Burdette et al v. VigIndustries Inc.

Filing 207

MEMORANDUM AND ORDER granting 185 Motion to Exclude expert opinions of Dr. David L. Mitchell; granting 187 Motion for Summary Judgment. Signed by District Judge Julie A. Robinson on 3/17/14. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

KENNETH BURDETTE, et al.,

)
)
Plaintiffs,
)
)
vs.
)
)
VIGINDUSTRIES INC.,
)
)
Defendant.
)
____________________________________)

Case No. 10-1083-JAR

MEMORANDUM AND ORDER
In 2002, Defendant Vigindustries, Inc. (“Vigindustries”) acquired land in Hutchinson,
Kansas, upon which the Carey Salt Company solution mines operated from 1903 to 1998.
Before and after Vigindustries purchased this land, large sinkholes developed, and Vigindustries
took measures to prevent further sinkhole development. Plaintiffs are residents of Careyville, a
subdivision adjacent to the abandoned salt mines, who brought this action claiming negligence
and nuisance based on Vigindustries’ activities. Before the Court are Defendant’s Motion for
Summary Judgment (Doc. 187), and Motion to Exclude Expert Opinions of Dr. David L.
Mitchell (Doc. 185). For the reasons explained in detail below, the Court grants both motions.
I.

Uncontroverted Facts and Summary of Plaintiffs’ Claims
The following facts are either uncontroverted or stipulated. The Careyville neighborhood

is located in the southeastern portion of the City of Hutchinson, Kansas. Careyville once
consisted of approximately 300 residences built on land adjacent to the wellfield where the
former Carey Salt Company’s solution mining operation was located. Solution mining
operations were conducted on the wellfield adjacent to Careyville (and now owned by defendant
Vigindustries) from 1903 to 1998, with about 106 brine wells distributed across the roughly 200

acres comprising the wellfield. No solution mining operations have occurred on the wellfield
since 1998. Defendant Vigindustries acquired the land comprising the wellfield in 2002.
Vigindustries never drilled or operated any brine wells on the wellfield or in the Careyville area.
In January 2005, the underground cavern resulting from one of the brine wells collapsed,
creating a sinkhole near the northern edge of the wellfield. At the direction of the Kansas
Department of Health and Environment (“KDHE”), Vigindustries investigated the brine wells
and caverns on the wellfield. As a result of Vigindustries’ investigation, and in agreement with
the KDHE and the City of Hutchinson, Vigindustries announced in August 2009 that it would
make offers to buy certain residential properties located on the northern and eastern edges of the
Careyville neighborhood in order to increase the buffer between the former brine wells on the
wellfield and the residential properties in Careyville.
To determine which homes should be included in the buyout, Vigindustries’ geologists
and geotechnical engineers at Burns & McDonnell reviewed all documented sinkholes related to
salt solution mining in Kansas. Burns & McDonnell determined that the largest documented
sinkhole related to salt solution mining in Kansas occurred at the Cargill plant in Hutchinson in
1974. The Cargill sinkhole had a radius of 180 feet. Burns & McDonnell proposed and
Vigindustries adopted this maximum-observed radius of 180 feet to determine the scope of the
buyout in Careyville. Essentially, Burns & McDonnell drew a circle with a radius of 180 feet
around each well along the edges of the neighborhood, resulting in a line through the
neighborhood. Those homes which were inside that line were included in the buyout. The
purpose of Vigindustries’ buyout was to buy those homes and move those residents who were at
risk of a future sinkhole because of proximity to the solution wells on the wellfield.

2

Vigindustries announced that it planned to remove the homes on the property it
purchased in Careyville and to maintain the property as an undeveloped buffer between the
residential property in Careyville and the former brine wells on the wellfield. Vigindustries’
agreement with the KDHE and the City of Hutchinson provided, among other things, that if any
of the homeowners to whom Vigindustries planned to make offers declined to sell their property
to Vigindustries, the City of Hutchinson would initiate condemnation proceedings under its
power of eminent domain to acquire the property. Vigindustries made offers to purchase thirtyseven properties in Careyville. All but one of the homeowners who received offers from
Vigindustries sold their property to Vigindustries. One owner, Bill Stull, rejected Vigindustries’
offer. Pursuant to the agreement between Vigindustries, the KDHE, and the City of Hutchinson,
the City acquired Mr. Stull’s property through a condemnation proceeding in state court. The
homes purchased by Vigindustries on the perimeter of the Careyville neighborhood were
removed from the property and a decorative fence was erected between the property acquired by
Vigindustries and Careyville. By April 2, 2010, with the exception of the property owned by
Mr. Stull, the acquisition of the property for the buffer was complete. By May 2010, all of the
homes purchased by Vigindustries, with the exception of the homes owned by Mr. Stull and by
Milda Friesen, had been removed. The Careyville properties purchased by Vigindustries were
on William Street and Carey Boulevard.
Plaintiffs Kenneth and Linda Burdette, Donna Schroeder, Robert and Tresia England,
Danny and Sharon Sidebottom, Glen West, James West, and Stephanie Brown all own
residential property in Careyville that was not purchased by Vigindustries in the buyout.1

1

Plaintiff Lloyd Schroeder is no longer living.

3

Plaintiffs Kenneth and Linda Burdette claim that, among other things, their home
has sustained cracks in the ceiling, walls, garage floor and driveway, that their roof sags, and that
they have an unexplained hole under their driveway. The Burdettes first noticed the cracks in
their ceiling, walls, driveway and garage floor, the hole under their driveway and the sagging
roof more than ten years before their depositions were taken in November 2010. Mr. Burdette
has known that the field east of Careyville was used for salt solution mining since he moved to
Careyville in approximately 1980; he suspects that the hole under his driveway was caused by
actions connected with the salt mining on the wellfield. Knowing about the 2005 sinkhole on the
wellfield, in combination with Vigindustries’ buyout, caused Mrs. Burdette concern that her
home might be in danger. She read of the latest sinkhole in the newspaper when it occurred.
Plaintiff Stephanie Brown claims, among other things, that her home has cracks in
its foundation and back porch walls, that her basement floor and backyard slope, and that the end
of her driveway has sunk. Ms. Brown first noticed this damage to and around her home five
years or more before her deposition was taken in November 2010. Ms. Brown has known there
were brine wells on the field east of Careyville since her father purchased her house in
Careyville in approximately 1989. Ms. Brown believes that the cracks in her foundation were
caused by the ground shifting associated with the salt wells. One reason she associates the
cracks with the salt wells is the existence of sinkholes on the wellfield, including the 2005
sinkhole. Ms. Brown heard of the 2005 sinkhole on the day it happened.
Plaintiffs Danny and Sharon Sidebottom claim that their home had cracks in the
walls and that their backyard was uneven and had sinking spots and unexplained holes.
The Sidebottoms first noticed the cracks and changes in their yard in approximately 1994. In

4

early 2007, the Sidebottoms noticed that their house had shifted on its foundation. Shortly after
that, in May 2007, their basement wall collapsed. Mrs. Sidebottom suspects the damage to her
house was caused by the salt wells. The Sidebottoms learned of the solution wells on the
wellfield right after the 2005 sinkhole occurred.
Plaintiffs James and Glen West have known of subsidence in the yard of their property in
Careyville since the mid-1960s. The Wests’ foundation and basement collapsed in
approximately 1986. The Wests also claim that their windows and doors were hard to open and
shut, that their patio and sidewalk had sunk and were broken, and that their driveway was tilted
and broken. The Wests first noticed these problems with their windows and doors, patio,
sidewalk, and driveway more than five years before their depositions were taken in November
2010. Glen West believes that much of the structural damage to the Wests’ house was related to
the type of mining done on the wellfield, although he does not know for sure. James West
believes that the basement on their house collapsed because of subsidence caused by the salt
mining around Careyville. James and Glen West have been aware that the field east and north of
Careyville was used for salt solution mining for decades. Glen West has known of sinkholes in
the field east of Careyville since he was a child growing up in Careyville. James West first
learned of the most recent sinkhole in 2005. He was aware of other sinkholes on the wellfield
during his childhood. James West was born in 1945.
Plaintiffs filed this action on January 6, 2010, alleging several claims associated with
their allegation that Vigindustries and its predecessors in interest failed to use reasonable care in
the operation and maintenance of the Careyville salt mines and that they failed to use reasonable
care in developing the buffer zone. Plaintiffs’ remaining claims in this case are for negligence

5

and nuisance.
Plaintiffs assert that Defendant was negligent in five ways: (1) failing to properly support
the land adjacent to the salt mine; (2) failing to properly maintain the abandoned salt mine; (3)
failing to timely detect, prevent, stop or remedy land subsidence and sinkhole development; (4)
creating and maintaining a dangerous condition; and (5) failing to create a reasonable buffer
zone and identify and purchase all homes at risk of future subsidence.
Plaintiffs allege nuisance in four ways: (1) the ground movement, subsidence and
sinkholes, along with the resulting damage to Plaintiffs’ homes; (2) the risk of future subsidence
to Plaintiffs’ homes; (3) Defendant’s failure to create a reasonable buffer zone and identify and
purchase all homes at risk of future subsidence including Plaintiffs’ has created a nuisance and
interfered with the Plaintiffs’ use and enjoyment of their properties; and (4) Defendant’s
demolition and removal of homes on the north and east perimeter of the Careyville
neighborhood and the resulting increase in train and elevator noise, increase in rodent and
wildlife infestation, and decrease in the aesthetics of the neighborhood.
Plaintiffs claim the following damages were caused by Defendant’s actions: physical
damage to Plaintiffs’ homes and property; a decrease in the market value of Plaintiffs’ homes
and property as a result of both the physical damage and the stigma now associated with the
homes; loss of the full use of their homes and property; deprivation of the peaceful use and
enjoyment of their homes and property; and inconvenience, discomfort, and annoyance.

II.

Motion to Exclude
Plaintiffs disclosed two experts for this case: Robert A. Simons to testify about

6

the diminution in Plaintiffs’ property values as a result of the buyout, and David L. Mitchell on
geological issues surrounding the wellfield. Dr. Mitchell, a consulting forensic geoscientist,
opines that over-drilling and the uncertain geology of the salt member below the Carey
Wellfield, create a risk of land subsidence and risk of future subsidence for all property owners
in Careyville. Dr. Mitchell further opines that there is no scientific method available to identify
and insure a permanent “safe zone” within the wellfield, or any part of Careyville. Defendant
moves the Court to exclude this testimony because: (1) Dr. Mitchell is not qualified to render
these opinions; (2) it is not reliable; and (3) it is not relevant. As explained below, the Court
excludes this testimony.
A.

Standard

The Court has broad discretion in deciding whether to admit expert testimony.2 Fed. R.
Evid. 702 provides that:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or
to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods;
and
(d) the expert has reliably applied the principles and methods to
the facts of the case.3
The proponent of expert testimony must show “a grounding in the methods and
procedures of science which must be based on actual knowledge and not subjective belief or

2

Kieffer v. Weston Land, Inc., 90 F.3d 1496, 1499 (10th Cir. 1996) (citation omitted).

3

Fed. R. Evid. 702.

7

unaccepted speculation.”4 In order to determine whether an expert opinion is admissible, the
Court performs a two-step analysis. “[A] district court must [first] determine if the expert’s
proffered testimony . . . has ‘a reliable basis in the knowledge and experience of his discipline.’”5
Second, the district court must further inquire into whether the proposed testimony is sufficiently
“relevant to the task at hand.”6 An expert opinion “must be based on facts which enable [him] to
express a reasonably accurate conclusion as opposed to conjecture or speculation . . . absolute
certainty is not required.”7 And it is not necessary to prove that the expert is “indisputably
correct,” but only that the “method employed by the expert in reaching the conclusion is
scientifically sound and that the opinion is based on facts which satisfy Rule 702’s reliability
requirements.”8
Daubert sets forth a non-exhaustive list of four factors that the trial court may consider
when conducting its inquiry under Rule 702: (1) whether the theory used can be and has been
tested; (2) whether it has been subjected to peer review and publication; (3) the known or
potential rate of error; and (4) general acceptance in the scientific community.9 But “the
gatekeeping inquiry must be tied to the facts of a particular case.”10
It is within the discretion of the trial court to determine how to perform its gatekeeping
4

Mitchell v. Gencorp Inc., 165 F.3d 778, 780 (10th Cir. 1999).

5

Norris v. Baxter Healthcare Corp., 397 F.3d 878, 884 (10th Cir. 2005) (quoting Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 592 (1993)).
6

Id. (quoting Daubert, 509 U.S. at 597).

7

Dodge v. Cotter Corp., 328 F.3d 1212, 1222 (10th Cir. 2003).

8

Id.

9

Daubert, 509 U.S. at 593–94.

10

Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999) (quotations omitted).

8

function under Daubert.11 The most common method for fulfilling this function is a Daubert
hearing, although such a process is not specifically mandated.12 In this case, the parties do not
request a hearing. The Court has carefully reviewed the exhibits filed with the motions and
believes this review is sufficient to render a decision.
B.

Discussion

Defendant first argues that Dr. Mitchell is not qualified to render an opinion about the
cause of Plaintiffs’ property damage, the risk of future subsidence, and the creation of a buffer
zone. While Defendant concedes that Dr. Mitchell is a qualified meteorologist, it questions
whether his education and experience qualify him to render an opinion on geology and salt
mining operations or on drawing the line for buffer zones.
To qualify as an expert, Dr. Mitchell must possess “such skill, experience or knowledge
in that particular field as to make it appear that his opinion would rest on substantial foundation
and would tend to aid the trier of fact in his search for truth.”13 A witness’s lack of specialization
does not affect the admissibility of the opinion, only the weight.14
The record supports Defendant’s contentions that Dr. Mitchell (1) admits that he is not a
geologist and that he is not an expert in salt mining or any kind of mining; (2) has no experience
in salt mining, or any mining industry; (3) has not published in any professional journal about
geology, salt mining or mining standards according to his CV; (4) testified that he thinks there

11

Goebel v. Denver & Rio Grande W. R.R., 215 F.3d 1083, 1087 (10th Cir. 2000).

12

Id.

13

LifeWise Master Funding v. Telebank, 374 F.3d 917, 928 (10th Cir. 2004) (quotation omitted).

14
First Savings Bank, F.S.B. v. U.S. Bancorp, 117 F. Supp. 2d 1078, 1084 (D. Kan. 2000) (citing Wheeler v.
John Deere Co., 935 F.2d 1090, 1100 (10th Cir. 1991)).

9

must be standards governing how solution mining is done, but he is not familiar with any such
regulations; (5) has never been retained in any other case involving salt mining or cavern
collapse; and (6) admits he is not an expert in drawing the line for a buffer zone such as this one.
Plaintiffs and Dr. Mitchell point to his training at various oil and gas companies in
geophysics and modeling. But this case does not involve oil and gas issues. And although Dr.
Mitchell says he is an expert in a number of different kinds of modeling— air modeling,
groundwater pollution modeling, geophysical modeling and geological modeling—he did no
modeling for this case. Plaintiffs also point to Dr. Mitchell’s oil and gas exploration in and
around salt domes. When asked whether he had any experience in connection with salt
formation, Dr. Mitchell replied “No. . . . only in the exploration role,” referring to his work with
salt domes and imaging salt in the Gulf of Mexico for oil companies. Dr. Mitchell admitted that
although this exploration involved “the same salt,” it involves very different amounts of
pressure. There is no evidence in the record that Dr. Mitchell’s work in the oil and gas field
translates into expertise on the subject of salt mining and its impact on surrounding land.
Finally, Plaintiffs argue that Dr. Mitchell has provided expert opinions in over 200 cases,
including one case “similar to Plaintiffs’ here addressing whether environmental and structural
damage was caused by movement of the Earth through seismic vibrations.” But as Dr. Mitchell
testified, the seismic damage cases he has worked on involve fracking and blasting. Neither Dr.
Mitchell nor Plaintiffs explain how the same principles apply to his analysis in this salt mining
case. In sum, the Court does not find support in the record that Dr. Mitchell is qualified to testify
as an expert on the subjects of causation or standard of care in this case.
Moreover, the Court finds Dr. Mitchell’s opinions unreliable. First, Dr. Mitchell’s

10

opinions on subsidence do not appear to be based on scientific methodology, but are instead,
based on assumptions and speculation. While there is no requirement that an expert’s methods
be perfect, whether the conclusions are reliable should be based on more than the ipse dixit of the
expert.15 Dr. Mitchell claims that the structural damage to Plaintiffs’ properties must have been
caused by the salt mines because “there’s no other cause,” yet, he admits that there are other
potential causes for the kinds of damages seen in Plaintiffs’ homes, such as soil composition.
Dr. Mitchell also opined about the density of the wells—that it was too high—based solely on
the fact that sinkholes have developed. But this opinion is circular. Dr. Mitchell was asked for
an opinion on the cause of Plaintiffs’ damage and his opinion suggests that the damage in and of
itself is evidence of causation. Dr. Mitchell points to no objective test or examination to support
his conclusion other than the assumption that the sinkholes must have caused the damage to
Defendants’ property. This is an insufficient showing of reliability under Rule 702 and asks the
Court to find his testimony admissible based on the ipse dixit of the expert.
Defendant challenges Dr. Mitchell’s basis for opining that the buffer zone created by
Defendant is insufficient because he admitted it was not based on any scientific data. Instead,
Dr. Mitchell relied on the fact that the neighborhood is adjacent to the wellfield, that people in
Careyville have experienced structural damage to their properties, and that Plaintiffs in this case
all own property within Careyville. Plaintiffs counter that this argument goes to the weight and
not the admissibility of the expert testimony, but they provide no counter argument about the
reliability of Dr. Mitchell’s opinions.
The Court agrees that Plaintiffs have failed to show that Dr. Mitchell’s opinions are

15

Windham v. Circuit City Stores, Inc., 420 F. Supp. 2d 1206, 1211 (D. Kan. 2006).

11

based on methods that are scientifically sound, or that they are based on facts which satisfy Rule
702’s reliability requirements. Defendant retained geologists and geotechnical engineers to help
it determine where to mark the buffer zone, and therefore, which houses to buy. These experts
determined, after an extensive review of documented sinkholes in Kansas, that 180 feet, the
maximum observed radius, was the appropriate radius to use from each well along the edges of
the Careyville neighborhood. Dr. Mitchell admitted in his deposition that the buffer zone should
be measured by creating a perimeter a certain distance out from the wells, yet he cannot say what
the appropriate distance should be. His testimony on this point varied—referencing hundreds of
feet, between one and five blocks, and a quarter of a mile to a mile from the wells.
Notwithstanding this testimony, Dr. Mitchell concludes that Defendant should have purchased
all homes in the Careyville neighborhood, claiming that Defendant had a duty to take care of
people in the adjacent neighborhood. This opinion is based on assumptions and is not rooted in
scientific methodology or principle. Accordingly, Dr. Mitchell’s expert opinion regarding the
buffer zone is not reliable under Daubert and should be excluded.
III.

Motion for Summary Judgment
A.

Standard

Summary judgment is appropriate if the moving party demonstrates that there is “no
genuine issue as to any material fact” and that it is “entitled to judgment as a matter of law.”16 In
applying this standard, the court views the evidence and all reasonable inferences therefrom in
the light most favorable to the nonmoving party.17 “There is no genuine issue of material fact

16

Fed. R. Civ. P. 56(a).

17

City of Harriman v. Bell, 590 F.3d 1176, 1181 (10th Cir. 2010).

12

unless the evidence, construed in the light most favorable to the nonmoving party, is such that a
reasonable jury could return a verdict for the nonmoving party.”18 A fact is “material” if, under
the applicable substantive law, it is “essential to the proper disposition of the claim.”19 An issue
of fact is “genuine” if “‘the evidence is such that a reasonable jury could return a verdict for the
non-moving party.’”20
The moving party initially must show the absence of a genuine issue of material fact and
entitlement to judgment as a matter of law.21 In attempting to meet this standard, a movant that
does not bear the ultimate burden of persuasion at trial need not negate the other party’s claim;
rather, the movant need simply point out to the court a lack of evidence for the other party on an
essential element of that party’s claim.22
Once the movant has met this initial burden, the burden shifts to the nonmoving party to
“set forth specific facts showing that there is a genuine issue for trial.”23 The nonmoving party
may not simply rest upon her pleadings to satisfy her burden.24 Rather, the nonmoving party
must “set forth specific facts that would be admissible in evidence in the event of trial from

18

Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).

19

Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001) (citing
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)).
20

Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).
21

Spaulding v. United Trasp. Union, 279 F.3d 901, 904 (10th Cir. 2002) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 322–23 (1986)).
22

Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000) (citing Adler, 144 F.3d at
671); see also Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010).
23

Anderson, 477 U.S. at 256; Celotex, 477 U.S. at 324; Spaulding, 279 F.3d at 904 (citing Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
24

Anderson, 477 U.S. at 256; accord Eck v. Parke, Davis & Co., 256 F.3d 1013, 1017 (10th Cir. 2001).

13

which a rational trier of fact could find for the nonmovant.”25 To accomplish this, the facts “must
be identified by reference to an affidavit, a deposition transcript, or a specific exhibit
incorporated therein.”26 Rule 56(c)(4) provides that opposing affidavits must be made on
personal knowledge and shall set forth such facts as would be admissible in evidence.27 The
non-moving party cannot avoid summary judgment by repeating conclusory opinions, allegations
unsupported by specific facts, or speculation.28
Finally, summary judgment is not a “disfavored procedural shortcut”; on the contrary, it
is an important procedure “designed to secure the just, speedy and inexpensive determination of
every action.”29 In responding to a motion for summary judgment, “a party cannot rest on
ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the
mere hope that something will turn up at trial.”30
B.

Timeliness

The Court first considers Defendant’s argument that many of the claims asserted by
Plaintiffs are barred by either the statute of repose or the statute of limitations. The parties have
already stipulated that Plaintiffs’ negligence and nuisance claims based on activity occurring

25

Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1197–98 (10th Cir. 2000) (quoting Adler, 144 F.3d at
671); see Kannady, 590 F.3d at 1169.
26

Adams, 233 F.3d at 1246.

27

Fed. R. Civ. P. 56(c)(4).

28

Id.; Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006) (citation

omitted).
29

Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1).

30

Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988).

14

before January 6, 2000, i.e., more than ten years before this action was filed, shall be dismissed.31
Plaintiffs argue that because their remaining claims allege land subsidence, their claims survive
the statute of repose under Nida v. American Rock Crusher Co.,32 a case that considered the
accrual date for the statute of repose in the context of trespass claims for land subsidence.33 This
Court considered Nida in its earlier opinion granting Defendant’s motion for partial summary
judgment on Plaintiffs’ trespass claims.34 The Kansas Supreme Court in Nida explained that an
action for surface collapse due to inadequate subjacent support, which sounds in trespass, begins
to run at the time the surface collapses.35 The court compared this accrual analysis to a claim for
negligence, which runs from “the wrongful act of the defendant. Once it takes place the
negligence has occurred, even though the harmful consequence may not be manifest until
later.”36 There is no trespass claim remaining in this action, so the portion of Nida relied upon
by Plaintiffs does not apply. In the Pretrial Order, Plaintiffs allege that the measures taken by
Defendant to contain subsidence caused by earlier mining activities, and its alleged failure to
create a reasonable buffer zone give rise to the remaining causes of action for negligence and
nuisance. Any such actions that precede January 6, 2000 are barred by the statute of repose.

31

Doc. 17. K.S.A. § 60-513(b) provides that “in no event shall an action [subject to the two-year statute of
limitation] be commenced more than 10 years beyond the time of the act giving rise to the cause of action.” This ten
year statute of repose “require[s] a negligence action to be brought within 10 years of the wrongful act.” Klose v.
Wood Valley Racquet Club, Inc., 975 P.2d 1218, 1222 (Kan. 1999) (citing Dobson v. Larkin Homes, Inc., 832 P.2d
345, 347 (Kan. 1992)).
32

855 P.2d 81 (Kan. 1993).

33

Id. at 82.

34

Doc. 100.

35

Nida, 855 P.2d at 86.

36

Id.

15

Defendant argues that several of Plaintiffs’ claims are also barred by the statute of
limitations because they were reasonably ascertainable more than two years before the case was
filed. The statute of limitations on Plaintiffs’ remaining claims is two years.37 These tort claims
shall not be deemed to have accrued until the act giving rise to the
cause of action first causes substantial injury, or, if the fact of
injury is not reasonably ascertainable until some time after the
initial act, then the period of limitation shall not commence until
the fact of injury becomes reasonably ascertainable to the injured
party, but in no event shall an action be commenced more than 10
years beyond the time of the act giving rise to the cause of action.38

Plaintiffs make the same argument about the accrual date on the statute of limitations analysis as
they do on the statute of repose—that the claims did not accrue until the land subsided. As
already discussed, the Nida accrual analysis applies to trespass claims and not to claims for
negligence and nuisance, which run from the act of the Defendant. Here, it is uncontroverted
that the Burdettes first noticed an unexplained hole in their driveway sometime before November
2000; that Stephanie Brown first noticed cracks and sloping and sinking ground before
November 2005; that the Sidebottoms’ basement collapsed in 2007; and that the Wests’
basement collapsed in about 1986. These discoveries constitute substantial injuries, for which
the Defendant’s acts should have been reasonably ascertainable. These Plaintiffs’ claims are
therefore barred by the statute of limitations.

C.

Negligence

37

K.S.A. § 60-513(a).

38

Id. § 60-513(b).

16

To prove their negligence claim under Kansas law,39 Plaintiffs must show the existence
of a duty, breach of that duty, injury, and a causal connection between the breach and the
injury.40 Whether a party is negligent is normally a question of fact that is reserved for the jury.41
Questions of breach and causation, however, may be a question of law in “rare cases where the
evidence is susceptible to only one possible inference.”42 To recover for “diminution in value of
real property resulting from the marketplace fear or stigma alleged to have been created by a
defendant’s negligence, the plaintiff must establish that the property sustained a physical injury
as a direct and proximate result of the negligent conduct.”43 Defendant argues that summary
judgment is appropriate on all negligence claims because Plaintiffs have come forward with no
evidence that Defendant breached any duty of reasonable care in connection with maintaining
the salt solution wells, or in creating the buffer zone. Defendant further argues that there is no
evidence of causation.
1.

Subsidence-related theories

Plaintiffs’ first four negligence theories allege that Defendant negligently drilled,
operated, or maintained the salt solution wells. As already discussed, however, Defendant
cannot be liable for actions or omissions that occurred before 2000, and it is undisputed that

39

The parties agree that Kansas law, the substantive law of the forum state, applies in this diversity action.
See Cohen-Esrey Real Estate Servs., Inc. v. Twin City Fire Ins. Co., 636 F.3d 1300, 1302 (10th Cir. 2011).
40

Thomas v. Cnty. Comm’rs of Shawnee Cnty., 262 P.3d 336, 346 (Kan. 2011).

41

Petsinger v. Wheeler, No. 10-2428-SAC, 2011 WL 2579830, at *2 (D. Kan. June 28, 2011) (citing Cullip
v. Domann, 972 P.2d 776, 782 (1999)).
42

Carl v. City of Overland Park, Kan., 65 F.3d 866, 869, 872 (10th Cir. 1995) (citation omitted); Hale v.
Brown, 197 P.3d 438, 441 (Kan. 2008).
43

Smith v. Kan. Gas Serv. Co., 169 P.3d 1052, 1062–63 (Kan. 2007).

17

Defendant acquired the land in 2002 and never drilled or operated any wells in the area. The
Court agrees that any claims associated with activities that occurred before 2000 are barred.
While this Defendant may be charged with maintaining the wells after it acquired the property in
2002, it is undisputed that Vigindustries did not drill or operate the wells. Therefore, summary
judgment must be granted on the negligence theories associated with operating and drilling the
wells.
To the extent Plaintiffs claim that Defendant negligently maintained the wells, the
Defendant first argues that there is no evidence it breached a duty of reasonable care. First,
Defendant argues that there is no evidence of the standard of care to be applied, which requires
expert testimony. The Court need not decide whether expert testimony would be required in
this matter to establish the standard of care associated with maintaining the wells, or to establish
causation, because the only evidence relied upon by Plaintiffs is Dr. Mitchell’s opinion on these
issues.44 The Court has already ruled that Dr. Mitchell’s opinions are inadmissible. But even if
Dr. Mitchell’s opinion was admissible, it does not establish the standard of care associated with
maintaining the wells, nor that this Defendant breached a duty of reasonable care.
Defendant also argues that there is no evidence adduced by Plaintiffs in support of the
causation element on their negligence theories. Defendant points to Dr. Mitchell’s opinion that
the damage to Plaintiffs’ property was caused by subsidence due to the geology of the
Hutchinson area and the high density of salt solution wells on the wellfield. Because neither
cause of subsidence can be attributable to Defendant, it maintains that there is no evidence of

44

See generally, Moore v. Assoc. Material & Supply Co., 948 P.2d 652 (Kan. 1997) (explaining the
difference between lay and opinion testimony on causation in non-professional negligence cases). Plaintiffs other
expert, Dr. Simons, expressed no opinions on the standard of care for drilling, operating, or maintaining salt solution
wells, or on causation.

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causation. Plaintiffs argue that there is a genuine issue of material fact about the cause of their
property damage and therefore summary judgment must be denied.
To show causation, Plaintiffs must present evidence that would allow a reasonable jury to
infer that “it is more likely than not that the conduct of defendant was a cause in fact of the
result. A mere possibility of such causation is not enough; and when the matter remains one of
pure speculation or conjecture the probabilities are at best evenly balanced, it becomes the duty
of the court to direct a verdict for the defendant.”45 Contrary to Plaintiffs’ characterization of
Defendant’s motion on causation, Defendant does not argue that there is no genuine issue of
material fact about whether subsidence caused Plaintiffs’ damages. Instead, Defendant argues
that there is no evidence that it caused the subsidence-related damages described by Dr. Mitchell
in his report. Dr. Mitchell states that the area’s geology, as well as salt removal, caused
subsidence and a continued risk of future subsidence, leading to Plaintiffs’ damages. But Dr.
Mitchell does not opine that Defendant is responsible for the area’s geology or for the salt
removal. It is undisputed that Defendant never drilled or operated any brine wells on the
wellfield or in the Careyville area. And there is no evidence that Defendant contributed to the
geology of the Hutchinson area.
Plaintiffs again argue that they need not show that Defendant actually removed the salt
from the ground to establish their negligence claim, citing Nida’s language that a landowner “has
an absolute right to subjacent support unless that right has been distinctly waived.”46 But as
already explained in the Court’s discussion of the statute of repose, this language does not apply

45

Young v. Deibert, 147 P.3d 1065, 1072–73 (Kan. 2006).

46

Nida, 855 P.2d at 82–83 (quoting Audo v. Mining Co., 162 P. 344, 344 (Kan. 1917)).

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in the context of a negligence or nuisance action; a cause of action based on inadequate subjacent
support is in the nature of trespass. Summary judgment has already been granted on that claim.
Accordingly, even if the Court had found Dr. Mitchell’s expert testimony admissible, the
Court would grant summary judgment on the breach and causation elements of Plaintiffs’
negligence claims associated with subsidence. Assuming as true Dr. Mitchell’s opinion that
Plaintiffs’ subsidence-related damages are caused by geology and salt removal, there is no
evidence that these causes are attributable to Defendant. Because Defendant points to a lack of
evidence of causation in fact on those negligence theories and because Plaintiffs fail to come
forward with such evidence, summary judgment is granted.
2.

Buffer Zone

Plaintiffs’ last negligence theory is that Defendant was negligent in creating the buffer
zone because it did not identify and purchase all homes at risk of future subsidence. This
negligence claim relies on Dr. Mitchell’s opinion, which this Court has excluded. Plaintiffs
point to no other evidence that would create a genuine issue of material fact about whether
Defendant exercised reasonable care when it investigated the brine wells and caverns on the
wellfield, and as a result of that investigation, and in agreement with the KDHE and the City of
Hutchinson, decided to make offers to buy certain residential properties located on the northern
and eastern edges of the Careyville neighborhood in order to increase the buffer between the
former brine wells on the wellfield and the residential properties in Careyville. Defendant
submits evidence that it retained an engineering firm to investigate and that it determined the
buffer zone by measuring a certain radius from the edge of the wells. Dr. Mitchell admitted in
his report, even if the Court considers it, that there is no scientific method to construct a safe

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buffer zone within Careyville.
Further, even if Plaintiffs could establish that Defendant failed to act with reasonable
care, there is an absence of evidence that the buffer zone caused physical damage to Plaintiffs’
properties sufficient to recover damages for the diminution in value of real property resulting
from the marketplace fear or stigma.47 To be sure, some Plaintiffs testified about physical
damage to their property, but it all predated the conclusion in April 2010 of Defendant’s buyout
of buffer zone properties.
Plaintiffs argue that the Kansas Supreme Court’s decision in Smith v. Kansas Gas
Service, which holds that plaintiffs in negligence actions must show physical damage to the
property in order to obtain damages for marketplace fear or stigma, is distinguishable from the
facts of this case.48 Smith involved class claims of negligence and nuisance by landowners who
claimed that their property values were diminished by natural gas explosions resulting from gas
leaks that had been caused by negligent maintenance and operation of a nearby natural gas
storage facility.49 Since those plaintiffs suffered no physical injury, the Court held that they
could not recover stigma damages. Plaintiffs here argue that their subsidence-related damages
and the risk to their properties of future physical damage from subsidence distinguish them from
the plaintiffs in Smith. The Court agrees with Defendant that this argument conflates Plaintiffs’
various theories of negligence. While Plaintiffs’ property damage may be sufficient to allow for
stigma damages on the subsidence-related theories of negligence, they must make a different

47

See Smith, 169 P.3d at 1062–63.

48

Id.

49

Id. at 1054–55.

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showing on their buffer zone theory: that Defendant’s failure to include Plaintiffs in the buffer
zone caused their properties physical damage. Plaintiffs make no such showing. Accordingly,
summary judgment is appropriate as to Plaintiffs’ prayer for stigma damages on the buffer zone
theory of negligence.
D.

Nuisance
In order to prove their nuisance claim under Kansas law, Plaintiffs will have to show that:

(1) Defendant acted with the intent of interfering with the use and enjoyment of the land by those
entitled to that use; (2) there was some interference with the use and enjoyment of the land of the
kind intended, although the amount and extent of that interference may not have been anticipated
or intended; (3) the interference that resulted and the physical harm, if any, from that
interference proved to be substantial; and (4) the interference was of such a nature, duration, or
amount as to constitute unreasonable interference with the use and enjoyment of the land.50
Kansas courts have been careful to explain that nuisance is not a type of tortious conduct in
itself; it is a field of tort liability:
Nuisance has reference to the interests invaded, to the damage or
harm inflicted, and not to any particular kind of act or omission
which has led to the invasion. Professor Prosser concludes that the
attempt frequently made to distinguish between nuisance and
negligence, for example, is based entirely upon a mistaken
emphasis based upon what the defendant has done rather than the
result which has followed, and forgets completely the wellestablished fact that negligence is merely one type of conduct
which may give rise to a nuisance. In other words a nuisance may
result from conduct which is intentional or negligent or conduct
which falls within the principle of strict liability without fault. The
point is that nuisance is a result and negligence is a cause and they

50

Pagel v. Burlington N. Santa Fe Ry. Co., 316 F. Supp. 2d 984, 989 (D. Kan. 2004).

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cannot be distinguished otherwise.51
There can be three sources of nuisance liability: “(1) an intentional invasion of the plaintiff's
interests, or (2) a negligent one, or (3) conduct which is abnormal and out of place in its
surroundings, and so falls fairly within the principle of strict liability. With very rare exceptions,
there is no liability unless the case can be fitted into one of these familiar categories.”52
Plaintiffs’ intentional tort and strict liability claims were dismissed earlier in this case. And the
Court has granted summary judgment on Plaintiffs’ negligence claim, finding no genuine issue
of material fact as to whether this Defendant breached a duty of care, or caused Plaintiffs’
injuries. Because the nuisance claim is derived from the negligence claim, summary judgment
must be granted on the nuisance claim, as well.
In sum, the Court finds that summary judgment should be granted on the claims asserted
by Plaintiffs Kenneth Burdette, Linda Burdette, Danny Sidebottom, Sharon Sidebottom, Glen
West, James West, and Stephanie Brown because they are barred by either the statute of repose
or the statute of limitations. Summary judgment is granted on the remaining negligence claims
because Defendant fulfilled its summary judgment burden of identifying an absence of evidence
on breach of the duty of reasonable care, and on causation, and Plaintiffs failed to come forward
with admissible evidence to create a genuine issue of material fact. Because the negligence
claims fail, summary judgment must be granted on the nuisance claims, as they are premised on
Defendant’s negligent conduct in drilling, operating and maintaining the wells, and creating a
buffer zone after the 2005 sinkhole. For all of these reasons, Defendant’s motion for summary

51

Culwell v. Abbott Const. Co., Inc., 506 P.2d 1191, 1196 (Kan. 1973); see also Sandifer Motors, Inc. v.
City of Roeland Park, 628 P.2d 239, 245 (Kan. Ct. App. 1981) (citation omitted).
52

Sandifer Motors, Inc., 628 P.2d at 246 (citation omitted).

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judgment is granted.
IT IS THEREFORE ORDERED BY THE COURT that Defendant’s Motion to
Exclude Expert Opinions of Dr. David L. Mitchell (Doc. 185) is granted.
IT IS FURTHER ORDERED that Defendant’s Motion for Summary Judgment (Doc.
187) is granted. The Clerk shall enter judgment in favor of Defendant on all claims, plus costs.
Dated: March 17, 2014
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

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