Navelski v. Int'l Paper Co., Case No. 3:14cv445/MCR/CJK

• Citation: 244 F.Supp.3d 1275
• Decision Date: 25 March 2017
• Docket Number: Case No. 3:14cv445/MCR/CJK
• Parties: John NAVELSKI, et al., Plaintiffs, v. INTERNATIONAL PAPER COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Florida

244 F.Supp.3d 1275

John NAVELSKI, et al., Plaintiffs,

v.INTERNATIONAL PAPER COMPANY, Defendant.

Case No. 3:14cv445/MCR/CJK

United States District Court, N.D. Florida.

Signed March 25, 2017

Christopher M. Vlachos, Christopher M. Vlachos PLLC, Jeremiah Joseph Talbott, Tyler Lee Gray, Law Offices of Jeremiah J. Talbott PA, Pensacola, FL, James L. Kauffman, Bailey & Glasser LLP, Washington, DC, Jonathan Rehe Marshall, Bailey & Glasser LLP, Charleston, WV, for Plaintiff.

Thomas Larry Hill, George Roderick Mead, II, Kimberly Speer Sullivan, Charles Franklin Beall, Jr., Moore Hill & Westmoreland PA, Pensacola, FL, for Defendant.

ORDER

M. CASEY RODGERS, CHIEF UNITED STATES DISTRICT JUDGE

This matter is before the Court on five motions: (1) Plaintiffs' Motion for Class Certification, ECF No. 61; (2) Defendant's Motion to Exclude Expert Testimony from Tom Fruitticher, MAI, ECF No. 77; (3) Defendant's Motion to Exclude Expert Testimony from Mark Ross, Ph.D., P.E., ECF No. 78; (4) Plaintiffs' Motion to Limit or Exclude Expert Testimony of Richard J. Roddewig, ECF No. 80; and (5) Defendant's Motion for Summary Judgment, ECF No. 81. The Court's rulings are set forth below.

I. Background

A heavy, slow-moving rainstorm entered Escambia County, Florida on the afternoon of April 29, 2014, where it remained through the early hours of April 30, 2014. The events that led to this litigation occurred during the course of this extraordinary storm, when the Elevenmile Creek overflowed its banks and approximately 160 homes in the Bristol Park, Bristol Woods, Bristol Creek, and Ashbury Hills subdivisions of Cantonment, Florida were flooded. The Elevenmile Creek is a 13–mile stream located within the Elevenmile Creek watershed in Escambia County. The watershed has a 47.97–square-mile drainage area that reaches from Cantonment to Perdido Bay, Florida. Defendant International Paper Company, a New York corporation, owns and operates a paper mill in Cantonment. The Elevenmile Creek runs through Defendant's property. Prior to 2012, the paper mill's wastewater was filtered through various holding ponds on Defendant's property and then discharged into the Elevenmile Creek through the Kingsfield Road Dam, which was also located on Defendant's property.¹ In 2012, Defendant stopped using the Dam to discharge wastewater and, instead, began moving it by pipeline to the wetlands above Perdido Bay. The Dam, however, remained in place and continued to impound storm water runoff from Defendant's property. It is undisputed that, during the subject storm, the Dam collapsed, discharging the stormwater impounded behind it into the Elevenmile Creek.

Plaintiffs are current and former property owners in the Bristol Park, Bristol Woods, Bristol Creek, and Ashbury Hills subdivisions. Their properties are situated along the Elevenmile Creek, approximately two miles downstream from Defendant's paper mill and the Dam.² Plaintiffs allege that the flooding they experienced was caused or made more severe by the collapse of the Dam, which they claim resulted from Defendant's failure to properly maintain or remove it.

Plaintiffs filed this action against Defendant in the Circuit Court of Escambia County, Florida on May 13, 2014. ECF No. 1–1. On September 2, 2014, Defendants removed the action to this Court under the Class Action Fairness Act and diversity jurisdiction. See ECF No. 1. In their First Amended Complaint, Plaintiffs assert claims for negligence, trespass, nuisance, and strict liability. ECF No. 38. Plaintiffs now move for class certification, ECF No. 61, which Defendant opposes, ECF No. 65.

Both the motion and the response in opposition are supported by expert testimony. Each side challenges the other's experts as unreliable and those motions are also pending. ECF Nos. 77, 78, 80. Finally, Defendant has moved for summary judgment. ECF No. 81. The Court held a three–day evidentiary hearing on all motions.³ Now, having fully considered the law, the voluminous record, and the arguments of the parties, the Court rules as follows.

II. Expert Challenges

In support of their motion for class certification, Plaintiffs have proffered Dr. Mark A. Ross as an expert on the cause of the flooding in the subject neighborhoods. Plaintiffs have also proffered Tom Fruitticher as an expert on damages. Defendant has proffered Richard J. Roddewig as an expert to rebut Fruitticher's opinions. Each side now moves to exclude the other's expert testimony under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Because this expert testimony is challenged as unreliable and is also critical to class certification, the Court must perform a full Daubert analysis before resolving the class certification motion.⁴ See Sher v. Raytheon Co. , 419 Fed.Appx. 887, 890 (11th Cir. 2011) (quoting Am. Honda Motor Co. v. Allen , 600 F.3d 813, 815–16 (7th Cir. 2010) (per curiam)). For the reasons that follow, the Court finds that the expert testimony of both Dr. Ross and Roddewig is admissible; however, Fruitticher's testimony must be excluded.

A. Legal Standard

Rule 702,⁵ as explained by Daubert and its progeny, governs the admissibility of expert testimony. Rink v. Cheminova, Inc. , 400 F.3d 1286, 1291 (11th Cir. 2005). Under Rule 702 and Daubert , district courts are compelled to act as "gatekeepers" to ensure the reliability and relevancy of expert testimony. Id. (quoting Daubert , 509 U.S. at 589, 113 S.Ct. 2786 ). Expert testimony is reliable and relevant—and, therefore, admissible—when the following criteria are met: (1) the expert is sufficiently qualified to testify about the matters he intends to address; (2) the methodology used is "sufficiently reliable as determined by the sort of inquiry mandated in Daubert ; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue." Id. The Eleventh Circuit refers to these criteria separately as "qualification, reliability, and helpfulness," United States v. Frazier , 387 F.3d 1244, 1260 (11th Cir. 2004), and has emphasized that they are "distinct concepts that courts and litigants must take care not to conflate," Quiet Tech. DC–8, Inc. v. Hurel–Dubois UK Ltd. , 326 F.3d 1333, 1341 (11th Cir. 2003). The party offering the expert has the burden of showing, by a preponderance of the evidence, that each of these requirements is met. Rink , 400 F.3d at 1292.

To meet the qualification requirement, a party must show that its expert has sufficient "knowledge, skill, experience, training, or education" to form a reliable opinion about an issue that is before the court. Hendrix ex rel. G.P. v. Evenflo Co., Inc. , 609 F.3d 1183, 1193 (11th Cir. 2010) (citing Fed. R. Evid. 702 ) (" Hendrix II "). The qualifications standard for expert testimony is "not stringent" and "[s]o long as the witness is minimally qualified, objections to the level of [his] expertise [go] to credibility and weight, not admissibility." Hendrix v. Evenflo Co., Inc. , 255 F.R.D. 568, 585 (N.D. Fla. 2009) (" Hendrix I ").

To meet the reliability requirement, an expert's opinion must be based on scientifically valid principles, reasoning, and methodology that are properly applied to the facts at issue. Frazier , 387 F.3d at 1261–62. The reliability analysis is guided by several factors: (1) whether the scientific technique can be or has been tested; (2) whether the theory or technique has been subjected to peer review or publication; (3) whether the technique has a known or knowable rate of error; and (4) whether the technique is generally accepted in the relevant community. Daubert , 509 U.S. at 593–94, 113 S.Ct. 2786. "[T]hese factors do not exhaust the universe of considerations that may bear on the reliability of a given expert opinion, and a federal court should consider any additional factors that may advance its Rule 702 analysis." Quiet Tech. , 326 F.3d at 1341. The court's focus must be on the expert's principles and methodology, not the conclusions they generate. Daubert , 509 U.S. at 595, 113 S.Ct. 2786. The test for reliability is "flexible" and courts have "broad latitude" in determining both how and whether this requirement is met.

Kumho Tire Co., Ltd. v. Carmichael , 526 U.S. 137, 141–42, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).

Finally, to satisfy the helpfulness requirement, expert testimony must be relevant to an issue in the case and offer insights "beyond the understanding and experience of the average citizen." United States v. Rouco , 765 F.2d 983, 995 (11th Cir. 1985). Relevant expert testimony "logically advances a material aspect of the proposing party's case" and "fits" the disputed facts. McDowell v. Brown , 392 F.3d 1283, 1298–99 (11th Cir. 2004). Expert testimony does not "fit" when there is "too great an analytical gap" between the facts and the proffered opinion. Gen. Elec. Co. v. Joiner , 522 U.S. 136, 147, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). When scrutinizing the reliability and relevance of expert testimony, a court must remain mindful of the delicate balance between its role as a gatekeeper and the jury's role as the ultimate factfinder. Frazier , 387 F.3d at 1272. The court's gatekeeping role "is not intended to supplant the adversary system or the role of the jury." Allison v. McGhan Med. Corp. , 184 F.3d 1300, 1312 (11th Cir. 1999). Only the jury may determine "where the truth in any case lies" and the court "may not usurp this function." Frazier , 387 F.3d at 1272. Thus, a court may not "evaluate the credibility of opposing experts" or the persuasiveness of their conclusions, Quiet Tech. , 326 F.3d at 1341 ; instead, its duty is limited to "ensur[ing] that the fact-finder weighs only sound and reliable evidence," Frazier , 387 F.3d at 1272.

B. Dr. Mark A. Ross

Plaintiffs have proffered the expert testimony of Mark A. Ross, Ph.D., P.E.⁶ ("Dr. Ross"), a civil engineer...