Hoy v. DRM, INC.

• Decision Date: 13 July 2005
• Docket Number: No. 04-46,04-46
• Citation: 2005 WY 76,114 P.3d 1268
• Parties: PHILIP L. HOY, Appellant (Plaintiff), v. DRM, INC., a Wyoming corporation; and CONSOLIDATED ENGINEERS, INC., Appellees (Defendants).
• Court: Wyoming Supreme Court

2005 WY 76

114 P.3d 1268

PHILIP L. HOY, Appellant (Plaintiff), v. DRM, INC., a Wyoming corporation; and CONSOLIDATED ENGINEERS, INC., Appellees (Defendants).

No. 04-46

Supreme Court of Wyoming. APRIL TERM, A.D. 2005.

July 13, 2005

Representing Appellant: Virgil G. Kinnaird and Sheryl Smith Bunting of Kinnaird Law Office, P.C., Sheridan, Wyoming. Argument by Mr. Kinnaird.

Representing Appellees: R. Douglas Dumbrill of Lubnau, Bailey and Dumbrill, Gillette, Wyoming for appellee Consolidated Engineers, Inc., and James L. Edwards of Stevens, Edwards, Hallock & Carpenter, P.C., Gillette, Wyoming for appellee DRM, Inc. Argument by Messers. Dumbrill and Edwards.

HILL, C.J., and GOLDEN, KITE, and VOIGT, JJ., and STEBNER, DJ., Retired.

HILL, Chief Justice.

[¶1] Phillip L. Hoy (Hoy) filed a complaint for negligence alleging that DRM, Inc. and Consolidated Engineers, Inc. (collectively the Defendants), while in the course of trenching a water line, had damaged the leach field for his mobile home park.¹ The district court granted the Defendants' motion in limine to exclude the testimony of Hoy's two designated expert witnesses because their opinions did not meet the standards for reliability set forth in Bunting v. Jamieson, 984 P.2d 467 (Wyo. 1999). On the basis of that ruling, the district court granted the Defendants' motion for summary judgment for a lack of proof of proximate cause. Hoy challenges these rulings on appeal. We affirm.

ISSUES

[¶2] Hoy provides the following statement of the issue:

The trial court abused its discretion in excluding [Hoy's] expert testimony that Defendants' construction activities were the proximate cause of the failure of [Hoy's] leach field.

The Defendants restate the issue and add an additional one:

Was the granting of summary judgment in favor of the Defendants correct?

Whether the cited amendments to the depositions of [Hoy's] experts are properly before this court?

FACTS

[¶3] Hoy filed a complaint alleging that the Defendants' negligent acts had caused the leach field² that serviced his mobile home park to fail.³ Hoy alleged that while the Defendants were trenching a waterline on adjacent property, they accidentally breached the leach field. In attempting to repair that damage, the Defendants enlisted the services of a vacuum truck from Paintbrush Sanitation. The truck was driven onto the fragile leach field where it became mired. The Defendants then used heavy equipment on the leach field to assist in the removal of the vacuum truck. Once the truck was free, the Defendants used it to vacuum out large quantities of water from the field flowing from the breach. Hoy also theorized that the location of the waterline resulted in a "damming effect" whereby water from the leach field was prevented from flowing out of the leach field causing the water table to rise. These actions, Hoy alleged, caused the leach field to fail and become unusable.

[¶4] Hoy designated two professional engineers, Steven M. Bruce (Bruce) and Gerald Williams (Williams), as expert witnesses, each of whom had experience designing, constructing, and maintaining leach fields. In his designation of experts, Hoy indicated that each expert's testimony and opinion would be in accord with reports that they had produced. In his report, Bruce offered the following:

My conclusion is that the leach field soil system is relatively old, it was however operating well and it is difficult to predict how much life it had left. Leach fields tend to fail, or plug slowly. I believe that it is too much of a coincidence that the system suddenly failed naturally while the construction was being performed adjacent to and on the surface of the facility. While I do not have any direct scientific evidence, I believe that the disturbance caused by heavy equipment could have slightly changed the soil structure and water table in the immediate area causing the system to fail.

In his deposition, Bruce explained the basis for his opinion. Bruce testified that heavy equipment should never be driven over a leach field because the weight and vibration from the machinery will compact the soil. He noted that the soil in a leach field tends to compact easier because it is wet, and as it compacts, it loses its ability to absorb water from the septic tank, which could cause the water table to rise and the field to fail. Bruce also testified that the vacuuming of water from the trench after the Defendants breached the leach field could have caused the field to fail. He opined that the sudden dewatering of the field could have adversely affected the structure of the soil by impairing its ability to absorb water. Bruce personally inspected the soils taken from the leach field after it had failed and testified that he saw no evidence in those samples indicating that the field was failing naturally. Bruce testified that his opinion was based upon his personal knowledge of leach field operations, his personal observation of the damage to the surface of the leach field from the Defendants' equipment, and the application of basic theories of hydrology, soil mechanics, and structure. He conceded that he did not run any tests on the soil or the water in the leach field or review any scientific literature on leach field failure or consult with any other experts. Bruce admitted that his opinion was only a theory based on experience and that he had no direct scientific evidence to support it. He also admitted that his theory was predicated on Hoy's representations that the field had not experienced any operating problems until after the Defendants' actions. Further, he acknowledged that he could not rule out other possible causes for the leach field's failure, including natural fluctuations in the ground water level or nearby coal bed methane mining activity.

[¶5] Expert witness Williams set forth the following in his report:

The field has operated with no problems for 24 years. Suddenly, after the encroachment into the field, the subsequent equipment being placed on the field and the construction of the water line near the southern edge of the property, the field fails.

There are several possible reasons for this failure:

1) When the field was disturbed on the SE edge and the vac truck subsequently drained the field to facilitate the repairs, the loss of hydraulic pressure may have allowed settlement to occurre [sic]. This would account for the depressions in the field surface which were not attributed to the equipment.

2) The placement of heavy equipment on the field may have damaged the leach field pipes and the damage was not evident in the one small area exposed for observation.

3) The construction of the water line near the south edge of the field may have created a damming effect and caused the water table to rise into the field. The leach field surface slopes down to the SW corner and the ground water table would generally slope this way as well.

4) The water table naturally fluctuated and rose to the field level.

5) The soils in the field area have become clogged and can no longer handle the flow of the sewage water. Based on CER's test results, we do not believe this is the case.

6) Another outside influence, not considered in this report, caused the water to rise.

It is my opinion that the water table at its current level has caused the leach field to fail. The encroachment into the SE corner of the leach field by the back hoe and the presence of equipment on the field in conjunction with the placement of the water line has led to the diminished capacity of the leach field. With out [sic] historic water table levels it is impossible to verify this opinion, but the fact the field has worked well for an extended period of time gives a strong indication that this opinion is correct. Additionally when Phil Hoy exposed the leach field infiltrator pipe in 4 locations, the exposed soil did not appear to be in a failure mode.

Like Bruce, Williams gave further details about the basis of his opinion during the course of his deposition. Williams opined that all three incidents — driving heavy equipment on the leach field, breaching the field with a trench, and vacuuming the water out and constructing the waterline in a location that caused a "damming" effect on the field — were contributing factors to the leach field's failure. Williams based his opinions upon Hoy's representations that the field was working normally before the Defendants' actions and only showed evidence of failure thereafter. Those representations were the "linchpin" of Williams' opinions. Williams admitted that his opinions were not verifiable largely because he did not have access to any baseline or pre-failure data for the soil conditions and water table levels. Without any baseline data, Williams testified that he had to make certain assumptions. Williams indicated that his opinion was basically common sense. Williams declared that it was within a reasonable degree of engineering certainty that the Defendants' actions caused the leach field to fail. Yet, Williams also acknowledged that he could not scientifically rule out other causes for the field's failure including natural ground water fluctuations, flaws in the leach field's design, degradation of the soil's ability to absorb water, or nearby methane gas development. Ultimately, Williams could not give any probabilities for the potential causes of the leach field's failure.

[¶6] With respect to the specific acts of the Defendants, Williams testified that driving heavy equipment over a leach field may cause soil compression and alter the "geotechnical capacity of the soil." Williams believed that is what happened here. Williams noted that the compression of soil depends upon its moisture content, and he assumed that at the time of the incident, the soil was "fairly" moist. He admitted that he had no knowledge of the soil condition at the time the trucks and equipment went onto the leach field, and that he could only make...