Palmer et al v. Sun Coast Contracting Services, LLC et al
Memorandum Opinion and Order Denying Plaintiffs Motions to Strike the Opinions of Expert Witnesses Jim Martin 242 , Andy Johnson 244 , Chris Robertson, and Angie Hendrix 248 Signed by District Judge Halil S. Ozerden on July 19, 2017. (BGL)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JEFFERY CHAD PALMER, et al.
CIVIL NO. 1:15cv34-HSO-JCG
SUN COAST CONTRACTING SERVICES, INC., et al.
MEMORANDUM OPINION AND ORDER DENYING
PLAINTIFFS’ MOTIONS TO STRIKE THE OPINIONS
OF EXPERT WITNESSES JIM MARTIN , ANDY
JOHNSON , CHRIS ROBERTSON, AND ANGIE HENDRIX 
BEFORE THE COURT are Plaintiffs’ Motions to Strike the Opinions of
Defendants’ Expert Witnesses Jim Martin , Andy Johnson , Chris
Robertson, and Angie Hendrix . These Motions are fully briefed. Having
considered the Motions, related pleadings, the record, and relevant legal authority,
the Court is of the opinion that Plaintiffs’ Motions    should be
Facts and Procedural History
Plaintiffs Jeffery Chad Palmer, Brenda and Mark Rody, Donald and Jennifer
Juan, David and Karen Taporco, Kimberly and Milton J. Jacobs, Jr., Mary and
Nicholas Sciambra, and Anthony Pressley (“Plaintiffs”) are owners of houses in the
Ravenwood Subdivision (“Ravenwood”) located in an “unincorporated section of
Pearl River County, Mississippi (“PRC”)[,] just south of the city limits of Picayune,
Am. Compl.  at 2, 6.
Plaintiffs allege that at the time they
purchased their houses in Ravenwood, the land comprising Ravenwood together
with a larger parcel of land served as a watershed for the Alligator Branch
waterway and allowed the overflow of that waterway to move “east and west away
from” Ravenwood. Id. at 6-7.
Plaintiffs contend that beginning on February 23, 2012, their houses began
“vibrating violently” when Defendants began driving pilings into the ground on a
section of land contained within the watershed. Id. at 8-9.
to the Pearl River County Board of Supervisors (the “Board”) and the contractors
but the construction or vibrations continued. Id.
Plaintiffs also questioned the
Board about the dump trucks that were coming and going from the property. Id.
The Board allegedly did not respond to Plaintiffs’ complaints or inquiries
until at a meeting held on March 5, 2012, when the Board announced that
Defendant Alliance Consulting Group, LLC (“Alliance”), had previously been
granted permission to construct a “frac sand plant” (“the Plant”) on a section of land
contained within the watershed that Alliance had leased from Defendant AHG
Id. at 6, 8.
constructed at the Plant.
Later in 2015, “a multi-track railroad spur” was
Linfield, Hunter & Junis, Inc., Mem. Summ. J.  at
On February 5, 2015, Plaintiffs filed a Complaint  in this Court against a
number of Defendants, alleging they had suffered damages to their houses and
quality of life due to the construction and operation of the Plant and the associated
rail spur. Plaintiffs filed an Amended Complaint on February 4, 2016, naming as
Defendants Sun Coast Contracting Services, LLC; Integrated Pro Services, LLC;
Ranger Contracting, LLC; H&H Trucking, LLC; AHG Solutions, LLC; Linfield,
Hunter & Junius, Inc.; Shale Support Services, LLC; Drying Facility Asset
Holdings, LLC; and ELOS Environmental, LLC.1 Am. Compl.  at 2-4.
Plaintiffs allege that vibrations from pile-driving during construction caused
“obvious and visible cracks in the brick veneer of their homes, cracks in the stucco,
separations of the walls in comers (sic) and around doors and windows, windows
that would no longer open, and cracks” in the foundations of the houses; that
development of the land increased flooding in their subdivision; that the Plant
produces continuous loud noises as it runs throughout the night; that the Plant
emits a “nauseating foul smell;” and that dust from the Plant’s operations settles
over their property. Id. at 9-13.
The Amended Complaint asserts claims against
Defendants in four separate counts, specifically for: (1) Negligence; (2) Trespass; (3)
Private Nuisance; and (4) a Declaratory Ruling. Id. at 11-13.
Plaintiffs’ Motion to Strike  Defendant Linfield Hunter & Junis, Inc.’s
Expert Jim Martin, Ph.D., P.E.
On March 21, 2017, Plaintiffs filed a Motion to Strike  Defendant
Linfield Hunter & Junis, Inc.’s (“LH&J”) expert Jim Martin, Ph.D., P.E. (“Martin”).
Plaintiffs’ original Complaint also named the Federal Emergency Management Agency
and the United States Army Corp of Engineers; however, these Defendants were dismissed
by the Court’s October 6, 2015, Order . The Complaint had also identified Advanced
Inc. Group as a Defendant but Advanced was omitted from the Amended Complaint.
LH&J designated Martin as an expert in the field of hydrology to testify that
“LH&J’s designed drainage and detention system are adequately sized to reduce
post-development peak runoff to a level that is less than the pre-development peak
runoff for a 10 year design storm.”
Martin Report [258-1] at 4.
that Martin is not qualified under Federal Rule of Evidence 702 or Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), to offer his opinions about
Defendant LH&J’s design of the retention pond at the Plant because he did “no
research on whether or not the retention pond was built as designed or functions as
Mot. Exclude Martin  at 1; Mem. Exclude Martin  at 2.
LH&J responds that Martin is “well qualified in the field of hydrology,” that
he holds “a Bachelor of Science degree in Civil Engineering from the University of
Alabama and a Master of Science in Environmental Engineering,” and that he
obtained a Coastal Engineering Certificate from Old Dominion University. Mem.
in Opp’n  at 1-2.
LH&J attaches as Exhibit “A” to its Response a copy of
Martin’s Curriculum Vitae [290-1] at 1-2. LH&J asserts that Plaintiffs have
proffered no basis for striking the opinions Martin has offered, and that their only
argument is that Martin’s opinions should be stricken because he did not proffer
further opinions on whether the retention pond was built as designed or functions
Mem. in Opp’n  at 1-2.
Plaintiffs’ Motion to Strike  Defendants Drying Facility Asset Holdings,
LLC, and Shale Support Service’s Expert Andy K. Johnson
Plaintiffs also challenge Defendants Drying Facility Asset Holdings, LLC
(“Drying Facility”) and Shale Support Services, LLC’s (“Shale”) expert Andy K.
Johnson was designated as an expert in the area of
appraising residential real estate to offer opinions on the estimated value of
Plaintiffs’ houses as of May 13, 2016.
Plaintiffs allege that Johnson is not qualified
to testify regarding his opinions on the 2016 value of Plaintiffs’ houses because
Mississippi law requires that an appraisal opinion of damaged but not destroyed
property must be “the diminution in value of the Plaintiffs’ property as a function of
its before and after value.”
Mot. Exclude Johnson  at 1; Mem. Exclude
Johnson  at 2. In this case, Johnson purports to opine only on the May 2016
value of Plaintiffs’ houses, not a value before and after the construction and
operation of the Plant and rail spur.
Defendants Drying Facility and LH&J2 maintain that Johnson is a highly
qualified appraiser who produces approximately 150 residential real estate
appraisal reports a year.
Resp. in Opp’n  at 1; Mem. in Opp’n  at 1-4.
Johnson’s Resume, Exhibit “B” [265-2] at 1, reflects that from 1998-2007 he was a
Mississippi State Certified Licensed Appraiser, and that since 2007 he has been a
Mississippi State Licensed Certified Residential Appraiser. Defendants contend
2 LH&J has filed a Joinder  in Defendants Drying Facility and Shale’s Response .
that in forming his opinions, Johnson utilized the “sales comparison approach to
value,” and that “[t]he methodology that Mr. Johnson employed to arrive at his 2016
opinions of fair market value of each of the Plaintiffs’ homes is the same
methodology he uses in his appraisal practice.”
Resp. in Opp’n  at 1; Mem. in
Opp’n  at 1-4.
Plaintiffs’ Motion to Strike  Defendants Drying Facility, LH&J, and
Shale’s Experts Chris Robertson, MSPH, CIH, CSP (“Robertson”), and Angie
Hendrix, MSPH (“Hendrix”)
Plaintiffs have also moved to strike Defendants Drying Facility, LH&J, and
Shale’s “monitoring” experts Chris Robertson (“Robertson”) and Angie Hendrix
(“Hendrix”) of Technical Environmental Services, Inc., on grounds that neither are
qualified to testify regarding their opinions as to the “ambient levels of noise,
volatile organic compounds (“VOC”), and dust” found in Ravenwood because “they
only provide an opinion for one twenty[-]four hour period since the nuisance started
Mot. Exclude Robertson and Hendrix  at 1; Mem. Exclude
Robertson and Hendrix  at 2.
Plaintiffs also maintain that their opinions are
not “reliable” because Hendrix, who allegedly has minimal expertise in noise and
dust, reviewed the data collected by a technician and wrote the entire expert report,
while Robertson, who does have expertise in dust and noise, simply reviewed the
Mem. Exclude Robertson and Hendrix  at 4-9.
Defendants Drying Facility and Shale respond that Plaintiffs did not
challenge either Hendrix or Robertson’s “education or training, their ‘data
gathering’ or their methodology.” Mem in Opp’n  at 2. Defendants point out
that Hendrix has been an environmental consultant for twelve years and holds a
“Bachelor’s of Science in biology and a Master of Science in public health with a
focus in environmental toxicology and risk assessment.” Id. at 3.
a “Master of Science of public health and is a certified industrial hygienist.” Id.
Defendants contend that it is clear from both Hendrix and Robertson’s deposition
testimony that “the design of the sampling plan, the analysis of the results, and the
drafting, reviewing, and finalizing of the report was a collaborative effort.” Id. at
Rule 702 and Daubert
Federal Rule of Evidence 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:
the expert’s scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a
fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the
facts of the case.
Fed. R. Evid. 702.
“Under Daubert, Rule 702 charges trial courts to act as ‘gate-keepers’ . . . .”
Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243-44 (5th Cir. 2002) (citing Daubert, 509
U.S. at 592-93).
“An expert witness’s testimony should be excluded if the district
court ‘finds that the witness is not qualified to testify in a particular field or on a
Carlson v. Bioremedi Therapeutic Sys., Inc., 822 F.3d 194, 199 (5th
Cir. 2016) (quoting Wilson v. Woods, 163 F.3d 935, 937 (5th Cir. 1999)).
‘Rule 702 does not mandate that an expert be highly qualified in order to testify
about a given issue. Differences in expertise bear chiefly on the weight to be
assigned to the testimony by the trier of fact, not its admissibility.’” Id. (quoting
Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009)).
“District courts are to make a ‘preliminary assessment of whether the
reasoning or methodology underlying the testimony is scientifically valid and of
whether that reasoning or methodology properly can be applied to the facts in
issue.’” Carlson, 822 F.3d at 199 (quoting Pipitone, 288 F.3d at 243-44). “In short,
expert testimony is admissible only if it is both relevant and reliable.” Pipitone,
288 F.3d at 244 (citing Daubert, 509 U.S. at 589). The party seeking to have the
district court admit expert testimony bears the burden of proof. Moore v. Ashland
Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998) (en banc).
“The relevance prong requires the proponent to demonstrate that the expert’s
reasoning or methodology can be properly applied to the facts in issue.” Johnson v.
Arkema, Inc., 685 F.3d 452, 459 (5th Cir. 2012) (per curiam) (quotation omitted).
“The expert testimony must be relevant, not simply in the sense that all testimony
must be relevant, Fed. R. Evid. 402, but also in the sense that the expert’s proposed
opinion would assist the trier of fact to understand or determine a fact in issue.”
Weiser-Brown Operating Co. v. St. Paul Surplus Lines Ins. Co., 801 F.3d 512, 529
(5th Cir. 2015) (quotation omitted).
“The reliability prong mandates that expert opinion be grounded in the
methods and procedures of science and . . . be more than unsupported speculation or
subjective belief.” Johnson, 685 F.3d at 459 (quotation omitted).
“A party seeking
to introduce expert testimony must show ‘(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.’” Carlson, 822 F.3d at 199 (quoting Smith v. Goodyear Tire & Rubber Co.,
495 F.3d 224, 227 (5th Cir. 2007)).
In conducting the reliability inquiry, the following non-exclusive list of factors
should be considered:
(1) whether the theory or technique has been tested; (2) whether the
theory or technique has been subjected to peer review and publication;
(3) the known or potential rate of error of the method used and the
existence and maintenance of standards controlling the technique’s
operation; and (4) whether the theory or method has been generally
accepted by the scientific community.
Johnson, 685 F.3d at 459 (quotation omitted); see also Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 150 (1999); Daubert, 509 U.S. at 593-94.
“The Daubert inquiry is flexible, but the proponent must establish reliability
by showing that the testimony is based on reasoning or methodology that is
‘scientifically valid.’” MM Steel, L.P. v. JSW Steel (USA) Inc., 806 F.3d 835, 850-51
(5th Cir. 2015) (quoting Moore, 151 F.3d at 276).
“The sine qua non, however, is
whether in his courtroom presentation the expert used the same level of intellectual
rigor that characterizes the practice of an expert in the relevant field.” Roman v.
Western Mfg., Inc., 691 F.3d 686, 693 (5th Cir. 2012) (quotation omitted).
“Ultimately, the trial court must also find an adequate fit between the data
and the opinion proffered.” Brown v. Ill. Cent. R. Co., 705 F.3d 531, 535 (5th Cir.
2013) (quotation omitted). “[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 proffered.”
Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).
Plaintiffs’ Motions to Strike    should be denied.
Martin, Johnson, Robertson, and Hendrix are sufficiently qualified to
In determining whether to strike an expert’s opinions and testimony, a court
first determines whether an expert is qualified to offer the opinions for which they
are designated. Carlson, 822 F.3d at 199. “Rule 702 does not mandate that an
expert be highly qualified in order to testify about a given issue.
expertise bear chiefly on the weight to be assigned to the testimony by the trier of
fact, not its admissibility.” Id. (quoting Huss, 571 F.3d at 452).
Plaintiffs make blanket assertions in each of their Motions to Strike 
  that these experts are not qualified to testify, but do not articulate a
factual or legal basis underlying their contentions. Having reviewing each experts’
qualifications, the opinions they have offered, the parties’ arguments, and the
record as a whole, the Court finds that Defendants have met their burden of
establishing that Martin, Johnson, Robertson, and Hendrix are sufficiently
qualified through education, training, and experience to testify to the opinions
contained in their expert reports.
Plaintiffs’ Motion to Strike Martin  should be denied because his
opinions are relevant.
Plaintiffs allege that Martin’s opinions should be stricken because he opines
only that the design of the retention pond was proper, and not whether the “asbuilt” retention pond was constructed in compliance with the design, or whether the
retention pond actually functions as designed.
Mem. Exclude Martin  at 1-7.
According to Plaintiffs, “Martin’s expert designation does not demonstrate he is
qualified to render an opinion on anything other than the opinions he intends to
give on the issues pertaining to LHJ’s ‘design’ of the retention pond.” Id. at 2.
essence, it appears that Plaintiffs are in fact arguing that Martin’s testimony is not
relevant because it addresses only the design of the retention pond, even though the
design of the Plant is at issue in this case.
The Court finds that Plaintiffs have not alleged that Martin’s methodology in
reaching his opinions as to the design of the retention pond, or his opinions
themselves, are unreliable.
Plaintiffs’ allegations go more to the relevance of
Martin’s theories on grounds that they claim the retention pond was not built and
does not function as designed.
However, this criticism goes more to the weight of
Martin’s opinions, not their relevance. See Roman, 691 F.3d at 694.
The design of
the Plant is at issue, thus Martin’s opinions are relevant. See Sec. & Exch.
Comm’n v. Life Partners Holdings, Inc., 854 F.3d 765, 776 (5th Cir. 2017).
should be allowed to testify at trial.
Plaintiffs’ Motion to Strike Johnson  should be denied because his
opinions are reliable and relevant, and Defendants have shown that
Johnson employed an accepted and reliable methodology.
As the proponents of Johnson’s expert testimony, Defendants are required to
show that his testimony is reliable, United States v. Hicks, 389 F.3d 514, 525 (5th
Cir. 2004), and to establish the admissibility requirements “by a preponderance of
the evidence,” United States v. Fullwood, 342 F.3d 409, 412 (5th Cir. 2003).
A party seeking to introduce expert testimony must show “(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.”
Huss, 571 F.3d at 452 (quoting Smith, 495 F.3d at 227 (quoting Fed. R. Evid. 702)).
In applying these factors to Johnson’s appraisals of Plaintiffs’ houses, the
Court finds that Defendants have carried their burden of demonstrating that
Johnson is qualified to render opinions on the appraised values of the houses.
Plaintiffs’ contention that Johnson’s appraisal opinions must be stricken
because he only appraised their houses for their as-is May 2016 value and did not
perform a “diminution in value” analysis, is unavailing.3
While Mississippi law
supplies the substantive framework for analysis in the present case, “the Federal
Rules of Evidence control the admissibility of expert testimony.” Roman, 691 F.3d
The Court finds that Johnson’s opinions as to the May 2016 value of
Plaintiffs’ houses are relevant. Based upon a review of Johnson’s opinions and
methodology, the Court is of the view that Johnson is qualified and has utilized
accepted and reliable methods based upon sufficient facts and data. To the extent
Plaintiffs have issues with Johnson’s appraisal methodology as it pertains to
Plaintiffs’ theory of liability under Mississippi law, the Court finds that this issue
goes more to the weight of Johnson’s opinions or appraisals, a question which
Plaintiffs’ counsel can address on cross-examination. See Daubert, 509 U.S. at 596
(“Vigorous cross-examination, presentation of contrary evidence, and careful
3 Of course, Defendants maintain that Plaintiffs’ houses suffered no “diminution in value”
as evidenced by Johnson’s appraisals.
instruction on the burden of proof are the traditional and appropriate means of
attacking shaky but admissible evidence.”).
The Court is of the opinion that the jury can hear Johnson’s testimony and
then decide whether to “accept or reject that testimony after considering all factors
that weigh on credibility, including whether the predicate facts on which [Johnson]
relied are accurate.” Pipitone, 288 F.3d at 250.
Johnson should be allowed to
testify at trial.
Plaintiffs’ Motion to Strike Robertson and Hendrix  should be
denied because their opinions are reliable and relevant, and
Defendants have shown that they employed an accepted and reliable
As the proponents of Robertson and Hendrix’s expert testimony, Defendants
have demonstrated that their expert report is based upon sufficient facts and data,
that their methodology is accepted and reliable, and that their expert opinions are
Plaintiffs’ position that Robertson and Hendrix’s expert report is based upon
insufficient data collected during a single twenty-four hour sampling of the Plant’s
emissions of dust, noise, and volatile organic compounds goes to the weight of their
opinions. Robertson and Hendrix employed a reliable methodology by collecting
data during this twenty-four hour period, sending the data to independent
laboratories for analysis, and then utilizing the laboratory analysis to compile their
Plaintiffs’ counsel can address the adequacy of the data collected
during the twenty-four hour test sampling period, or whether this was a sufficiently
lengthy period of time, through cross-examination at trial.
To the extent Plaintiffs argue that the Report is unreliable because Hendrix
wrote the Report even though she has little expertise on noise and dust, their
deposition testimony reflects that Robertson and Hendrix discussed the data prior
to Hendrix drafting the report, that Robertson answered Hendrix’s questions, and
that Robertson edited the Report after it was drafted.4
The Court concludes that
the Report was a sufficiently collaborative effort by these two experts to satisfy the
requirements of Rule 702 and Daubert.
Robertson and Hendrix should be allowed
to testify at trial.
To the extent the Court has not addressed any of the parties’ arguments, it
has considered them and determined that they would not alter the result. After
review of Plaintiffs’ Motions to Strike the Opinions of Expert Witnesses Jim Martin
, Andy Johnson , Chris Robertson and Angie Hendrix , Defendants’
Responses, the record, and relevant legal authority, the Court finds that Plaintiffs’
Motions should be denied, and Jim Martin, Andy Johnson, Chris Robertson, and
Angie Hendrix should be permitted to testify at trial.
4 See Hendrix Depo. [248-2] at 20-21 (pages 77-78 as paginated by the court reporter);
Robertson Depo. [248-3] at 9 (pages 32-33 as paginated by the court reporter).
IT IS, THEREFORE, ORDERED AND ADJUDGED that Plaintiffs’
Motions to Strike the Opinions of Expert Witnesses Jim Martin , Andy
Johnson , Chris Robertson, and Angie Hendrix  are DENIED, and Jim
Martin, Andy Johnson, Chris Robertson, and Angie Hendrix will be permitted to
testify at trial.
SO ORDERED AND ADJUDGED, this the 19th day of July, 2017.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?