Wilmes vs Halliburton et al

Filing 142

ORDER granting 104 HESI's Motion to Exclude Plaintiffs' Expert Kevin J. Boyle. Signed by Honorable Vicki Miles-LaGrange on 07/22/15. (jy)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
AMANDA ALEXANDER, et al.,
Plaintiffs,
vs.
HALLIBURTON ENERGY SERVICES,
INC., et al.,
Defendants.
MITCHELL MCCORMICK, et al.,
Plaintiffs,
vs.
HALLIBURTON ENERGY SERVICES,
INC.,
Defendant.
BRUCE WILMES, et al.,
Plaintiffs,
vs.
HALLIBURTON ENERGY SERVICES,
INC.,
Defendant.

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Case No. CIV-11-1343-M

Case No. CIV-11-1272-M

Case No. CIV-11-1323-M

ORDER
Before the Court is defendant Halliburton Energy Services, Inc.’s (“HESI”) Motion to
Exclude Plaintiffs’ Expert Kevin J. Boyle, filed April 24, 2015. On May 19, 2015, plaintiffs filed
their response, and on May 26, 2015, HESI filed its reply. Based upon the parties’ submissions, the
Court makes its determination.

I.

Introduction
From the mid-1960s until 1991, HESI cleaned missile motor casings for the United States

Department of Defense and its contractors on a portion of its Osage Road facility near Duncan,
Oklahoma (“Site”). Plaintiffs allege that, as a result of those operations, the groundwater at the Site
became contaminated with perchlorate, which has since migrated offsite and into the private water
wells of numerous area residents. In support of their property diminution claims, plaintiffs have
identified four separate valuation experts. One of those experts is Kevin J. Boyle, Ph.D., an
economist.
HESI now moves this Court, pursuant to Federal Rule of Evidence 702 and Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny, to exclude the report and
opinions of Dr. Boyle. HESI asserts that Dr. Boyle is not qualified to testify about market value of
real property. HESI further asserts that Dr. Boyle’s opinions are irrelevant and fail the Daubert “fit”
prong as they are contrary to: (1) Oklahoma law because they are based on an economics model that
ignores market value; (2) this Court’s ruling denying class certification because his analysis is based
on assumptions about the area generally and ignores individual properties’ characteristics; and (3)
this Court’s ruling that proximity to contamination is not a sufficient basis for a claim for diminution
in property value. Finally, HESI asserts that Dr. Boyle’s opinions are unreliable and speculative
because his methodology ignores sales, market, and other relevant data, and the relevant valuation
literature, and he cherry-picks data to suit his preconceived opinions.
II.

Discussion
Federal Rule of Evidence 702 governs the admissibility of expert testimony based upon

scientific, technical, or other specialized knowledge. It provides:

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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.
Fed. R. Evid. 702.
Having carefully reviewed the parties’ submissions, and in particular Dr. Boyle’s expert
report and deposition testimony, the Court finds that the report and opinions of Dr. Boyle should be
excluded. Specifically, the Court finds that Dr. Boyle’s testimony will not help the trier of fact to
understand the evidence or to determine a fact in issue, as required by Rule 702(a). Under
Oklahoma law, “[t]he measure of damages for permanent injuries to land is the difference between
the reasonable market value of the land immediately before the injuries and the reasonable market
value of the land immediately after the injuries.” Houck v. Hold Oil Corp., 867 P.2d 451, 461 (Okla.
1993). Further, the Oklahoma Supreme Court has found that evidence of the value of land at the
time of trial, two years after the alleged pollution of a stream, was insufficient to establish damages.
See Sinclair Oil & Gas Co. v. Allen, 288 P. 981 (Okla. 1930).
In his report, Dr. Boyle states that his report “addresses long-term property-value
diminutions, not losses immediately after the contamination became public knowledge, that occur
after the residential real estate market has adjusted to the presence of perchlorate contamination and
other losses incurred by property owners.” Dr. Boyle’s expert report at 2. Additionally, in his
October 2, 2014 deposition, Dr. Boyle testified that the real estate market in Duncan, Oklahoma had

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not had a chance to adjust to the announcement of potential contamination as of the date of his
deposition. See Deposition of Dr. Boyle at p. 70, lns 19-23. Thus, it is clear that Dr. Boyle’s model
does not give the value of the properties immediately after the injuries, as required by Oklahoma
law. In fact, based upon his deposition testimony, Dr. Boyle’s model does not even give the value
of the properties more than three years after the announcement of the potential contamination.
Accordingly, the Court finds that Dr. Boyle’s opinions are not relevant to the issues of damages in
these cases and should be excluded.
III.

Conclusion

The Court, therefore, GRANTS HESI’s Motion to Exclude Plaintiffs’ Expert Kevin J. Boyle
[docket no. 193 in case no. CIV-11-1343-M, docket no. 238 in case no. CIV-11-1272-M, and docket
no. 104 in case no. CIV-11-1323-M] and EXCLUDES the report and opinions of Kevin J. Boyle,
Ph.D.
IT IS SO ORDERED this 22nd day of July, 2015.

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