Gulf Restoration Network v. Oscar Renda Contracting, Inc.

Filing 73

ORDER granting in part and denying in part 30 Motion in Limine Signed by District Judge Louis Guirola, Jr on 05/09/2018 (Guirola, Louis)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
GULF RESTORATION NETWORK
v.

PLAINTIFF
CAUSE NO. 1:17CV130-LG-RHW

OSCAR RENDA CONTRACTING, INC.

DEFENDANT

MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION TO EXCLUDE TESTIMONY
BEFORE THE COURT is the [30] Motion in Limine to Exclude Testimony of
Kevin S. Dillon filed by the defendant Oscar Renda Contracting, Inc. The Motion
has been fully briefed. After due consideration, the Court finds that the Motion
should be granted in part and denied in part.
BACKGROUND
This Clean Water Act case was initiated by Gulf Restoration Network, which
is “a coalition of environmental, social justice, citizens’ groups, and individuals
committed to protecting and restoring the valuable resources of the Gulf of Mexico
to an ecologically and biologically sustainable condition.” (Am. Compl. 4, ECF No.
14). The Network seeks 1) a declaration that the defendant, Oscar Renda
Contracting, Inc., violated the Clean Water Act and its implementing regulations; 2)
civil penalties for the violations; 3) an injunction requiring Oscar Renda to
remediate the adverse impacts to aquatic resources; and 4) an award of attorneys’
fees and costs. (Id. at 3-4).
The Network retained as its expert Kevin S. Dillon, a coastal sciences
associate professor at the University of Southern Mississippi. Dillon’s report is a

discussion of the probable amount and movement of sediments created by Oscar
Renda’s road construction project into Biloxi Back Bay. Dillon reaches the following
conclusions:
1) The sediment flows from the construction project in East Biloxi to
Biloxi Bay were substantial and conservatively in the tens of millions of pounds.
(2) The area affected by this sediment flow is conservatively the entire
middle section of the bay.
(3) Sediment inputs have substantial and far reaching impacts on
marine species and habitats. The duration of these impacts is
variable, but are clearly extended by repeated sedimentation events.
(4) In the case of the unnamed bayou depicted in the photos, there are
large sediment deposits directly adjacent to the storm water outfall,
that are clearly not natural deposits.
(Def. Mot. Exclude Ex. B 5, ECF No. 30-2).
Oscar Renda objects to introduction of Dillon’s fourth opinion above, because
it concerns geology rather than his areas of expertise – oceanography and
environmental science. Oscar Renda argues that the one photograph of the site
supporting Dillon’s opinion, taken by someone else, is not adequate evidence from
which to draw any conclusions about sediment deposits. Oscar Renda also objects
that Dillon does not rely on any facts or data in drawing any of his conclusions;
Dillon did not visit the site, conduct any testing, or rely on any tests done at the
site. Thus, Oscar Renda argues that Dillon is not qualified to provide expert
testimony in the field of geology, and his oceanography/environmental science
opinions are not reliable because they are not supported by adequate data.

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DISCUSSION
A. Legal Standard
“Before certifying an expert and admitting his testimony, a district court
must ensure that the requirements of Federal Rule of Evidence 702 have been met.”
Roman v. W. Mfg., Inc., 691 F.3d 686, 692 (5th Cir. 2012) (citations omitted). Rule
702 provides:
If 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 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. The party offering the expert has the burden of proving, by a
preponderance of the evidence, that the proffered testimony satisfies Rule 702.
Mathis v. Exxon Corp., 302 F.3d 448, 459-60 (5th Cir. 2002).
“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 given
subject.’” 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)). Whether he is
qualified to testify as an expert is a question of law. Mathis, 302 F.3d at 459 (citing
Fed. R. Evid. 104(a)). An expert may not “go beyond the scope of his expertise in
giving his opinion.” Goodman v. Harris Cty., 571 F.3d 388, 399 (5th Cir. 2009)
However, “Rule 702 does not mandate that an expert be highly qualified in order to
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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.” Huss v. Gayden,
571 F.3d 442, 452 (5th Cir. 2009).
B. Dillon is Qualified to Testify About the Photograph
Oscar Renda’s challenge to Dillon’s qualifications relate to Dillon’s analysis
and conclusions regarding the photograph purportedly showing a nearby bayou
area. Oscar Renda contends that Dillon is actually engaged in the unauthorized
practice of geology when he offers his opinion about what the photograph shows.
According to Oscar Renda, Mississippi Code § 73-63-7(3) requires Dillon to be a
“registered professional geologist” to opine in the field of geology. Oscar Renda
argues that Dillon cannot testify about his fourth conclusion above – that the “large
sediment deposits directly adjacent to the storm water outfall” are “clearly not
natural deposits” – without being a registered professional geologist. The Network
simply argues in response that Dillon is qualified by “his areas of research and
competence” to testify “regarding the characteristics and effects of polluted runoff of
the kind that ORC caused in this case.” (Pl. Resp. 1, ECF No. 38).
The Court concludes that Dillon is qualified to testify to his fourth conclusion.
A “witness qualified as an expert is not strictly confined to his area of practice, but
may testify concerning related applications; ‘a lack of specialization does not affect
the admissibility of the opinion, but only its weight.’” Meadowcrest Living Ctr., LLC
v. Hanover Ins. Co., No. 06-3210, 2008 WL 2959707, at *6 (E. D. La. July 30, 2008)
(citing Wheeler v. John Deere Co., 935 F.2d 1090, 1100 (10th Cir. 1991)). “[I]t is an
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abuse of discretion to exclude testimony simply because the trial court does not
deem the proposed expert to be the best qualified or because the proposed expert
does not have the specialization that the court considers most appropriate.” Pineda
v. Ford Motor Co., 520 F.3d 237, 244 (3d Cir. 2008) (citation and quotation marks
omitted). Dillon’s lack of a “registered professional geologist” designation should
not prevent him from testifying about opinions touching his own areas of expertise
in oceanography and environmental science. Dillon’s opinion about what the
photograph shows is the type of testimony that should be subjected to vigorous
cross-examination rather than exclusion. See Daubert v. Merrell Dow Pharms., Inc.,
509 U.S. 579, 596 (1993). This portion of the Motion to Exclude will be denied.
C. Dillon’s Remaining Testimony is Not Reliable
Oscar Renda argues that Dillon’s other opinions are not reliable, because
they are not based on adequate data. As noted earlier, the report consists mainly of
a discussion of how sediment run-off impacts aquatic environments. Oscar Renda
argues that what is missing is a link between this general discussion and the Biloxi
Back Bay, the construction site, or the materials alleged to be causing pollution in
this case. Dillon took no measurements, performed no field analysis or tests, took
no photographs, and did not review any documents specific to the Biloxi Back Bay.
The Gulf Restoration Network contends that Dillon’s supporting data is
sufficient, in that he “cites the basic facts concerning the massive construction
project at issue here, his own research in low-energy systems like Biloxi Bay, and 24
separate research publications on sediment and storm water issues.” (Pl. Resp. 1,
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ECF No. 38).
The Court’s review of the report does not reveal any basic facts about the
construction project. Dillon cites to “previous work [that] has shown that sediment
runoff is higher from construction sites than many other types of land use.” (Def.
Mot. Ex. B 1, ECF No. 30-2). He states that “[t]he lack of adequate safeguards to
trap sediments has likely resulted in a large increase in sediment runoff from
eastern Biloxi to Biloxi Bay and its associated bayous and tributaries,” although he
does not describe the safeguards employed, if any, or what safeguards would be
adequate. (Id.). Dillon estimates that a conservative estimate of the disturbed area
is in excess of 150 acres, and “it is likely that the amount of delivered sediment is in
the tens of millions of pounds” for the four years the construction project has been
underway. (Id.). He does not describe the construction project or otherwise explain
how he arrived at his estimate of the disturbed area or delivered sediment. Dillon
then makes it clear that he has not made any actual measurements of the effect of
the estimated sediment runoff in the Biloxi Back Bay.
Estimates of sediment yield only provide information on the amount of
sediments delivered to receiving waters from the catchment. To
examine where the sediment goes once entrained into stormwater and
delivered to nearby bayous and Back Bay, the transport directions and
rates would have to be measured for accurate estimates since transport
can vary greatly due to differences in sediment sizes and the intensity
of stormwater flow. This would be an extremely resource intensive and
expensive exercise.
(Id.). Further, “no [ ] studies [of the effects of construction activities] have been
conducted in Biloxi’s bayous and Back Bay.” (Id. at 2).

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A court may rightfully exclude expert testimony when an expert has
extrapolated data, and there is “too great an analytical gap between the data and
the opinion proffered.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997); see also
Moore v. Ashland Chem., Inc., 151 F.3d 269, 279 (5th Cir. 1998). The Court is not
required “to admit opinion evidence that is connected to existing data only by the
ipse dixit of the expert.” Gen. Elec. Co., 522 U.S. at 146. It appears that Dillon has
formed opinions about sediment flows into the Biloxi Back Bay from Oscar Renda’s
construction project simply from his knowledge that these effects have been
measured in other instances. His opinions are not based on any measurements or
personal observations of the construction project or the sediment runoff. Under
these circumstances, Dillon offers only his ipse dixit that harmful sediment runoff
has occurred as a result of the construction project. For this reason, Dillon will be
allowed to offer his opinion testimony about sediment runoff and its effects on the
environment as a general matter. However, he will be prohibited from testifying
about the conclusions he has drawn by applying these general principles to this
case. See Black v. Food Lion, Inc., 171 F.3d 308, 314 (5th Cir. 1999) (“Dr. Reyna’s
use of a general methodology cannot vindicate a conclusion for which there is no
underlying medical support.”).
IT IS THEREFORE ORDERED AND ADJUDGED that the [30] Motion in
Limine to Exclude Testimony of Kevin S. Dillon filed by the defendant Oscar Renda
Contracting, Inc. is GRANTED IN PART AND DENIED IN PART as set out
above.
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SO ORDERED AND ADJUDGED this the 9th day of May, 2018.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
UNITED STATES DISTRICT JUDGE

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