until after all
common issues are resolved.
Defendant does not challenge class counsel as inadequate, nor does it allege
that there is an improper relationship between Plaintiffs and their counsel that would

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defeat the adequacy of representation. The Court has reviewed the affidavits of
Plaintiffs’ counsel, which detail the education and professional experience of each.
See ECF Nos. 62-8, 62-9, 62-10. The Court also had the opportunity to observe
Plaintiffs’ counsel during the class certification hearing and has read numerous
briefs submitted by them in this case. The Court concludes that Plaintiffs’ counsel
possess the necessary qualifications and experience to serve as class counsel. Thus,
Plaintiffs have met their burden of establishing all of the Rule 23(a) requirements.
C.

Rule 23(b)(3) Requirements

In addition to establishing the elements of Rule 23(a), Plaintiffs in this case
must also show that their action satisfies the criteria in Rule 23(b)(3). To maintain
a class action under Rule 23(b)(3), the questions common to the class must
predominate over the questions affecting individual class members and a class action
must be superior to other available methods of adjudication.
1.

Predominance

To satisfy the first prong of Rule 23(b)(3), Plaintiffs must establish that the
issues subject to generalized proof in the class action, and thus applicable to the class
as a whole, predominate over the issues that are subject only to individual proof.
Rutstein v. Avis Rent-A-Car Systems, Inc., 211 F.3d 1228, 1233 (11th Cir. 2000).
“Common issues can predominate only if they have a direct impact on every class
member’s effort to establish liability that is more substantial than the impact of

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individualized issues in resolving the claim or claims of each class member.”
Carriuolo, 823 F.3d at 985. On the other hand, common issues will not predominate
over individual questions if, “as a practical matter, the resolution of [an] overarching
common issue breaks down into an unmanageable variety of individual legal and
factual issues.” Andrews v. Am. Tel. & Tel. Co., 95 F.3d 1014, 1023 (11th Cir. 1996).
Certification is inappropriate if the “plaintiffs must still introduce a great deal of
individualized proof or argue a number of individualized legal points to establish
most or all of the elements of their individual claims.” Klay v. Humana, Inc., 382
F.3d 1241, 1255 (11th Cir. 2004), abrogated in part on other grounds by Bridge v.
Phoenix Bond & Indem. Co., 553 U.S. 639 (2008). In determining whether class or
individual issues predominate in a putative class action suit, a court must take into
account “the claims, defenses, relevant facts, and applicable substantive law” to
assess the degree to which resolution of the classwide issues will further each
individual class member’s claim against a defendant. Id. at 1254.

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Plaintiffs have alleged claims for negligence,31 nuisance,32 trespass,33 and
strict liability.34

Each of these claims is based on Plaintiffs’ contention that

Defendant did not maintain or abandon the Dam properly, which led to its failure
during the Storm, causing harm to the subject neighborhood and Plaintiffs’ homes
as a result. Thus, the core factual and legal issues with respect to liability in this
case—whether or not Defendant’s conduct caused the Dam to fail, whether or not
the Dam’s failure caused flooding in the subject neighborhood, and, if so, to what
extent Defendant should be held liable—are resolvable by proof that is common to
all class members.35 Contrary to Defendant’s assertion, even the issue of causation
31

In Florida, negligence requires proof of four elements: (1) duty of care; (2) breach; (3)
legal or proximate causation; and (4) actual damages. Wallace v. Dean, 3 So. 3d 1035, 1047 (Fla.
2009); Williams v. Davis, 974 So. 2d 1052, 1056 (Fla. 2007).
32

A nuisance under Florida law is “[a]nything which annoys or disturbs one in the free use,
possession, or enjoyment of his property, or which renders its ordinary use or occupation
physically uncomfortable.” Jones v. Trawick, 75 So. 2d 785, 787 (Fla. 1954); Knowles v. Cent.
Allapattae Properties, Inc., 198 So. 819, 822 (Fla. 1940). “As to the nuisance claim, such an action
is dependent upon an interference with the plaintiff’s health, comfort, safety, or proprietary rights.”
State ex rel. Pettengill v. Copelan, 466 So. 2d 1133, 1135 (Fla. 1st DCA 1985). Under Florida
common law, “a tort plaintiff seeking to recover for economic harm caused by pollution or
contamination need not own property that is itself polluted or contaminated.” Adinolfe v. United
Techs. Corp., 768 F.3d 1161, 1178 (11th Cir. 2014) (discussing nuisance and negligence claims)
(citing Curd v. Mosaic Fertilizer, LLC, 39 So. 3d 1216 (Fla. 2010)).
33

Florida law states that trespass to real property is “an injury to or use of the land of
another, by one who has no right or authority.” Brown v. Solary, 37 Fla. 102, 112 (1896); see also
Glen v. Club Mediterranee, S.A., 450 F.3d 1251, 1254 n.1 (11th Cir. 2006) (quoting Guin v. City
of Riviera Beach, 388 So. 2d 604, 606 (Fla. 4th DCA 1980)).
34

To recover on a claim for strict liability under Florida law, a plaintiff must show that the
defendant engaged in an abnormally dangerous activity that resulted in “harm to the person, land
or chattels of another.” Bunyak v. Clyde J. Yancey & Sons Dairy, Inc., 438 So. 2d 891, 894 (Fla.
2d DCA 1983).
35

This is true even with respect to Plaintiffs’ trespass claim, despite the fact that a number
of putative class members did not experience flooding. That some class members ultimately may
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is capable of classwide proof. Dr. Ross’s hydraulic model predicts the flood areas
and water depths that would have resulted throughout the subject neighborhood both
if the Dam had remained intact and if it had been removed properly before the Storm.
The model also calculates the difference between the predicted depths under those
two hypothetical scenarios and the water levels that were actually observed after the
Storm. In other words, Dr. Ross’s models and calculations, if credited, establish, on
a classwide basis, which houses in the subject neighborhood experienced flooding
that was caused by the Dam’s failure and which did not. Every class member’s
claims depend on common evidence that will resolve these same liability issues, and
proof of one plaintiff’s claims necessarily will be proof of the others’.
However, with the exclusion of Tom Fruitticher’s classwide stigma damages
opinion, there is no dispute that if Plaintiffs establish liability, computation of
damages will be a property-specific endeavor. See ECF No. 62 at 25-28, 30.36
Indeed, Plaintiffs have identified no alternative method for proving damages on a
classwide basis. The need for individualized damages determinations, however,

not be successful on the trespass claim does not defeat certification where common issues
otherwise predominate. See, e.g., Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1136 (9th Cir.
2016) (“[E]ven a well-defined class may inevitably contain some individuals who have suffered
no harm as a result of a defendant’s unlawful conduct.”); Kohen v. Pac. Inv. Mgmt. Co. LLC, 571
F.3d 672, 677 (7th Cir. 2009) (observing that it is inevitable “that a class will often include persons
who have not been injured by the defendant’s conduct;” but “[s]uch a possibility or indeed
inevitability does not preclude class certification”).
36

Plaintiffs’ Memorandum of Law in Support of their Motion for Class Certification.

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does not prevent a finding that common issues predominate. Allapattah Servs. v.
Exxon Corp., 333 F.3d 1248, 1261 (11th Cir. 2003). Instead, the Court must
determine whether the individual issues involved in calculating damages so
overwhelm the common issues related to liability that predominance is destroyed.
Id. Because in this case, every aspect of liability can be resolved on a classwide
basis, it would be neither efficient nor fair to anyone, including Defendant, to hold
over 300 trials to hear the same evidence and decide the same liability issues. The
Court is thus satisfied that common issues of law and fact as to causation and liability
predominate over the issues requiring individualized proof, and the need to bifurcate
and allow individual trials as to damages does not preclude certification of a class
for these common issues.
2.

Superiority

The second prong of Rule 23(b)(3) requires Plaintiffs to show that a class
action is superior to other available methods for the fair and effective adjudication
of the controversy. The focus of this inquiry is on “the relative advantages of a class
action suit over whatever other forms of litigation might be realistically available to
the plaintiffs.” Klay, 382 F.3d at 1269. As a result, the predominance analysis “has
a tremendous impact on the superiority analysis . . . for the simple reason that, the
more common issues predominate over individual issues, the more desirable a class
action lawsuit will be as a vehicle for adjudicating the plaintiffs’ claims.” Id. Factors

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relevant to the superiority analysis include: (1) the class members’ interests in
individually controlling the prosecution of separate actions; (2) the extent and nature
of any litigation concerning the controversy already commenced by other members
of the class; (3) the desirability or undesirability of concentrating the litigation of the
claims in the particular forum; and (4) the difficulties likely to be encountered in the
management of a class action. Fed. R. Civ. 23(b)(3).
In light of the Court’s findings regarding the other Rule 23 criteria,
Defendant’s contention that a class action is not a superior method to adjudicate
Plaintiffs’ claims is unpersuasive, at least with respect to the question of liability.
Defendant proposes an alternative method of adjudication, namely, the filing of
individual claims by each of the homeowners allegedly harmed in this case.
However, it is likely that class members would have little interest in pursuing
separate actions, as this matter involves relatively small individual claims compared
to the cost of litigating complex legal issues against a relatively large corporate entity
like Defendant. Joinder is impracticable due to the number of potential claimants
and, if liability claims proceed separately, there is a very real risk of inconsistent
adjudications holding Defendant to varying standards of conduct with respect to the
same common nucleus of operative facts. As discussed above, repeated litigation of
the same core liability issues would be grossly inefficient and wasteful of the
resources of the parties and the judiciary. This action appears to be the only existing

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litigation concerning the subject flooding. The Northern District of Florida is an
appropriate forum because the proposed class is comprised of homeowners who
allegedly suffered harm here, and all of the alleged conduct occurred here. Finally,
because proof during the liability phase will not differ among class members, it is
unlikely that management of the class action will become overwhelming or
unreasonably difficult. Therefore, all of the Rule 23(b)(3) factors weigh in favor of
finding class treatment superior for determining liability in this case. Accordingly,
the Court will exercise its discretion under Rule 23(c)(4) to certify a liability-only
class and bifurcate damages from liability.
D.

Class Definition

In sum, the Court finds that Plaintiffs’ claims of liability may be resolved in a
class action and, therefore, certification of a class for that purpose is appropriate.
Accordingly, the Court certifies the following liability-only class with respect to
Plaintiffs’ negligence, nuisance, trespass, and strict liability claims:
All persons who, as of April 29, 2014, owned real property in the
Bristol Park, Bristol Woods, Bristol Creek, or Ashbury Hills
Subdivisions in Cantonment, Florida, as specifically delineated in
Plaintiffs’ Motion for Class Certification, Exhibit A, ECF No. 61-1 at
2.
Because this class is certified under Rule 23(b)(3), “the [C]ourt must direct to class
members the best notice that is practicable under the circumstances, including
individual notice to all members who can be identified through reasonable effort.

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Fed. R. Civ. P. 23(c)(2)(B). The Court directs the parties to submit a joint proposed
notice to the Court within seven days of the date of this Order. If the parties are
unable to agree on the content of the notice, they must each submit a proposed notice,
together with briefing, within 14 days of the date of this Order. The Court will
schedule a case management conference to discuss the progression of the litigation
going forward.
IV.

Summary Judgment
Defendant moves for summary judgment on grounds that the record contains

no admissible evidence of causation and, in the alternative, on the issue of stigma
damages. With respect to causation, summary judgment is improper. Defendant
asserts that Plaintiffs rely solely on Dr. Mark Ross’s inadmissible expert opinion to
prove causation, without which, their claims fail. Because the Court has found Dr.
Ross’s expert testimony admissible, there exists a genuine dispute of material fact
on the issue of whether Plaintiffs’ homes experienced flooding that was caused or
made more severe by the failure of the Kingsfield Road Dam. 37 Thus, Defendant’s
motion for summary judgment on the issue of causation is due to be denied. See
Fed. R. Civ. P. 56(a). Defendant’s motion for partial summary judgment as to
classwide stigma damages, however, is due to be granted. With the exclusion of
Tom Fruitticher’s expert testimony, there is no admissible evidence that stigma
37

See Section II(B) above.

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damages in this case are capable of measurement on a classwide basis.38 See
Comcast, 133 S. Ct. at 1433 (holding that plaintiffs seeking certification of damages
questions must produce a model establishing that damages are measurable on a
classwide basis).
Accordingly, it is ORDERED that:
1.

Defendant’s Motion to Exclude Expert Testimony from Tom
Fruitticher, MAI, ECF No. 77, is GRANTED.

2.

Defendant’s Motion to Exclude Expert Testimony from Mark Ross
Ph.D., P.E., ECF No. 78, is DENIED.

3.

Plaintiffs’ amended Motion to Limit or Exclude Expert Testimony of
Richard J. Roddewig, ECF No. 80, is DENIED. The Clerk is directed
to terminate Plaintiffs’ original motion, ECF No. 79.

4.

Defendant’s Motion for Summary Judgment, ECF No. 81, is
GRANTED as to classwide stigma damages and DENIED as to
causation and/or liability.

5.

Plaintiffs’ Motion for Class Certification, ECF No. 61, is GRANTED
in part and DENIED in part, as discussed above.

6.

The Court certifies a class with respect the issue of liability only, as
defined in Section III(D) of this Order.

7.

Within seven days of the date of this Order, the parties must submit a
joint proposed notice to the Court. If the parties are unable to agree on
the content of the notice, then each side must submit a proposed notice,
together with briefing, within 14 days of the date of this Order.

8.

The named plaintiffs are appointed as class representatives.

38

The Court does not express an opinion on the merits of Defendant’s objections to stigma
damages or on the question of whether individual plaintiffs may, should Defendant be found liable,
pursue claims for stigma damages.
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9.

Plaintiffs’ counsel, James L. Kauffman and Jonathan R. Marshall of
Bailey & Glasser LLP, Jeremiah J. Talbott of Law Office of J.J. Talbott,
P.A., and Christopher M. Vlachos of Vlachos Injury Law, P.A., are
appointed as class counsel.

10.

As discussed herein, this case will proceed in two phases: liability and
damages. By separate order, the Court will schedule a case
management conference to discuss the progression of the litigation
going forward.

DONE and ORDERED on this 25th day of March, 2017.

M. Casey Rodgers
M. CASEY RODGERS
CHIEF UNITED STATES DISTRICT JUDGE

Case No. 3:14cv445/MCR/CJK