ROBERT C. CHAMBERS, Chief District Judge.
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 Tri-State 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.
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:
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 under Rule 401(b), and therefore evidence is not admissible to prove these facts.
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 1988.
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 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.
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 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." 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.
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.
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.
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.
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.
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:
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 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.
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.
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 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.
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 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.
For the reasons and to the extent explained above, the Court
The Court
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.
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 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.
Weaver Supplemental Report at 5.
Potesta Report, at 9-10; see also id. at 11, ¶ 7.
Pl.'s Resp., at 4 (citations omitted).
