Adler v. Elk Glenn, LLC

986 F. Supp. 2d 851, 2013 WL 6385296
CourtDistrict Court, E.D. Kentucky
DecidedDecember 6, 2013
DocketCivil No. 12-85-ART
StatusPublished
Cited by9 cases

This text of 986 F. Supp. 2d 851 (Adler v. Elk Glenn, LLC) is published on Counsel Stack Legal Research, covering District Court, E.D. Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adler v. Elk Glenn, LLC, 986 F. Supp. 2d 851, 2013 WL 6385296 (E.D. Ky. 2013).

Opinion

MEMORANDUM OPINION & ORDER

AMUL R. THAPAR, District Judge.

A good expert witness can make all the difference at trial. Drawing on knowledge and experience far beyond that of the average juror, attorney, or judge, expert witnesses serve as guides through thickets of otherwise impenetrable data and bring scientific and technical rigor to judicial proceedings. But not just any person qualifies as an expert witness, and even the most knowledgeable and experienced of witnesses may make mistakes. The Court, as the gatekeeper in judicial proceedings, therefore stands ready to bar the admission of junk science and flawed analysis. In this case, however, the Court need not exercise its authority, since the expert witnesses retained by the parties have offered admissible testimony under Federal Rules of Evidence 702 and 703 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

[854]*854BACKGROUND

Dr. Richard Adler, a physician, moved to eastern Kentucky in 2009 with the admirable aim of providing medical care to the region’s low-income residents. R. 5 at 3. After struggling to find a suitable home, he decided to build one for himself in a new development, the Meadow Subdivision, owned by defendant Elk Glenn, LLC. Id. at 4. Like many housing developments in the area, the Meadow Subdivision stands upon fiat land reclaimed from a surface mining operation in the 1990s. See id. Adler and Elk Glenn negotiated a deal in 2010 for Lot 20, a parcel of land in the subdivision, and later that year Adler contracted with defendant Ricky Robinson Construction, Inc. (“Ricky Robinson”) to build a residence on the lot. Id. at 4-5. Adler moved into the house in May 2011. Id. at 6. Life moved along until August 2011, when a landscaper working on Adler’s property discovered cracks in the house’s brick veneer. Id. Adler alleges that these cracks have worsened over time, and he points to a host of new problems that have recently appeared. Id. at 7. He attributes the damage to the fact that his house is situated on dozens of feet of mine spoil, the material used to fill mine cavities after excavation. Id. at 7-8. Mine spoil is prone to a problem called differential settlement, which occurs when the materials beneath a house settle unevenly. In Adler’s opinion, as the mine spoil under Lot 20 gradually settles over time, his house will slowly fall apart. Id. at 8-9.

Displeased with this prospect, Adler sued Elk Glenn and Ricky Robinson on a variety of contractual and tort grounds. The parties all retained multiple experts, and they moved to exclude certain of their adversaries’ expert witnesses pursuant to Rules 702 and 703 and Daubert. R. 74; R. 80; R. 82. For the reasons described below, the Court will deny these motions.

DISCUSSION

When a party challenges an opponent’s expert witness, the Court assumes the role of a gatekeeper to ensure the reliability and relevance of the expert’s testimony. See Daubert, 509 U.S. at 597, 113 S.Ct. 2786; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (applying the Daubert inquiry to non-scientific testimony). Rule 702 guides the Court through this inquiry. Rule 702 specifies, first, that an expert must be qualified to testify through knowledge, skill, experience, training, or education. Fed.R.Evid. 702. A qualified expert may then testify so long as his opinions will aid the fact finder and are reliable, meaning they stand on sufficient data, reliable methods, and the facts of the case. Fed.R.Evid. 702(a)-(d); see In re Scrap Metal Antitrust Litig., 527 F.3d 517, 529 (6th Cir.2008). The Supreme Court in Daubert provided a list of factors for trial courts to consider as they evaluate the reliability of scientific testimony. See In re Scrap Metal, 527 F.3d at 529. These factors are nonexclusive, however, and a district court has “considerable leeway” in making its determination under Rule 702 and Daubert. See Meridia Prods. Liab. Litig. v. Abbott Labs., 447 F.3d 861, 868 (6th Cir.2006) (quoting Kumho Tire Co., 526 U.S. at 152, 119 S.Ct. 1167). The proponent of the testimony must establish its admissibility by a preponderance of the evidence. Nelson v. Tenn. Gas Pipeline Co., 243 F.3d 244, 251 (6th Cir.2001).

A hearing to decide these issues is unnecessary in this case. Under normal circumstances, a district court may resolve a Daubert motion without holding a hearing. Nelson, 243 F.3d at 249. A hearing is required only if the record is inadequate to decide the motion. See Jahn v. Equine Servs., PSC, 233 F.3d 382, 393 (6th Cir. [855]*8552000). In this case, the parties fully briefed the admissibility of the various challenged experts’ testimony under Daubert. Cf Nelson, 243 F.3d at 249; Barnette v. Grizzly Processing, LLC, No. 10-cv-77, 2012 WL 293305, at *2 (E.D.Ky. Jan. 31, 2012). Moreover, the parties agree that their briefs provide sufficient guidance to the Court and have asked the Court to resolve these motions without a hearing. R. 74 at 2; R. 80-2 at 3; R. 82 at 1; R. 86 at 2. The Court concurs that a Daubert hearing is unnecessary.

I. Joseph Cooke’s Testimony Is Reliable and Therefore Admissible

Geotechnical engineer Joseph Cooke, hired by Adler as an expert witness, testified in a deposition that the differential settlement of the mine spoil under Lot 20’s surface caused damage to Adler’s home and that Adler could expect further subsurface movement and damage in the future. R. 67-3 at 2. Both Elk Glenn and Ricky Robinson challenge the reliability of Adler’s conclusions. R. 74; R. 82. Because the Court cannot quarrel with Cooke’s methodology or the reliability of its application, the Court must deny these motions, with one minor exception.

How did Cooke arrive at his opinion that differential settlement had likely damaged Adler’s house and might continue to do so for years? To determine the depth and mineral composition of the mine spoil atop which Adler’s house stands, Cooke consulted mine maps and websites, United States Geological Survey maps, topographic maps, excavated material, and rock strata visible in nearby areas. See R. 67 at 24, 55-57. He also relied on his extensive experience with mine spoil to figure out the likely distribution of materials within the fill beneath the house. That is, he deemed it probable that the mine spoil under Lot 20’s surface comprised a mixture of boulders, cobbles, gravel, sand, and clay. R. 67 at 65.

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