Cedar Lodge Plantation, LLC et al v. CSHV Fairway View I, LLC et al

Filing 222

ORDER granting in part and denying in part 145 Motion in Limine to Exclude the Testimony of Suresh Sharma and Ron Ferris. Signed by Chief Judge Brian A. Jackson on 12/23/2016. (EDC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
CEDAR LODGE PLANTATION, LLC
ET AL.

CIVIL ACTION

VERSUS
CSHV FAIRWAY VIEW I, LLC ET AL.

NO.:13-00129-BAJ-EWD

RULING AND ORDER
Before the Court is the Motion in Limine to Exclude the Testimony of
Suresh Sharma and Ron Ferris (Doc. 145) filed by CSHV Fairway View I, LLC,
CSHV Fairway View II, LLC, and Campus Advantage, Inc. (collectively “Fairway
View”). Cedar Lodge Plantation, LLC (“Cedar Lodge”) filed a memorandum in
opposition, (Doc. 156), and Fairway View replied (Doc. 161). The Court held
evidentiary hearings on the motions on November 4, 2016 and November 9, 2016.
I.

BACKGROUND
Cedar Lodge filed the instant action on January 13, 2013, alleging that an

apartment complex owned by Fairway View was responsible for “the continuous
unpermitted discharge of harmful or hazardous substances, pollutants and/or
contaminants, including but not limited to raw sewage onto Plaintiffs’ property.” (See
Doc. 1; Doc. 50 at ¶ 9). Specifically, Cedar Lodge alleges that waterways,
groundwater, and soil on its property have been contaminated, which has caused the
property to be unsuitable for use, development, and/or sale. (Id. at ¶ 20).
In support of its claim, Cedar Lodge seeks to offer the testimony of Mr. Suresh
Sharma—a consultant with M.S. Environmental Consultants who has been proffered
as

an

expert

in

environmental

compliance,

permitting,

and

regulatory

requirements—to: i) determine if the indicated concentrations of analyzed
constituents, i.e., specified heavy metals, exceed Risk Evaluation and Corrective
Action Program (RECAP) standards established by the Louisiana Department of
Environmental Quality (LDEQ), and ii) identify potential sources for contaminants
in the pond on the Cedar Lodge property and whether regulatory violations have
occurred as a result of any alleged unauthorized discharge. (Doc. 145-3 at p. 6). Cedar
Lodge also retained the services of Mr. Ronald Ferris, a civil engineer whose expertise
concerns “the design, construction and maintenance of sanitary sewerage facilities
and whether applicable local, state and federal laws, regulations, policies,
requirements, procedures and obligations have been followed.” (Doc. 145-4 at p. 3).
Through Mr. Ferris’s testimony, Plaintiff hopes to establish the inadequacy of
Fairway View’s sewage system and, presumably, to establish the Fairway View
property as the source of the alleged contamination of its pond. (Doc. 145-3).
Through the instant motion, Fairway View seeks to exclude the testimony of
Mr. Sharma and Mr. Ferris as unreliable under Federal Rule of Evidence (“Rule”)
702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). (Doc.
145-1).
II.

DISCUSSION
A.

DAUBERT LEGAL STANDARD

Rule 702 of the Federal Rules of Evidence governs the admissibility of expert
testimony. Rule 702 states: “[i]f scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experience, training, or
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education may testify thereto in the form of an opinion or otherwise, if (1) the
testimony is based upon sufficient facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the witness has applied the principles and
methods reliably to the facts of the case.” Fed.R.Evid. 702; see Daubert v. Merrell Dow
Pharmaceuticals, 509 U.S. 579 (1993).
Rule 702 is in effect a codification of the United States Supreme Court’s opinion
in Daubert, wherein the Supreme Court held that trial courts should serve as
gatekeepers for expert testimony and should not admit such testimony without first
determining that it is both “reliable” and “relevant.” Id. at 589. Daubert was
concerned with limiting speculative, unreliable, and irrelevant opinions from
reaching a jury. Id. at n. 7. To satisfy their “gatekeeper” duty, trial courts look at the
qualifications of experts and the methodology used in reaching their opinions and will
not attempt to determine the accuracy of the conclusion reached by the expert.
Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir. 2002).
The validity or correctness of the conclusions an expert reaches is for the fact
finder to determine after the Daubert analysis. Id. at 250. Further, as explained in
Scordill v. Louisville Ladder Group, L.L.C., No. 02–2565, 2003 WL 22427981, at *3
(E.D.La. Oct. 24, 2003) (Vance, J.):
The Court notes that its role as a gatekeeper does not replace the
traditional adversary system and the place of the jury within the
system. See Daubert, 509 U.S. at 596 [113 S.Ct. 2786]. As the
Daubert Court noted, “[v]igorous cross-examination, presentation
of contrary evidence, and careful instruction on the burden of
proof are the traditional and appropriate means of attacking
shaky but admissible evidence.” Id. (citing Rock v. Arkansas, 483
U.S. 44, 61, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987)). The Fifth
Circuit has added that, in determining the admissibility of expert
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testimony, a district court must defer to “ ‘the jury's role as the
proper arbiter of disputes between conflicting opinions. As a
general rule, questions relating to the bases and sources of an
expert's opinion affect the weight to be assigned that opinion
rather than its admissibility and should be left for the jury's
consideration.’ “ United States v. 14.38 Acres of Land, More or
Less Sit. in Leflore County, Miss., 80 F.3d 1074, 1077 (5th
Cir.1996) (quoting Viterbo v. Dow Chemical Co., 826 F.2d 420, 422
(5th Cir.1987)).
“Notwithstanding Daubert, the Court remains cognizant that ‘the rejection of
expert testimony is the exception and not the rule.’ ” Johnson v. Samsung Electronics
America, Inc., 277 F.R.D. 161, 165 (E.D.La. 2011) (citing Fed.R.Evid. 702 Advisory
Committee Notes to 2000 Amendments).
Rule 703 of the Federal Rules of Evidence provides that the facts or data
supporting an expert's opinion “need not be admissible in evidence in order for the
opinion or inference to be admitted” if the facts or data are “of a type reasonably relied
upon by experts in the particular field in forming opinions or inferences upon the
subject.” Trial courts “should defer to the expert's opinion of what data they find
reasonably reliable.” Peteet v. Dow Chemical Co., 868 F.2d 1428, 1432 (5th Cir. 1989),
cert. denied, 493 U.S. 935 (1989). The number of sources on which an expert may
reasonably rely “is virtually infinite,” and such sources include interviews, reports
prepared by third parties, scientific theories or test results, clinical and other studies,
technical publications, business, financial, and accounting records, economic
statistics, opinions of other experts, and general knowledge or experience. Jack B.
Weinstein and Margaret A. Berger, 4 Weinstein's Federal Evidence § 703.04[3], at
703-15 to 703-20 (2d ed. 2005).

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B.

SURESH SHARMA

As was previously noted, Mr. Sharma was retained as an environmental expert
to testify that the pond on Cedar Lodge’s property is contaminated because of Fairway
View’s negligence and that it requires remediation. (Doc. 145-1 at p. 6). To determine
the extent of the alleged contamination, Mr. Sharma first reviewed sampling and
analytical reports and affidavits of fact witnesses to determine whether contaminants
were present. (Doc. 145-3 at pp. 9 – 10). Specifically, Mr. Sharma reviewed: i) the
analytical report of Environmental Management & Training prepared in August of
2009; ii) two analytical reports of Toxicological and Environmental Associates
prepared in December 2012 and May 2013; and the affidavits of Phillips Witter,
Jeffrey Spurlock, Terry Grier and Sidney Marlborough. (Doc. 145-3 at pp. 9 – 10).
Thereafter, Mr. Sharma performed a trend analysis with those results, which he used
to determine appropriate sites from which to gather his own samples. (Doc. 145-3 at
pp. 10 – 14). Mr. Sharma then collected seven sludge samples and one water sample
and tested them (1) to determine total heavy metal and fecal coliform concentrations
in the sludge and water samples, respectively, and (2) to test whether those
concentrations exceeded LDEQ’s RECAP Soil Screening Standards. (Doc. 145-3 at p.
18).
From his analysis, Mr. Sharma concluded that “the detected concentrations of
analyzed constituents were below the RECAP Soil Screening Standards.” (Doc. 1453 at p. 71). That is, Mr. Sharma found that the concentrations of all heavy metals in
the sludge samples he collected fell below the RECAP threshold for finding the
existence of a risk to human health. Mr. Sharma also deduced from his trend analysis
5

the source of the alleged contamination and concluded that discharge from the
Fairway View apartments was the cause of potential contamination on the Cedar
Lodge property. (Doc. 145-3 at p. 21).
Thereafter, at his deposition, Mr. Sharma confirmed his ultimate conclusion
that heavy metal concentrations fell below RECAP standards but qualified this
conclusion with the statement that some samples exceeded Toxicity Characteristic
Leaching Procedure (“TCLP”) standards for acceptable lead and chromium
concentrations. 1 (Doc. 145-5 at p. 165). It is on this basis that Fairway View seeks to
exclude Mr. Sharma’s entire report and testimony. Namely, Fairway View objects to
Mr. Sharma’s testimony, arguing that it will not assist the trier of fact in determining
whether remediation of Cedar Lodge’s pond is necessary because his opinion lacks
proper methodology and is therefore unreliable. (Doc. 145-1 at p. 6). Fairway View
asserts that Mr. Sharma’s use of RECAP standards to test the pond sludge in his
March 2015 expert report was “discredited” by his subsequent deposition testimony,
in which Mr. Sharma represented that he tested for and applied the wrong standards
(RECAP) and that he should have performed further testing and applied different
standards, namely, the TCLP.2 (Doc. 145-1 at pp. 7 – 8). Because of Mr. Sharma’s
alleged acknowledgement and subsequent failure to test sludge samples using the

The TCLP standard is an extraction procedure under which a scientist simulates a landfill
environment with rainfall and acidity controls, then tests for contaminants in the resulting leachate.
Under the TCLP standard, even if a material contains contaminants, EPA does not consider it
“hazardous” unless the lead is capable of “leaching” out of the material, a finding that can only be
determined after ascertaining the leachability of the media.
1

Fairway View does not challenge, and the Court does not address, Mr. Sharma’s conclusions
regarding the presence and concentration of fecal coliform in Cedar Lodge’s pond. The challenge, and
consequently this Ruling, only concerns Mr. Sharma’s application of environmental regulatory
standards to the concentration of heavy metals in Cedar Lodge’s pond.
2

6

TCLP standards, Fairway View maintains that his testimony will not assist the trier
of fact to determine whether remediation is necessary. (Doc. 145-1 at p. 12).
Cedar Lodge counters that Mr. Sharma never “admitted” that he should have
conducted additional testing using TCLP procedures. (Doc. 156 at pp. 13, 14).
Instead, Cedar Lodge argues that Mr. Sharma’s deposition testimony “simply pointed
out that the heavy metal values found—chromium and lead—happen to exceed Step
One of the TCLP standards (total concentration test).” (Doc. 156 at p. 13). Further,
Cedar Lodge urges that to the extent application of any standards—whether RECAP
or TCLP—reveals the presence of a hazardous concentration of contaminants,
Fairway View is liable for the resulting damages to the extent such damage can be
attributed to Fairway View’s negligence. (Doc. 156 at p. 12).
1.

Contamination and Remediation Conclusion

After reviewing the parties’ arguments and evidence, the Court finds that Mr.
Sharma’s methodology for testing sludge samples and subsequently comparing them
with RECAP standards is not an inherently unreliable method for discerning whether
heavy metal concentrations pose a risk to human health. The Court accepts Mr.
Sharma’s representation that the manner in which he reviewed previously prepared
analytical reports, collected and tested sludge and water samples, and applied the
results of his tests to RECAP standards was a methodology accepted in the scientific
community. Further, and contrary to Fairway View’s assertions, the Court notes that
there is no evidence indicating that RECAP’s standards may not be applied to heavy
metal results derived from sludge samples.

7

The Court is not satisfied, however, that Mr. Sharma’s testimony regarding
application of TCLP standards to the facts of this case is reliable under Rule 702 and
Daubert. Despite Cedar Lodge’s insinuations to the contrary, Mr. Sharma did not
employ any of the TCLP procedures in this case. Mr. Sharma limited his testing and
report to determining compliance with RECAP standards, and did not purport to
begin, let alone complete, the TCLP process. Although Mr. Sharma determined the
total concentration of heavy metals and compared them to TCLP threshold numbers,
thus completing what Cedar Lodge and Mr. Sharma represent is the first step in the
TCLP process, he failed to run the leachability test, which is the second step in
determining the toxicity of the pond sludge. (Doc. 199 at pp. 19 – 20). Because Mr.
Sharma did not complete the TCLP process to determine what the ultimate results of
the test might reveal, any testimony regarding TCLP’s potential impact on Cedar
Lodge’s claims of contamination would amount to pure, unfounded speculation and
would therefore be neither reliable nor helpful to a jury.
2.

Directional Flow of Contaminants

The Court finds that Mr. Sharma’s trend analysis and ultimate conclusion
revealing the directional flow of the alleged contamination is reliable. Mr. Sharma
mapped the directional flow of contaminants using previously prepared fecal coliform
and heavy metal readings to determine that contaminants were likely entering the
Cedar Lodge pond from the west, near the Fairway View apartments. (Doc. 145-3 at
p. 20). From there, Mr. Sharma completed a trend analysis using the results of the
samples he collected to determine that “the highest concentrations of detected heavy
metals … is indicative of the drainage ditch located on the Fairway View Apartments
8

as being the probable source of release of heavy metal contamination and contributing
to the release of pollutants on the adjoining property.” (Doc. 145-3 at p. 20). Without
determining whether Mr. Sharma reached the proper conclusion, the Court finds that
this was an acceptable method of collecting samples and attempting to identify the
source of the contaminants.
Although the trend analyses prepared by Mr. Sharma are reliable, the Court
finds that allowing Mr. Sharma to testify about the trend analysis he prepared—that
is, the trend analysis compiled from the sludge samples he collected—toes the line of
being misleading and thus excludable under Federal Rule of Evidence (“Rule”) 403.
Under Rule 403, a trial court may exclude evidence if “its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by consideration of undue delay, waste of time, or needless
presentation of cumulative evidence.”. Fed. R. Evid. 403. Further, it is axiomatic that
even if an expert witness’s testimony is relevant and admissible under Rules 702, 703
and Daubert, a court may still exclude his testimony under Rule 403 upon a finding
that the probative value of the testimony is substantially outweighed by unfair
prejudice. Guillory v. Domtar Industries Inc., 95 F.3d 1230 n. 11 (5th Cir. 1996).
Upon review of Mr. Sharma’s report, the Court finds that Mr. Sharma’s trend
analysis and related testimony will mislead the jury into believing that the trend
indicates an indefinite decrease in heavy metal concentrations the further east one
gets from the Fairway View apartments. This is because Mr. Sharma’s trend analysis
using the sludge and water samples he collected only plots the heavy metal
concentrations for the three sludge samples on the west end of the pond, the trend of
9

which illustrates a downward slope, indicating that heavy metal concentrations
steadily decrease from the Fairway View side of the pond to the east side of the pond.
(See Docs. 145-3 at pp. 104 – 105). However, the four remaining sludge samples
collected from the east end of the pond show varying levels of heavy metal
concentrations, some of which exceed those found in the last plotted point. Most
notably, sludge sample #6, which is the second-most eastern sample that Mr. Sharma
collected, contains the second highest concentration of most heavy metals in the pond,
which is inconsistent with Mr. Sharma’s presentation of the evidence. (See Doc. 1453 at p. 72).
The same is true of the trend analysis that plots the analytical results of the
May 2013 report Mr. Sharma reviewed before preparing his own report. Sidney
Marlborough collected three sludge samples from Cedar Lodge’s pond to test them for
heavy metal concentrations. Two samples were taken from the west end of the pond
(the Outfall and Lake SE samples) and a third was taken from the far east side of the
pond (the Lake SC sample). (See Doc. 145-3 at p. 68). Mr. Sharma’s trend analysis
only plots the Outfall and Lake SE samples, which indicates a steady decrease in the
heavy metal concentration from west to east. However, the Lake SC sample—which
Mr. Sharma did not plot—shows higher heavy metal concentrations than the Lake
SE sample. (Doc. 145-3 at p. 68).
These trend analyses, which Cedar Lodge intends to use to show the lateral
distribution of heavy metal concentrations in the pond, illustrate an attempt by Mr.
Sharma and Cedar Lodge to misleadingly present the findings of these reports.
Because the Court finds the probative value of Mr. Sharma’s presentation of his trend
10

analysis small compared with the danger that it will mislead the jury, the Court will
exclude the trend analyses and related testimony.
C.

RONALD FERRIS

Fairway View also seeks to exclude the testimony of Ronald Ferris, a civil
engineer, who Cedar Lodge intends to offer as an expert in: i) the design, construction
and maintenance of sanitary sewerage facilities, and ii) whether applicable local,
state and federal regulations policies, requirements, procedure and obligations have
been followed. (Doc. 145-4 at p. 3). Fairway View asserts that Mr. Ferris based his
opinions on inappropriate or inapplicable methodologies, thus making his testimony
unreliable. (Doc. 145-1 at pp. 13 – 18). Additionally, Fairway View seeks to exclude
any testimony in which Mr. Ferris opines about the moral and fiduciary responsibility
of Fairway View. (Doc. 145-1 at pp. 13 – 18).
Fairway View draws the Court’s attention to the following excerpts from Mr.
Ferris’s report:
“Defendants have a fiduciary and moral responsibility to
the general public, including to the Plaintiffs, to protect
against the release of harmful or hazardous substances.
Defendants did, in fact, breach that duty.”
“Defendants have a fiduciary and moral responsibility to
operate and maintain the facility for the benefit and safety
of the general public, including the Plaintiffs. Defendants
did, in fact, breach that duty.”
(Doc. 145-1 at p. 13). As to these two opinions, Fairway View asserts that Mr. Ferris
failed to identify the legal source for any of the alleged fiduciary or moral duties
possessed by Fairway View. (Doc. 145-1 at p. 16). Instead, Fairway View argues that
during his deposition, Mr. Ferris cited his “own personal belief” as authority for his
11

assertion that Defendants had a fiduciary duty to the general public to prevent the
release of a hazardous substance. (Doc. 145-1 at p. 15). With respect to his opinion
that Fairway View had a moral responsibility to prevent the release of hazardous
substances, Mr. Ferris stated in his deposition that his moral beliefs did not bind
Fairway View. (Doc. 145-1 at p. 15). Because of these “concessions,” Fairway View
argues that Mr. Ferris has no basis for the above-mentioned opinions and should not
be permitted to testify on them at trial. (Doc. 145-1 at p. 16).
Fairway View also challenges Mr. Ferris’s opinion regarding the specifications
of Fairway View’s sewage treatment system. Fairway View argues that Mr. Ferris
compared those specifications for compliance with Louisiana regulatory requirements
and the 2004 edition of the Recommended Standards for Wastewater Facilities (also
known as the “Ten States Standards”) despite not knowing whether these standards
were applicable at the time the sewerage system was constructed. (Doc. 145-1 at pp.
16 – 18). Fairway View highlights the following statements made by Mr. Ferris
during his deposition:
Q.

A.

As you sit here today, you can’t say for certain
whether or not Exhibit E, the 2004 edition and the
very standards that are in it, were in effect in
Louisiana when Fairway View II was constructed in
1981, correct?
That is correct.
*

Q.

*

*

*

If you assume that since the Fairway View II’s
sewerage system was designed and constructed that
the recommendations have changed in terms of the
types of requirements that are in the
12

A.

recommendations, would there be any requirement
on a property like Fairway View Apartments to go
back and essentially retrofit the sewer system to
meet the changed requirements?
No, there would not be.

(Doc. 145-1 at pp. 17 – 18). Fairway View treats these statements and their argument
that Mr. Ferris relied on an inapplicable, later edition of regulatory standards as a
basis for its assertion that Mr. Ferris’s opinion regarding the construction of its
sewerage system is unreliable.
In response, Cedar Lodge argues that Fairway View’s challenge respecting Mr.
Ferris’ attempt to establish a standard of care in this case is not a basis upon which
he can be excluded. This is because many of Cedar Lodge’s claims do not require a
standard of care at all and, to the extent they do, Mr. Ferris’s experience is grounds
enough to at least opine about Fairway View’ moral and fiduciary duty. (Doc. 156 at
p. 6). Furthermore, Cedar Lodge asserts that even if Mr. Ferris failed to adequately
explain the standard of care in his deposition and expert report, this failure is
relevant to his credibility as an expert and not whether he is qualified to testify. (Doc.
156 at p. 5). In any event, Cedar Lodge argues that the Court should allow testimony
in which Mr. Ferris does not refer to Fairway View’s moral and fiduciary duties. (Doc.
156 at pp. 6 – 7). Lastly, Cedar Lodge asserts that Mr. Ferris’s references to the 2004
version of the Sanitary Code and the Ten States Standards are appropriate because
they establish a proper standard of care and provide a good reference point for
demonstrating the alleged flaws in Fairway View’s sewerage system. (Doc. 156 at
pp.8 – 11).

13

At the Daubert hearing, the Court entertained brief argument on the parties’
contentions concerning Mr. Ferris’ proposed testimony. At that time, the Court noted
that should Mr. Ferris qualify as an expert at trial, his testimony will be limited to
any observations he made as the result of any visual inspection he made of the
property either by way of his physical presence on the property or through video
inspections he either conducted or observed. (Doc. 199 at p. 141). That is, because Mr.
Ferris’ testimony regarding certain moral and ethical duties associated with
constructing and maintaining the sewerage system at issue will not assist the jury,
Mr. Ferris will not be permitted to testify with respect to these issues. See, e.g., Kadlec
Medical Center v. Lakeview Anesthesia Associates, 2006 WL 1328809 (E.D. La. May
12, 2006) (Africk, J.). Additionally, because Cedar Lodge does not dispute that the
2004 version of the Sanitary Code and Ten States Standards were not in effect at the
time the sewerage system at issue was constructed, and that Fairway View was not
required to retrofit its sewerage system to comply with the 2004 Standards, Mr.
Ferris will not be permitted to testify as to whether the sewerage system was in
compliance with those standards. Such testimony would not be helpful and would
unfairly mislead the jury by implying that because Fairway View’s sewerage system
was not in compliance with the updated regulatory standards, liability automatically
attaches.

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