Conocophillips Co. v. Utah Dep't of Transp., 20160221-CA

CourtCourt of Appeals of Utah
Citation397 P.3d 772
Docket NumberNo. 20160221-CA,20160221-CA
Parties CONOCOPHILLIPS COMPANY and Pioneer Pipe Line Company, Appellees, v. UTAH DEPARTMENT OF TRANSPORTATION and Ames Construction Inc., Appellants.
Decision Date20 April 2017

Miles M. Dewhirst, Rick N. Haderlie, and Kyle L. Shoop, Salt Lake City, Attorneys for Appellants.

Robert E. Mansfield and Steven J. Joffee, Salt Lake City, Attorneys for Appellees.

Judge Michele M. Christiansen authored this Opinion, in which Judges Kate A. Toomey and David N. Mortensen concurred.



¶ 1 The appellants seek to set aside the district court's judgment against them. They contend that, during the jury trial, the court erred (1) by ruling that portions of a deponent's testimony did not qualify as admissible expert testimony pursuant to Utah Rule of Evidence 702 and (2) by failing to strike portions of a percipient witness's testimony that amounted to an unsolicited expert opinion. We conclude that the district court properly excluded the relevant portions of the deposition and that any error in failing to strike the trial testimony was invited; consequently, we affirm. We remand to the district court for the limited purpose of calculating attorney fees incurred on appeal.


¶ 2 The Utah Department of Transportation (UDOT) hired Ames Construction Inc. (collectively, Defendants) as the general contractor for a highway construction project. Completion of the project required the relocation of several utilities, including a pipeline owned by ConocoPhillips Company (Conoco). UDOT therefore entered into written agreements with Conoco under which Conoco agreed to relocate the relevant section of pipeline and UDOT agreed to reimburse Conoco for the costs of doing so. The pipeline relocation was completed in March 2007; the pipeline was inspected before, during, and after the relocation to ensure that it was not damaged. Portions of the new pipeline run parallel to and under the new highway, approximately 28 feet underground.

¶ 3 After the relocation was completed, Defendants installed wick drains in the ground around the highway project. Wick drains are used to remove excess moisture from the ground in construction areas. They are essentially "pipes" driven into the ground that allow groundwater to seep through semi-permeable sides and collect inside the drain for removal or evaporation. During the highway project, Defendants used hundreds of wick drains driven up to 100 feet underground.

¶ 4 On April 3, 2007, one of Conoco's supervisors noticed that 27 to 30 wick drains had been installed within 7 or 8 feet of the surface markers indicating the pipeline's underground location.1 At least one of the wick drains was within 4 feet of the pipeline markings. The supervisor halted all work in the area to investigate whether the wick-drain installation had damaged the pipeline or the pipeline's cathodic anti-corrosion coating. See generally 49 C.F.R. §§ 195.563, 195.571 (2017) (federal regulations requiring cathodic protection of certain types of underground pipelines).

¶ 5 As part of the investigation, Conoco hired Brent Cathey to conduct a direct-current-voltage-gradient (DCVG) test. DCVG testing indirectly detects "holidays[2 ] or voids in a pipeline's coating" by measuring voltage gradients in the soil. Cathey did not detect any holiday indications at the site.

¶ 6 Several years later, in 2010, the pipeline was physically inspected, and damage to its upper portion was found in two areas. The first was a 0.6-inch-deep dent at the "12:15 position." The second was a 1.05-inch-deep dent "located at the 11:00 position." The GPS coordinates of the damaged areas were "in very close proximity" to where two of the wick drains had been installed in April 2007.

¶ 7 Conoco filed this lawsuit against Defendants, alleging breach of contract and negligence.

During the three-day jury trial, Conoco presented evidence suggesting that the wick-drain installation caused the dents on the pipeline. Defendants presented contrary evidence including Cathey's deposition.3 The parties agree that Cathey's deposition contained eight statements relevant here:

(1) that his DCVG test followed standards set by the National Association of Corrosion Engineers;
(2) that the DCVG test did not detect any holiday issues in the pipeline's coating in the area where the wick drains had been installed;
(3) that "improper installation" is the primary cause of holidays;
(4) that third-party damage to a pipeline is "very apparent" in contrast to damage caused by improper installation;
(5) that third-party damage caused by "some kind of mechanical machine [is] normally going to damage the pipe as well as the coating";
(6) that installation of a wick drain "would definitely damage a pipeline if it got broken into it";
(7) that, when he conducted the DCVG test, he did not believe that the wick drains had hit the pipeline; and
(8) that no pipeline coating can withstand being hit by a wick drain.

¶ 8 Conoco filed a motion in limine, seeking in part to exclude several of Cathey's statements on the ground that admission would violate rule 702 of the Utah Rules of Evidence. Specifically, Conoco argued that Defendants had "failed to demonstrate and lay foundation establishing that Mr. Cathey is qualified as an expert to testify about the effects that would result from a wick drain hitting the [pipeline]." Conoco further noted that Cathey had "offered no analysis or explanation of how he reached his purported opinion[s]" and asserted that the statements were too speculative and conclusory to satisfy rule 702. The district court reviewed the deposition and noted that Conoco's counsel had objected to the questions that elicited those statements. The court stated that if the same objections had been made during trial, it would have sustained them. The district court admitted Cathey's deposition statements that discussed holiday damage to a pipeline due to impacts, detection of holidays via DCVG testing, and the likelihood of damage to a pipeline and its coating when a "mechanical machine" impacts the pipeline. The court excluded the statements specific to wick drains, wick-drain installation, and the potential for holidays when a wick drain strikes a pipeline during installation.4

¶ 9 Conoco called a percipient witness, Mike Miller, to testify about the damage he had seen on the pipeline. Although Miller was called to testify about his observations of the damage, Conoco also asked him to describe DCVG testing during direct examination. Miller explained DCVG testing and then opined, without prompting, "Works pretty good for your typical pipeline, which is three to six foot deep. It's ... a crap shoot on a thirty foot pipe." Defendants objected, asserting that this statement amounted to expert testimony and was inadmissible because Miller had not been called as an expert witness and therefore Conoco had not presented credentials or otherwise explained why Miller was qualified as an expert in this field.

¶ 10 Outside the presence of the jury, the district court heard argument from the parties about the problematic statement. The court noted that it considered Miller's statement to be inadmissible, but expressed concern that instructing the jury not to consider the statement would only emphasize it. Defendants agreed, asking instead for "an order from the court that it is not used in closing arguments." After further discussion, the court and Conoco agreed to Defendants' proposed course of action.

¶ 11 The jury returned a verdict in favor of Conoco, and Defendants timely appealed.


¶ 12 Defendants contend that the district court misinterpreted or misapplied Utah Rule of Evidence 702 when it struck the sixth and eighth statements from Cathey's deposition. We review a district court's decision to admit or exclude expert witness testimony for an abuse of discretion and will not reverse that decision unless it exceeds the limits of reasonability. State v. Shepherd , 2015 UT App 208, ¶ 11, 357 P.3d 598.

¶ 13 Defendants also contend that "the district court erred by not striking, and not instructing the jury to disregard, an unsolicited expert opinion [offered by] fact witness Mike Miller." Pursuant to the invited-error doctrine, we generally will not review a district court's action when the party now alleging error in that action led the court to undertake it. See, e.g. , Tschaggeny v. Milbank Ins. Co. , 2007 UT 37, ¶ 12, 163 P.3d 615 ; Pratt v. Nelson , 2007 UT 41, ¶¶ 17–18, 164 P.3d 366.

I. Wick-Drain Testimony

¶ 14 Defendants first contend that the district court should have allowed the jury to consider Cathey's sixth and eighth deposition statements about wick drains. Cathey had been called as an expert witness, and because he was not available at trial, portions of his deposition were read into evidence. Rule 702 of the Utah Rules of Evidence governs the admissibility of expert witness testimony:

[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.

Utah R. Evid. 702(a). The rule then goes on to describe limits on the expert knowledge that may serve as a basis for expert testimony, i.e., the principles or methods underlying it must be reliable and properly applied to sufficient facts. See id. R. 702(b). Experiential expert testimony, where prior exposure to a similar or nearly identical situation provides the knowledge upon which the testimony is based, is admissible under this rule. See Eskelson ex rel. Eskelson v. Davis Hospital & Medical Center , 2010 UT 59, ¶ 15, 242 P.3d 762 ; State v. Shepherd , 2015 UT App 208, ¶ 34, 357 P.3d 598. This court has recently addressed the requirements for admitting experiential expert testimony:

The trial court could properly

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