Columbia Gas Transmission Corporation v. United States of America et al

Filing 210

MEMORANDUM OPINION AND ORDER granting Columbia Gas Transmission, LLC's 183 MOTION in Limine To Exclude Evidence Relating To Telephone Poles and 184 MOTION in Limine To Exclude Evidence Suggesting Columbia's 1988 Pipeline Relocation Work Contributed To The Slope Failure; denying as moot the Airport's 189 MOTION in Limine to Prohibit Evidence Regarding Damages for Loss of Use; granting the Airport's 190 MOTION in Limine to Prohibit Evidence Regarding Communications Made by TSAA Employees Subsequent to the Landslide; denying the Airport's 160 MOTION to Exclude Certain Opinions of Plaintiff's Expert, W. Dale Nicholson, P.E. Signed by Judge Robert C. Chambers on 2/8/2016. (cc: attys; any unrepresented parties) (mkw)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

COLUMBIA GAS TRANSMISSION LLC,
Plaintiff,
v.

CIVIL ACTION NO. 3:14-11854

UNITED STATES OF AMERICA
and TRI-STATE AIRPORT AUTHORITY,
Defendants.
MEMORANDUM OPINION AND ORDER
At a pretrial conference held on February 2, 2016, the Court addressed motions in limine
brought by Plaintiff Columbia Gas (“Columbia Gas”), ECF Nos. 183, 184, and Defendant TriState Airport Authority (the “Airport”), ECF Nos. 189, 190. Columbia Gas asked to exclude
evidence relating to telephone poles as a cause of the slope failure, ECF No. 183, and evidence
suggesting Columbia Gas’s 1988 pipeline relocation contributed to the slope failure, ECF No. 184.
The Airport sought exclusion of evidence regarding Columbia Gas’s damages for loss of use, ECF
No. 189, and certain communications by the Airport’s employees subsequent to the slope failure,
ECF No. 190. The Airport also asked to exclude certain opinions of Columbia Gas’ expert Dale
Nicholson. ECF No. 160. For the reasons and to the extent explained below, the Court GRANTED
Columbia Gas’s motions regarding telephone poles and the 1988 pipeline relocation, DENIED as
moot the Airport’s motion regarding loss of use damages, GRANTED the Airport’s motion to
exclude certain communications by Airport employees, and DENIED the Airport’s motion to
exclude expert opinions of Nicholson.
I.

Plaintiff’s Motion to Exclude Telephone Pole Evidence

In its motion in limine and at the pretrial conference, Columbia Gas argues that evidence
relating to the party responsible for placing telephone poles into the slope should be excluded
pursuant to Federal Rules of Evidence 401, 403, and 702 because such evidence is irrelevant,
unreliable, misleading, and inconsequential. The Airport offers only two pieces of evidence in
support of an inference that another party—specifically Columbia Gas’s predecessor—placed the
telephone poles in the slope: (1) a 1957 contract requiring Columbia Gas’s predecessor to remove
telephone poles near the pipeline and (2) testimony to be elicited from Columbia Gas’s expert that
Columbia Gas’s current standard practice is to remove and dispose of telephone poles located over
a pipeline easement that is being relocated. The Airport argues this evidence is admissible to rebut
the conclusion of Columbia Gas’s expert that the Airport was responsible for placing the
telephones into the slope. The Airport also contends this evidence is admissible to prove Columbia
Gas had prior knowledge that the slope was filled with organic materials when Columbia relocated
its pipeline in 1988.
Only relevant evidence is admissible. Fed. R. Evid. 402. Evidence is relevant if it has any
tendency to make a fact of consequence more or less probable than it would be without the
evidence. Fed. R. Evid. 401. The Advisory Committee Notes provide further guidance, stating:
Relevancy is not an inherent characteristic of any item of evidence
but exists only as a relation between an item of evidence and a matter
properly provable in the case. Does the item of evidence tend to
prove the matter sought to be proved? Whether the relationship
exists depends upon principles evolved by experience or science,
applied logically to the situation at hand.
Fed. R. Evid. 401, advisory committee note on proposed rule.
At the pretrial conference, the Court found that neither the entity who placed telephone
poles into the fill nor the contribution of those poles to the slope failure were facts of consequence

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under Rule 401(b), and therefore evidence is not admissible to prove these facts.1 However, the
Court also concluded the Airport may offer evidence to support an inference that Columbia Gas
was aware the telephone poles were placed in the slope sometime around 1957, and therefore
Columbia Gas knew the slope was constructed with end-dump fill when it relocated its pipeline in
1988.
Applying Rule 401, the 1957 contract and expert testimony are admissible to prove
Columbia Gas knew the slope was composed of end-dump fill when it relocated its pipeline in

1

Even if a party other than the Airport placed the telephone poles into the fill, this is not a fact of
consequence in determining the action, as required under 401(b). If Columbia Gas’s predecessor
placed the poles into the slope, it could only have done so with the Airport’s permission because
the evidence indicates that in 1957 the slope was owned and possessed by the Airport. Neither
party has adduced evidence that a third party dumped the poles into the slope without the Airport’s
knowledge or consent. In Weaver’s supplemental report he admits “[t]he airport appears to have
been a very passive landowner in this regard, in the subject area of the landslide.” Weaver
Supplemental Report at 3, ECF No. 158-5. Additionally, regardless of who placed the telephone
poles into the slope, per the Restatement (Third) of Property (Servitudes) § 1.2(1), the Airport is
responsible for the artificial conditions on its land that interfered with Columbia Gas’s use of its
easement. See Restatement (Third) of Property (Servitudes) § 1.2(1), cmt d (“The transferor of an
easement . . . retains the right to make all uses of the land that do not unreasonably interfere with
exercise of the rights granted by the servitude. For example, the transferor of an easement for an
underground pipeline retains the right to enter and make any use of the area covered by the
easement that . . . does not unreasonably interfere with use of the easement for pipeline purposes.”).
End dumping fill onto a slope near the easement and then permitting development of that slope
into a drainage field, which in turn culminated into failure of the slope and damage to Columbia
Gas’s pipeline, constitutes an unreasonable interference with Columbia Gas’s use for pipeline
purposes. Thus, the entity that placed the telephone poles into the slope is not a fact of consequence
in determining the action, as required by Rule 401(b). Because 401(b) is unmet, evidence offered
to prove the entity who placed the poles into the hill is excluded from this action.
Additionally, any contribution the telephone poles made to the slope’s failure is not a fact
of consequence in determining this action. Evidence suggests that during the 2012 remediation
only two telephone poles were found within roughly 50,000 cubic yards of organic material that
composed the fill. Based on this, the Court finds that any effect the poles may have had on the
slope’s stability is so trivial that, as a matter of law, a jury could not conclude that placing the poles
into the slope factually caused the slope’s failure, e.g., a jury could not reasonably conclude the
slope would not have failed but for placing the poles into the fill. Therefore, the poles’ contribution
to the slope failure is not a fact of consequence in determining this action.
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1988.2 The 1957 contract and expert testimony have a tendency to make it more or less probable
that Columbia Gas placed the telephones in the fill sometime around 1957, and therefore,
Columbia Gas knew the slope was constructed with end-dump fill when it relocated its pipeline
closer to the slope in 1988. Columbia Gas’s knowledge in 1988 that the slope consisted of enddump fill is a fact of consequence because it goes to Columbia Gas’s potential comparative fault
for the damage to Columbia Gas’s pipeline in 2012.3
II.

Plaintiff’s Motion to Exclude 1988 Pipeline Relocation Evidence

Next, Columbia Gas asks to exclude evidence suggesting its 1988 pipeline relocation
contributed to the 2012 slope failure; Columbia Gas claims such evidence is speculative and for
that reason fails to satisfy 702’s standards for expert opinions. The Airport and the United States
offer the expert opinions of John Weaver (the Airport’s expert) and Christopher Grose (United
States’ expert) to rebut testimony of Columbia Gas’s expert, Dale Nicholson. Specifically,
Defendants would like to rebut Nicholson’s opinion that (1) the relocation did not cause the 2012
slope failure and (2) the relocation actually stabilized the slope. Columbia Gas does not attack the

2

The Court finds Rules 403 and 702 are not obstacles to the admissibility of this evidence. The
probative value of the 1957 contract and expert testimony supporting an inference about Columbia
Gas’s knowledge of the slope’s composition is not substantially outweighed by a danger of unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence. The contract and testimony are the only evidence offered to prove
Columbia Gas’s potential comparative fault for damage to the pipeline in 2012; and as much as
Columbia Gas’s comparative fault may be prejudicial to Columbia Gas’s case, the Airport is
entitled to use admissible evidence to prove such fault. Furthermore, expert testimony supporting
an inference that Columbia Gas had knowledge in 1988 that the slope consisted of end-dump fill
is admissible under 702 because it is both relevant and reliable. The relevance is explained later in
the text of this Opinion. And the testimony is reliable because it is based on reviewing the 1957
contract, topographical maps and aerial photographs, on-site inspections, depositions of Columbia
Gas’s representatives and experts, and reports prepared by Columbia Gas’s experts.
3
According to Defendants, the comparative fault argument goes something like this: a reasonably
prudent gas company would not relocate a high-pressure gas pipeline closer to a slope susceptible
to a land slide; and so, Columbia Gas’s relocation of the pipeline in 1988 closer to, as opposed to
away from, the slope was negligent.
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qualifications of either Weaver or Grose, only the admissibility of an opinion they might offer that
the 1988 pipeline relocation contributed to the 2012 slope failure. In the following paragraphs, the
Court will explain its decisions, and the reasoning underlying them, on admissibility of expert
testimony regarding the 1988 pipeline relocation as a cause of the 2012 slope failure.4
During the pretrial conference, the Court granted Columbia Gas’s motion to exclude expert
opinions that the 1988 pipeline relocation contributed to the slope failure. Such opinions are not
necessary for rebuttal because Columbia Gas’s expert will refrain from opining that the 1988
relocation did not contribute to the slope failure, nor will he testify that the relocation stabilized
the slope. Additionally, as explained below, an opinion that the 1988 pipeline relocation
contributed to the slope failure is not an admissible expert opinion under Rule 702. However,
expert testimony that a disturbance at the toe of a slope could contribute to slope failure is
admissible under 702. This expert opinion will help the trier of fact determine for itself whether
Columbia Gas’s 1988 pipeline relocation contributed to the slope’s 2012 failure. In the following
paragraphs, the Court will explain its decisions applying Rule 702 to (1) exclude evidence that the
1988 pipeline relocation contributed to the 2012 slope failure, and (2) admit an opinion that a
disturbance at the toe of a slope could contribute to slope failure.
Expert opinions from Weaver and Grose that the 1988 pipeline relocation contributed to
the slope’s failure are inadmissible under 702 because these opinions are not based on sufficient

4

Although the Parties argue over whether West Virginia law may supply the standard for
admissibility of expert testimony in this case, Federal Rule of Civil Procedure 702 is the only
standard for determining admissibility of the expert opinions here. Under Rule 702, an expert
witness may provide an opinion on a matter if: (a) it will help the trier of fact understand the
evidence or determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the
testimony is the product of reliable principle and methods; and (d) the expert has reliably applied
the principles and methods to the facts of the case. Fed. R. Evid. 702. In the end, expert testimony
must be both relevant and reliable, and the trial judge acts as a gatekeeper who keeps out unreliable
expert opinions. Fed. R. Evid. 702, advisory committee note to 2000 amendment.
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facts. By their own admission, neither expert was able to opine that Columbia’s 1988 pipe
relocation destabilized the slope or contributed to its failure in 2012. In Weaver’s deposition,
Weaver himself testified “no” when asked if he could say to a reasonable degree of scientific
certainty that what Columbia Gas did in 1988 had “something to do with the failure, in a causative
fashion, of th[e] slope.” Dep. of John Weaver, at 75 (Nov. 9, 2015), ECF No. 199–4 [hereinafter
“Weaver Dep.”]. When he was asked “[w]ell, I think we already determined that you can’t say . .
. to a reasonable degree of certainty that the pipeline work in 1988 had anything to do with slope
failure,” Weaver responded “[a]bsolutely. But [Mr. Nicholson] said it didn’t, and . . . all I’m saying
is you can’t say that. I’m not saying it did, but you can’t say it didn’t.” Weaver Dep. at 122–23.
Although Weaver also responded yes when he was asked “[c]an you say that the 1988 . . .
relocation . . . , to a reasonable degree of scientific certainty, had anything to do with the slide
occurring?” he soon after clarified his opinion: “I’m saying when you’re digging at the bottom of
a very steep slope, that can have negative consequences to the stability of the slope. So there’s that
potential.” Weaver Dep. at 74. Thus, Weaver’s opinion expressed during his deposition is not that
Columbia Gas’ 1988 pipeline relocation caused the 2012 slope failure. Indeed, he admitted he did
not have a sufficient factual basis for that conclusion. However, he has offered the opinion that a
disturbance at the bottom of a slope could contribute to that slope’s failure, a more general
proposition than the one Columbia Gas seeks to exclude. Because Weaver admitted he did not
have a sufficient factual basis to conclude Columbia Gas’ 1988 pipeline work contributed to the
slope’s failure, he is not permitted to offer an opinion to that effect at trial.
Nor did Grose conclude, based on the facts of this case, that Columbia Gas’ work caused
the slope’s destabilization and eventual failure. During Grose’s deposition, when Grose was asked
whether he knew what work Columbia performed in its facilities upgrade, Grose replied “no.”

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Dep. of Christopher Grose, at 62 (Nov. 9, 2015), ECF No. 199–1 [hereinafter “Grose Dep.”]. When
discussing if saturation into a ground sag caused by the pipeline contributed to the slope failure,
Grose was asked if it was a fair statement that the sag was not caused by any work or error that
Columbia made when it upgraded its pipeline. To this Grose responded “that’s a fair statement.”
Grose Depo. at 67. Thus, Grose admitted that saturation resulting from the sag was not caused by
Columbia Gas’s 1988 pipeline relocation, and in turn, to the extent the slope failure was due to
water saturation, this was not due to the 1988 pipeline relocation either. One might still contend
that Grose could nonetheless have concluded that Columbia Gas’ disturbing the soil at the bottom
of the slope in 1988 is a possible cause of the 2012 landslide. However, Grose, neither in his report
nor during his deposition, specifically opined that Columbia Gas’ 1988 pipeline relocation caused
the 2012 landslide.5 And because the Court is unable to find sufficient facts to support such an

5

Grose came close to concluding this but fell short when he wrote:
The proximity of the . . . pipeline to the toe of the fill slope along
with the disturbance to the area [during relocation projects] likely
also contributed to the weaken[ed] condition of the slope and its
ultimate failure.

Def. Tri-State Airport Authority’s Mot. for Summ. J, Ex. J Part 1, at 9–10 (Jan. 3, 2015), ECF No.
158–12 [hereinafter “Potesta Report”]. Considering Grose’s use of the term “likely” and the
generic explanation leading up to this statement, the Court finds this conclusion is not admissible
under Rule 702 because it is not sufficiently based on facts specific to the slope failure in this case.
In the sentences preceding Grose’s conclusion that the relocation projects likely contributed to the
weakened slope and its failure, Grose provided no analysis specific to this case about the slope’s
conditions. Instead, Grose simply explained the basic concept of toe failure while inserting into
that explanation facts relevant to this case. See id. (“The ground disturbance near the toe of the
slope . . . also contributed to weaker soil conditions. These weakened soils provide support to the
fill areas upslope. It is common for seepage and shallow infiltration to collect and buildup along
backfilled pipeline trenches. This collected subsurface water contributes to the saturation of these
naturally occurring soils which in this case were situated below and providing support to the fill
slope. The initial failure of these toe soils along the pipeline right-of-way would have resulted in
regressive and continued failure of the entire fill slope due to the initial lack of toe support along
the pipeline right-of-way.”). Notably, Grose did not point to any on-site observations to support
this conclusion, although Potesta did make extensive on-site observations. Because of this, the
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opinion, Grose is not permitted to offer at trial an opinion that Columbia’s 1988 pipeline work
contributed to the slope’s failure.
However, the Court will admit under Rule 702 expert testimony from Weaver and Grose
that a disturbance at the bottom of a slope could contribute to slope failure. Based on the experience
of these experts and the evidence they reviewed, this expert opinion is reliable and therefore will
help the trier of fact determine whether Columbia Gas’s 1988 pipeline relocation contributed to
the slope’s 2012 failure, a fact pertaining to Columbia Gas’s comparative fault in this case. Unlike
the opinion on the ultimate issue of whether Columbia Gas’s 1988 pipeline relocation caused the
slope failure, this more general opinion is supported by fact. Weaver, in his supplemental report
dated November 2, 2015, criticized the expert opinion of Columbia Gas, Nicholson, who said that
the 1988 relocation stabilized the slope. Weaver said, “[t]his hypothesis fails to understand the
nature of slope failure.” Weaver Supplemental Report at 4–5. To support this critique, Weaver
offered an opinion explaining how slopes may fail due to destabilization at the slope’s base. 6

Court concludes Grose was not drawing a conclusion from any facts or observations specific to
this case. Therefore, Grose’s conclusion in the Potesta Report—that the disturbance at the bottom
of the slope likely contributed to the weakened condition of the slope and its ultimate failure—is
not sufficiently based on facts to merit its admissibility under Rule 702.
6
Weaver explained:
A “toe failure” is a common failure mechanism. In that instance,
there is a weak area and/or maximum stress at the toe of the slope.
For instance, a trench could be dug along the toe of the slope,
reducing the forces stabilizing the slope. The slope begins to fail at
the toe, as this is the weakest area. As those soils fail and move, they
remove the stabilizing force from the soils overlying them, and the
failure progresses up the slope, and laterally as well. Thus, even
though the failure started at a weak point at the toe, the slope, after
failure, extends up the slope and soft disturbed saturated soils can
be seen in the overlying soils.
Weaver Supplemental Report at 5.
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Grose, in Potesta’s report, also discussed the general concept of slope failure resulting from
destabilization at the slope’s base.7
To conclude, the Court GRANTS Plaintiff’s motion to exclude expert opinions that the
1988 pipeline relocation contributed to the slope’s 2012 failure. Such opinions are inadmissible
under Rule 702 because they are not based on sufficient facts. However, the Court will admit under
Rule 702 expert opinions from Weaver and Grose that a disturbance at the bottom of a slope could
contribute to slope failure; such testimony is relevant and reliable enough to assist the trier of fact
in determining the issue of Columbia Gas’s comparative negligence.
III.

Defendant’s Motion to Exclude Loss of Use Evidence

During the pretrial conference, Columbia Gas’s counsel informed the Court that it would
not seek damages for loss of use or lost profits stemming from the pipeline’s inability to transport
gas during the remediation effort. Therefore, the Court DENIES as moot the Airport’s motion to
exclude evidence regarding loss of use damages.
IV.

7

Defendant’s Motion to Exclude Communications by Airport Employees

Grose explained:
The ground disturbance near the toe of the slope as a result of the
two pipeline relocation projects[, in 1957 and 1988,] also
contributed to weaker soil conditions. These weakened soils provide
support to the fill areas upslope. It is common for seepage and
shallow infiltration to collect and buildup along backfilled pipeline
trenches. This collected subsurface water contributes to the
saturation of these naturally occurring soils which in this case were
situated below and providing support to the fill slope. The initial
failure of these toe soils along the pipeline right-of-way would have
resulted in regressive and continued failure of the entire fill slope
due to the initial lack of toe support along the pipeline right-of-way.

Potesta Report, at 9–10; see also id. at 11, ¶ 7.
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The Airport argues certain communications by Airport employees—ones Columbia Gas
has indicated it intends to use at trial—are irrelevant under 401. In the alternative, the Airport
argues their admission into evidence would be overly prejudicial under 403. In its motion, the
Airport listed ten specific letters and e-mail chains it seeks to exclude from trial, all of which are
attached to the Airport’s motion as Exhibit B. Airport’s Mot. in Limine to Exclude Statements,
Ex. B, ECF No. 190–2. In response, Columbia Gas asserts these communications are relevant to
prove the Airport admitted liability for the slope failure and that it owed Columbia Gas a duty.
At the pretrial conference, the Court granted under Rule 401 the Airport’s motion to
exclude the communications by Airport employees. After reviewing each letter and e-mail, the
Court found these communications are not relevant to prove any admission by the Airport as to its
liability or duty to Columbia. The Court will briefly explain its reason for rejecting Columbia Gas’s
theory that these communications are relevant under Rule 401.
Of the ten Airport employee communications Columbia Gas asked to admit into evidence,
Columbia Gas addressed only three categories specifically in its brief responding to the Airport’s
motion to exclude such statements: (1) statements by the Airport’s director seeking federal
emergency relief funds, (2) statements showing the Airport’s involvement with and approval of
Columbia Gas’ remediation efforts, and (3) statements showing the Airport understood Columbia
Gas was not responsible for the 2012 slope failure and financial costs of slope remediation. See
Pl.’s Resp. 2–3, ECF No. 196. However, none of these statements, nor any of the others the Airport
seeks to exclude, constitute an admission by the Airport that it is liable for the slope failure or that
it owed a duty to Columbia Gas.

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As for the first category of statements, Columbia Gas first points to a letter from Airport
Director Jerry Brienza to Congressman Nick Rahall in which Brienza sought federal emergency
relief, saying:
It is my understanding that Columbia Gas is requesting from the WV
National Guard $750,000 to help pay for the cost of said repairs. The
property that was affected is owned by the Tri-State Airport
Authority and leased to the WV National Guard. The Guard is
requesting our assistance, as the property owners, to help secure this
funding should they be responsible to pay.
Is it too late to apply for Emergency Funding Assistance through
FEMA or any other emergency operations centers? Is there any
funding or assistance available through any of our other military
service units . . . or within the States that you know of?
Letter from Jerry Brienza, Tri-State Airport Authority, to Congressman Nick Rahall (Aug. 17,
2012), ECF No. 109–2. The Court finds this statement is not an admission by the Airport that it
was liable for the slope failure or remediation, nor is it an admission that the Airport owed a duty
to Columbia. The statement indicates only that the Airport sought federal emergency relief funds
on behalf of the WVANG, which is not an admission of liability or duty owed. Furthermore, the
statement cannot support an inference that the airport admitted liability or duty by its requesting
emergency relief because such an inference is unreasonable in light of the danger posed to the
Airport by a nearby buckled, i.e., broken, high-pressure natural gas pipeline. Nor does the
statement by Robert Fuller, a consultant to WVANG, constitute an admission of Columbia’s
liability or duty owed because Fuller was not an employee of the Airport. Transcript of voicemail
from Robert Fuller, Capital Engineering, to Steve Bellini, Columbia Gas, TSCO000001035, ECF
No. 109–2. As such, these statements are not relevant to show the Airport’s admission of liability
or duty owed.
Turning to the second category of statements, Columbia Gas points to two e-mail chains
which evidence the Airport’s involvement with and approval of remediation efforts. As an initial
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matter, the Airport’s actions are akin to subsequent remedial measures, even if not exactly that,
and they nonetheless fall within the policy for excluding such evidence under Rule 407. See Fed.
R. Evid. 407, advisory committee note on proposed rule (“[t]he conduct is not in fact an admission,
since the conduct is equally consistent with injury by mere accident or through contributory
negligence”). Turning to the statements themselves, the first e-mail chain is between contractors
hired by Columbia Gas to remediate, Bruce Reynolds and Leonard “Butch” McCoy. E-mail from
Bruce Reynolds to Leonard McCory (Mar. 15, 2012), TSCO000001040, ECF No. 190–2. In the
e-mail, Reynolds tells McCoy they have a meeting with the Airport’s Director of Operations, Bob
Maynard, at the “slip site,” and “it appears this whole matter will be resolved to everyone’s
satisfaction.” Id. The second e-mail is from Reynolds to Timothy Sweeney, another contractor
hired by Columbia Gas for remediation. E-mail from Bruce Reynolds to Timothy Sweeney (Mar.
14, 2012), TSCO000001040, ECF No. 190–2. In that e-mail Reynolds tells Sweeney about a
meeting with Maynard regarding work to be done on the Airport’s property. Id. Reynolds says
Maynard is “OK” with all the contractors must do, and his only request is that the contractors
“repair all [they] tear up, seed and straw, etc.” Id. These are not admissions by the Airport, not
only because the e-mails are from Reynolds—who is not an Airport employee, but also because a
mere meeting between the Airport and contractors about remediation work to be completed does
not constitute an admission of liability or duty owed. Moreover, the meeting was necessary
because the work was to involve Airport property other than Columbia Gas’s easement. Thus, the
contractors needed permission from the Airport to complete some of the work. This permission
was not an admission. For these reasons, statements showing the Airport’s involvement with and
approval of remediation efforts are not relevant to prove the Airport admitted liability it had or a
duty it owed.

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The last category of statements are those showing the Airport understood Columbia Gas
was not responsible for the 2012 slope failure or remediation. E-mail from Bruce Reynolds to Mike
McFee, NiSource Gas Transmission and Storage (Mar. 14, 2012), TSCO000001051, ECF No.
190–2. In his e-mail, Reynolds told McFee that Airport Director of Operations Maynard
understood “Columbia [Gas] is not obligated to repair this slip.” Id. This is a statement by the
Airport, but that statement cannot be construed as an admission of the Airport’s liability or duty
owed. The Airport’s concession that Columbia Gas did not have an obligation to remediate is not
an admission that the Airport was at fault for the slope failure or that the Airport was obligated to
remediate that failure. The latter simply does not derive from the former. Therefore, the Airport’s
statements conceding Columbia Gas was not obligated to remediate the slope failure are not
admissible to prove the Airport admitted liability or a duty owed.
To conclude, the Court granted under Rule 401 the Airport’s motion to exclude certain
communications by Airport employees. See Def.’s Mot. to Exclude Statements, Ex. B, ECF No.
190–2 (listing communications to be excluded). The communications may be admissible for
impeachment purposes only; but if any party wishes to use these communications to impeach a
witness, the party must first request a conference to explain the impeachment purpose outside the
presence of the jury. Should any communication be admitted for impeachment, the Court will give
the Jury an appropriate limiting instruction.
V.

Defendant’s Motion to Exclude Expert Opinions of Nicholson

Lastly, the Airport argues certain opinions of Columbia Gas’ expert Dale Nicholson are
inadmissible under Rule 702. In his report, Nicholson concluded “the fill was constructed in the
course of the airport expansion activities prior to the advent of the [WVANG] between April 1972,
and April 6, 1975.” Supplement Report of Cardno, at 20 (June 30, 2015) [hereinafter “Cardno

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Supp. Report”], ECF No. 166–1. Nicholson also concluded that the Airport constructed the fill on
the failed slope, as opposed to some other entity constructing the fill. Id. The Airport challenges
the reliability of these opinions under Rule 702.8
To be admissible under Rule 702, expert opinions must be, among other things, based on
principles and methods that are reliable, and those principles and methods must be reliably applied
to the facts of the case. Fed. R. Evid. 702. The trial judge acts as a gatekeeper who keeps out
unreliable expert opinions. Fed. R. Evid. 702, advisory committee note to 2000 amendment. The
factors for assessing reliability of expert opinions explicated by the Daubert Court are (1) whether
the expert's technique or theory can be or has been tested—that is, whether the expert's theory can
be challenged in some objective sense, or whether it is instead simply a subjective, conclusory
approach that cannot reasonably be assessed for reliability; (2) whether the technique or theory has
been subject to peer review and publication; (3) the known or potential rate of error of the
technique or theory when applied; (4) the existence and maintenance of standards and controls;
and (5) whether the technique or theory has been generally accepted in the scientific community.
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
At the pretrial conference, the Court denied the Airport’s motion to exclude Nicholson’s
opinions. The challenged opinions of Nicholson—that the fill was constructed during the 1950s
and between 1972 and 1975, and that the Airport constructed the fill—are both reliable. They are
the product of reliable principles and methods, and those principles and methods were reliably
applied to the facts of this case. In its response, Columbia Gas outlined the principles and methods
Nicholson used to arrive at these opinions. See Pl.’s Opposition to Defendant’s Mot. to Exclude

8

The Court rejects as inapplicable to Rule 702’s analysis the Airport’s arguments that Nicholson’s
opinions are inadmissible because other entities may have placed telephone poles in the fill, and
they are inadmissible because Nicholson did not provide a standard of care.
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Certain Opinions of Nicholson, at 4–5, ECF No. 166 [hereinafter “Pl.’s Resp.”]. Nicholson
narrowed the time periods for fill construction by reviewing topographical maps and aerial
photographs provided by the Airport. Id. at 4.9 The Court finds the map and photograph review
method that Nicholson employed is, under these circumstances, a reliable method of determining
when the fill was constructed. Next, Nicholson determined that the Airport constructed the fill on
the slope by considering the construction activities that occurred during the time periods when the
fill was placed. Id. at 5.10 The Court finds that considering the construction projects during those
time periods is, under these circumstances, a reliable method of determining what entity
constructed the fill. Because the methods used to form Nicholson’s two opinions are reliable, and
those methods were reliably applied to the facts of this case, Nicholson’s expert opinions are
admissible at trial under Rule 702.
VI.

Conclusion

For the reasons and to the extent explained above, the Court GRANTED Columbia Gas’s
motions regarding telephone poles and the 1988 pipeline relocation, DENIED as moot the

9

More specifically, according to Columbia Gas:
A comparison of maps from 1950, 1957, and 1961 demonstrates
that, during the 1950s, earth was removed from above the area where
the slope would later be constructed, and pushed over the hillside.
The slope remained unchanged for approximately twelve years, as
demonstrated by a map from 1972. However, an aerial photograph
taken in 1975 shows a rounded disturbed area on the hillside. The
same area is shown in a 1994 map drawn prior to the construction
of the Armory. From this evidence, Nicholson concludes that some
fill occurred in the late 1950s, with the bulk occurring between 1972
and 1975.

Pl.’s Resp., at 4 (citations omitted).
10
Between 1957 and 1959, the Airport “flattened the hilltop above the slope, where the Armory
is now located,” and in 1973, the Airport “removed four million cubic yards of earth to extend the
airport’s runway.” Pl.’s Resp., at 5 (citations omitted).
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Airport’s motion regarding loss of use damages, GRANTED the Airport’s motion to exclude
certain communications by Airport employees, and DENIED the Airport’s motion to exclude
certain opinions of Plaintiff’s expert Nicholson.
The Court DIRECTS the Clerk to send a copy of this written Memorandum Opinion and
Order to counsel of record and any unrepresented parties.

ENTER:

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February 8, 2016