Paulus v. Citicorp N. Am., Inc.
| Decision Date | 12 September 2014 |
| Docket Number | Case No. 2:12-cv-856 |
| Parties | KURT PAULUS, et al., Plaintiffs, v. CITICORP NORTH AMERICA, INC., et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
OPINION AND ORDER
This case is before the Court on cross motions for summary judgment (Docs. 46, 47) and Defendants' Daubert motion to exclude the opinions, affidavits, and testimony of Plaintiff's expert (Doc. 45). For the reasons that follow, Defendants' motion to exclude (Doc. 45) is DENIED in part and GRANTED in part, Plaintiffs' motion for summary judgment is DENIED, and Defendants' motion for summary judgment is GRANTED in part and DENIED in part.
The Plaintiffs, Kurt and Janene Paulus, own a house on a large parcel of land in Liberty Township, Ohio. (Doc. 32, 2d. Amend. Compl. at ¶ 3). Though their parcel and those around it are zoned residential, they abut a commercial/industrial district. (Doc. 46, Ex. E, Konieczynski Aff. at ¶ 5); see also Liberty Twp., Official Zoning Dist. Map (Feb. 5, 2014), http://www.libertytwp.org/Downloads/Zoning%20District%20Map%20Feb%205%2020l4.pdf. In 2006-2007, within the commercial/industrial district, Defendants, Citicorp North America,Inc., and related companies (collectively, "Citi" or "Defendants"), built a data center. (Doc. 43, Ex. 1, Butler Depo. at 21:20-23:9).
This data center is a large facility that houses computer banks and other technology necessary to operate Citi's businesses worldwide. (Doc. 37, Answer at ¶ 1; Doc. 46, D. Mot. for SMJ at 1-21). Though there are other data centers, this center is vital to keeping Citi's business operating smoothly. (Doc. 43, Ex.1, Butler Depo. at 105:21-106:1). Consequently, Citi has taken measures in constructing the data center to ensure that it never goes offline or experiences other power-related problems.
The data center is connected to the power grid through its own power-substation. (Doc. 43, Ex. 1, Butler Depo. at 40:14-41:5). It also has battery backups - good for approximately 10 minutes of operation at full power. Id. at 119:16-119:22. In addition to these sources of power, the facility contains a total of eight diesel generators (four engines per bank, north and south) capable of powering the entire 7-megawatt2 building off-grid. Id. at 95:2-95:7, 165:19-165:2], 193:1-193:3. In fact, each of the eight generators has a maximum load of two megawatts and the set has a total capability, therefore, of 16 megawatts. Id. at 193:1-193:3. The generators, when operating, are quite loud and this lawsuit revolves around whether the noise they produce, which emanates from Citi's property and is audible on neighboring properties, constitutes a nuisance. .
In aid of determining whether the noise produced by the data center constitutes a nuisance, each side has hired an expert on sound. Plaintiff's expert is Richard James. James is a mechanical engineer with a degree from the General Motors Institute (now Kettering University)in the field of Noise Control Engineering. (Doc. 46, Ex. N, James Resume at 13). From 1970 until founding his current company, E-Coustic Solutions, in 2006, James was a consultant and scientist primarily for the automotive industry. Id. He worked with companies such as GM, Ford, Goodyear, and Chrysler, helping them evaluate actual and potential noise emissions and develop noise mitigation strategies. Id. at 1-3. In addition, since 1985, James has been an adjunct instructor at Michigan State University and, since 2012, has been an adjunct professor at Central Michigan University. Id. at 2-3. James has authored numerous papers on sound produced by various commercial activities and its effects in humans. In recent years, these have focused on wind turbine technology. He has also published on personal listening devices, risks of sound exposure, power press noise control, and computer-assisted acoustical engineering techniques. Id. at 1-3. James has never published a paper on generator noise control specifically. He explained in deposition that in his former employment with GM, he could not comment about the problems related to his employer's line of work. (Doc. 43, Ex. 5, James Depo. at 80:1-80:8). James considers himself an expert on noise mitigation, even with respect to generators specifically, and has, in his career, designed noise attenuation systems for generators. Id. at 80:1-81:25.
Defendants' expert is Kenric Van Wyk and, as his qualifications have not been challenged, the Court will forego all but a brief recitation of his curriculum vitae in this Opinion. Van Wyk, like James, possesses a mechanical engineering degree. (Doc. 46, Ex. J, Van Wyk Rpt. at 18). He holds a Masters in the subject from Purdue University and a Bachelors from Calvin College. Id. He has a number of certifications and memberships relating to engineering and noise control. Id.
Both experts studied the noise at issue in this case.
James tested the sound on August 1, 2013, at two locations on the Pauluses' property; in the master bedroom by the head of the bed next to the window and on the Southeast comer of the outdoor patio. (Doc. 44, Ex. 1, James Rpt. at 2-4). On August 1, according to James, the Paulus residence was neither upwind nor downwind of the data center. Id. at 5. If the wind were to come from the Southeast and the Pauluses were, therefore, downwind of the data center, the noise would likely be higher by 6 dBA or more. Id. If the wind were to come from the Northwest and the Pauluses were, therefore, upwind of the data center, the noise would likely be lower (though by how much, James does not report). Id.
On the patio, the background sound level (or ambient sound level) was approximately 36 dBA. Id. at 6. Citi, at James' direction, ran different generators in a number of different configurations between the north and south banks including all eight at once. The result of this was a low reading of 44 dBA and high of 50 dBA on the outdoor patio. Id. In the master bedroom with the windows open, the ambient noise levels were below 30 dBA. Id. With the generators running in a variety of configurations, the sound levels ranged from 42 dBA to 45 dBA. Id. In the master bedroom with the windows closed, the ambient sound levels were 20 to 23 dBA. Id. at 6-7. With the generators running, the sound levels ranged from 23 dBA to 35 dBA. Id. As insects began to chirp in the time between the patio and bedroom tests, the bedroom tests have had insect sounds artificially removed. Id. Thus, were insect noise included, both ambient and generator measurements would be higher.
James noted that the sound from the generators was low frequency (deep sounding). Id. at 7-8. The insect noise and ambient sounds are not low frequency, making them ineffective in masking the generator noise. Id. at 8-9. Moreover, low frequency sound penetrates solids (likewindows and walls) better than does high-frequency sound. Id. at 9. Thus, closing the windows, while it does reduce the overall noise somewhat, reduces the ambient noises more than the deep generator noise and thus can have the effect of making the generator noise more noticeable against the ambient background sounds. Id. In addition, though Van Wyk, rather than James, explained the matter, when low sounds are made, they are actually much more powerful sound waves than our human auditory senses might indicate:
When dealing with sound, there is the physical quantity which is expressed as sound level and the perceived level which is expressed as loudness. Sound level is measured in units called decibels (abbreviated dB). Decibels are power ratios and are logarithmic quantities. Audible sound occurs over a wide frequency range, from approximately 20 Hertz (Hz) to 20,000 Hz. Human hearing does not respond equally to sounds at different frequencies (or pitch). Lower frequency sounds that are equally as "loud" have a much higher decibel level than high frequency sounds. To accommodate this variation in frequency sensitivity of human hearing, a frequency weighting can be applied to sound level measurements. When the weighting is applied, the resulting sound level measurements are said to be "A-weighted" and the decibel level is abbreviated dBA.
(Doc. 46, Ex. J, Van Wyk Rpt. at 3). Thus, low sounds (like the generators) can be quite powerful - rattling windows and causing thrumming vibrations while contributing relatively little to the dBA measure.
Van Wyk produced two reports, a primary and a rebuttal. (Doc. 45, Exs. J & K). Between these two reports, Van Wyk measured generator and ambient noise on April 15, August 1,4 and September 16, 2013. Id. in passim. On the April 15 and August 1 occasions, Van Wyk measured noise under a variety of generator operation conditions at two locations - at the Southeast property line of the Pauluses' parcel, and at the tree line on the Northwest corner of the data center property. (Doc. 46, Ex. J, Van Wyk Rpt. at 9). For the September 16 tests, Van Wykmeasured noise (again under a variety of operating conditions) at approximately the same locations as James - on the Pauluses' patio and in their bedroom. He also, once again took measurements at the Southeast property line of the Pauluses' parcel. .
On April 15, 2013, the wind was from the South-Southeast; meaning that the Pauluses' home (which is Northwest of the data center) was downwind from the data center. . On August 1, 2013, according to Van Wyk's report, the wind was from the West-Southeast. Id. at 3. In Van Wyk's deposition, Counsel for Plaintiffs suggested that the wind was, instead, from the West-Northwest that day; meaning the Paulus residence would have been upwind of the data center. (Doc. 43, Ex. 10, Van Wyk Depo. at 107:14-108:19). If true, this would conflict with...
To continue reading
Request your trial