Banks v. United States

75 Fed. Cl. 294, 2007 U.S. Claims LEXIS 30, 2007 WL 474027
CourtUnited States Court of Federal Claims
DecidedFebruary 12, 2007
DocketNos. 99-4451 L, c/w 99-4453L to 99-44512L, 00-365L, 00-379L to 00-396L, 00-398L to 00-401L, 04-277L, 05-1353L, 05-1381L, 06-72L
StatusPublished
Cited by14 cases

This text of 75 Fed. Cl. 294 (Banks v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Banks v. United States, 75 Fed. Cl. 294, 2007 U.S. Claims LEXIS 30, 2007 WL 474027 (uscfc 2007).

Opinion

ORDER

HEWITT, Judge.

Before the court are plaintiffs’ Rule 26(a)(2)(B) Motion to Strike Dr. Robert B. Nairn’s ... Expert Report (Pis.’ Mot. or motion), defendant’s Response to Plaintiffs’ Motion to Strike Dr. Robert B. Nairn’s Expert Report (Def.’s Resp. or response), and plaintiffs’ Reply in the Matter of Their Mo[296]*296tion to Strike Dr. Robert B. Nairn’s Report (Pis.’ Reply or reply). The court also requested and received briefing concerning a listing of the missing information that defendant planned to provide to plaintiffs and plaintiffs’ legal arguments for their motion, see Order of January 10, 2007: plaintiffs’ 2[ ]d Reply in the Matter of Their Motion to Strike Dr. Robert B. Nairn’s Report (Pis.’ 2d Reply or 2d reply), defendant’s Response to Order Filed January 10, 2007 (Def.’s List), plaintiffs’ Response to Defendant’s January 16, 2007 Filing (Pis.’ Resp. or response), and defendant’s Response to Plaintiffs’ Second Reply to Defendant’s Opposition to Motion to Strike Dr. Nairn’s Expert Report (Def.’s 2d Resp. or 2d response). The court held an oral argument on the motion on January 19, 2007. For the reasons stated below, plaintiffs’ motion is DENIED.

I. Background

Plaintiffs are several dozen owners of property in Michigan “along a four and one-half mile stretch of the eastern shoreline of Lake Michigan south of St. Joseph’s Harbor.” Banks v. United States, 314 F.3d 1304, 1306 (Fed.Cir.2003) (Banks II). Plaintiffs allege that the United States Army Corps of Engineers (Corps), by its construction and maintenance of certain jetties at St. Joseph Harbor, “ha[s] interfered with the natural littoral flow of sand and river sediment and caused damage to the lakebed,” which has effected “ ‘a gradual and continued taking’ ” of plaintiffs’ shoreline property. Id.

The activities of the Corps affecting St. Joseph Harbor and shoreline began in the 1830s. Id. In 1903, the Corps completed construction of the St. Joseph Harbor jetties. Id. “Between 1950 and 1989, the Corps installed sandtight steel sheet piling to the jetties.” Id. The parties agree that the harbor jetties exacerbate the naturally occurring erosion of the shorelines along the Great Lakes. Id. In particular, the jetties in St. Joseph Harbor have “ ‘significantly increased the annual rate of shoreline erosion,’ which, without human intervention, occurs naturally at a rate of approximately one foot per year.” Id. (quoting Banks v. United States, 49 Fed.Cl. 806, 815-16, 818 (2001) (Banks I)). Since the mid-1970s, the Corps has “ ‘acknowledged the longstanding and significant exacerbation of erosion caused by its harbor jetties.’ ” Id. (quoting Banks I, 49 Fed.Cl. at 817).

Pursuant to Section 111 of the River and Harbor Act of 1968, 90 Pub.L. No. 90-483, 82 Stat. 731, 735 (1970),1 the Corps prepared a proposal in 1974 to mitigate the shoreline erosion attributable to the jetties in St. Joseph Harbor. Banks II, 314 F.3d at 1306. The Corps’ mitigation efforts included: (1) more than fifteen years of providing fine sand for “feeder beaches ‘to nourish the areas suffering shore damage,’ ” id., (2) depositing coarser sediments with longer retention time on the St. Joseph shoreline at least five times between 1986 and 1993, see id., and (3) “placing barge-loads of large rocks into the lake in 1995,” id. at 1307. Three technical reports prepared by the Corps and issued in 1996, 1997, and 1999 respectively addressed the progress of the Corps’ mitigation efforts in St. Joseph and “collectively indicate[d] that the [shoreline] erosion was permanent and irreversible.” Id. at 1307.

On appeal of a determination that plaintiffs’ claims were time-barred, the Federal Circuit found that “[w]ith the mitigation efforts underway, the accrual of plaintiffs’ claims remained uncertain until the Corps’ 1996 Report, 1997 Report and 1999 Report collectively indicated ... the permanence of the [shoreline erosion].” Id. at 1310. Accordingly, the Court of Appeals concluded that, because “[t]he statute of limitations did not begin to run until the Corps issued the 1996, 1997, and 1999 Reports[,] ... plaintiffs[’] ... complaints ... [were] timely.” Id. (reversing the trial court’s decision in Banks I, 49 Fed.Cl. at 825, that the plaintiffs’ claims accrued no later than 1989).

The case is now being prepared for trial of liability. Plaintiffs move the court to strike [297]*297the report prepared by one of defendant’s experts, Dr. Robert B. Nairn. See Pis.’ Mot. I. Plaintiffs claim that Dr. Nairn’s report should be struck from the record because: 1) his model equations and parametric input have not been made known to plaintiffs; 2) various factors may not have been considered by Dr. Nairn, or may have been improperly considered; 3) Dr. Nairn is not a lawyer and may not interpret Section 111 of the River and Harbor Act of 1968; and 4) Dr. Nairn, who is not a geologist, improperly incorporated geology into his report. Pis.’ Mot. 1-2. Defendant argues that plaintiffs’ motion should be denied because: 1) Dr. Nairn is qualified to offer expert opinions on the erosion and mitigation issues in the case; 2) the report and opinions formed by Dr. Nairn are based on reliable methodologies; and 3) excluding the report would contravene rule 702 of the Federal Rules of Evidence (FRE) and related case law. Def.’s Resp. 1. Defendant also states that Dr. Nairn’s failure to disclose some of the data he used for his computer models “was an honest mistake” and one that “the United States has been attempting to rectify.” Id. For the following reasons, plaintiffs’ motion is DENIED.

II. Standards of Review

FRE 702, governing the admissibility of expert testimony, states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if 1) the testimony is based upon sufficient facts or data, 2) the testimony is the product of reliable principles and methods, and 3) the witness has applied the principles and methods reliably to the facts of the case.

Fed.R.Evid. 702 (2004). The Supreme Court has held that the trial court acts as a “gatekeeper” under FRE 702 to “ ‘ensur[e] that an expert’s testimony both rests on a rehable foundation and is relevant to the task at hand.’ ” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (Kumho Tire) (quoting Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)).

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Cite This Page — Counsel Stack

Bluebook (online)
75 Fed. Cl. 294, 2007 U.S. Claims LEXIS 30, 2007 WL 474027, Counsel Stack Legal Research, https://law.counselstack.com/opinion/banks-v-united-states-uscfc-2007.